California Insider

The governor seems to be soft-pedaling his merit pay initiative lately, despite consistently robust polling numbers. Is this why?

The labor coalition opposing his measures and the California Teachers Assn. are circulating a legal analysis that says Schwarzenegger’s measure would inadvertently gut current provisions that prohibit school districts from hiring convicted felons, sex offenders, drug users or teachers who have yet to pass a minimum competency exam.

The merit pay proposal is a constitutional amendment. The proposed amendment says that “any employment decision shall be based solely on employee performance, as assessed annually, and on the needs of the school district and its pupils, as determined by the governing board of the school district…” It further defines “employment decision” to mean hiring, compensating, promoting, demoting, or terminating” an employee. This was meant to take seniority out of the equation.

But CTA lawyer Beverly Tucker says she believes that provision, because it would be in the constitution, would also supercede current statute that lays out minimum standards every district must follow in hiring and firing teachers. Those standards include not hiring certain convicted felons.

“It’s certainly possible that every district in the state could adopt policies that follow those minimum standards,” she told me. “But on the day after the election, they will have to make decisions based on the needs of the school district and its pupils. They are deregulating school district employment decisions.”

I’m no lawyer, but I think they have a point. When your proposal says “any employment decision” shall be based “solely” on certain factors, I’ve got to assume you mean what you say. Especially when you want to put that standard into the constitution. At a minimum, if this measure ever does make it to the ballot, the opponents would have a killer argument to use against it.