The Collegian Special Section - In Violation - Published May 10, 2024

IN VIOLATION

Delta College violates state law related to over scheduling of part-time faculty

Special Report

RECORDS SHOW CONTINUED SCHEDULING ISSUES

Despite two lawsuits and noted need for solutions, over-scheduling of adjunct professors went on for multiple years, with email correspondence indicating hires as late as Fall 2023

BY ANDREA RIVERA Sports Editor

Delta College violated a section of California law governing the maximum hours adjunct faculty can work before being considered full-time employees, resulting in the hiring of at least 10 full-time faculty since 2022. At least two lawsuits alleging violations were also been filed against the college since 2020.

The violations appear to be the result of a combination of administrative decisions, and errors in PeopleSoft, the enterprise resource planning (ERP) software used by the college, according to Collegian public records reporting.

The law at issue is California Education Code section 87482.5, which specifies temporary employees — particularly adjunct faculty — can work at most 67 percent the amount of hours that would be considered a full-time assignment for regular employees.

Because of that limit, the section is sometimes referred to as “the 67 percent rule.”

“I can confirm ... that we have hired 10 faculty because of the 67 percent rule since 2022,” said Director of Marketing and Communications Alex Breitler via email.

Since the violations Delta College has worked with the faculty union to clearly define hourly workload for adjuncts “to make the scheduling for those adjunct faculty counselors simpler and clearer … working with a company that specializes in data visualization to develop reports and timely data that will help deans in catching any future issues related to faculty loads,” said Breitler.

Counselors were not the only positions hired into.

Delta has also implemented new training for all of the deans regarding the 67 percent requirements adding an “improved visibility of data on faculty loads.”

The college’s Strategic Enrollment Management director now sends updates on any issues with faculty loads before schedules go live, and deans are required to fix any issues they are alerted to, according to Breitler. The current director of Strategic Enrollment Management is Christina Snedden.

Elizabeth Maloney, president of the San Joaquin Delta College Teachers’ Association (SJDCTA), said she was unable to comment on the specific violations.

“This situation is related to Education Code and I am unable to give any additional comments on this, as these are personnel matters,” she said.

Maloney, however, did say that efforts were underway to address the problems and prevent them in the future.

“The District has provided training to Deans regarding the law and how the 67 [percent] is calculated,” she said. “There are numerous part [sic] faculty positions being posted and the District is working with SJDCTA and Academic Senate to increase the part-time faculty pool … Multiple employees are reviewing loads.”

LAWSUITS FILED

At least two lawsuits have been filed against the college related to adjuncts being overworked in 2019 and

Two lawsuits were filed in relation to working adjunct faculty beyond part-time status. COLLEGIAN SCREENSHOTS FROM LAWSUITS

RECORDS REQUESTED

The Collegian requested multiple public records related to the alleged violations of the 67 percent rule in September 2023. After a long back-and-forth, the college began releasing records in April. Some of the records were redacted because it “is exempt from disclosure under the public records act, such as attorney-client privilege communications, or confidential personnel information,” according to Delta’s Director of Marketing and Communications.

Some of the requests remain outstanding as of press time.

2020. Neither lawsuit went to trial and both have been dismissed. Collegian obtained these lawsuits from the San Joaquin County Superior Court.

On Sept. 4, 2020, George Yagi filed suit alleging he was misclassified as a temporary employee in three different semesters — Spring 2017, Spring 2018 and Fall 2019, according to San Joaquin County Superior Court records. Yagi was hired as an adjunct history professor as of Aug. 17, 2016, according to board agendas.

Yagi’s lawsuit claims he worked more than the 67 percent limit, which would have classified him as a fulltime employee.

“During Spring 2017, Petitioner taught twelve (12)

traditional classroom units … During spring 2018, petitioner taught fifteen (15) traditional classroom units… During 2019, petitioner taught fifteen (15) traditional classroom units,” read Yagi’s petition.

Yagi eventually filed to dismiss his suit on Feb. 24, 2021. Board documents to not indicate any full-time hiring date for Yagi. He does not appear to teach any classes at Delta currently.

A lawsuit filed on Aug. 5, 2021, by Dana DeMercurio accused Delta College of assigning her a workload in violation of the 67 percent rule. DeMercurio was initially hired as a Communication Studies adjunct as of Jan. 18, 2017, according to board agendas.

“During the Fall 2019 semester, Petitioner taught (12) units of lecture … During the Spring 2020 semester, Petitioner taught (15) units of course,” read DeMercurio’s petition.

DeMercurio was hired full time at the May 3, 2022, meeting of the Board of Trustees. She filed to dismiss her lawsuit on May 19, 2022, according to San Joaquin County Superior Court records.

No information is available in court records over whether a settlement was reached in the case.

TECHNICAL SCHEDULING ERRORS

By the Fall 2020 semester, Delta staff were noting issues related to class load assignments in PeopleSoft, according to emails between multiple deans.

These errors do not appear to be directly connected to the overworking of adjunct faculty, but do show that Delta staff was made aware of the 67 percent rule and that, at the time, the ERP included guardrails to prevent overscheduling.

Records provided by Delta College list faculty names.

“In trying to change Lorraine Doria’s HIST 34(32502) at [Langston Hughes Academy] LHA to 15 weeks, I am getting an error that she is over the allowed load term … In trying to change Rex’s course for LHA to 15-weeks, I am getting an error that he’s over the allowed load for the term … Is there a trick to override this restriction and save the change … If you have steps on how to handle this, I’d love to learn how to do it in PeopleSoft,” said the Dean of Regional and Distance Education Vivie Sinou in emails sent to multiple deans at Delta College on Oct. 30, 2020.

Those deans were Daryl Arroyo, dean of Social Science, Education and Public Service; Sheli Ayers, then-dean of Communication and Languages; and Christopher Guptill, dean of Arts, Humanities and Multimedia.

Arroyo said he had assigned Doria four classes for the Spring 2021 semester, but he added that other issues were cropping up in assigning workload.

“I had one section as ‘not include’ for workload,” Arroyo wrote. “Thus, she had 4 classes assigned, but only 9 units of workload … the system is only allowing us to assign her 6 units. I don’t see any reason for this to be happening.”

Ayers also noticed problems in load calculations and alerted Snedden, the director of Strategic Enrollment Management.

Snedden then emailed the staff of her recalculations for the faculties workload and explained that all adjunct professors are “always limited to 66.67 [percent] load,ie.10 units, unless approval is given” and that PeopleSoft gives an error code specifically when an adjunct professor is exceeding that number and that it is not a glitch.

TENSIONS SIMMER AT BOARD MEETING

At a Board of Trustees meeting in 2022, faculty made public comments accusing the college of subverting fair hiring practices and ignoring public transparency in the process of hiring full-time faculty.

On May 3, 2022 professors Steven Graham, Lisa Perez, Daniel Fernandez and Nicole Sandoval all spoke against the hiring process.

All professors spoke of the district failing to follow proper hiring protocols to fill full-time positions and lack of transparency.

“Because the district violated Ed Code, the Communication Studies department is being forced to acquire a full-time faculty member that did not have to go through the hiring process to obtain this position. Faculty were completely removed from the hiring process, the person did not have to compete for this position, no rigor had to be proved, no equity practices were followed,” said Sandoval.

“Every policy and procedure needs to follow code and when mistakes are made systems need to be put in place to prevent future mistakes, this is very basic admin 101. So I don’t know how it’s possible we find ourselves in the same situation decade after decade.This is not the first time this has happened,” said Graham. Later in the meeting, when discussing the faculty hiring agenda item, Trustee Janet Rivera went on to ask questions to the board of “why did it happen, how did it happen, and what’s it gonna cost us?”

What is the California Public Records Act?

BY DYLAN JAEKEL Editor-in-Chief

Under the California Public Records Act in California, Californians have the right to request public records and information regarding public business.

“In 1968, the California Legislature enacted the California Public Records Act (CPRA) under Government Code (GC) section 7920.000. In its findings and declarations, mindful of the right of individuals' privacy, the Legislature declared it was the public’s right to access information concerning the people’s business,” notes the California Highway Patrol website.

Public records are written documentation that relate to public business. These records can include meeting minutes, reports, emails and other forms of written correspondence.

“As used in this division, ‘public records’ includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” notes the California Public Records Act.

These requests can be made for records related to public entities such as government agencies or public educational institutions.

Public records can be requested verbally via telephone or in written form via email or mail.

REQUEST PUBLIC RECORDS

For information about filing a California Public Records Act request, visit bit.ly/californiapublicrecordsact

“Requests can be made by anyone. They don't have to be in writing, but many entities do have an email or some other online option. It also helps to have a day and time it was submitted for the timelines. During regular business hours records are supposed to be open to inspection, but since the pandemic some entities have been limited those hours,” said general council for the California News Publishers Association (CNPA), Brittney Barsotti, in an email interview. Collegian is a campus member of the Calfornia Newspaper Publishers Association. An entity has 10 days to respond to a request, but this response only needs to be that the request has been received. A 14day extension can be made for larger or more complex requests.

“Then the entity responds with the applicable records or a reason why the request has been denied. Sometimes they will respond asking to narrow the request or say it is too voluminous. The entity does have the obligation to work with the requester. They also can only charge for reasonable costs of duplication and provide the records how they are kept. Most recent records are electronic to-

Superintendent/President Dr. Lisa Aguilera Lawrenson and Maloney clarified more about the violations. Lawrenson said she was not here when the violations occurred and that initially the hires presented were under CARES Act funding.

“I wasn’t here when this happened, so this is my understanding of it. … For the instructional design positions, those were originally budgeted for and hired using CARES [funds] initially … it was actually put into the college budget, that was my understanding … Those positions were hired as one-year temp positions,” said Lawrenson. “The issue when it comes to Ed Code is, you cannot hire positions for one-year temp unless you’re replacing somebody, but the positions did not exist yet. And therefore, those faculty members that were serving in those roles were going beyond the 67 percent and were basically working full time for an entire year which, according to Ed Code needs at that point, they have rights to a full-time position.”

The CARES Act is listed as a funding source for three faculty members hired at the May 3, 2022 board meeting, but not for DeMercurio, who was hired full time during the meeting and whose lawsuit against the district was active at the time.

day, so there should be not be a cost of duplication,” said Barsotti. If the entity that has received the request determines the records being requested are obtainable and able to be disclosed they will provide an estimated timeline to the requester for when they will receive those records.

“Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefore. If the agency determines that the request seeks disclosable public records, the agency shall also state the estimated date and time when the records will be made available,” notes the California Public Records Act.

Requests need to include the request’s subject, a description of requested records, dates pertaining to the records, names of individuals or agencies in the request, the requester’s contact information and additional information that may assist in locating the records.

“So, as I understand it, if we don’t hire these people, right now, these people are suing us?,” asked Rivera.

Maloney explained the hires were part of a settlement agreement, but also pushed back on claims that qualifications were not proven for the hires.

“This is part of a settlement agreement with the district, and has legal repercussions if we don’t continue to move forward … Three of these positions were hired for distance education and they all had interviews through distance education and did teaching demonstrations. Two of the people were hired and they exceeded the 67 percent rule, well they’ve all exceeded the 67 percent rule because they’ve all been hired wrong. But they were interviewed and gave teaching demonstrations … when they were hired for their adjunct positions.”

Maloney noted a need to circle back.

“We have some ideas, if you could give us like 90 days to where we committed [sic] to work on this over the summer … And, and to come up with multiple ways, so we have checks and balances,” said Maloney at the meeting.

Board of Trustees President Dr. Charles Jennings

agreed with the need for safeguards.

“I don’t know that we need to make policy that says we need to follow the law. The law is clear and the laws in place. What I would be more interested in is hearing potentially a report from human resources in the near future. I’m thinking 60 days to come up with a procedure that’s going to ensure that this doesn’t happen in the future … people have seen this happen before. In my affiliation with the 30 years with the district, I have seen this happen before very rarely in instructional services, but it has happened, and I would hope that we can put some safeguards in place,” said Jennings.

Solutions were noted.

“Basically all hands on deck that anytime any faculty is going over the 67 percent rule and instruction or student services, that would need to be approved and brought to the board as an agenda item before it would be allowed to move forward. That currently does not happen. And that’s why there, in my opinion there’s been a lack of oversight. And I will say that in districts I’ve worked in previously, that is the standard practice,” said Lawrenson in regards to safeguards being worked on.

During voting to approve the hiring, then-Trustee Elizabeth Blanchard asked whether the board even had a choice on the matter due to the union settlement.

“Not really no, it’s part of the settlement,” said Jennings.

The motion passed with four yes votes, two no votes from Rivera and then-Trustee Kathleen Garcia, and one abstention from Trustee C. Jennet Stebbins.

ERRORS CONTINUE

Scheduling errors were still appearing in February 2023.

Emails were exchanged between Assistant Superintendent and Vice President of Instruction Dr. Charles “Kale” Braden and Snedden over improper workloads for adjuncts.

“I’m double checking on the two PSYC adjuncts, granted I’m using the Term Workload PeopleSoft widget, that I am not sure that I should trust,” Braden wrote before listing class assignments for Vienna Sa and Gregory Kirkwood, who were both psychology adjuncts at the time.

“So, the argument for Professor Sa is that because she has worked over 10 units two semesters in a row, we need to move her from adjunct to tenure track?,” Braden asked.

Snedden responded with a database query for PeopleSoft, but expressed frustration with the process.

“I’ve been trying to get an accurate workload report from IT since day one and I got tired of asking. Tracking load is critical,” she wrote. “Vienna Sa worked 25 units (as adjunct) in fall 2022 and worked 22.8 units (as FTT) in spring 2023 - see attached. My understanding is that we technically ‘owned’ her as of fall 2022 since she already worked over 67 [percent] for the academic year.”

Braden noted a single 67 percent rule violation for Kirkwood.

Other emails in the chain were redacted.

Kirkwood and Sa were both hired full-time by the district as of Aug. 11, 2023, according to an agenda for the Sept. 5, 2023 board meeting.

ANOTHER TENSE BOARD MEETING

Almost a year after the May 2022 board meeting, Delta’s hiring practices were once again blasted in public comments. At the March 7, 2023, Board of Trustees meeting, the 67 percent rule and subversion of equitable hiring practices were again the topic of discussion.

“For a second time this year we need to address the continuous and pervasive violation of equitable hiring practices and the non-transparent way this has been handled … The violation of the 67 percent rule resulted in a shockingly long list of faculty hires. This robbed diverse populations of the opportunity to equitably compete for open positions, and it also robbed the tracks of the opportunity to expand the faculty diversity of their programs … However, the Administration has been aware of these violations for quite some time … and yet there has been no direct communication related to the issue or discussion around the prevention or solutions with the shared governance groups, including the task forces. The district still has major anti-racist and equity work to accomplish, especially when equity minded principles can so easily be circumvented or marginalized as illustrated by tonight’s agenda,” said Adjunct Counseling Professor Janice Takahashi in public comment.

Public comments were also made by Mass Communication/Journalism Professor Tara Cuslidge-Staiano.

“In regards to whether it was willful ignorance, carelessness, or the result of compounding years of systematic failures,” said Cuslidge-Staiano. “The reality is that it happened. This is deja vu of the May 7 [sic], 2022 meeting. Leadership mistakes remain the common thread.

TIMELINE OF 67 PERCENT RULE VIOLATIONS AND PUBLIC RECORDS REQUEST

These mistakes are compounded when considering the lift of equity work that faculty have done the past three years … We have been asked to push, to push for diverse hiring polls, to consider campus diversity and to work to match it with our faculty …when the district hires outside of the parameters we are asked to hold dear. These actions result in current faculty quiet-quitting and pushing away from committee work because our work means nothing … Every time we say we’re gonna fix something, we don’t fix it. We don’t learn. And at this point, I know we don’t like to use the term, but the reality of everything I’m seeing in the past year or so is: it remains the Delta way.”

PROBLEMS PERSIST

Load reporting problems persisted for months after the March 2023 board meeting.

On Oct. 13, 2023, Arroyo and Sinou again alerted each other of system errors related to faculty load assignments.

“The only slight issue is that Vienna [Sa] has 25.4 units for Spring. For some reason the system allowed us to do this,” read the emails between Arroyo and Sinou.

“Daryl, Odd that the system didn’t give a warning about Vienna. It typically does,” wrote Sinou.

After a meeting of the Classified Classification & Reclassification Committee (CCRC) on Sept. 27, 2023, a position was created for an Instructional Schedule Technician.

The position would assist TrACs in “coding of their schedules and functions as an Enterprise Resource Planning (ERP) data integrity specialist,” read a document in BoardDocs on the position.

Some of the responsibilities of the technician are to “monitor faculty assignments for adherence to District policies and procedures and class assignment limitations … develops and implements data validation rules to prevent errors from being entered into the system and ensures sufficient accountability … assists instructional TrACs in the scheduling of classes,” said the draft description.

That position has yet to be filled.

“We are actively working through the process to get to the point where we can open the position for recruitment and ultimately fill it,” said Breitler.

Editor’s Note: Tara Cuslidge-Staiano, who is quoted in this story, is adviser to The Collegian.