Taylor v. Board of Trustees , 36 Cal. 3d 500 ( 1984 )

Opinion

GRODIN, J.

Waldo Taylor, a teacher, appeals from a judgment denying his petition for a writ of mandate to compel the Board of Trustees of the Del Norte County Unified School District (the District) et al., to employ him as a probationary certificated employee (i.e., a probationary teacher) and to pay him back salary and benefits, The main issue raised by this case is whether the preferential reemployment rights granted to certain substitute and temporary teachers under Education Code section 44918¹ apply to teachers hired as temporaries under the provisions of section 44920. We hold that they do and reverse the judgment on this basis.

Waldo Taylor holds a masters degree in education and a valid teaching credential authorizing multiple subject instruction in preschool, grades kindergarten through 12, and adult classes. During the 1979-1980 school year, he was employed by the District as a substitute teacher and part-time coach. During this school year, he performed the duties of a certificated teacher less than 60 percent of the time.

Taylor worked as a day-to-day on-call substitute until October 15 of the 1980-1981 school year. On that day, a permanent employee of the District was granted a leave of absence. As a result, Taylor was employed to teach seventh and eighth grade language arts at Crescent Elk Junior High School for the remainder of the school year. Taylor was employed under the provisions of section 44920, which authorize the employment of temporary teachers to replace teachers on long-term leave. During this school year, Taylor served for at least 75 percent of the number of days the regular schools of the District were maintained and he performed the duties normally required of a certificated employee of the District. He also served as a track coach. His evaluations in both capacities were favorable.²

For the 1981-1982 school year, the District had seven vacant probationary positions. Among these was a position teaching seventh and eighth grade language arts at Crescent Elk Junior High. Other positions included teaching fifth grade at Crescent Elk, sixth grade at Crescent Elk, and positions teaching lower grades at other schools in the District.³ Taylor possessed the appropriate teaching credential to teach in any of the seven vacant positions. In every case, however, the District hired another candidate. The District admitted that, in filling the vacant positions, it gave no preferential hiring right to Taylor, but rather hired whom it felt to be the most qualified applicant for each position.

Taylor sought a writ of mandate to compel the board of trustees of the District to employ him as a probationary teacher and to pay him various back salary benefits. His contention is that he should have been reemployed as a teacher because he was granted preferential reemployment rights under section 44918.⁴ The trial court denied the petition, finding that section 44918 reemployment rights do not apply to employees hired as temporary teachers under the provisions of section 44920.⁵ This interpretation of the law is inconsistent with the plain evidence of legislative intent.

The Education Code establishes four possible classifications for certificated employees: permanent, probationary, substitute and temporary. In the case of permanent and probationary employees, the employer’s power to terminate employment is restricted by statute. Substitute and temporary employees, on the other hand, fill the short range needs of a school district and generally may be summarily released. (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 826 [114 Cal.Rptr. 589, 523 P.2d 629].)

In 1961, the Legislature amended former section 13336 to provide that any substitute teacher “who teaches during one school year for at least 75 percent of the number of days the regular schools of the district were maintained in such school year any class or classes which would have been taught by one person absent from service, shall be deemed to have been a probationary employee during the entire school year in which he so teaches, with the rights and duties of other probationary employees of the district, and shall be deemed to have served a complete school year as a probationary employee.” (Stats. 1961, ch. 1103, § 1, p. 2832, italics added.)

This provision has since been significantly amended a number of times and, in 1976, the entire Education Code was reorganized and renumbered. This 1961 enactment is, however, the origin of the preferential and reemployment right which Taylor claims under section 44918.

The effect of this statutory provision was clear. In the event that a teacher classified as a substitute actually replaced an absent teacher for 75 percent or more of the school year, the “substitute” was automatically transformed into a probationary employee, regardless of the district’s failure to classify him as such. Section 13336.5 (Stats. 1963, ch. 1964, § 1, p. 4043) reenacted this provision in substantially identical language. In Centinela Valley Secondary Teachers Assn. v. Centinela Valley Union High Sch. Dist. (1974) 37 Cal.App.3d 35, 38 [112 Cal.Rptr. 27], the court observed; “The obvious purpose of [section 13336.5] is to prevent school boards and administrators from abusing their discretion in hiring substitute teachers so as to circumvent the tenure rights of teachers.”

But implicit in the provisions of section 13336.5 was a significant problem. This problem was alluded to in Centinela, supra, 37 Cal.App.3d 35 at pages 41-42. When a substitute replaced an absent teacher for 75 percent or more of the school year, the substitute became a probationary employee and was automatically entitled to reemployment. But presuming that the absent teacher was absent for legally permissible reasons, that teacher had the right to return to his or her position. Thus, the school district could easily be faced with the necessity of employing two teachers where only one position was available. To avoid this dilemma, school districts would have to fill long-term vacancies on a day-to-day basis with various substitute teachers. As the court in Centinela pointed out, this approach could well prove detrimental to the welfare of the students. (Id., at pp. 40-41.) Perhaps in recognition of this problem, the Legislature in 1971 enacted the predecessor statute to section 44920, Education Code section 13337.3 (Stats. 1971, ch. 57, p. 76).⁶

This provision allowed school districts to replace employees absent due to long-term illness or on long-term leave with teachers classified as temporaries. As temporary employees, such teachers would not be affected by the 75-percent provision contained in section 13336.5, applicable only to substitutes. To make this distinction even clearer, the Legislature explicitly excluded section 13337.3 temporary teachers from the benefits of section 13336.5 by providing that the former statute operated “[notwithstanding the provisions of” the latter.

In 1973, however, the Legislature amended both statutes. These amendments effected significant changes in the operation of section 13336.5 and it is therefore appropriate to consider the section’s legislative history in some detail. As originally introduced, Senate Bill No. 368, 1973-1974 Regular Session, merely extended the 75-percent provision of section 13336.5 to apply to all school certificated employees, rather than only to teachers. The bill was amended several times prior to passage, however, and these amendments are highly relevant to the present controversy.

The first amendment (Sen. Amend. to Sen. Bill No. 368 (1973-1974 Reg. Sess.) May 21, 1973) added temporary employees to the coverage of the statute, and at the same time deleted the language providing automatic probationary status. Instead, the amended bill provided that “[a]ny such [substitute or temporary] employee shall be reemployed for the following school year to fill any vacant positions in the school district for which the employee is certified.” (Italics added.) “Vacant position” was defined to mean “a position in which the employee is qualified to serve and which is not filled by a permanent or probationary employee. It shall not include a position which would be filled by a permanent or probationary employee except for the fact that such employee is on leave.”

The final preenactment revision of Senate Bill No. 368 occurred in the Assembly on June 28, 1973. On that date, an amended version of section 13337.3 was added to the bill as section 1.5. The single change this amendment made in the language of section 13337.5 was to eliminate the reference to section 13336.5 in the introductory clause, “Notwithstanding the provisions of Sections 13336, 13336.5, and 13337.”

Senate Bill No. 368 was enacted in the Statutes of 1973, chapter 279, pages 674-676. As the foregoing legislative history makes abundantly clear, the Legislature intended that the provisions of the amended section 13336.5 should apply to section 13337.3 temporary teachers. In the 1976 reorganization of the Education Code, section 13336.5 became section 44918 and section 13337.3 became section 44920. Thus, it is apparent that the reemployment preference afforded under section 44918 applies to section 44920 temporary teachers such as Waldo Taylor.

Generally, for a writ of mandate to issue, two basic requirements are essential, namely, a clear, present and usually ministerial duty on the part of the defendant and a clear, present and beneficial right in plaintiff to performance of that duty. (Code Civ. Proc., § 1085; People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491 [96 Cal.Rptr. 553, 487 P.2d 1193].)

Reemployment of temporary employees eligible under the terms of section 44918 is such a ministerial duty. (See Fair v. Fountain Valley School Dist. (1979) 90 Cal.App.3d 180, 186 [153 Cal.Rptr. 56].) The trial court mistakenly relied upon Centinela, supra,37 Cal.App.3d 35,⁷ to rule that, as a temporary teacher covered by section 44920, Taylor was not entitled to the reemployment preference of section 44918. Therefore, the court found, the District had no duty to reemploy Taylor under section 44918. As the foregoing legislative history demonstrates, this conclusion was erroneous.

Section 44918 also provides, however, that school districts must reemploy eligible employees only for vacant positions for which the employees are “certified and qualified to serve.” Whether Taylor has a clear, present and beneficial right to performance, therefore, must turn upon resolution of the question whether he was “qualified to serve” for any or all of the District’s available positions.⁸

This issue was not addressed by the trial court and the case must be remanded for a determination on this issue. The parties have addressed the “qualified to serve” issue on appeal, however, and it is therefore appropriate to discuss the issue briefly for the court’s guidance on remand.

As the District correctly points out, prior to 1975 the operative language of section 13336.5 (the predecessor statute to § 44918) stated that a 75-percent employee “shall be reemployed ... to fill any vacant positions . . . for which the employee is certified. ” (Italics added.) Assembly Bill No. 555 (1975-1976 Reg. Sess.), which was signed into law in 1975 (Stats. 1975, ch. 274, § 1, p. 684), added the requirement that such an employee also be “qualified to serve.”

As defined by the statute, “qualified to serve” means “the possession of an appropriate credential, plus completion of appropriate academic preparation or experience in the subject matter in which the vacant position occurs.” The District argues that the inclusion of this language in the 1975 amendment indicated a legislative intent to endow school districts with “discretion to select the individuals who will best serve the needs of the students for appropriate vacancies.” (Italics added.) This contention is simply wrong.

As originally introduced, Assembly Bill No. 555 would have abolished the right of a substitute or temporary employee to be reemployed as a probationary employee as provided by section 13336.5 altogether. Instead, the bill would have provided only that eligible 75 percent employees who had not been reemployed as probationary employees would be reemployed as substitutes or temporaries. The bill was amended twice prior to passage, however, and this original feature was quickly eradicated. Rather, the Assembly inserted the “qualified to serve” language. It is noteworthy that, initially, the definition of “qualified to serve” required “possession of an appropriate credential plus completion of appropriate academic preparation and experience in the subject matter in which the vacant position occurs.” (Assem. Amend. to Assem. Bill No. 555 (1975-1976 Reg. Sess.) Apr. 17, 1975, italics added.) Prior to enactment, though, the definition was amended to substitute “or experience in the subject matter. ...” (Assem. Amend. to Assem. Bill No. 555 (1975-1976 Reg. Sess.) Apr. 29, 1975.)

In light of these legislative amendments, the District’s argument that it has complete discretion to choose the best among qualified candidates, regardless of the reemployment rights assured by section 44918, is untenable. Had this been the Legislature’s intent, it could simply have enacted Assembly Bill No. 555 as originally introduced.

Rather, the Legislature strictly limited the scope of the districts’ discretion. An employee otherwise qualified under the terms of section 44918 need not be hired for a vacant probationary position only if he does not hold the appropriate credential or if he lacks both appropriate academic preparation and experience in the subject matter.

Since Taylor possessed the appropriate credential to teach in any of the vacant positions, the District could be released from its statutory obligation to reemploy him only if he lacked both appropriate academic preparation and experience in the subject matter for all of the available vacancies.

The District contends that this interpretation of the statute deprives school authorities of the discretion necessary to improve educational quality by selecting the most qualified teachers. The teacher organizations supporting Taylor’s position contend that, on the contrary, this interpretation operates to provide an incentive to qualified teachers to make themselves available for temporary appointments, in the hope of obtaining permanent positions. We are not called upon to resolve this policy debate. It is apparent that the Education Code is the product of many compromises between competing considerations, and in this case the choice that the Legislature has made is quite clear. (See Martin v. Kentfield School Dist. (1983) 35 Cal.3d 294, 299 [197 Cal.Rptr. 570, 673 P.2d 240],)⁹

The judgment of the trial court is therefore reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

Kaus, J., Reynoso, J., and Lucas, J., concurred.

1 All citations, unless otherwise noted, are to the Education Code.

2 An “Evaluator’s Annual Employment Recommendation” completed by Crescent Elk principal Gene Edinger on May 22, 1981, stated “Mr. Taylor’s had a fine year. He has a no nonsense approach to learning that instills independent thinking and working on the part of his students. [H] He is a good man to have around and is one of the leading candidates for a regular assignment in the school.” The report recommended Taylor for reemployment. An “Adjunct Duties Assessment Report” completed by Edinger on May 26, 1981, contains the comment “Also did an excellent job as a track coach.”

3 The seven vacant probationary positions were: fifth grade, self-contained, Crescent Elk School; sixth grade, self-contained, Crescent Elk School; seventh and eighth grade language arts, Crescent Elk School; fifth through eighth grade physical education, Crescent Elk School; first through fourth grade, title I, Joe Hamilton School; first grade, self-contained, Joe Hamilton School; and third and fourth grade, self-contained, Redwood School.

4 Section 44918 provides: “Any employee classified as a substitute or temporary employee, who serves during one school year for at least 75 percent of the number of days the regular schools of the district were maintained in such school year and has performed the duties normally required of a certificated employee of the school district, shall be deemed to have served a complete school year as a probationary employee if employed as a probationary employee for the following school year.

“Any such employee shall be reemployed for the following school year to fill any vacant positions in the school district for which the employee is certified and qualified to serve.

“For purposes of this section, ‘qualified to serve’ shall be defined to mean the possession of an appropriate credential plus completion of appropriate academic preparation or experience in the subject matter in which the vacant position occurs.

“For purposes of this section, ‘vacant position’ means a position in which the employee is qualified to serve and which is not filled by a permanent or probationary employee. It shall not include a position which would be filled by a permanent or probationary employee except for the fact that such employee is on leave.

“Any employee classified as a substitute or temporary employee who has rendered the service required to qualify under this section but who has not been reemployed due to a lack of a vacant position shall be reemployed as a substitute or temporary employee for the following school year.

“In any district in which appointments are made from eligible lists established by examination, special eligible lists shall be established at the end of each school year which consist of the names of those employees who met the requirements of this section. Such lists shall be in rank order based on the final scores established by examination. Such lists shall be valid for at least two school years. Offers for appointments to probationary status during the ensuing school year shall be made from such special eligible lists established by examination; provided, however, permanent or probationary employees terminated during the preceding 39 months pursuant to Section 44955, shall be given priority in employment over persons on such special eligible lists.

“Those employees classified as substitutes, and who are employed to serve in an on-call status to replace absent regular employees on a day-to-day basis shall not be entitled to the benefits of this section.

“Permanent and probationary employees subjected to a reduction in force pursuant to Section 44955 shall, during the period of preferred right to reappointment, have prior rights to any vacant position in which they are qualified to serve superior to those rights hereunder afforded to temporary and substitute personnel who have become probationary employees pursuant to the provisions of this section.

“This section shall not apply to any school district in which the average daily attendance is in excess of 400,000.”

5 Section 44920 provides: “Notwithstanding the provisions of Sections 44917 and 44919, the governing board of a school district may employ as a teacher, for a complete school year, but not less than one semester during a school year unless the date of rendering first paid service begins during the second semester and prior to March 15th, any person holding appropriate certification documents, and may classify such person as a temporary employee. The employment of such persons shall be based upon the need for additional certificated employees during a particular semester or year because a certificated employee has been granted leave for a semester or year, or is experiencing long-term illness, and shall be limited, in number of persons so employed, to that need, as determined by the governing board.

“Any person employed for one complete school year as a temporary employee shall, if reemployed for the following school year in a vacant position requiring certification qualifications, be classified by the governing board as a probationary employee and the previous year’s employment as a temporary employee shall be deemed one year’s employment as a probationary employee for purposes of acquiring permanent status.

“For purposes of this section ‘vacant position’ means a position in which the employee is qualified to serve and which is not filled by a permanent or probationary employee. It shall not include a position which would be filled by a permanent or probationary employee except for the fact that such employee is on leave.”

6 Section 13337.3 provided: “Notwithstanding the provisions of Sections 13336, 13336.5, and 13337, the governing board of a school district may employ as a teacher, for a complete school year but not less than one semester during a school year, any person holding appropriate certification documents, and may classify such person as a temporary employee. The employment of such persons shall be based upon the need for additional certificated employees during a particular semester or year because a certificated employee has been granted leave for a semester or year, or is experiencing long-term illness, and shall be limited, in number of persons so employed, to that need, as determined by the governing board.

“Any person employed for one complete school year as a temporary employee shall, if reemployed for the following school year in a position requiring certification qualifications, be classified by the governing board as a probationary employee and the previous year’s employment as a temporary employee shall be deemed one year’s employment as a probationary employee for purposes of acquiring permanent status.”

7 The Centinela court considered the interpretation of the relevant statutes as they existed prior to the 1973 amendments which added section 44920 temporary teachers to the scope of section 44918.

8 The parties stipulated that at all relevant times, Taylor held the appropriate credential to teach in any of the vacant positions.

9 Our dissenting colleague suggests that “the test” of proper interpretation in this case lies in the result, and on that score finds preferable “the contrary views of the Court of Appeal.” (Dis. opn., p. 510, post.) Policy considerations may of course be useful in interpreting an ambiguous statute, but it is the Legislature’s policy that ultimately must control, and in determining that policy we must pay heed to available evidence of legislative intent. The major premise of the Court of Appeal opinion is that, because sections 44917 and 44920 are mutually exclusive, the Legislature must have intended to exclude section 44920 teachers from the benefits afforded by section 44918. With all respect, the argument overlooks the history of the pertinent statutes which, as we have demonstrated, quite clearly refutes this interpretation.