Opinion
H024943.
10-17-2003
ROBERT M. ROSSI, Plaintiff and Respondent, v. SALINAS CITY ELEMENTARY SCHOOL DIST., et al., Defendants and Appellants.
Robert Rossi (Rossi) filed a petition for peremptory writ of mandate after he was dismissed from a teaching position with the Salinas City Elementary School District (the District) on a notice of non-reemployment as a temporary certificated employee dated February 26, 2002. The trial court granted the petition, finding that Rossi became a permanent employee by operation of law during the 2001-2002 school year so that the notice of non-reemployment had no force or effect for the 2002-2003 school year. The District appeals, contending that Rossi never attained probationary or permanent status and that he was properly classified as a temporary teacher for the 2001-2002 school year. We disagree, and therefore affirm.
BACKGROUND
Rossi was first hired by the District beginning January 22, 1999, to teach during the 1998-1999 school year. At the time, he had a valid California teaching certificate. The notice of employment stated that Rossi was replacing a certificated employee on leave of absence or assigned to a federal/state funded project, and that he was classified as a temporary employee in accordance with section 44920 of the Education Code. The notice further stated, "You must agree to complete coursework necessary to pass the BCLAD and to submit a Bilingual Teacher-in-Training Plan and Verification of Commitment annually until the BCLAD is completed." On February 4, 1999, Rossi signed a BCLAD Teacher-in-Training Agreement with the District. The agreement required Rossi to complete CLAD certification within two years, and to complete BCLAD certification within six years. Rossi was subsequently employed full-time by the District in the 1999-2000, 2000-2001, and 2001-2002 school years under the same terms. He received his CLAD certificate on August 17, 2001.
All further unspecified statutory references are to the Education Code.
CLAD (Cross-Cultural, Language and Academic Development) and BCLAD (Bilingual, Cross-Cultural, Language and Academic Development) certification were developed by the California Commission on Teacher Credentialing, pursuant to legislative mandate, in order to address the needs of the large limited-English-proficient ("LEP") student population in California, and ensure equal access to education. The U.S. Department of Education Office of Civil Rights previously cited the District for failing to require CLAD and BCLAD certification. In response, the District instituted the BCLAD Teacher-in-Training program to provide certification training at the Districts expense. The District has also adopted a Voluntary Resolution Plan ("VRP") in order to resolve the areas of non-compliance identified by the Office of Civil Rights. The VRP requires teachers to be CLAD or BCLAD certified and includes consequences for non-compliance, including reassignment, non-reelection and termination.
The District employed 97 temporary teachers during the 1999-2000 school year. There is nothing in the record showing the number of teachers on a leave of absence during the 1999-2000 school year, or why any teacher other than Rossi was hired on a temporary basis that school year. On March 9, 2000, Rossi was given a memo by the principal of his school stating that he would not be recommending Rossi for continued employment at the school or at any other school in the District. On March 15, 2000, the District notified Rossi that he had not complied with his obligations under the Teacher-in-Training Agreement, and that he had until July 30, 2000, to comply or he would not be reemployed for the 2000-2001 school year.
Rossi signed a notice of employment with the District for the 2000-2001 school year on August 14, 2000. During the 2000-2001 school year, the District employed 58 temporary teachers, and 17 employees were on full or partial leaves of absence. Of the 58 temporary teachers, 37 possessed emergency credentials, 5 were teacher education interns, and 5 were assigned to categorically funded programs. There is nothing in the record indicating that Rossi received a notice of any kind during the 2000-2001 school year that he would not be reemployed for the 2001-2002 school year.
Rossi was offered a notice of employment by the District for the 2001-2002 school year. During the 2001-2002 school year, the District employed 115 temporary teachers, and 19 employees were on full or partial leaves of absence. Of the 115 temporary teachers, 64 possessed emergency credentials, 12 were teacher education interns, and 22 were assigned to categorically funded programs. On February 26, 2002, the District gave Rossi a notice of non-reemployment for the 2002-2003 school year.
Although the notice of employment for the 2001-2002 school year in the record has not been signed by Rossi, there is no dispute that Rossi was employed full-time by the District for the 2001-2002 school year.
Rossi filed his petition for peremptory writ of mandate on May 30, 2002, seeking to compel the District to rescind its notice of non-reemployment and to grant him permanent status. In his memorandum of points and authorities in support of his petition he argued that he obtained permanent tenured status by operation of law as of the beginning of the 2001-2002 school year, so that the notice of non-reemployment had no force or effect. On June 14, 2002, the District filed opposition to the petition for peremptory writ of mandate, arguing that Rossi never attained permanent status with the District, and that he was not entitled to mandatory reemployment for the 2002-2003 school year. At the hearing on June 28, 2002, Rossi argued that there was no statutory basis for the Districts classification of him as a temporary teacher year after year, and that the default classification is probationary. The District argued that the evidence before the court showed that Rossi was hired in 2000-2001 as a temporary teacher to replace a teacher on leave, and that he had not sustained his burden of showing otherwise. The court took the matter under submission.
The trial court filed its order on July 3, 2002. The order states in pertinent part: "Education (Ed.) Code § 44915 requires that all teachers not classified as permanent, temporary or substitute be classified as probationary. [Rossi] maintains that his default classification was probationary for the 1999-2000 school year and subsequent school years. Under the applicable statutes he became a permanent employee prior to receiving notice of non-reelection. [Rossi] has produced evidence supporting his contention that he had not replaced a certificated employee on leave. The District had the burden of then . . . coming forward with evidence to refute [Rossis] argument. It failed to do so. [¶] Secondly, [Rossi] argued that even if he was properly classified as a temporary teacher in the 1999-2000 school year, the Ed. Code provides, and case law holds, that he became a probationary employee during the 2000-2001 school year. This was due to the fact that he was entitled to be placed in a vacant position as outlined in Ed. Code § 44920. [Rossi] presented evidence that showed vacancies existed for the 2000-2001 school year. Therefore, under Ed. Code § 44918 he would be deemed a probationary employee for the 1999-2000 school year. Having served two years as a probationary employee, as a matter of law, he became a permanent employee under Code § 44929.21 during the 2001-2002 school year. As such, the notice of non-reelection had no force or effect for the 2002-2003 school year. [¶] . . .[¶] The Writ shall issue." Judgment was entered August 9, 2002, and the District filed its notice of appeal on August 23, 2002.
DISCUSSION
Rossi sought a peremptory writ of mandate from the trial court. "A writ of mandate `may be issued by any court . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . . (Code Civ. Proc. § 1085, subd. (a).)" (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 (Kavanaugh).) To be entitled to relief, Rossi must show that the District has a clear, present and ministerial duty to reelect (rehire) him and that he has a clear, present and beneficial right to performance of that duty entitling him to a writ of mandate. (Ibid.) "`A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such acts propriety or impropriety, when a given state of facts exists. (Citation.)" (Ibid.) "[W]e independently review the superior courts legal conclusions about the meaning and effect of statutory provisions (citations), but for all factual issues we look to see if substantial evidence supported the order and we resolve all conflicts in the relevant evidence against the party appealing and in support of the order (citation)." (Welch v. Oakland Unified School Dist. (2001) 91 Cal.App.4th 1421, 1427.)
"`The Education Code establishes four possible classifications for certificated employees: permanent, probationary, substitute and temporary. (Citation.) The code authorizes the governing boards of school districts to hire, classify, promote and dismiss certificated employees (i.e., teachers) (see § 44831), but establishes a complex and somewhat rigid scheme to govern a boards exercise of its decisionmaking power. The date on which a certificated employee is first classified within one of these four employment categories is often critical, for such status has ramifications for both the teacher and the district throughout the employment relationship. For example, if a certificated probationary employee works for two complete consecutive school years and is then reelected for the next succeeding year, the employee is deemed elevated to permanent status by operation of law. (§ 44929.21, subd. (b).) In some circumstances, a probationary employee who is not informed of his or her nonreelection by March 15th of the current school year is deemed reelected for the following school year. (§§ 44929.21, subd. (b), 44955, subd. (c).) If a certificated employee works as a temporary employee for a complete school year and is then `reemployed for the following school year in a position requiring certification qualifications, [he or she must] be classified by the governing board as a probationary employee and the previous years employment as a temporary employee shall be deemed one years employment as a probationary employee for purposes of acquiring permanent status. (§ 44917; see also § 44920.)
"A certificated teachers classification also governs the level of statutory job protection the teacher enjoys and controls the level of procedural protections that apply if he or she is not reelected. In general, permanent employees may not be dismissed unless one or more statutorily enumerated grounds are shown. (§ 44932.) Probationary employees may not be dismissed during the school year except for cause or unsatisfactory performance (§ 44948.3), but, on timely notice, `may be nonreelected without any showing of cause, without any statement of reasons, and without any right of appeal or administrative redress. (Citation.) `Substitute and temporary employees, on the other hand, fill the short range needs of a school district and generally may be summarily released. (Citation.) Thus, temporary teachers may be dismissed `[a]t the pleasure of the [governing] board prior to serving during one school year at least 75 percent of the number of days the regular schools of the district are maintained (§ 44954, subd. (a)), and after that time so long as the temporary employee is notified before the end of the school year (id., subd. (b)). The overall scheme the Legislature has created in the Education Code is thus specific as to the rights and responsibilities of certificated teachers and their employers, the governing boards." (Kavanaugh, supra, 29 Cal.4th at pp. 916-918, fns. omitted.)
The dispute in this case arises from the heightened job protection the Education Code provides for certificated teachers classified as probationary employees of a school district versus teachers classified as merely temporary employees. If Rossi is considered a probationary employee for the 1999-2000 and 2000-2001 school years, then he became a permanent employee by operation of law at the beginning of the 2001-2002 school year (§ 44929.21, subd. (b)), and the Districts notice of nonreelection issued on February 26, 2002, had no force and effect. However, if Rossi was properly classified as a temporary employee for the 1999-2000, 2000-2001, and 2001-2002 school years, then the District was legally entitled to dismiss him because it notified him of his dismissal before the end of the school year. (§ 44954, subd. (b).) Although Rossis contracts of employment fixed his status as that of a temporary teacher, he is not estopped to claim probationary status if the statutory scheme of the Education Code compels the latter classification under the particular facts of Rossis employment situation. (Santa Barbara Federation of Teachers v. Santa Barbara High Sch. Dist. (1977) 76 Cal.App.3d 223, 227-228.)
Because substitute and temporary classifications are not guaranteed procedural due process by statute, they are narrowly defined by the Legislature, and should be strictly interpreted. (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 826.) All certificated teachers not classified as permanent employees or substitute employees are required to be classified as probationary employees. (§ 44915.) District interns (§ 44885.5, subd. (a)), are entitled to probationary status (Welch v. Oakland Unified School Dist., supra, 91 Cal.App.4th at p. 1429), and teachers with emergency credentials (& sect;§ 44252, subd. (b), 44830, subd. (h)) may be classified as probationary employees (§ 44911; California Teachers Assn. v. Governing Bd. of Golden Valley Unified School Dist. (2002) 98 Cal.App.4th 369, 381-383). However, other teachers with provisional credentials are not considered probationary employees. (§§ 44830, 44911.) As service spent as a teacher education intern (§ 44466), and while assigned to categorically funded projects (§ 44909), may be used to compute the service required to become a permanent employee, such employees may also be entitled to probationary status.
Temporary teachers are teachers who are employed to serve day-to-day at the beginning of each term to teach temporary classes, but if their classes or duties continue they are considered probationary employees. (§ 44919.) Teachers who serve in a limited assignment supervising athletic activities are also considered temporary teachers. (Ibid.) Temporary teachers also include those employed for just the first semester of a school year, but if they continue employment beyond the first semester they are deemed probationary employees for the entire year. (§ 44921) Lastly, temporary teachers include those employed "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 years employment as a temporary employee shall be deemed one years 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." (§ 44920.) The District considered Rossi to be a temporary employee pursuant to section 44920 each school year that it employed him.
The record shows that Rossi had been employed as a temporary teacher for more than one complete school year at the end of the 1999-2000 school year. He was reemployed in 2000-2001, the following school year, in a `vacant position requiring certification within the meaning of section 44920. Although his contract for 2000-2001 indicates that he was hired to replace a certificated teacher on leave, many more temporary teachers were hired (58) that school year than certificated employees on full or partial leave (17). As emergency credentialed teachers may be hired to replace certificated teachers on leave, even if the 10 temporary teachers who were teacher education interns or who were assigned to categorically funded programs are not counted, there were still 48 temporary teachers hired for 17 full or partial positions vacant due to leaves of absences. The District was only permitted by law to classify 17 of its temporary teachers as such under section 44920, while more than twice this number of emergency credentialed teachers were so classified. This is sufficient evidence to support Rossis contention that he had not really replaced a certificated employee on leave, but was instead placed in a `vacant position that year and was therefore a probationary employee. The burden then shifted to the District to produce evidence to refute Rossis contention, such as by showing that Rossis was one of only 17 temporary teacher contracts that school year that included language regarding replacing a certificated employee on leave, but it failed to do so.
Because Rossi has shown that he had been employed for more than one complete school year as a temporary teacher at the end of the 1999-2000 school year, and was reemployed in 2000-2001, the following school year, in a vacant position requiring certification qualifications, he was entitled to be classified by the District as a probationary employee for the 2000-2001 school year. (§ 44920.) In addition, his employment as a temporary teacher in 1999-2000 was deemed one years employment as a probationary employee for purposes of acquiring permanent status. (Ibid.) There is nothing in the record indicating that Rossi received a notice of any kind during the 2000-2001 school year that he would not be re-employed for the 2001-2002 school year. He received his CLAD certificate on August 17, 2001, prior to the start of the 2001-2002 school year. Thus, when Rossi was reelected for the 2001-2002 school year in a certificated position, he was deemed elevated to permanent status by operation of law.
(§ 44929.21, subd. (b).) Because Rossi was deemed a permanent employee prior to the notice of non-reemployment dated February 26, 2002, the trial court correctly found that the notice had no force or effect. The court properly granted the petition for peremptory writ of mandate.
Because we did not rely on the Supplemental Declaration of Michelle A. Welsh in reaching our decision, we will not address appellants argument that the trial court erred or abused its discretion in admitting the declaration.
DISPOSITION
The judgment is affirmed.
We concur: Elia, Acting P.J., Wunderlich, J.