Alexander v. Board of Trustees

• Decision Date: 28 January 1983
• Citation: 139 Cal.App.3d 567,188 Cal.Rptr. 705
• Court: California Court of Appeals Court of Appeals
• Parties: , 8 Ed. Law Rep. 738 William ALEXANDER et al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF DELANO JOINT UNION HIGH SCHOOL DISTRICT, Defendant and Respondent. Civ. 6081.

Page 705

188 Cal.Rptr. 705

139 Cal.App.3d 567, 8 Ed. Law Rep. 738

William ALEXANDER et al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF DELANO JOINT UNION HIGH SCHOOL DISTRICT, Defendant and Respondent.

Civ. 6081.

Court of Appeal, Fifth District, California.

Jan. 28, 1983.

[139 Cal.App.3d 568] Chain, Younger, Jameson, Lemucchi, Busacca & Noriega, Gary A. Ingle and James Yoro, Bakersfield, for plaintiffs and appellants.

Richard C. Anthony, Frank J. Fekete, Ronald D. Wenkart, Joanne A. Velman, and Peter C. Carton, Bakersfield, for defendant and respondent.

OPINION

WOOLPERT, Associate Justice.

This case concerns the decision of the governing board of the respondent high school district to reduce the number of its teachers and, at the same time, to selectively retain teachers having Spanish speaking skills. In doing so, the district discharged appellant teachers whose employment had never before required bilingual ability. These teachers complain their dismissal was improper because they had been employed longer than those who were retained. The issue requires an examination of teacher tenure rights, "competency," and "skipping."

On March 3, 1980, the Delano Joint Union High School District Board of Trustees (hereinafter "Board") adopted a resolution that certain specified services performed by certificated employees be reduced or eliminated for the 1980-1981 school year. Appellants (hereinafter "Teachers") subsequently received notices of recommendation not to reemploy.

Upon Teachers' request, an administrative hearing was held. The administrative law judge issued a "proposed decision" which determined that respondent (hereinafter "District") had acted arbitrarily and discriminatorily toward Teachers. After a special meeting, the Board issued a contrary decision and resolution which effected the dismissal of 21 employees, including Teachers.

Teachers filed a petition for writ of mandate in Kern County Superior Court requesting that the court set aside the Board's action and reinstate them as employees for the 1980-1981 school year. The court denied the petition and this appeal followed.

At the administrative hearing, the district superintendent read from the seniority list of the Delano Joint Union High School District and explained that certain junior employees were not dismissed because they could fill the district's language needs, possessed special credentials, or their area of service was not being reduced. It was estimated that more than half of the student population was of either Hispanic or Philippine descent; the major non-English languages spoken in the district were Spanish and the two major Philippine dialects, Tagalog and Pilipino. Although District had established a bilingual education program, there were no accurate statistics presented as to the degree to which students were deficient in speaking and writing English. Only one student could not speak English.

After notices of dismissal were sent to Teachers, the Board issued a resolution adopting criteria for determining the order of termination of certificated employees as between employees with the same first date of rendered paid service. "Language needs" and "competency" were among the criteria used in such a "tie-breaking" situation.

As to teachers who had different seniority dates, the superintendent first looked to see whether the employee had a certificate of competency in Spanish. Then, with respect to employees without certificates, he relied on assessments made by other bilingual personnel of each employee's ability to communicate in one of the needed languages. At the hearing, several employees who had received notices presented evidence that they were bilingual; as a result they were retained, even though not assigned to teach courses in the bilingual program.

In his proposed decision, the administrative law judge found the elimination and reduction of services was of "a particular kind of service" within the meaning of Education Code section 44955, ¹ and that cause was established to reduce the number of certificated employees. However, he found District applied the "tie breaker" criteria of "language needs" to employees with different dates of first paid service, contrary to District's resolution, and did so arbitrarily and capriciously. He concluded that District arbitrarily failed to follow the seniority provisions of section 44955, and that it could not give notice to any of these employees.

The Board then held a special meeting to receive the report and an account of the hearing. During the meeting it was recommended that the termination notices be withdrawn as to the four employees who had presented evidence of being bilingual. The Board issued its resolution rejecting the administrative law judge's proposed decision and, with the exception of the four "bilingual" employees, ordered that the other noticed employees be terminated.

Teachers contend that District did not use proper criteria in terminating them. We agree. Upon determining a need for a reduction in the number of permanent employees, a school district is required to comply with the lay-off procedures enumerated in section 44955. (Thompson v. Modesto City High School Dist. (1977) 19 Cal.3d 620, 628, 139 Cal.Rptr. 603, 566 P.2d 237.) Section 44955, with emphasis added, provides in pertinent part as follows:

"Whenever in any school year the average daily attendance in all of the schools of a district for the first six months in which school is in session shall have declined below the corresponding period of either of the previous two school years, whenever the governing board determines that attendance in a district will decline in the following year as a result of the termination of an interdistrict tuition agreement as defined in Section 36403, or whenever a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year, and when in the opinion of the governing board of said district it shall have become necessary by reason of either of such conditions to decrease the number of permanent employees in said district, the said governing board may terminate the services of not more than a corresponding percentage of the certificated employees of said district, permanent as well as probationary, at the close of the school year; provided, that the services of no permanent employee may be terminated under the provisions of this section while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render.

"...

"As between employees who first rendered paid service to the district on the same date, the governing board shall determine the order of termination solely on the basis of needs of the district and the students thereof. Upon the request of any employee whose order of termination is so determined, the governing board shall furnish in writing no later than five days prior to the commencement of the hearing held in accordance with Section 44949, a statement of the specific criteria used in determining the order of termination and the application of the criteria in ranking each employee relative to the other employees in the group. This requirement that the governing board provide, on request, a written statement of reasons for determining the order of termination shall not be interpreted to give affected employees any legal right or interest that would not exist without such a requirement.

"Notice of such termination of services either for a reduction in attendance or reduction or discontinuance of a particular kind of service to take effect not later than the beginning of the following school year, shall be given before the 15th of May in the manner prescribed in Section 44949, and services of such employees shall be terminated in the inverse of the order in which they were employed, as determined by the board in accordance with the provisions of Sections 44844 and 44845. In the event that a permanent or probationary employee is not given the notices and a right to a hearing as provided for in Section 44949, he or she shall be deemed reemployed for the ensuing school year." (Emphasis added.)

Thus, the statute provides that seniority determines the order of dismissals, and that as between employees with the same first date of paid service, the order of termination is determined on the basis of the needs of the district and its students. Senior employees are given "bumping" rights in that they will not be terminated if there are junior employees retained who are rendering services which the senior employee is certificated and competent to render. Conversely, as in this case, a district may move upward from the bottom of the seniority list, "skipping" over and retaining junior employees who are certificated and competent to render services which more senior employees are not. (Moreland Teachers Assn. v. Kurze (1980) 109 Cal.App.3d 648, 655, 167 Cal.Rptr. 343; King v. Berkeley Unified School Dist. (1979) 89 Cal.App.3d 1016, 1023, 152 Cal.Rptr. 782.)

On review of an administrative mandamus proceeding under Code of Civil Procedure section 1094.5, the independent judgment test must be applied when an agency's decision affects a fundamental vested right. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32, 112 Cal.Rptr. 805, 520 P.2d 29.) Tenured teachers possess vested rights in being retained. (Turner v. Board of Trustees (1976) 16 Cal.3d 818, 825, 129 Cal.Rptr. 443, 548 P.2d 1115.) Thus, the independent judgment test is applied in reviewing factual determinations of an administrative agency in terminating a permanent certificated employee. (Campbell Elem. Teachers Assn., Inc. v. Abbott (1978) 76 Cal.App.3d 796, 802, 143 Cal.Rptr. 281.) In the case of probationary employees, however, the less stringent substantial evidence test is applied, since...