California School Employees Assn. v. King City Union Elementary School Dist.

• Decision Date: 10 March 1981
• Citation: 172 Cal.Rptr. 368,116 Cal.App.3d 695
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION and Its chapter 494, Plaintiff and Appellant, v. KING CITY UNION ELEMENTARY SCHOOL DISTRICT, Defendant and Respondent. Civ. 46678.

Page 368

172 Cal.Rptr. 368

116 Cal.App.3d 695

CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION and Its chapter 494, Plaintiff and Appellant, v. KING CITY UNION ELEMENTARY SCHOOL DISTRICT, Defendant and Respondent.

Civ. 46678.

Court of Appeal, First District, Division 1, California.

March 10, 1981.

Mary H. Mocine, Madalyn J. Frazzini, Charles L. Morrone, E. Michael Heumann, Ruth Rokeach, San Jose, for plaintiff and appellant.

Iver E. Skjeie, County Counsel, Paul R. De Lay, Deputy County Counsel, Salinas, for defendant and respondent.

ELKINGTON, Acting Presiding Justice.

California School Employees Association and its Chapter 494 (hereafter in the singular, CSEA) has appealed from a judgment denying its petition for a writ of mandate against the King City Union Elementary School District (hereafter District).

The Appeal is taken on the superior court clerk's transcript. The record therefore consists of the pleadings, findings of fact and conclusions of law, and judgment. (Millbrae Assn. for Residential Survival v. City of Millbrae, 262 Cal.App.2d 222, 226, 69 Cal.Rptr. 251.) We are not concerned with the oral and documentary evidence adduced in the superior court (id., p. 226, 69 Cal.Rptr. 251), because the "sufficiency of the evidence to support the findings is not open to review" (Wheelright v. County of Marin, 2 Cal.3d 448, 454, 85 Cal.Rptr. 809, 467 P.2d 537 (cert. den., 400 U.S. 807, 91 S.Ct. 65, 27 L.Ed.2d 37)).

We accordingly state the material facts as they, and reasonable inferences therefrom, appear from the superior court's findings.

The District had employed "teacher aides," a classified employment in its school system, under its "Board Policy 420.7" adopted in 1974, which as relevant provided that: "All (teacher) aides will work each day that school is in session." The teacher aide program depended entirely upon the state for its funding. In August of 1976 the District was advised by the state that the program's funding would be reduced by the approximate yearly amount of $15,700. The reduced funding was insufficient for continued full support of the ongoing program. The District accordingly, "at an open regular meeting of its governing board" decided to "lay off" all teacher aides "for two weeks during the course of the (imminent) 1976-1977 school year, one week at the commencement and one week at the end of the year." Notice of the "two week layoff" was given the affected teacher aides in writing on August 31, 1976, a week before the first layoff commenced. The underfunding continued, and for the same reason the District on July 13, 1977, through its "governing board, in open session at a regular meeting, established a (teacher aide) work schedule for school year 1977-78, with the identical number of work days as in the prior year." More than 30 days' notice of that layoff was given the affected teacher aides.

The District's governing board had "assented to such layoffs" "by consensus ... and directed the superintendent to reduce the 1976-77 and 1977-78 school years by two weeks by reason of continued reduced funding ...." "In each of the two school years affected, (teacher) aides continued to work six hours per day, five days per week as they had in prior years. No aide suffered a reduction in hours; rather, the work year was reduced by two weeks." The District's "governing board at no time relevant hereto voted to authorize the layoffs for (teacher) aides during the 1976-77 and 1977-78 school years but by consensus assented to such layoffs and directed the superintendent to reduce the 1976-77 and 1977-78 school years by two weeks by reason of continued reduced funding ...." The District's "governing board did not specifically rescind Board Policy 420.7, which states that the (teacher) aides shall work each day that school is in session and which was adopted on November 13, 1974, but its action in reducing the school years by two weeks by implication rescinded such policy." And, the affected teacher "aides laid off for two weeks during each of school years 1976-77 and 1977-78 at no time expressly waived their rights under the Education Code or under the Collective Bargaining Agreement executed on March 23, 1977."

It is significant, as noted above and as will hereafter be seen, that the trial court found, although the form of the District's action was spoken of in terms of layoff, in substance the teacher aides' "work year was reduced by two weeks." (Emphasis added.)

It will become significant also, as found by the trial court, that the District had by implication "rescinded" or at least modified its policy 420.7 by reducing the work year of teacher aides.

The District's resolution of the teacher aide funding problem was, at the time, apparently acceptable to all, the District, CSEA, the affected teacher aides, and their collective bargaining unit. For during the midst of the two reduced work years (eight months after the first layoff), a teacher aide collective bargaining agreement was entered into. The agreement made no complaint of the earlier layoff, and sought no correction of those destined to occur in the future. Indeed, the layoffs were unmentioned. The first complaint of them was almost 15 months later.

Instead, the collective bargaining agreement, as relevant, provided only that District "policies shall remain in effect for the life of the agreement (July 1, 1976 to June 30, 1978) '... to the extent not inconsistent with this agreement, state or federal law.' " At the time, the District's policy 420.7, that teacher aides "will work each day that school is in session," had been modified to the extent that teacher aides, while the underfunding continued, would be employed for the necessarily shortened school year.

California's Legislature has expressed the state's public policy that its classified school employees shall not be employed when there is no existent funding with which to pay them. The policy is exemplified by Education Code section 45117, which, as relevant, provides:

"(a) When, as a result of the expiration of a specially funded program, classified positions must be eliminated at the end of any school year, and classified employees will be subject to layoff for lack of funds, the employees to be laid off at the end of such school year shall be given written notice on or before May 29 informing them of their layoff effective at the end of such school year and of their displacement rights, if any, and reemployment rights. However, if the termination date of any specially funded program is other than June 30, such notice shall be given not less than 30 days prior to the effective date of their layoff." (Emphasis added.)

Education Code section 45308 iterates:

"Classified employees shall be subject to layoff for lack of ... funds...."

And a " 'Layoff for lack of funds ...' (under some circumstances) includes any reduction in hours of employment ...." (Ed.Code, § 45101, subd. (g).)

We interpret what appears to be CSEA's principal contention as an argument that the District's voluntarily adopted board policy 420.7, providing that teacher aides "will work each day that school is in session," transcends its later modification and any application of the above-noted state's public policy and statutes.

The contention is manifestly unsound.

To the extent that the District's policy lacked conformity "to the legislative will," it was void. (California Welfare Rights Organization v. Carleson, 4 Cal.3d 445, 455, 93 Cal.Rptr. 758, 482 P.2d 670; Morris v. Williams, 67 Cal.2d 733, 737; Hypolite v. Carleson, 32 Cal.App.3d 979, 983, 108 Cal.Rptr. 751 (cert. den., 415 U.S. 934, 94 S.Ct. 1449, 39 L.Ed.2d 492).)

Another appellate contention of CSEA is that the parties' collective bargaining agreement, providing that the District's "policies shall remain in effect for the life of the agreement," found by the court to be "incorporated into said agreement," was binding upon the District.

We agree, but only insofar as the above language had been modified, and the policy was not inconsistent with "state or federal law." (Emphasis added.) Insofar as the modified policy was inconsistent with the above-noted public policy and statutes, and the Legislature's funding commitments, it was inoperative under the collective bargaining agreement, by that document's terms.

It is next contended that the action of the District's governing board in ordering the layoffs was void for lack of compliance with Education Code section 35163.

Section 35163 provides: "Every official action taken by the governing board of every school district shall be affirmed by a formal vote of the members of the board, and the governing board of every school district shall keep minutes of its meetings, and shall maintain a journal of its proceedings in which shall be recorded every official act taken."

On this issue, and as previously noted, the trial court found that the District's governing board at "open regular meetings" had not "voted to authorize the layoffs ... but by consensus assented to such layoffs" and directed the superintendent to reduce the teacher aide participation in the 1976-77 and 1977-78 school years accordingly. No contrary contention is made, and we may properly assume that the governing board kept proper minutes of the meeting, and recorded its official action in a journal of its proceedings as required by the statute.

The word "vote" has been variously defined. It may be an "aye" or "nay" response to a roll call, or it may be any "expression of wish, or choice, or preference," without regard to "the method through which that result was accomplished." (Bourland v. Hildreth, 26 Cal. 161, 195; and see 44A Words and Phrases (perm. ed. 1962) p. 4, "the formal expression of a will, preference, wish, or choice in regard to any measure proposed, ...") "And the aggregate of the expressions of will or choice, thus manifested by individuals, is called the 'vote of the body.' " (Black's Law Dict. ...