Cousins v. Weaverville Elementary School Dist.

• Decision Date: 23 May 1994
• Docket Number: No. C013345,C013345
• Citation: 24 Cal.App.4th 1846,30 Cal.Rptr.2d 310
• Court: California Court of Appeals
• Parties: , 90 Ed. Law Rep. 1109 Susan COUSINS, Plaintiff and Appellant, v. WEAVERVILLE ELEMENTARY SCHOOL DISTRICT et al., Defendants and Respondents.

Page 310

30 Cal.Rptr.2d 310

24 Cal.App.4th 1846, 90 Ed. Law Rep. 1109

Susan COUSINS, Plaintiff and Appellant, v. WEAVERVILLE ELEMENTARY SCHOOL DISTRICT et al., Defendants and Respondents.

No. C013345.

Court of Appeal, Third District, California.

May 23, 1994.

Review Denied Aug. 11, 1994.

Bartley S. Fleharty, Wells, Wingate, Small & Graham and Donald A. Selke, Jr., Redding, for plaintiff and appellant.

L. Alan Swanson, Bandell Swanson, Redding, for defendants and respondents.

RAYE, Associate Justice.

Plaintiff Susan Cousins appeals from an order of dismissal entered after the Superior Court sustained a demurrer to her petition for writ of mandate and damages challenging her termination by defendant Weaverville Elementary School District (District). Cousins, a certificated probationary employee of District, asserts that because her termination was based on economic considerations District was obligated but failed to comply with the procedures prescribed by Education Code sections 44949 and 44955 for economic layoffs. The District contends that under Education Code section 44929.21 it had the absolute right to dismiss Cousins without cause, without a statement of reasons and with no right to administrative hearing or appeal even where the dismissal is based on declining enrollment or other reasons encompassed by sections 44949 and 44955. We disagree with the District's position and shall reverse the order of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

As in any appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, we begin with an examination of the facts set forth in the petition. We assume the truth of all such facts. (Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.)

Cousins was a certificated probationary employee of District, a school district in which the average daily attendance exceeds 250 students. The 1990/91 school year was Cousin's second consecutive year as a certificated probationary employee. During the 1990/1991 school year District determined it was necessary to terminate the services of certificated employees for economic reasons because of anticipated financial difficulties. District decided to terminate Cousins and served her with a notice of nonreelection under Education Code section 44929.21 in lieu of procedures under Education Code sections 44949 and 44955. The former option was chosen to save District the time and expense of conducting procedures required under sections 44949 and 44955. The notice of nonreelection was served on March 12, 1991, and terminated Cousins effective June 30, 1991. In a letter explaining the reason for Cousins' termination, the Weaverville Elementary principal stated the termination was "the result of a financial exigency and is not related to teaching performance. If a position were available for which [petitioner] were qualified, I would have no reservations about hiring her."

On October 23, 1991, Cousins filed a Petition for Writ of Mandate asserting District failed to comply with Education Code sections 44955 and 44949. Relying on Gassman v. Governing Board (1976) 18 Cal.3d 137, 133 Cal.Rptr. 1, 554 P.2d 321, Cousins argued District could not circumvent the protections afforded probationary employees in layoff situations by terminating her with a notice of nonreelection under Education Code section 44929.21, subdivision (b).

District filed a motion to strike portions of Cousins' declarations and a demurrer. In its demurrer District argued Cousins failed to state a cause of action since District could terminate her without cause under Education Code section 44929.21, subdivision (b). The trial court agreed and sustained the demurrer without leave to amend. After entry of the order of dismissal, Cousins filed a timely notice of appeal.

DISCUSSION

The Education Code establishes two major classes of certificated school employees, permanent and probationary. (Ed.Code, § 44929.21; further statutory references are to the Education Code unless otherwise indicated.) Unlike probationary employees permanent employees enjoy tenure and may only be dismissed for cause. (§§ 44955, 44932-44947.) A probationary employee enjoys less job security; although dismissal during the school year must be based on cause, a probationary teacher may be dismissed at the end of the school year by a simple notice of nonreelection. (§ 44929.21). ¹ In school districts with an average daily attendance of 250 or more a probationary employee becomes permanent upon the commencement of a third consecutive school year in a certificated position. (Ibid.) This appeal requires us to apply two related provisions of the Education Code governing the termination of certificated probationary school employees: section 44929.21 permitting "nonreelection" of probationary teachers without cause or hearing; and section 44955, applicable only to "economic layoffs," which imposes restraints and hearing requirements. Both provisions are the product of the same 1983 statute. A brief review of the statute's history is helpful in understanding the issues under consideration.

Pre-1983 Statutory Provisions

The statutory protections afforded probationary teachers have followed a circular path since their initial enactment. Under early provisions relating to the hiring and dismissal of teachers, all teachers were subject to annual hiring decisions. School districts exercised absolute discretion in making those decisions. (Former Pol.Code § 1609 as added by Stats.1917, ch. 552, § 8, p. 737.) Later, distinctions were made between permanent employees, who enjoyed tenure and could only be dismissed for cause, and probationary employees, who could only be dismissed for cause during the school year but remained subject to dismissal at the end of each school year with or without cause. (Former Pol.Code § 1609, subds. (i) and (j), as amended by Stats.1921, ch. 878, § 1, p. 1665-1666.) That right was expanded in 1935 to require in larger districts that any decision not to rehire be for cause. "Cause" could only relate to the welfare of the schools and pupils (Sch.Code 5.682, as amended by Stats.1935, ch. 697, § 1, p. 1895.) While the right to a hearing was not expressly granted, it was implied (Keenan v. S.F. Unified School Dist. (1950) 34 Cal.2d 708, 214 P.2d 382; Tucker v. S.F. Unified School Dist. (1952) 111 Cal.App.2d 875, 245 P.2d 597) and in 1953 was made express. (Ed.Code § 13583 as amended by Stats.1953, ch. 1040, § 1, p. 2508.) These requirements survived subsequent amendments to the Education Code until 1983.

Provisions of section 44955 pertaining to layoffs also trace their origin to former Political Code section 1609 as amended in 1921 (Stats.1921, ch. 878, § 1, p. 1663) which created the permanent/probationary employee classifications. The legislative scheme contained two components: 1) It established specified economic reasons, declining enrollment and discontinuance of services, as grounds for termination of permanent employees. Probationary employees remained terminable at will and thus were not included in the provision. 2) The statute required such economic layoffs to proceed in order of seniority and created a reemployment preference for laid off employees with credit for prior service in the calculation of certain benefits. However, the layoff provisions accorded no right to a hearing.

Despite changes in rules pertaining to probationary employees requiring non-reelection to be based on cause (Stats.1935, ch. 697, § 1, p. 1895) and affording a right to hearing (Stats.1953, ch. 1040, § 1, p. 2508) the layoff provisions of the Education Code were not expressly made applicable to probationary employees until 1959 when section 13447 was enacted (Stats.1959, ch. 2, § 1, pp. 595, 949). However, because earlier versions of the statute required probationary employees to be terminated before permanent employees could be terminated, one could infer that declining enrollment and discontinuance of services constituted "cause" for termination of probationary employees. Nevertheless, probationary employees, unlike permanent, were not accorded seniority rights, and enjoyed no reemployment preference. The primary effect of the 1959 amendments therefore was to accord probationary employees laid off because of declining enrollments or discontinuance of services important rights previously limited to permanent employees: layoff based on seniority, a preference in reemployment and other benefits premised on prior service.

Finally, in 1967 the decision to terminate based on economic reasons was made subject to the hearing and procedural requirements applicable to the nonreelection of probationary employees. (Ed.Code 13447, as amended by Stats.1967, ch. 1040, § 1, p. 2647.) The provisions were set forth in sections 13443, and 13447 when the Supreme Court decided Gassman v. Governing Board, supra, 18 Cal.3d 137, 133 Cal.Rptr. 1, 554 P.2d 321. In Gassman a school district notified two probationary employees they would not be reemployed for the following school year. The district told the employees their termination was based on economic considerations, not performance. (Id. at pp. 140-141, 133 Cal.Rptr. 1, 554 P.2d 321.) Nevertheless, the district elected to proceed under Education code section 13443, termination for cause (now section 44949) rather than section 13447, specifying dismissals relating to a school district's reduction in work force (now section 44955). Gassman "present[ed] the narrow issue of whether a school district may refuse to rehire a probationary teacher for budgetary or financial reasons pursuant to Education Code section 13443, subdivision (d) ... or whether such an economic layoff may only be effected pursuant to Education Code section 13447." (Id. at p. 139, 133 Cal.Rptr.1,554P.2d321, emphasis in original.)

Like the school district here, the district in Gassman asserted its authority to terminate probationary...