Covino v. Governing Board

• Decision Date: 29 December 1977
• Citation: Covino v. Governing Board, 142 Cal.Rptr. 812, 76 Cal.App.3d 314 (Cal. App. 1977)
• Court: California Court of Appeals
• Parties: William A. COVINO, Plaintiff and Appellant, v. GOVERNING BOARD OF the CONTRA COSTA COMMUNITY COLLEGE DISTRICT OF CONTRA COSTA COUNTY, California, etc., Defendant and Respondent. Civ. 40509.

Page 812

142 Cal.Rptr. 812

76 Cal.App.3d 314

William A. COVINO, Plaintiff and Appellant, v.GOVERNING BOARD OF the CONTRA COSTA COMMUNITY COLLEGE DISTRICT OF CONTRA COSTA COUNTY, California, etc., Defendant and Respondent.

Civ. 40509.

Court of Appeal, First District, Division 2, California.

Dec. 29, 1977.

Douglas E. Lord, Pt. Richmond, for plaintiff and appellant.

John B. Clausen, County Counsel, Contra Costa County, Arthur W. Walenta, Jr., Asst. County Counsel, Martinez, for defendant and respondent.

KANE, Associate Justice.

PlaintiffWilliam A. Covino appeals from an adverse judgment rendered in an action brought for mandamus, declaratory and injunctive relief.The facts leading to the dispute are virtually undisputed, and may be summarized as follows:

Covino was hired by respondent(hereafter District) on September 17, 1975, as a certificated employee to teach in the English Department of Diablo Valley College.He was employed as a full-time temporary teacher for the period of September 2, 1975 through June 11, 1976, for the purpose of filling the position of a teacher on sabbatical leave.Prior to his employment, by a letter dated July 14, 1975, Covino was advised by the District that he would be hired pursuant to section 13337.5 of the Education Code, ¹ under which the District is prohibited from hiring a temporary employee for more than two semesters within three consecutive years.²On April 7, 1976, Covino informed the District that he wished to be considered as an English instructor for the additional school year of 1976-77.It is undisputed that sabbatical replacement openings existed in the English Department of Diablo Valley College for that school year.

In response to his request, on April 29, 1976, Covino was advised that respondent would not re-employ for another year those teachers who had been full-time employees for the current school year.The District admitted that appellant was well qualified and would be acceptable for temporary positions in the English Department for the 1976-77 school year as a sabbatical replacement but for the District's inability to hire him for another term as a temporary employee.³In order to qualify as a temporary teacher, appellant waived all his potential rights to becoming a probationary (contract) or permanent employee under the statute by virtue of his reemployment for an additional school year.

After reconsidering its initial memorandum decision, the trial court, in essence, found that Covino was hired by respondent as a full-time temporary certificated employee for the 1975-76 school year, and if rehired for 1976-77 would qualify as a second-year contract (probationary) employee under sections 13336,13337.5and13345.10; that section 13337.3, on which appellant relied, was inapplicable to community college teachers; and that Covino's purported waiver of his potential tenure rights would be null and void by virtue of section 13338.1.Accordingly, the trial court denied Covino's petition for a writ of mandate and discharged the alternative writ of mandate previously issued.

As the parties agree, the primary issues on appeal are (1) whether respondent, a community college district, may employ Covino as a full-time temporary teacher for an additional school year without granting him the status of a second-year contract (probationary) employee (§ 13345.10;⁴see alsosections 13336,13337.3and13337.5), and (2) if probationary status follows as a matter of statute, whether Covino may waive his tenure rights under the Education Code in order to facilitate his continued employment.

Since the determination of the first issue calls for interpretation of several sections of the Education Code, as a threshold matter we set out the basic principles governing the construction of statutes.We begin with the fundamental rule that in construing a statute, the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.In ascertaining the legislative intent, we turn first to the words used in the statute itself.The words, however, may not be read in isolation, but rather in context, keeping in mind the nature and obvious purpose of the statute.A corollary to this rule is that the various parts of the statutory enactment must be harmonized by considering the particular phrase, clause or section in the context of the statutory framework as a whole (Select Base Materials v. Board of Equal.(1959)51 Cal.2d 640, 645, 335 P.2d 672;see alsoMoyer v. Workmen's Comp. Appeals Bd.(1973)10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224;California Sch. Employees Assn. v. Coachella Valley Unified Sch. Dist.(1977)65 Cal.App.3d 913, 919, 135 Cal.Rptr. 630;Prunty v. Bank of America(1974)37 Cal.App.3d 430, 436, 112 Cal.Rptr. 370).

As an additional preliminary matter, we also observe that in resolving the issues before uswe must consider and interpret the pertinent statutory provisions as they stood at the time of the present controversy.The newly enacted, reorganized or amended provisions of the Education Code(Stats.1976, chs. 1010-1011)effective April 30, 1977, will be regarded only to the extent that they have some relevance to the determination of the issues raised by the parties.

Addressing the merits of the case, we are persuaded that the language of section 13337.5(now § 87482) either alone or in combination with section 13336(now § 87478) is dispositive of the central issue before us.While section 13337.5(as much as new § 87482) empowers the District to hire certificated teachers as temporary employees under certain conditions for a complete school year (but not less than one full semester or quarter), it does contain specific language that flatly and unconditionally prohibits a rehiring of such employees for another school year within a time span of three consecutive years.⁵

Although the cited language of section 13337.5 is clear and unambiguous, and thus not subject to interpretation (cf.Caminetti v. Pac. Mutual L. Ins. Co.(1943)22 Cal.2d 344, 353-354, 139 P.2d 908;Kohn v. Superior Court(1966)239 Cal.App.2d 428, 430, 48 Cal.Rptr. 832), its meaning becomes even clearer when read together with section 13336 and viewed in light of the pertinent case law.Thus, section 13336 further underlines that in case of reemployment for another school year the certificated temporary teacher must be classified as a probationary employee (or under the new terminology, "a contract employee";see§ 87478).⁶The cases interpreting the foregoing provisions explain that the third paragraph of section 13337.5 contains a built-in limitation to prevent a school district from employing and reemploying indefinitely a teacher as a temporary employee (Ferner v. Harris(1975)45 Cal.App.3d 363, 372, 119 Cal.Rptr. 385;Coffey v. Governing Bd. of S.F. Community College Dist.(1977)66 Cal.App.3d 279, 291, 135 Cal.Rptr. 881), and specifically limits the classification of temporary teacher to persons employed for not more than two semesters or quarters within any period of three consecutive years (Balen v. Peralta Junior College Dist.(1974)11 Cal.3d 821, 829).In elaborating on the meaning of the last paragraph of section 13336, the Court of Appeal has made the observation that "It manifests an intention that when a certificated employee has been employed for one complete school year as a temporary employee, and that person is employed for the following school year in a position requiring certification qualifications, he shall be classified by the governing board as a probationary (here contract) employee."(Coffey v. Governing Bd. of S.F. Community College Dist., supra, at p. 293, 135 Cal.Rptr. at p. 890).Since Covino was employed as a temporary teacher for two full semesters in the 1975-76 school year in a position requiring certification qualifications, he may not be reemployed as a temporary teacher for another school year within a period of three consecutive years.

Despite the unequivocal language of the statute and the judicial interpretation pertaining thereto, appellant insists that he could be classified as a temporary teacher if rehired for another school year or years.Appellant's main reliance is placed on section 13337.3, which contains language to the effect that the granting of probationary status to a temporary teacher rehired for another school year is mandatory only if the temporary teacher is rehired for a vacant position.The position filled by a permanent or probationary teacher who is on leave, argues appellant, is not a vacant position within the meaning of section 13337.3, ⁷ and consequently the District is legally authorized to reemploy him as a temporary teacher filling the position left open by tenured teachers on leave.

Appellant's argument, ingenious as it may seem, must fail for the simple reason that section 13337.3 is a general statute dealing with school districts in general, while section 13337.5 is a special statute addressing itself to the specific issue before us, i. e., the hiring of a college teacher by a school district maintaining a community college.This important distinction is reflected by the language of section 13337.3, which uses the phrase "the governing board of a school district "(emphasis added) without any further specification (see fn. 7, supra), while section 13337.5 speaks about the concrete instance of hiring teachers by a "governing board of a school district maintaining a community college "(emphasis added; see fn. 5, supra).It is, of course, axiomatic that as a matter of statutory interpretation a special statute takes precedence over a general one whether it was passed before or after the adoption of the general enactment(In re Williamson(1954)43 Cal.2d 651, 654, 276 P.2d 593;People v. Gilbert(1969)1 Cal.3d 475, 479, 82 Cal.Rptr. 724, 462 P.2d 580).As spelled out in Rose v. State of California(1942)19 Cal.2d 713, 723-724, 123 P.2d 505, 512: ...