Grimsley v. Board of Trustees

Decision Date04 March 1987
Citation189 Cal.App.3d 1440,235 Cal.Rptr. 85
CourtCalifornia Court of Appeals
Parties, 38 Ed. Law Rep. 258 Sherilyn GRIMSLEY et al., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF MUROC JOINT UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. F005803.
OPINION

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

This appeal is from a judgment of the Kern County Superior Court denying appellants' petition for writ of mandate. Appellants, two first year probationary teachers, allege they were unlawfully terminated from their employment by respondent school board without a statement of reasons and without a hearing. They seek reinstatement to second year probationary status and back pay.

Specifically, appellants contend that under the Hughes-Hart Educational Reform Act of 1983 (Stats.1983, ch. 498) they could only be terminated for cause or for unsatisfactory performance as teachers; hence, they were entitled to a statement of reasons for their dismissal and the opportunity of a hearing and appeal to the governing board of their school district. Respondents counter by arguing that although the law before the 1983 amendments to the Education Code would have required the respondent board to show cause for terminating appellants' employment, the 1983 legislative amendments changed the procedural rules governing the reemployment of first and second year probationary teachers so that appellants could be terminated at the end of their first year of service without any showing of cause.

While the answer to the question posed by the parties' contentions is difficult to reach because of the opaque language of the 1983 amendments to the Education Code, we conclude that respondents' argument is the more persuasive. The Legislature intended by the 1983 act to eliminate the requirement that the governing board's determination not to reemploy a probationary teacher for the ensuing school year could be for cause only. For probationary teachers hired during or after the 1983-1984 fiscal year, the right to reemployment for the ensuing year is subject to termination without cause at any time before March 15 of the second consecutive year of employment. We affirm the trial court's ruling denying the writ of mandamus.

STATEMENT OF FACTS

Appellants Sherilyn Grimsley and James E. Cordell were hired by respondent Muroc Joint Unified School District as first year probationary teachers commencing with the 1983-1984 school year. Both received satisfactory performance evaluations during the year; however, Cordell's evaluation indicated he needed "improvement" in several areas.

On April 23, 1984, both appellants received written notice from the district's superintendent that the governing board of the district had decided not to rehire them for the following school year and that their employment would therefore end as of June 30, 1984. Each appellant requested a statement of reasons for nonreelection and a hearing to determine if there was cause for their nonretention; the requests were denied.

Appellants were dismissed from their jobs as of June 30, 1984, as scheduled, and two replacement teachers were employed for the following school year.

DISCUSSION
I. Appellants' nonretention complied with the Education Code.

Our task is to interpret selected provisions of the Education Code as amended in 1983. In doing this, we are required to follow certain principles: "In the construction of a statute ..., the office of the judge is simply to ascertain and declare what is ... contained therein, not to insert what has been omitted, or to omit what has been inserted; ..." (Code Civ.Proc., § 1858.) "Legislative intent will be determined so far as possible from the language of statutes, read as a whole, and if the words are reasonably free from ambiguity and uncertainty, the courts will look no further to ascertain its meaning. [Citation.] ... 'Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.' [Citations.]" (Neumarkel v. Allard (1985) 163 Cal.App.3d 457, 461, 209 Cal.Rptr. 616.)

Before 1983, Education Code section 44949, subdivision (d) provided in relevant part: "The governing board's determination not to reemploy a probationary employee for the ensuing school year shall be for cause only. The determination of the governing board as to the sufficiency of the cause ... shall be conclusive, but the cause shall relate solely to the welfare of the schools and pupils thereof...."

In 1983, subdivision (d) was entirely deleted from section 44949. Although the substance of the deleted language is included in amended section 44948.5, subdivision (e), that section is restricted on its face to teachers whose probationary period commenced before the 1983-1984 fiscal year.

Appellants seek to overcome the consequence of this legislative deletion of the provision guaranteeing probationary employees continued employment absent a showing of cause for their nonreemployment by arguing the applicability of amended Education Code section 44948.3. This section provides:

"(a) First and second year probationary employees may be dismissed during the school year for unsatisfactory performance determined pursuant to Article 11 (commencing with Section 44660) of Chapter 3, or for cause pursuant to Section 44932. Any dismissal pursuant to this section shall be in accordance with all of the following procedures:

"(1) The superintendent of the school district or the superintendent's designee shall give 30 days' prior written notice of dismissal, not later than March 15 in the case of second year probationary employees. The notice shall include a statement of the reasons for the dismissal and notice of the opportunity to appeal. In the event of a dismissal for unsatisfactory performance, a copy of the evaluation conducted pursuant to Section 44664 shall accompany the written notice.

"(2) The employee shall have 15 days from receipt of the notice of dismissal to submit to the governing board a written request for a hearing. The governing board may establish procedures for the appointment of an administrative law judge to conduct the hearing and submit a recommended decision to the board. The failure of an employee to request a hearing within 15 days from receipt of a dismissal notice shall constitute a waiver of the right to a hearing.

"(b) The governing board, pursuant to this section, may suspend a probationary employee for a specified period of time without pay as an alternative to dismissal.

"(c) This section applies only to probationary employees whose probationary period commenced during the 1983-84 fiscal year or any fiscal year thereafter, and does not apply to probationary employees in a school district having an average daily attendance of less than 250 pupils." (Emphasis added.)

This statute authorizes dismissals of probationary teachers during the school year for either "unsatisfactory performance" or for "cause." The dismissals require a 30-day prior written notice, not later than March 15 in the case of a second year probationary teacher. The notice shall include a statement of the reasons for the dismissal and notice of the opportunity to appeal.

The problem with appellants' argument is that section 44948.3 on its face simply does not apply to a board's decision not to reemploy a probationary teacher. The statute is limited to dismissals "during" the school year. If appellants were "dismissed," it was at the end of the school year. Appellants' argument that because a school year is not merely that portion of the calendar year when classes are held but is a full 365-day year beginning July 1 and ending June 30 so that a dismissal effective June 30 is "during the school year" is illusional. Realistically, a school board will use section 44948.3 when it wishes to remove a probationary teacher from the classroom as soon as possible either by way of suspension for a specified period of time without pay or by outright dismissal. The clear import of the statute is that the dismissal becomes effective 30 days after the notice is given, subject to the hearing and appeal procedures if requested by the teacher. Thus, the time procedures governing dismissals during the school year are incompatible with the concept of year-end dismissals triggered by a notice of nonreelection. For example, a notice of dismissal on March 15 under section 44948.3 would result in dismissal on April 14 (30 days later) whereas a notice of nonreelection on March 15 would result in termination of employment effective June 30. We conclude, therefore, that section 44948.3 does not apply to the notice procedure for nonretention of probationary teachers for the ensuing year.

The Legislature for more than 50 years has drawn a sharp distinction between the procedures for dismissing probationary teachers during the school year and the procedures for not reemploying a probationary teacher for an ensuing school year. As we shall explain, the Legislature appears to have preserved the distinction by the 1983 amendments.

Education Code section 44882 states the tenure requirements for probationary teachers. Before the 1983 amendments, it provided that after completion of three consecutive school years of employment, a teacher who is reelected for the next succeeding school year shall at the commencement of the succeeding year be classified as and become a permanent employee of the district. In 1983, section 44882 was amended by adding a new tenure provision for probationary teachers hired during...

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