Matthews v. Board of Ed. of City of San Diego

• Decision Date: 04 January 1962
• Citation: Matthews v. Board of Ed. of City of San Diego, 18 Cal.Rptr. 101, 198 Cal.App.2d 748 (Cal. App. 1962)
• Parties: Hazel MATTHEWS, Petitioner and Respondent, v. BOARD OF EDUCATION OF CITY OF SAN DIEGO et al., Defendants and Appellants. Civ. 6497.
• Court: California Court of Appeals

Page 101

18 Cal.Rptr. 101

198 Cal.App.2d 748

Hazel MATTHEWS, Petitioner and Respondent, v.BOARD OF EDUCATION OF CITY OF SAN DIEGO et al., Defendants and Appellants.

Civ. 6497.

District Court of Appeal, Fourth District, California.

Jan. 4, 1962.

Hearing Denied Feb. 28, 1962.

Henry A. Dietz, County Counsel, by Donald L. Clark, Deputy Dist. Atty., San Diego, for appellants.

Gostin & Katz, by Irwin Gostin, San Diego, for respondent.

SHEPARD, Justice.

This is an appeal from a judgment and order granting a preliminary writ of mandate to compel defendantBoard of Education to hold a hearing on petitioner's termination of employment.

Facts

The facts are without conflict.Petitioner called no witnesses.She did not take the witness stand herself.The only testimony given was by Lester Wahrenbrock.None of his testimony was contradicted.Defendants are the Board of Education governing the San Diego Unified School District.This district has an average daily attendance of more than 85,000 pupils.In the school year 1959-1960 the district had 85 teachers on leaves of absence for various causes, including military service, maternity and sabbatical year.In that year 41 substitute teachers were employed, of which petitioner was one.Petitioner was properly certificated.She was employed on a written contract which designated her as a 'leave substitute' for the year on an annual salary.From the commencement of the school term until April 11, 1960, she was carried on the school records as the substitute for a teacher named Betty Lewis, who was then on maternity leave.On April 11, 1960, Betty Lewis resigned and on that day or the next the school records were changed to designate petitioner as the substitute for Winifred Dunbar, who was then on sabbatical leave.At the end of the school year petitioner was duly notified that her employment was terminated.She demanded a hearing before the Board on the question of termination of her employment, contending that she was a probationary teacher.This demand was refused.She filed this action for writ of mandate to compel a hearing.The writ was granted and defendants appeal.

Substitute or Probationary Teacher

Defendants contend on this appeal that under the facts related the trial court erred in finding that petitioner was a probationary employee rather than a substitute employee.With this contention we agree.

There are four principal classes of teacher employees provided by the law controlling our public schools.They are; permanent, probationary, substitute and temporary.The parties have each conceded that petitioner herein is neither a permanent nor a temporary employee.Therefore, no discussion of those classes is necessary.Sections of Education Code particularly pertinent are concise and read as follows:

' § 13334.Classification of probationary employees.Governing boards of school districts shall classify as probationary employees, those persons employed in positions requiring certification qualifications for the school year, who have not been classified as permanent employees or as substitute employees.

* * *

* * *

' § 13336.Classification of substitute employees.Governing boards of school districts shall classify as substitute employees those persons employed in positions requiring certification qualifications, to fill positions of regularly employed persons absent from service.

* * *

* * *

' § 13445.Dismissal of substitute employees.Governing boards of school districts may dismiss substitute employees at any time at the pleasure of the board.'

Section 13335 provides for classification at the time of employment.Section 13444 provides for dismissal of probationary employee for cause only.Sections 13506and13508 provide that the governing board may employ such substitute employees as it deems necessary from month to month and may adopt a salary schedule for substitute employees.

The petitioner herein argues that Section 13508 is restrictive and not enabling and that the governing board had no power to employ petitioner for substitute work for a full school year.If this matter came before us on the application of a regular teacher on leave seeking to be reinstated to her position as against a substitute teacher, such a contention would require serious consideration.The Attorney General has heretofore ruled that under such conditions a regular teacher returning from military leave would be entitled to reinstatement and that the substitute position for a full school year could not stand.(7 Ops.Cal.Atty.Gen. 87.)However, petitioner here presents a contention which is essentially the reverse of the problem with which the Attorney General was confronted.Here the petitioner, after signing a contract in which both she and the defendants in writing agreed that she would serve as a substitute teacher for the school year 1959-1960, now seeks to abrogate such agreement on the ground that the Board had no right to employ her as a substitute on any other basis than from month to month.She seeks to compel the substitution by operation of law of an agreement which neither party intended at its inception and which is contrary to the written contract of the parties.

At the outset it should be pointed out that paragraph 4 of conclusions of law, wherein the court found, 'Petitioner was not employed to fill the position of a teacher absent from service and was never informed in any manner that she was so employed,' is contrary to the undisputed evidence.It will be seen from the foregoing statement of facts that the only evidence received was that she was employed to fill the position of an absent teacher and the contract which she herself signed specifically designated her as a substitute.Petitioner herself did not take the witness stand.It was stipulated she signed the contract.There was no testimony of any kind that she did not read the contract or that she was under any misapprehension respecting her position as a substitute.

The law expressly provides for leaves of absence for illness, accident, quarantine, maternity, sabbatical study and travel, and war service, and for return to their regular position after such leave of teachers with tenure.(Education Code sections 13450-13470and13552.)Defendant school district, at the time petitioner was employed, had 85 teachers absent on leave.The school district was potentially obligated to return to regular duty all of these teachers upon termination of their leaves.Forty-one substitutes were employed.In effect, defendants said in their contract to petitioner, 'Due to the number of teachers on leave, we are satisfied that we can guarantee to you that your service as substitute will be needed throughout the entire school year, so you need not worry about the uncertainty of having your employment renewed each month.'What the effect on the contract would have been had all the teachers on leave returned to service before the end of the school year we need not decide, for that did not occur.The analysis by defendants of their district's personnel need proved justified and the petitioner received the benefit of defendants' sagacity in personnel need analysis.She did not, in fact, suffer any interruption of service or pay.

The judgment as rendered would penalize the defendants for their assurance to petitioner of a full year of continuous service and pay.If allowed to stand as a rule of legal precedence it would penalize every substitute teacher in the state and every board of education similarly situated.Each board would be compelled, for the protection of its district's personnel organization and finances, to hire every substitute without continuity of school term service.The position of the substitute would be one of month to month uncertainty and the board would be in the same position of uncertainty.Nothing in the statutes as written compels any such result.

It is worthy of note that prior to 1935, School Code section 5.520(predecessor of Education Code section 13336) contained a provision that substitute teachers are 'those persons employed in positions requiring certification qualifications from day to day for less than one school year, to fill positions of regularly employed persons absent from service * * *' etc.In that year said section was amended and the words, 'from day to day for less than one school year' were deleted and stricken from the statute, so that the statute as it thereafter read and now reads, directs classification as substitute employees those persons employed 'to fill positions of regularly employed persons absent from service.'No time qualification is contained in the section.

It has been repeatedly recognized that unless statutory mandate compels otherwise, the position of the teacher is created and fixed by the terms of the contract of employment.As was said in Richardson v. Board of Education, 6 Cal.2d 583, 586[2-3], 58 P.2d 1285, 1287, 'The relation between the teacher and the school district is one that is created by contract.(Cita.) * * * Plaintiff's rights are governed by the contract in...