Peralta Federation of Teachers v. Peralta Community College Dist.

• Decision Date: 25 May 1979
• Docket Number: S.F. 23648,AFL-CIO
• Citation: 155 Cal.Rptr. 679,24 Cal.3d 369,595 P.2d 113
• Court: California Supreme Court
• Parties: , 595 P.2d 113 595 P.2d 113, 24 Cal.3d 369 PERALTA FEDERATION OF TEACHERS, LOCAL 1603, AMERICAN FEDERATION OF TEACHERS,et al., Plaintiffs and Appellants, v. PERALTA COMMUNITY COLLEGE DISTRICT et al., Defendants and Appellants.

Page 679

155 Cal.Rptr. 679

24 Cal.3d 369, 595 P.2d 113

595 P.2d 113, 24 Cal.3d 369 PERALTA FEDERATION OF TEACHERS, LOCAL 1603, AMERICAN FEDERATION OF TEACHERS, AFL-CIO et al., Plaintiffs and Appellants, v.PERALTA COMMUNITY COLLEGE DISTRICT et al., Defendants and Appellants.

S.F. 23648.

Supreme Court of California.

May 25, 1979.

Rehearing Denied July 6, 1979.

Treuhaft, Walker, Brown & Cooper, Treuhaft & Walker and Doris Brin Walker, Oakland, for plaintiffs and appellants.

Stewart Weinberg, Van Bourg, Allen, Weinberg & Roger, San Francisco, LaCroix & Schumb and Joseph G. Schumb, Jr., San Jose, as amici curiae for plaintiffs and appellants.

Richard J. Moore, County Counsel, Oakland, Jon A. Hudak and Hanlon E. Van Wye, Deputy County Counsel, Littler, Mendelson, Fastiff & Tichy, San Francisco, for defendants and appellants.

John H. Larson, County Counsel, Los Angeles, Urrea C. Jones, Jr., Pasadena, and Stephen K. Matson, Deputy County Counsel, Los Angeles, Biddle, Walters & Bukey, John L. Bukey, Sacramento, Larry J. Frierson, Los Angeles, Alexander Bowie, Newport Beach, Spencer E. Covert, Jr., Santa Ana, R. Clifford Lober, Paul R. Delay, Deputy County Counsel, Monterey, Donald L. Clark, County Counsel, San Diego, Timothy K. Garfield, Deputy County Counsel, San Diego, Thomas M. O'Connor, City Atty., San Francisco, Timothy Murphy, Deputy City Atty., Paul J. Mason, Deputy County Counsel, San Jose, LeRoy W. Blankenship, Deputy County Counsel, Los Angeles, as amici curiae for defendants and appellants.

NEWMAN, Justice.

The principal question in this case is whether former section 13337.5 of the Education Code withholds tenure rights from community college teachers hired over a period of years to serve less than 60 percent of full time.¹

I.Did teachers hired before November 8, 1967, acquire permanent status?

Section 13337.5 became law on November 8, 1967.It does not affect teachers hired before then.(Balen v. Peralta Junior College Dist.(1974)11 Cal.3d 821, 114 Cal.Rptr. 589, 523 P.2d 629.)With respect to the facts here and rights of pre-1967 teachers the Court of Appeal opinion in this case, written by Justice Devine and concurred in by Justices Draper and Scott, reads as follows (and we adopt these paragraphs as part of our opinion):

"Twelve teachers who have been employed by Peralta Community College District(supported by plaintiff federation of which they are members) sought writ of mandate to compel the district and its governing board to grant them tenured status and to compensate them at a certain rate of pay.The trial court granted the writ to classify some of the teachers as permanent and others as contract employees, but denied the petition as it relates to pay.The district appeals from that portion of the judgment which has to do with classification and the teachers cross-appeal from the part which concerns compensation.

"1.Preliminary Explanation

"The district employs between 1200 and 1300 instructors at its five campuses.There are three classes of instructors: regular ('permanent' or 'tenured'), contract ('probationary') and temporary.(Fn. omitted.)Some regular and contract teachers are employed part time, and these are paid a salary prorated to the salary of a full-time teacher.Temporary teachers are paid a flat hourly rate which is less than the rate which the salaried employee receives; they do not receive certain fringe benefits which are accorded those of the two higher classes; they may be dismissed without notice or hearing.

"Plaintiffs all work less than 60 percent of full time.They receive a written letter of notification from the district regarding their employment for the coming academic year.The letter states the instructor's potential assignment and specifies that his position is a temporary one.They are hired from quarter to quarter or from semester to semester, as the case may be.They are uniformly dismissed at the end of each year.

"Because different questions of law are applicable to teachers hired at different times, it is necessary to divide the twelve individual plaintiffs into two categories and to consider each category separately.(This is not a class action.)

"2.Teachers Employed Before November 8, 1967

"Three of the plaintiffs have been employed year after year, but as temporary employees, annually discharged and rehired, commencing at dates earlier than the statutory changes . . . of November 8, 1967.The trial judge ordered that the three plaintiffs be classified as part-time regular employees.

"In order to become a regular (permanent) employee, one must first become a contract (probationary) employee.Prior to September 1, 1972, three years' service as a contract (probationary) employee was needed as a basis for permanent (tenured) status.

" Two questions, then, are before us at this point: (1) Did these three plaintiffs become contract (probationary) employees? and (2) did they attain tenure as regular employees?The district argues that the teachers may rightly claim neither status . . . .(P)(W)e deem the first question to have been answered by the decision in Balen v. Peralta Junior College Dist., 11 Cal.3d 821(114 Cal.Rptr. 589, 523 P.2d 629).Balen had been employed for four successive years since 1965 by the district as a temporary instructor.Then he was informed that his contract would not be renewed.It was held that under Education Code section 13334, which provides that '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,' Balen met the statutory prerequisites for probationary employment, although he was a part-time instructor.(At p. 829, 114 Cal.Rptr. 589, 523 P.2d 629.)Plaintiffs meet the same prerequisites.Section 13337.5 of the Education Code, enacted in 1967 . . . was held to be nonretroactive; it could not divest plaintiff of his previously acquired status.(Fn. omitted.)The three pre-1967 employees became contract (probationary) employees prior to the enactment of section 13337.5.

"The second question is whether they acquired regular (permanent) status.Pursuant to section 13304 each such employee would be entitled to regular status if he had served three complete consecutive school years.A 'complete school year' was defined for community college employees as '75 percent of the number of hours considered as a full-time assignment for permanent employees.'( § 13328.5.)It was found by the trial court that none of the above named employees met the 75 percent requirement.In 1972, major revisions in the Education Code were made with respect to community college instructors (the 'Rodda Act').The teachers contend that by virtue of the new provisions, the 75 percent rule set forth in section 13328.5 has no further application.

"Section 13346.25, effective in 1972, provides that if a contract (probationary) employee is employed under his second consecutive contract, the governing board has two options: to employ him as a regular employee for all subsequent academic years or not to employ him as a regular employee.But in the case of a contract (probationary) employee, the district's right to do this is limited by the requirement of section 13443 that notice of nonemployment be given with the reasons stated.It would not be sufficient reason, under Balen, to declare that the employment had been temporary only, no matter what the teacher's contract might say (Campbell v. Graham-Armstrong, 9 Cal.3d 482, 486-487(107 Cal.Rptr. 777, 509 P.2d 689)), because these teachers had attained contract status before 13337.5 was enacted.In the case of contract (probationary) teachers, the decision not to reemploy must be based on 'thoughtful, deliberate, and individual consideration.'(Balen v. Peralta Junior College Dist., supra, (11 Cal.3d)at p. 830, fn. 10, 114 Cal.Rptr. 589, 523 P.2d 629.)These teachers were simply regarded as 'temporaries' and were not afforded the prescribed decision.

"But was it still required that a part-time pre-1967 contract employee serve 75 percent of the hours under section 13328.5 in order to qualify for reemployment under the new (1972)section 13346.25 as a regular part-time employee in the absence of a decision of the board, supported by a valid reason, not to reemploy?It is concluded that the 75 percent requirement of 13328.5 does not apply to these pre-1967 employees; that the provisions of the later section 13346.25 take precedence.We agree with an opinion of the Attorney General to the effect that, although section 13328.5 remains on the books, it has been rendered meaningless, at least insofar as the acquisition of tenure is concerned.(58 Ops.Cal.Atty.Gen. 703(1975).)The pre-1967 teachers must be classified as part-time regular employees as of July 1, 1974(this date is in accordance with section 25490.20, subd. (b))."

II.Did the temporary status of teachers hired after November 8, 1967, require compliance with the first three paragraphs of section 13337.5?

Plaintiffs who were employed after November 8, 1967, when section 13337.5 took effect, contend their status is unaffected by that section's fourth paragraph because their employment did not meet the conditions of the first three paragraphs.The first paragraph provides that a district "may classify" community college ("grade 13 and 14") teachers as temporary if they were employed to fill needs arising from increased enrollment or from absences of teachers on leave or ill.The third paragraph states, "No person shall be so employed . . . for more than two semesters or quarters within any period of three consecutive years."(See text in fn. 1, Ante.)Plaintiffs' employment admittedly complied with none of those conditions.Justification for their temporary status thus depends on whether the section's fourth paragraph...