San Jose Teachers Assn. v. Allen

• Decision Date: 01 July 1983
• Citation: 144 Cal.App.3d 627,192 Cal.Rptr. 710
• Court: California Court of Appeals
• Parties: , 52 A.L.R.4th 283, 11 Ed. Law Rep. 943 SAN JOSE TEACHERS ASSOCIATION, Plaintiff and Appellant, v. Elizabeth J. ALLEN, et al., Defendants and Respondents. Civ. 51442. A010367.

Page 710

192 Cal.Rptr. 710

144 Cal.App.3d 627, 52 A.L.R.4th 283, 11 Ed. Law Rep. 943

SAN JOSE TEACHERS ASSOCIATION, Plaintiff and Appellant, v. Elizabeth J. ALLEN, et al., Defendants and Respondents.

Civ. 51442.

A010367.

Court of Appeal, First District, Division 5, California.

July 1, 1983.

Hearing Denied Aug. 24, 1983.

Joseph G. Schumb, Jr., LaCroix & Schumb, San Jose, for plaintiff and appellant.

Margaret E. O'Donnell, Breon, Galgani, Godino & O'Donnell, San Francisco, for defendants and respondents.

KING, Associate Justice.

In this appeal by school district employees and an employees' organization of the denial of a petition for a writ of administrative mandamus they filed against the school district which terminated the teachers because of a reduction in particular kinds of services, we hold as follows:

1. A preliminary notice pursuant to Education Code sections 44949, subdivision (a), and 44955 recommending that a school district terminate certain certified employees because of a reduction in particular kinds of services is sufficiently specific if it designates the categories of services to be reduced or discontinued, even though it does not specify the specific positions to be eliminated.

2. Service of the preliminary notice is sufficient if it is in the hands of the post office, correctly addressed, by the statutorily required date of March 15.

3. A school district need not consider positively assured attrition occurring between the date of the preliminary notice and the final notice in determining the number of certificated employees to be terminated by reason of a reduction or discontinuation of a particular kind of service.

4. At the elementary school level, reduction of classroom teaching can be a reduction of a particular kind of service.

5. A school district may consider its financial circumstances in deciding whether to reduce or discontinue a particular kind of service.

6. For seniority purposes, certificated employees who have transferred from a children's center program into the regular program are deemed to have first been employed by the district on the date that they first rendered paid service in a probationary position in the children's center program.

7. When a permanent certificated employee resigns and is re-employed within 39 months, the re-employment restores all individual rights, benefits and burdens of a permanent employee; however, for seniority purposes, the employee does not regain his or her original hiring date.

8. On-call substitutes working on a day-to-day basis do not receive credit for a year's probationary service unless substituting for at least 75% of the number of days the regular schools are maintained in a regular school year on other than an on-call day-to-day basis.

9. Specially funded contract employees hired as temporary employees do not acquire probationary status, and may be terminated at the expiration of the contract or specially funded program.

We reverse the judgment to the extent that it upholds the school district's failure to grant former children's center employees seniority credit for such service and affirm the judgment in all other respects.

In the spring of 1979 the Board of Education of the San Jose Unified School District terminated 409 fulltime certified employees pursuant to its determination to reduce particular kinds of services. The San Jose Teachers Association and most of the individual employees filed a petition for a writ of administrative mandamus requesting that the termination and decision be set aside, naming the governing board of the San Jose School District and its individual members.

The Education Code provides that a school district may reduce its certificated staff because of a decline in average daily attendance (ADA) or a decision by the school board to reduce or discontinue a particular kind of service (PKS). The Code establishes a procedure whereby no later than March 15 of the school year preceding dismissal, the district must give a notice (preliminary notice) to each certificated employee of the decision recommending he or she not be re-employed for the ensuing year, stating the reasons therefore and the employee's entitlement to a hearing. The hearing takes place before an administrative law judge who prepares a proposed decision which the board may or may not accept. The board's final decision to terminate and notice to the employee of that decision (final notice) must be made by May 15. Any employee not given the preliminary and final notices and the right to the hearing is deemed re-employed for the following year. (Education Code §§ 44955, 44949; ¹ Campbell Elementary Teachers Assn., Inc. v. Abbott (1978) 76 Cal.App.3d 796, 143 Cal.Rptr. 281.)

The preliminary notices in this case gave designations of categories of services to be reduced or eliminated but did not identify the specific positions subject to the notice. ² Appellants challenge the failure to identify specific positions. Since the March 15 notice is only the initial step in the termination process it is not required that it specify the precise number of teachers to be terminated or the specific positions to be eliminated. The preliminary notice is sufficient if it specifies the statutory grounds set forth in section 44955. The specific positions to be eliminated need not be identified. (See Santa Clara Federation of Teachers v. Governing Board (1981) 116 Cal.App.3d 831, 841, 172 Cal.Rptr. 312.)

Faced with significant difficulties since the passage of Proposition 13 ³, school districts are placed in the uncomfortable position of having to terminate teachers before knowing what the district's financial circumstances will be for the ensuing school year. This cannot be ascertained until the state budget has been chaptered and the district knows what state funding it will receive.

Thus, the present process requires preliminary notices to be sent by March 15 to all certificated employees who may be terminated and requires the final notice to be given by May 15, even though the school board does not know until the state budget is chaptered late in June exactly what state funding will be available to the district for the ensuing school year. Clearly, the present statutory timetable is unrealistic; however, any changes in that timetable are the responsibility of the Legislature. Although a teacher who is terminated has preferential rights to re-employment under sections 44957 and 87745, this provides little solace to the understandably upset teacher who is given a needless preliminary (and perhaps final) notice because the school district cannot accurately ascertain its financial circumstances for the ensuing school year until the chaptering of the state budget.

One commentator's suggestion on how the Legislature might change the statutory procedure is:

The Legislature should act to streamline the unnecessarily intricate layoff procedures. A single preliminary notice could, for example, replace the present requirement of a March 15 notice followed by an accusation. Such a solution would not adversely affect teachers' rights. Teachers would then need to ask only once for a hearing instead of filing a request for hearing in response to the March 15 letter and a notice of defense in answer to the accusation. A more radical streamlining would do away with the March 15 and May 15 deadlines entirely and require layoff notices to be sent not later than thirty days after the state budget is chaptered. This approach is a logical response to post-Proposition 13 school-financing realities. Districts now must rely much more heavily on state financing than in the past, but they do not know by March 15 or even by May 15 the amount of state funding they will receive. Consequently, the number of layoffs that may be necessary also must await the state financing decisions. (See Ozsogomonyan, "Teacher Layoffs in California: An Update," (1979) 30 Hastings L.J. 1727, 1759-1760.)

Appellants next contend that appellant Scott Kanode was not timely served with the preliminary notice and therefore, pursuant to section 44955, cannot be terminated, nor can additional employees in the same assignment with greater seniority. Notice to employees is, under section 44949 subdivision (g), "... deemed sufficient when it is ... deposited in the United States registered mail, postage pre-paid and addressed to the last known address of the employee."

There is no factual dispute as to Scott Kanode. His notice was mailed on March 9, addressed not to his last known address but to his previous address. On March 15, however, the post office placed the correct address on the letter through its computerized forwarding service. Kanode received the letter on March 17. Appellants assert a failure of strict compliance with the statutory mailing provisions as required by Hankla v. Governing Board (1975) 46 Cal.App.3d 644, 654, 120 Cal.Rptr. 827, both as to timing and because the district itself did not address Kanode's letter to his last known address. Hankla is to be distinguished since it involved notice of a dismissal of a teacher for alleged criminal conduct, not a notice of a PKS termination. Former Education Code sections 13405 (present § 44936) and 13406 (present § 44937) ⁴ provide different procedures because a dismissal for misconduct is obviously more serious than a PKS termination.

At oral argument appellants cited Hoyme v. Board of Education (1980) 107 Cal.App.3d 449, 165 Cal.Rptr. 737, as supporting their position that there must be strict compliance with the statutory mailing requirements. Hoyme is also distinguishable since it involved the removal of a principal and her reassignment to a teaching position. There is no statutory limit on the right of the board to remove an administrator for any reason satisfactory to the appointing power and no finding of cause is required. Also, the affected administrator has no entitlement to a hearing. (Barton v. Governing...