Taylor v. Board of Trustees

• Decision Date: 26 July 1984
• Docket Number: S.F. 24689
• Citation: 36 Cal.3d 500,683 P.2d 710,204 Cal.Rptr. 711
• Court: California Supreme Court
• Parties: , 683 P.2d 710, 18 Ed. Law Rep. 749 Waldo TAYLOR, Plaintiff and Appellant, v. BOARD OF TRUSTEES OF the DEL NORTE UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

Page 711

204 Cal.Rptr. 711

36 Cal.3d 500, 683 P.2d 710, 18 Ed. Law Rep. 749

Waldo TAYLOR, Plaintiff and Appellant, v. BOARD OF TRUSTEES OF the DEL NORTE UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

S.F. 24689.

Supreme Court of California In Bank.

July 26, 1984.

Diane Ross, Burlingame, for plaintiff and appellant.

Thomas S. Owen, Schafer, Cochran, Follett & Owen, Crescent City, for defendants and respondents.

GRODIN, Justice.

Waldo Taylor, a teacher, appeals from a judgment denying his petition for a writ of mandate to compel the Board of Trustees of the Del Norte County Unified School District (the District) et al., to employ him as a probationary certificated employee (i.e., a probationary teacher) and to pay him back salary and benefits. The main issue raised by this case is whether the preferential reemployment rights granted to certain substitute and temporary teachers under Education Code section 44918 ¹ apply to teachers hired as temporaries under the provisions of section 44920. We hold that they do and reverse the judgment on this basis.

Waldo Taylor holds a masters degree in education and a valid teaching credential authorizing multiple subject instruction in preschool, grades kindergarten through 12, and adult classes. During the 1979-1980 school year, he was employed by the District as a substitute teacher and part-time coach. During this school year, he performed the duties of a certificated teacher less than 60 percent of the time.

Taylor worked as a day-to-day on-call substitute until October 15 of the 1980-1981 school year. On that day, a permanent employee of the District was granted a leave of absence. As a result, Taylor was employed to teach seventh and eighth grade language arts at Crescent Elk Junior High School for the remainder of the school year. Taylor was employed under the provisions of section 44920, which authorizes the employment of temporary teachers to replace teachers on long-term leave. During this school year, Taylor served for at least 75 percent of the number of days the regular schools of the District were maintained and he performed the duties normally required of a certificated employee of the District. He also served as a track coach. His evaluations in both capacities were favorable. ²

For the 1981-1982 school year, the District had seven vacant probationary positions. Among these was a position teaching seventh and eighth grade language arts at Crescent Elk Junior High. Other positions included teaching fifth grade at Crescent Elk, sixth grade at Crescent Elk, and positions teaching lower grades at other schools in the District. ³ Taylor possessed the appropriate teaching credential to teach in any of the seven vacant positions. In every case, however, the District hired another candidate. The District admitted that, in filling the vacant positions, it gave no preferential hiring right to Taylor, but rather hired whom it felt to be the most qualified applicant for each position.

Taylor sought a writ of mandate to compel the board of trustees of the District to employ him as a probationary teacher and to pay him various back salary benefits. His contention is that he should have been reemployed as a teacher because he was granted preferential reemployment rights under section 44918. ⁴ The trial court denied the petition, finding that section 44918 reemployment rights do not apply to employees hired as temporary teachers under the provisions of section 44920. ⁵ This interpretation of the law is inconsistent with the plain evidence of legislative intent.

The Education Code establishes four possible classifications for certificated employees: permanent, probationary, substitute and temporary. In the case of permanent and probationary employees, the employer's power to terminate employment is restricted by statute. Substitute and temporary employees, on the other hand, fill the short range needs of a school district and generally may be summarily released. (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 826, 114 Cal.Rptr. 589, 523 P.2d 629.)

In 1961, the Legislature amended former section 13336 to provide that any substitute teacher "who teaches during one school year for at least 75 percent of the number of days the regular schools of the district were maintained in such school year any class or classes which would have been taught by one person absent from service, shall be deemed to have been a probationary employee during the entire school year in which he so teaches, with the rights and duties of other probationary employees of the district, and shall be deemed to have served a complete school year as a probationary employee." (Stats.1961, ch. 1103, § 1, p. 2832, emphasis added.)

This provision has since been significantly amended a number of times and, in 1976, the entire Education Code was reorganized and renumbered. This 1961 enactment is, however, the origin of the preferential and reemployment right which Taylor claims under section 44918.

The effect of this statutory provision was clear. In the event that a teacher classified as a substitute actually replaced an absent teacher for 75 percent or more of the school year, the "substitute" was automatically transformed into a probationary employee, regardless of the district's failure to classify him as such. Section 13336.5 (Stats.1963, ch. 1964, § 1, p. 4043) reenacted this provision in substantially identical language. In Centinela Valley Secondary Teachers Assn. v. Centinela Valley Union High Sch. Dist. (1974) 37 Cal.App.3d 35, 38, 112 Cal.Rptr. 27, the court observed: "The obvious purpose of [section 13336.5] is to prevent school boards and administrators from abusing their discretion in hiring substitute teachers so as to circumvent the tenure rights of teachers."

But implicit in the provisions of section 13336.5 was a significant problem. This problem was alluded to in Centinela, supra, 37 Cal.App.3d 35 at pages 41-42, 112 Cal.Rptr. 27. When a substitute replaced an absent teacher for 75 percent or more of the school year, the substitute became a probationary employee and was automatically entitled to reemployment. But presuming that the absent teacher was absent for legally permissible reasons, that teacher had the right to return to his or her position. Thus, the school district could easily be faced with the necessity of employing two teachers where only one position was available. To avoid this dilemma, school districts would have to fill long-term vacancies on a day-to-day basis with various substitute teachers. As the court in Centinela pointed out, this approach could well prove detrimental to the welfare of the students. (Id., at pp. 40-41, 112 Cal.Rptr. 27.) Perhaps in recognition of this problem, the Legislature in 1971 enacted the predecessor statute to section 44920, Education Code section 13337.3 (Stats.1971, ch. 57, p. 76). ⁶

This provision allowed school districts to replace employees absent due to long-term illness or on long-term leave with teachers classified as temporaries. As temporary employees, such teachers would not be affected by the 75-percent provision contained in section 13336.5, applicable only to substitutes. To make this distinction even clearer, the Legislature explicitly excluded section 13337.3 temporary teachers from the benefits of section 13336.5 by providing that the former statute operated "[n]otwithstanding the provisions of" the latter.

In 1973, however, the Legislature amended both statutes. These amendments effected significant changes in the operation of section 13336.5 and it is therefore appropriate to consider the section's legislative history in some detail. As originally introduced, Senate Bill No. 368, 1973-1974 Regular Session, merely extended the 75-percent provision of section 13336.5 to apply to all school certificated employees, rather than only to teachers. The bill was amended several times prior to passage, however, and these amendments are highly relevant to the present controversy.

The first amendment (Sen.Amend. to Sen.Bill No. 368 (1973-1974 Reg.Sess.) May 21, 1973) added temporary employees to the coverage of the statute, and at the same time deleted the language providing automatic probationary status. Instead, the amended bill provided that "[a]ny such [substitute or temporary] employee shall be reemployed for the following school year to fill any vacant positions in the school district for which the employee is certified." (Emphasis added.) "Vacant position" was defined to mean "a position in which the employee is qualified to serve and which is not filled by a permanent or probationary employee. It shall not include a position which would be filled by a permanent or probationary employee except for the fact that such employee is on leave."

The final preenactment revision of Senate Bill No. 368 occurred in the Assembly on June 28, 1973. On that date, an amended version of section 13337.3 was added to the bill as section 1.5. The single change this amendment made in the language of section 13337.5 was to eliminate the reference to section 13336.5 in the introductory clause, "Notwithstanding the provisions of Sections 13336, 13336.5, and 13337."

Senate Bill No. 368 was enacted in the Statutes of 1973, chapter 279, pages 674-676. As the foregoing legislative history makes abundantly clear, the Legislature intended that the provisions of the amended section 13336.5 should apply to section 13337.3 temporary teachers. In the 1976 reorganization of the Education Code, section 13336.5 became section 44918 and section 13337.3 became section 44920. Thus, it is apparent that the reemployment preference afforded under section 44918 applies to section 44920 temporary teachers such as Waldo Taylor.

Generally, for a writ of mandate to issue, two basic requirements are essential, namely, a clear, present and usually ministerial duty on the part of the defendant and a clear, present and...