This case involves the rights of public school teachers employed under the provisions of Education Code section 44909, which applies to credentialed employees hired for a categorically funded project.
Plaintiff Stockton Teachers Association CTA/NEA (STA) filed this action on behalf of nine of its members who were laid off by defendant Stockton Unified School District (District) at the end of the 2008-2009 school year. The nine members, who were all hired pursuant to section 44909, claim that they were improperly classified as temporary employees and that their proper classification under section 44909 is as probationary employees. Briefly, and as is relevant, the first paragraph of section 44909 allows a district to hire credentialed employees for "categorically funded projects." The terms and conditions of such employment are governed by written agreement between the district and the employee, and the employee does not normally accrue service credit toward classification as a permanent employee by virtue of the employment. The section does not specify whether employees hired under its terms are probationary or temporary, but it provides that employees hired pursuant to its authority may be "terminated at the expiration of the ... specially funded project without regard to other requirements ... respecting the termination of probationary ... employees ...." (§ 44909.)
STA claims employees hired under the first paragraph of section 44909 are probationary employees. It further claims that if they are temporary employees, the actions taken to terminate them were void because District gave them notice to which only probationary and permanent employees are entitled. Finally, it argues there was insufficient evidence that they were temporary employees.
Unless the Education Code requires that an employee be classified as permanent, substitute or temporary, the employee must be classified as
As indicated, section 44909 does not expressly state how employees hired pursuant to its authority are to be classified. However, the purpose of the section is to benefit school districts by allowing them to operate special programs outside their regularly funded programs, without having a surplus of probationary or permanent employees when such special programs expire. (Zalac, supra, 98 Cal.App.4th at p. 845.)
With these guidelines in mind, we shall conclude that section 44909 allows temporary classification of employees only if its terms are strictly followed. As is relevant to the case at hand, this means that employees may be treated as temporary only if they are hired for the term of the categorically funded project and are terminated at the expiration of the categorically funded project for which they were hired. Otherwise, the employees must be treated as probationary employees.
Because there was no evidence that the employees at issue were terminated at the expiration of a categorically funded project they must be treated as probationary employees.
All of the employees at issue were hired pursuant to section 44909. The employees signed employment agreements with District.
In each case the date listed in paragraph 4 was May 29, 2009. The start date for all of the agreements of record was July 28, 2008, or later. This means all of the agreements were for less than a full school year. A full school year is defined by statute as beginning the first day of July and ending the last day of June. (§ 37200.)
On March 4, 2009, District's governing board adopted a resolution reducing or eliminating particular kinds of certificated services for the 2009-2010 school year. Certificated employees are those who have a credential or certificate issued by California's Commission on Teacher Credentialing. (§§ 44001-44006.) All of the employees in this case hold a teaching credential.
Section 44955 provides in pertinent part that when a district determines it is necessary to reduce the number of permanent employees for the following school year, the district may terminate the corresponding number of certificated employees, permanent as well as probationary, and must give notice of termination to the affected employees before the 15th of May. Prior to this date and no later than March 15, the employee must be given notice that his or her services will not be required for the following year. (§ 44949.) Following this notice the employee may request a hearing to determine whether there is cause for the decision not to reemploy. (§ 44949.)
Even though temporary employees are entitled to a more limited notice before the end of the school year (§ 44954), and are not entitled to a hearing, District sent "precautionary" notices on March 13, 2009, to each of the certificated employees it identified as temporary. These precautionary notices were sent because of concerns expressed by STA's counsel that characterization of the section 44909 employees as temporary was inappropriate. The employees were advised to contact the human resources office if they believed they had been inappropriately classified as temporary, and were given a blank request for hearing form. The employees involved in this case requested a hearing.
Prior to the hearing, STA objected to the inclusion in the layoff proceeding of teachers that District had classified as temporary. STA argued that the
In response to the motion objecting to jurisdiction, the ALJ ruled: "Once the District issues a preliminary notice of intent to lay off a certificated employee and the affected employee requests a hearing under Education Code section 44949, subdivisions (a) and (b), jurisdiction exists to determine the appropriateness of the layoff procedure, including whether the employee is a temporary employee or a probationary employee. Accordingly, the motion to dismiss the Accusations for layoff as to temporary employees issued precautionary notices is denied."
Following the hearing the ALJ issued a proposed decision. The ALJ found that District was not prohibited from entering into temporary agreements with employees working in categorically funded programs under section 44909, and that because the affected teachers were provided with an opportunity to participate in the hearing, any due process concerns were satisfied. District adopted the proposed decision of the ALJ.
STA filed a petition for writ of mandate with the trial court. The petition argued that the proper classification of teachers assigned to categorically funded programs is probationary rather than temporary, that District unlawfully included temporary teachers in the layoff proceedings, and that the ALJ's findings were not supported by the evidence.
The trial court denied the writ. The tentative decision stated in pertinent part: "A teacher may be classified as temporary where the teacher is working on categorically funded projects. The language of the statute is that employees employed in categorical positions are not probationary, but are temporary employees. [¶] Further, there is no law that prohibits the inclusion of temporary employees in layoff proceedings in order that their temporary status be adjudicated."
The parties differ as to whether employees hired pursuant to the first paragraph of section 44909 are probationary or temporary employees.
Section 44909 does not state how employees hired pursuant to its provisions are to be classified. Employees hired pursuant to the section are treated like temporary employees in that they earn no credit toward tenure, and are entitled to the notice and rehire rights of a temporary employee if terminated at the expiration of the categorically funded project. However, by specifically qualifying the circumstances under which a section 44909 employee may be terminated without the notice usually accorded a probationary employee, the section implies that such employees are entitled to be treated as probationary employees when such circumstances are not present.
Section 44909 reads as follows:
"The governing board of any school district may employ persons possessing an appropriate credential as certificated employees in programs and projects to perform services conducted under contract with public or private agencies, or categorically funded projects which are not required by federal or state statutes. The terms and conditions under which such persons are employed shall be mutually agreed upon by the employee and the governing board and such agreement shall be reduced to writing. Service pursuant to this section shall not be included in computing the service required as a prerequisite to attainment of, or eligibility to, classification as a permanent employee unless (1) such person has served pursuant to this section for at least 75 percent of the number of days the regular schools of the district by which he is employed are maintained and (2) such person is subsequently employed as a probationary employee in a position requiring certification qualifications. Such persons may be employed for periods which are less than a full school year and may be terminated at the expiration of the contract or specially funded project without regard to other requirements of this code respecting the termination of probationary or permanent employees other than Section 44918.
"Whenever any certificated employee in the regular educational program is assigned to a categorically funded project not required by federal or state statute and the district employs an additional credentialed person to replace that certificated employee, the replacement certificated employee shall be subject to the provisions of Section 44918.
STA argues that by expressly setting forth two limitations applicable to temporary employees (summary termination at the expiration of the specially funded project and noninclusion of service time toward obtaining permanent classification), the Legislature indicated its intent that employees hired pursuant to section 44909 would otherwise be probationary. STA reasons that if the employees were classified as temporary, the Legislature would not need to set forth such limitations. This echoes the reasoning in Golden Valley, supra, 98 Cal.App.4th at page 382. There, the court held that section 44911, which provides that an employee serving under a provisional credential does not accrue service time toward classification as a permanent employee, implies that such teachers should be classified as probationary employees. (98 Cal.App.4th at p. 382.) The court reasoned that the express limitation on the accrual of service time would not be necessary unless service by teachers with such credentials was to be counted toward permanent status. (Ibid.)
District argues that the Legislature demonstrated its intent to make section 44909 employees temporary by providing that the terms and conditions of their employment were to be determined by written agreement, as opposed to permanent and probationary employees, whose employment terms and conditions are determined by statute. It further argues that the termination provisions of the statute indicate the employees are temporary, because if they were probationary, the District's ability to terminate them would be constrained by statute.
"The Education Code establishes four possible classifications for certificated employees: permanent, probationary, substitute and temporary." (Taylor v. Board of Trustees (1984) 36 Cal.3d 500, 504 [204 Cal.Rptr. 711, 683 P.2d 710].) The issue in this case is whether the employees who are the subject of this action should have been classified as probationary or temporary.
As stated, the Education Code specifically authorizes a temporary classification in only a few instances. Section 44919 allows an employee to be classified as temporary who is employed for the first three school months of any term to teach temporary classes that will not exist after the first three school months, or to perform other duties which do not last longer than the first three school months of any term. If the classes or duties continue beyond the first three months, the employee must be classified as probationary.
The purpose of section 44909 is "`to prevent a person from acquiring probationary status solely through teaching in a categorically funded program. This permits the hiring of qualified persons for categorically funded programs of undetermined duration without incurring responsibility to grant tenured status based on such teaching services alone.' [Citation.] The section `was intended to give school districts flexibility in the operation of special educational programs to supplement their regular program and to relieve them
Section 44909 does not expressly provide that employees hired under its authority are temporary, and we are left to interpret this somewhat confusing statute in a manner that accomplishes the Legislature's desire to allow school districts some flexibility in staffing specially funded projects, but does not allow them to circumvent the law through practices designed to "frustrate the valid expectations of reemployment established by the tenure statutes." (Haase, supra, 113 Cal.App.3d at p. 918.)
The primary differences between probationary and temporary employees are (1) Probationary employees have more procedural protections in the event of dismissals or layoffs; (2) service as a probationary employee counts toward the time required to become a permanent employee, while a temporary employee's time does not count unless the employee is reemployed as a probationary employee the year following his or her service as a temporary employee; and (3) seniority is determined as of the date service is first rendered as a probationary employee. (Bakersfield, supra, 145 Cal.App.4th at p. 1293.) Probationary employees also have a superior right to be reemployed for any vacant position that comes up following a reduction in force. (§§ 44918, 44957.) Section 44909 specifically addresses only two of the aspects of employment that differentiate probationary and temporary employees.
Section 44909 addresses the accrual of service time toward becoming permanent. There is none unless the employee is subsequently hired as a probationary employee after serving at least 75 percent of the school days in a year. In this respect, a section 44909 employee has the same rights as a temporary employee.
The termination procedure is a little more complicated. A section 44909 employee may be terminated without regard to the requirements that must be followed for permanent and probationary employees when the termination is "at the expiration of the contract or specially funded project ...."
Were we to interpret this sentence as District suggests, then employees hired for programs conducted under contract with public or private agencies could not be terminated at the end of the contract with the public or private agency unless their agreement with the school district ended at the same time. This cannot be the case. The statute is directed at two similarly situated types of educational programs, i.e., those that are pursuant to contract, and those that are categorically funded. The language of the statute evidences no intent to treat these two programs differently. Hart Federation of Teachers v. William S. Hart Union High Sch. Dist. (1977) 73 Cal.App.3d 211, 216 [141 Cal.Rptr. 817] (Hart), recognized this when it held that under the predecessor statute (former § 13329) an employee could be discharged without regard to the other requirements of the code in two circumstances only, "i.e., expiration of the contract with an outside agency, or expiration of the specifically funded project."
The third aspect, reemployment rights, is not directly addressed by section 44909, but is indirectly addressed by reference to section 44918. Section 44918 deals with reemployment rights. The first paragraph of section 44909 states that a person hired pursuant to its provision "may be terminated at the expiration of the contract or specially funded project without regard to other requirements of this code respecting the termination of probationary or permanent employees other than Section 44918." (Italics added.)
This sentence is confusing because section 44918 does not contain any requirements "respecting the termination of probationary or permanent employees." Rather, section 44918 provides reemployment rights to temporary certificated employees who have worked at least 75 percent of the number of days of the school year and have not been released, or if released, have been retained as a temporary or substitute employee for two consecutive years.
If the employee has not been released, he or she must be reemployed the following school year to fill any vacant positions, subject to the prior rights of
Section 44918 gives reemployment rights to certain long-term temporary and substitute employees, i.e., those who have worked at least 75 percent of the school year and have not been released, or those who have been released, but have been hired as a temporary or substitute for two consecutive years. Even these long-term substitute and temporary employees have reemployment rights that are subordinate to permanent and probationary employees.
The fourth and final aspect distinguishing probationary and temporary employees is the accrual of seniority. An employee accrues seniority from the date he or she first rendered paid service in a probationary position. (§ 44845.) Section 44909 does not specify any limitation on the accrual of seniority for section 44909 employees.
Having reviewed the four aspects that distinguish probationary from temporary employees, and considering the competing interests sought to be protected by the Legislature in enacting the pertinent provisions of the Education Code, we can make the following conclusions about the classification of persons employed pursuant to section 44909.
Preliminarily, we are aware that language exists in at least two cases, which indicates section 44909 employees are temporary employees. (See Vasquez, supra, 159 Cal.App.4th at p. 975; Zalac, supra, 98 Cal.App.4th at p. 852.) However, neither of the cases posed the question whether section 44909 employees were temporary or probationary, and the statements in both are dicta.
In Vasquez, decided by this court, we held that even if a teacher in a section 44909 position were deemed probationary, she would not automatically become a permanent teacher the following year unless reelected. (Vasquez, supra, 159 Cal.App.4th at pp. 977, 985-986.) We reasoned that because the plaintiff had not been reelected, but was hired as a substitute after the school year began, she did not automatically become a permanent teacher. (Id. at pp. 978, 985-986.)
It also means that the district must strictly comply with the following portion of the statute: "Such persons may be employed for periods which are
Section 44909 employees are thus treated like probationary or temporary employees depending on the duration of their employment. A person employed under section 44909 is to be treated like a temporary employee, provided the person is employed for the duration of the contract with a public or private agency or categorically funded project. In other words, a person may be hired for the particular project (or contract) term and be terminated at the end of that term without the notice that would be required for a probationary or permanent employee. Under such circumstances the employee would be treated as a temporary employee for purposes of accruing service required as a prerequisite to classification as a permanent employee, for the purpose of rehire rights and for the purpose of seniority.
What a district may not do is hire a person for more or less than the entire or remaining term of the contract or project, and treat such a person as a temporary employee. For example, if a district terminates a section 44909 employee before the end of the term of the project or contract, the employee must be given the notice to which a probationary employee would be entitled. Because an employee who is terminated before the end of the contract or project, or who is hired for a period less than the entire or remaining term of the contract or project is not a person hired "pursuant to this section" such an employee must be treated as a probationary employee—the default classification. (§ 44909.) Said employee accrues service time as a probationary employee. In terms of seniority and reemployment rights, employees hired for less than the entire or remaining term of the project or contract and
This interpretation of the section satisfies the competing interests the Legislature sought to balance in enacting the classification provisions of the Education Code and in enacting section 44909. Specifically, this interpretation allows school districts the flexibility to operate special programs without having a surplus of probationary or permanent teachers when the special program is terminated. (See Bakersfield, supra, 145 Cal.App.4th at p. 1286.) It also protects employees by preventing a district from hiring temporary employees for a term that has no relation to the term of the program for which they are hired.
The administrative record contains the employment agreements of all the affected employees except Rebecca Hardison, Susheela Nath and Adrian Nickols. The agreements in the record indicate they all began employment after July 1, 2008, for a term ending May 29, 2009. None of the agreements indicates the particular categorical program for which each was being hired.
District asserted that Rebecca Hardison was eliminated because of a reduction in CAHSEE (California High School Exit Examination) funding. There was no evidence that CAHSEE was a categorically funded program, or that it was being eliminated.
Susheela Nath testified she was hired as a literacy specialist. District presented evidence that the instructional specialist positions are categorically funded positions. However, no evidence was presented that the instructional specialist funding was being eliminated.
In the administrative proceeding, District filed an accusation against the teachers involved in this appeal, alleging that they were temporary employees. Because District made this affirmative assertion, it had the burden of proof. (Cornell v. Reilly (1954) 127 Cal.App.2d 178, 184 [273 P.2d 572]; § 44949.) District concedes it had the burden of proving compliance with the layoff statutes. To prove that its employees were temporary under section 44909, District was required (1) to show that the employees were hired to perform services conducted under contract with public or private agencies or categorically funded projects which are not required by federal or state statutes; (2) to identify the particular contract or project for which services were performed; (3) to show that the particular contract or project expired; and (4) to show that the employee was hired for the term of the contract or project. Because District failed to prove some or all of these facts, the employees must be treated as probationary.
The judgment is reversed, and the trial court is directed to enter an order granting the petition for writ of mandate. On remand, the trial court shall conduct further proceedings in which it shall (1) reclassify as probationary the nine members identified in this proceeding, (2) award them proper
Robie, J., and Hoch, J., concurred.
"(a) Any employee classified as a substitute or temporary employee, who serves during one school year for at least 75 percent of the number of days the regular schools of the district were maintained in that school year and has performed the duties normally required of a certificated employee of the school district, shall be deemed to have served a complete school year as a probationary employee if employed as a probationary employee for the following school year.
"(b) Any such employee shall be re-employed for the following school year to fill any vacant positions in the school district unless the employee has been released pursuant to subdivision (b) of Section 44954.
"(c) If an employee was released pursuant to subdivision (b) of Section 44954 and has nevertheless been retained as a temporary or substitute employee by the district for two consecutive years and that employee has served for at least 75 percent of the number of days the regular schools of the district were maintained in each school year and has performed the duties normally required of a certificated employee of the school district, that employee shall receive first priority if the district fills a vacant position, at the grade level at which the employee served during either of the two years, for the subsequent school year. In the case of a departmentalized program, the employee shall have taught in the subject matter in which the vacant position occurs.
"(d) Those employees classified as substitutes, and who are employed to serve in an on-call status to replace absent regular employees on a day-to-day basis shall not be entitled to the benefits of this section.
"(e) Permanent and probationary employees subjected to a reduction in force pursuant to Section 44955 shall, during the period of preferred right to reappointment, have prior rights to any vacant position in which they are qualified to serve superior to those rights hereunder afforded to temporary and substitute personnel who have become probationary employees pursuant to this section.
"(f) This section shall not apply to any school district in which the average daily attendance is in excess of 400,000."
