Peralta Federation of Teachers Local 1603 v. Peralta Community College District

CLARK, J.,

Concurring and Dissenting.—

1. Post-November 1967 Employees

I agree with the majority’s determination that the fourth paragraph of former Education Code section 13337.5 1 precluded tenure for the post-1967 employees, who always served less than 60 percent of full time. *389 However, the majority is incorrect to the extent they imply that such employees might obtain tenure in different circumstances. 2

The Legislature, in effect, has authorized several types of temporary instructor assignments. At least five were available to community college districts. 3 Each type, however, was subject to limitations that, if exceeded, might permit the employee to advance to contract (probationary) status. Such limitations were expressed both within the section authorizing a particular type of temporary assignment and in the general limitations of sections 13336, third paragraph, and section 13446. 4 It is inappropriate to construe limitations on one type of temporary assignment as also applying to a different type. For example, an employee hired under section 13337 advances to contract (probationary) status if reemployed beyond the initial three-month or four-month assignment. However, another employee hired under section 13337.3 (assignment for period ranging from one semester to a complete school year) does not advance to contract status unless reemployed the following school year. 5

*390 The fourth paragraph of section 13337.5 created a unique temporary assignment, one whose limitation is not durational, but is based on hours worked per week. By expressly making inapplicable the durational limitations of section 13446, the Legislature has provided a type of assignment that may be continued from year-to-year so long as the 60 percent limitation is not exceeded. 6 (See Santa Barbara Federation of Teachers v. Santa Barbara High Sch. Dist. (1977) 76 Cal.App.3d 223, 239 [ 142 Cal.Rptr. 749 ].)

The durational limitations of other sections authorizing temporaiy assignments are inapplicable to the fourth paragraph of. section 13337.5 for three reasons. First, that paragraph states its provisions apply “[notwithstanding any other provision to the contrary . . . .” That phrase plainly forbids using conflicting provisions of other statutes to alter the nature of the temporary assignment created by the fourth paragraph. To impose other statutes’ durational limitations, in addition to the paragraph’s own 60 percent limitation, would change the essential character of such temporary assignments, thus contravening the express words of the fourth paragraph. Second, other than the expressly excluded section 13446, the language of other sections pertaining to temporary assignments precludes their application to the fourth paragraph of section 13337.5. These include sections 13336 (applies only to assignments for a complete school .year), 13336.5 (assignments of 75 percent of full time or more), 13337 (assignments limited by their own terms to three or four school months), 13337.3 (assignments for a complete school year), and paragraphs 1 to 3 of section 13337.5 (assignments for a complete school year *391 or complete semester or quarter). Third, it distorts the statutory scheme to apply limitations of one type of assignment to the enabling language of another. This is demonstrated by the above example of sections 13337 and 13337.3. For all these reasons, the fourth paragraph of section 13337.5 is unencumbered by any durational limitation. 7

In this sense, therefore, the fourth paragraph of section 13337.5 governs more than “initial classification.” Rather, it authorizes a particular type of temporary assignment and establishes the single limitation thereto. So long as the parties do not exceed that 60 percent limitation, they are free to continue such assignment indefinitely.

The difficulty with the majority’s explanation arises from its implication that, given different facts, the statutes might require a different result as to other 60 percent temporary employees hired after 1967. The majority’s statutory analysis {ante, pp. 381-384), however, is equally applicable to the tenure entitlements of all 60-percent-or-less temporary employees hired pursuant to the fourth paragraph of section 13337.5. Limitations on other kinds of temporary assignments do not apply to an assignment under the fourth paragraph of section 13337.5. This same inapplicability exists as to the assignments of the instant plaintiffs as well as to any other individual hired pursuant to that paragraph. Thus, such other individuals would be equally ineligible for advancement beyond temporary status so long as they served no more than 60 percent of full time.

2. Back Pay Award to Pre-November 1967 Employees

I further dissent from the decision awarding pro rata back pay to the three pre-November 1967 employees. The majority — holding these em *392 ployees are entitled to retroactive promotion to tenured status — find that section 13503.1 requires pro rata pay for such part time employees. However, section 13503.1, the sole authority relied upon by the majority, has no application to community colleges, but only to elementary and secondary levels. This is made clear by the section’s own terms: “Any person employed by a district in a position requring certification qualifications who serves less than the minimum schoolday as defined in Sections 11003 to 11008 [kindergarten to Grade 8\ inclusive, or 11052 [high school] may specifically contract to serve as a part-time employee. In fixing the compensation of part-time employees, governing boards shall provide an amount which bears the same ratio to the amount provided full-time employees as the time actually served by such part-time employees bears to the time actually served by full-time employees of the same grade or assignment. This section shall not apply to any person classified as a temporary employee under Section 13337 and 13337.5, or any person employed as a part-time employee above and beyond his employment as a full-time employee in the same school district.” (Italics added.)

The italicized language shows the Legislature limited eligibility under section 13503.1 to grade levels described in sections 11003-11008 and 11052, that is, to elementary and secondary schools. It omitted reference to section 11103, the parallel section dealing with the community college minimum school day. The intent to exclude community colleges is apparent.

The statutory history also demonstrates that section 13503.1 applied only to elementary and secondary levels. Prior to 1968 the section applied to: “[a]ny person employed by a district in a position requiring certification qualifications who serves a lesser period of time than the majority of such employees in the same grades of the district are required to serve . . . .” An amendment in 1968 adopted the earlier quoted wording restricting eligibility to elementary and secondary levels. (Stats. 1968, ch. 1079, § 2.) The amendment thus eliminated mandatory pro rata pay for all employees and, in its place, required it only at elementary and secondary levels.

Furthermore, the 1976 reorganization of the Education Code reflects legislative understanding that section 13503.1 did not apply to the post-secondary level. In the reorganized code, section 13503.1 without change became section 45025, applicable solely to elementary and *393 secondary schools. No cognate section was codified in title 3 of the reorganized code, which contains provisions affecting community colleges. Such singular recodification has compelling weight because the Legislature doubly recodified those sections affecting both levels — once in title 2 (elementary and secondary education) and again in title 3 (post-secondary education).

Such reenactment of a section in substantially similar language is to be construed as a restatement or continuation of its former meaning. ([Reorganized] Ed. Code, § 3.) By such “restatement,” the Legislature confirmed section 13503.1 never applied to community colleges.

Substantial reasons exist for the Legislature’s not requiring pro rata pay for part time community college employees. The great variance in content, duration, purpose, and enrollment of college courses requires employing instructors of differing skills, preparation, backgrounds, professional accomplishments, and time availability. Among college employees, part time instructors often have less teaching experience and less state credentialling than full time staff. While full time staff must perform duties that include preparation, teaching, conducting office conferences, fulfilling committee assignments, designing and evaluating curriculum, and assisting with budget decisions, part time staff often need only prepare for and teach classes. In these circumstances, colleges are amply justified in offering part time employment at a rate of $13.86 per hour, as in the instant case, rather than an amount pro rated to a full time rate of $32 per hour, as plaintiffs seek.

Similarly, as compared to part time elementary and secondary employees, part time community college instructors often are professional persons holding full time jobs elsewhere, with primary career preparation in their full time occupations. Part time elementary and secondary teachers, on the other hand, generally are persons whose sole employment is their part time position, and whose career preparation is in teaching. Thus, a logical basis also exists for distinguishing between part time employees at the community college and elementary-secondary levels.

The exclusion of section 13337.5 temporary employees in the last sentence of section 13503.1 is read by the majority as impliedly qualifying nontemporary community college employees for pro rata pay. They reason that such exclusion would not be necessary unless the *394 remainder of section 13503.1 did apply to community college employees. A more reasonable interpretation, however, is that section 13337.5 —which encompasses both adult schools and community colleges —was cited simply to complete the exclusion of all temporary employees. Such exclusion requires citation both of sections 13337 (certain adult and day temporary employees) and 13337.5 (certain adult and college employees). A plain reading of the last sentence of section 13503.1 shows its intent was to deal with all temporary employees without regard to whether they taught elementary, secondary, adult, or college courses.

Thus, no requirement existed then or now for general pro rata pay for community college instructors. In such case, it is established that, where no statutory requirements apply, the level of instructor salaries is determined by the governing board (Campbell v. Graham-Armstrong (1973) 9 Cal.3d 482, 489 [ 107 Cal.Rptr. 777 , 509 P.2d 689 ]) or by contractual agreement (Holbrook v. Board of Education (1951) 37 Cal.2d 316, 331 [ 231 P.2d 853 ]; Richardson v. Board of Education (1936) 6 Cal.2d 583, 586 [ 58 P.2d 1285 ].) As the trial court found, plaintiffs agreed to be paid at the district’s hourly rate. (Special finding of fact No. 4.)

The agreed-upon rate, however, was subject to the pro rata minimum of section 13525. That section required plaintiffs be paid not less than “an amount which bears the same ratio to six thousand dollars ($6,000) as the time required of the person [plaintiffs] bears to the time required of a person employed full time.” The full time assignment, of course, includes not only class hours, but additional laboratory, conference, office, and other assigned hours ( 52 Ops.Cal.Atty.Gen. 218 , 220 (1969)), while plaintiffs’ part time assignments generally were limited to classroom hours only.

Plaintiffs thus are entitled to recover as back pay not an amount pro rated to the salary of regular employees but the greater of either the agreed-upon hourly rate or the section 13525 minimum.

Richardson, J., concurred.

The petition of the plaintiffs and appellants for a rehearing was denied July 6, 1979. Clark, J., was of the opinion that the petition should be granted.

Except as otherwise noted, statutory references are to the Education Code prior to its recodification effective 30 April 1977.

Section 13337.5 provided: “Notwithstanding the provisions of Section 13337, the governing board of a school district maintaining a community college may employ as a teacher in grade 13 or grade 14, for a complete school year but not less than a complete semester or quarter during a school year, any person holding appropriate certification documents, and may classify such person as a temporary employee. The employment of such persons shall be based upon the need for additional certificated employees for grades 13 and 14 during a particular semester or quarter because of the higher enrollment of students in those grades during that semester or quarter as compared to the other semester or quarter in the academic year, or because a certificated employee has been granted leave fór a semester, quarter, or year, or is experiencing long-term illness, and shall be limited, in number of persons so employed, to that need, as determined by the governing board. [¶] Such employment may be pursuant to contract fixing a salary for the entire semester or quarter. [11] No person shall be so employed by any one district for more than two semesters or quarters within any period of three consecutive years. [U] Notwithstanding any other provision to the contrary, any person who is employed to teach adult or community college classes for not more than 60 percent of the hours per week considered a full-time assignment for permanent employees having comparable duties shall be classified as a temporary employee, and shall not become a probationary employee under the provisions of Section 13446.”

The majority state that the fourth paragraph of section 13337.5 shall “apply only to initial classification and not to preclude an otherwise authorized subsequent change from temporary status.” (Ante, p. 381.) The statement suggests that some employees who never worked more than 60 percent of full time might obtain tenure. The majority’s analysis, of course, is based on instant plaintiffs’ particular factual situations. However, as demonstrated in the text, the nature of all assignments pursuant to the fourth paragraph of section 13337.5 precludes obtaining tenure. Thus, so long as an assignment fits within the 60 percent standard of section 13337.5, fourth paragraph, differing factual situations would not require any different results.

They were those authorized by section-13337 (three-month and four-month temporary employees; twenty-day emergency temporary employees), section 13337.3 (full year temporary employees filling vacancies), section 13337.5, paragraphs 1-3 (temporary assignments longer than one semester or quarter but less than one school year, needed because of vacancies or additional enrollment), and section 13337.5, paragraph 4 (temporary assignments of 60 percent or less of full time).

Section 13336, third paragraph, provided: “Any person employed for one complete school year as a temporary employee shall, if reemployed for the following school year in a position requiring certification qualifications, be classified by the governing board as a probationary employee and the previous year’s employment as a temporary employee shall be deemed one year’s employment as a probationary employee for purposes of acquiring permanent status.”

Section 13446 provided: “Governing boards of school districts may dismiss temporary employees requiring certification qualifications at the pleasure of the board. A temporary employee who is not dismissed during the first three school months, or in the case of migratory schools during the first four school months of the school term for which he was employed and who has not been classified as a permanent employee shall be deemed to have been classified as a probationary employee from the time his services as a temporary employee commenced.”

Because of the potentially confusing array of available temporary assignments, the Legislature in 1974 amended section 13335 to require an annual statement of the duration *390 and type of assignment filled by each temporary employee. Such statement permits districts and employees to remain aware of rights, obligations, and limitations under temporary assignments.

The flexibility.provided by such assignments is essential if community colleges are to keep up with the changing needs of their clientele. As found by the trial court in the instant case: “The District finds it necessary to change course offerings constantly in response to such factors as the general economy. Within the confines of a single school year, it may be necessary to add and delete courses by reason of such changing community demand. The California layoff statutes . . . are inadequate to make these adjustments because such proceedings . . . occur at a time when it is not possible to foresee the specific changes in demand which will occur during the following school year.” (Special finding of Fact No. 2.)

The district has drawn a convincing picture of staff and program inflexibility that would be created by conferring tenure upon large numbers of part time instructors. Their required annual reemployment would inflexibly commit a large portion of the district’s scarce salary funds. The district then would find it difficult or impossible to shift funds to new, higher-demand courses.

The intent that no durational limitation apply to assignments under the fourth paragraph of section 13337.5 was underlined in the 1976 recodification of the Education Code. The Legislature eliminated the reference in that section’s final sentence to the inapplicability of former section 13446. Section 13446 required advancement of an employee to probationary status after either three or four school months’ service in temporary status. In place of that reference, the recodified section 87482 (former § 13337.5) refers to recodified section 87604, providing that a 60 percent temporary employee “shall not become a contract employee under the provisions of Section 87604.” That latter section is not the same as former section 13446. The newer section 87604 contains no durational limitation, but simply provides that each community college instructor be employed either in contract, regular, or temporary status. This new reference to the basic classification statute — rather than one dealing with automatic advancement in status — demonstrates the intent that employees shall not be eligible for a change in status while employed as 60 percent temporary employees.