Kavanaugh v. West Sonoma County Union High School District

BROWN, J.

I respectfully dissent. Like the Court of Appeal in this case, I conclude Education Code 1 section 44916 “requires a school district to provide a written statement to a new certificated temporary employee indicating that person’s employment status and salary when its governing board takes formal action to hire the employee, rather than on the date that new employee first renders paid service to the district.”

Section 44916 should be read in conjunction with section 44915, which immediately precedes it. Section 44915 provides, “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.” Section 44916 provides, “The classification shall be made at the time of employment and thereafter in the month of July of each school year. At the time of initial employment during each academic year, each new certificated employee of the school district shall receive a written statement indicating his employment status and the salary that he is to be paid. If a school district hires a certificated person as a temporary employee, the written statement shall clearly indicate the temporary nature of the employment and the length of time for which the person is being employed.” (Italics added.)

Thus, section 44915 refers to the board classifying teachers, and section 44916 specifies when that classification by the board must be made. Moreover, section 44916 specifically refers to the “school district hir[ing]” a teacher. The majority does not dispute the Court of Appeal’s assertion that under the Education Code, “the power to employ and classify certificated employees is vested exclusively in the governing board of a school district.” (See §§ 44830, subd. (a), 44830.7, 44831, 44909, 44915, 44917, 44919, 44920.) If the governing board employs and classifies employees, it is difficult to understand how a teacher could “receive a written statement indicating his employment status and the salary that he is to be paid” prior to the board determining those matters. Or how a notice that must indicate the temporary status in which the teacher was “hire[d]” could issue before such “hir[ing]” occurs. It thus seems “the time of initial employment” means nothing different from and cannot precede the time the school district “hires” the new teacher. (§ 44916.)

*930 Indeed, the legislative history of section 44916 indicates the Legislature repeatedly referred to the school district as the entity hiring and classifying teachers. (See, e.g., Sen. Republican Caucus, analysis of Sen. Bill No. 1942 (1973-1974 Reg. Sess.) June 5, 1974, p. 1 [“This bill. . . would require that at the time of employment by a school district each certificated employee would be furnished a written statement indicating the employee’s classification, salary level, and a brief statement of specified employee rights” (italics added)]; Legis. Counsel’s Dig., Sen. Bill No. 1942 (1973-1974 Reg. Sess.) as introduced Mar. 29, 1974 [“Requires that at the time of employment by a school district, each certificated employee be furnished a written statement indicating the employee’s classification, salary level, and brief statement of specified employee rights” (italics added)]; Legis. Counsel’s Dig., Sen. Bill No. 1942 (1973-1974 Reg. Sess.) 2 Stats. 1974, Summary Dig., p. 204 [“Requires that during each academic year at the time of employment by a school district, each certificated employee be furnished a written statement indicating the employee’s classification and salary level” (italics added)].)

Moreover language similar to that in section 44916 appears in section 44830, subdivision (b). Section 44830, subdivision (b) provides: “[N]o school district governing board shall initially hire on a permanent, temporary, or substitute basis a certificated person seeking employment in the capacity designated in his or her credential unless that person has demonstrated basic skills proficiency . . . .” (Italics added.) If the board “initially hire[s]” teachers in section 44830, subdivision (b), it would seem consistent that it is the board’s, not the school’s, action to which section 44916 refers when it uses the language “initial employment” and “hires.”

In addition, when the Legislature intends consequences to attach from the moment paid service is first rendered, it says so explicitly. For example, section 44845 provides, “[e]very probationary or permanent employee employed after June 30, 1947, shall be deemed to have been employed on the date upon which he first rendered paid service in a probationary position.” (Italics added; see, e.g., § 44846 [“As between two or more employees who first rendered paid service to the district on the same date”]; § 44847; § 44848 [“When any certificated employee shall have resigned or been dismissed for cause and shall thereafter have been reemployed by the board, his date of employment shall be deemed to be the date on which he first. . . rendered paid service . . . after his reemployment” (italics added)].) No such language appears in section 44916.

The majority claims the absence of such language is inconclusive because in other statutes the Legislature uses the word “hiring,” and thus “has not *931 been consistent in this regard.” (Maj. opn., ante, at p. 920.) The Legislature obviously views these as different events, and is therefore not being inconsistent, but invoking different language to refer to different dates. Contrary to the majority’s assertion, the Legislature did not fail to specify “the date of hiring as the relevant time for triggering section 44916’s remedy.” (Ibid.) Rather, as plaintiff asserted at oral argument, the terms “initial employment” and “hire[]” in section 44916 mean the same thing, and as plaintiff also conceded, it is the school district that is the hiring entity. Given that when an employee is “hir[edj” is different from when the employee “first rendered paid service,” this court should conclude in this case that “initial employment” in section 44916 means something different from the teacher’s first day of paid service.

The majority relies in part on California Teachers Assn. v. Governing Board (1987) 195 Cal.App.3d 285 [ 240 Cal.Rptr. 549 ], stating the Court of Appeal in that case “clearly considered the phrase at ‘the time of initial employment’ ... to refer to the time the teacher began working for the district, and not” the time the school board ratified his hiring several months later. (Maj. opn., ante, at p. 922.) As the plaintiff notes, however, “the teacher there was a returning teacher and the question of whether ‘the initial time of employment’ is the first day of paid employment was not before the court.” Moreover, at least one case interpreting the identical language of former section 13335, the predecessor to section 44916, appears to assume notice of a temporary classification in the employment contract satisfies the statute’s notice requirement. (California Teachers Assn. v. Pasadena Unified Sch. Dis. (1978) 79 Cal.App.3d 556, 560 [ 145 Cal.Rptr. 100 ] [citing former § 13335 and noting while the “actual employment contracts are not in the record, ... it must be presumed in support of the judgment that appellants were duly notified of the nature of their employment at the time”].)

Thus, contrary to the majority’s assertion that the statutory language and legislative history are inconclusive (maj. opn., ante, at pp. 919-920), these sources of information, together with the language of related statutes, consistently support the interpretation that “time of initial employment” is when the board hires the teacher, not when she begins work.

Rather than relying on such sources, the majority primarily focuses on the various results it asserts would ensue if we affirm or reverse the Court of Appeal. (Maj. opn., ante, at pp. 920-923.) These too fail to persuade, and indeed, it is the majority’s result that implicates significant policy concerns. For example, the majority contends that interpreting “initial employment” to mean “before [a teacher] first render[s] paid service to [his or her] employer” *932 will enable the teacher to make an informed decision about his or her employment future as early as possible, and “avoids the kind of bait-and-switch scenario in which a teacher begins the school year believing his or her status is probationary (with the accompanying level of job protection) only to discover after the year has started—when it is too late to find another position—that the position is only temporary.” (Maj. opn., ante, at pp. 920-921.)

To the contrary, the majority’s suggestion new teachers always be told they are temporary when they start, but that this status may change after the board votes, does nothing to implement the clear notice and security that is the purpose of section 44916. Rather, it interprets the statute in a manner that provides less direction to teachers. Section 44916 requires a written statement of what a teacher’s employment status and salary will be, not “written notice that the position is a temporary one pending confirmation by the school board and verification of the teacher’s educational and employment references, at which point the teacher [could] be reclassified as probationary.” (Maj. opn., ante, at p. 925.)

Moreover, as the majority also notes, a “school district’s need for new employees . . . may not be apparent until sometime closer to the beginning of the school year, or even after the school year has begun.” (Maj. opn., ante, at p. 921.) Here, plaintiff began work on August 26, and was informed on September 13 she was temporary. (Id. at p. 915.) Contrary to the majority’s assertion, this was not “midyear” notification. (Id. at pp. 922-923.) Rather, it seems unlikely plaintiff’s employment prospects for the current school year changed dramatically during such a brief time period.

In addition, the purpose of a governing board is to oversee the entire district, and make hiring and salary decisions for a particular school against the backdrop of the needs of the district’s other schools. Requiring boards to delegate their hiring and classification authority, as the majority suggests, to each individual school will lead to a fragmented and fiscally chaotic personnel situation. (See maj. opn., ante, at pp. 924-925.) Moreover, it hardly seems appropriate for this court to state when such power should be delegated, or to impose nonsensical and counterproductive duties on school administrators.

Certainly the apparent purpose of section 44916 is to provide a new teacher prompt notice of her salary and classification. Given that the statute has existed for over a quarter of a century, however, and this is the first case to raise the issue of when the notice must be given, it does not appear school districts allow a teacher’s employment status to remain in limbo for prolonged periods of time. Moreover, caution is appropriate because the narrow *933 question before us does not involve a comprehensive assessment of other limitations—in the Constitution, statutes, or collective bargaining agreements—that would prevent the board from allowing a teacher to work for an extended period of time without knowing her salary or status. In sum, no policy reason asserted by the majority justifies ignoring section 44916’s language and the statutory scheme in which it exists.

I would affirm the judgment of the Court of Appeal.

Baxter, J., and Chin, J., concurred.

Appellants’ petition for a rehearing was denied April 16, 2003, and the opinion was modified to read as printed above. Baxter, J., Chin, J., and Brown, J., were of the opinion that the petition should be granted.

All statutory references are to this code.