Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 56-2009-00346544-CU-WM-VTA, Steven Hintz, Judge
GCR, LLP, Yuri A. Calderon and James R. Lynch for Defendant and Appellant.
Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez, Alexis Ridenour and Paul D. Powers for Plaintiffs and Respondents.
PERREN, J.
The Governing Board of the Oxnard School District (Board) appeals from a judgment granting a writ of mandate in favor of respondents California Teachers' Association and 12 teachers laid off as a result of a reduction in force (collectively CTA). The trial court found that the Board laid off teachers in violation of state law because (1) it delegated its authority to formulate criteria to lay off teachers to an assistant superintendent, and (2) the criteria developed by the assistant superintendent violated state law. We agree that the consideration of a single years' prior teaching experience in determining teacher layoffs violates state law and affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Due to budget cuts, the Board was required to reduce the number of teachers in grades K-6. The District adopted Resolution 08-13 ("Reduction of a Particular Kind of Service") on February 18, 2009. The Resolution states in part:
"C. Pursuant to Education Code section 44955(d), the Board hereby determines that there is a specific need at the District for personnel to teach specific courses of study or provide pupil personnel or health services, and to retain certificated employees possessing the special training and experience needed to teach such courses or provide such services that other employees with greater seniority do not possess. The specific needs of the District in this respect are set forth in Exhibit A to this Resolution and are incorporated as though fully set forth herein.
All statutory references are to the Education Code unless otherwise stated.
"D. In accordance with California Education Code section 44955(d), the Board hereby determines that the Reduction in Force shall not include any permanent or probationary certificated employee who, by his/her training, experience, and assignment, is described within Exhibit A to this Resolution.
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"G. In accordance with California Education Code section 44955(b), the District resolves that it will retain employees who are certificated and competent to render services over more senior employees who are not certificated and/or competent to render the same services. 'Certificated' shall mean that an employee possesses a credential issued by the California Commission on Teacher Credentialing that authorizes him/her to render instruction or services in the subject matter area in which he/she claims to be entitled to render instruction or services, or has been lawfully exempted or received a waiver from the credential requirement. The criteria set forth in Exhibit C to this Resolution shall be used to determine whether an employee is competent to render services, and such criteria are incorporated as though fully set forth herein."
Exhibit A is entitled "'Skipping' Criteria Pursuant to Education Code Section 44955(d)(1), " and states:
"For purposes of a school district reduction in force, 'skipping' refers to a junior teacher being retained for specified reasons." (Bledsoe v. Biggs Unified School Dist. (2008) 170 Cal.App.4th 127, 130, fn. 3.)
"The District shall retain certificated employees in the particular kind of services identified in Board Resolution # 08-13, regardless of their seniority (unless the employee is bumped by a more senior and competent employee), to the extent one or more of their assignments meet any of the following criteria:
"1. Employees who possess a credential authorizing the teaching of special education classes, are teaching one or more special education classes for the District in the 2008-2009 school year, and are expected to teach one or more special education classes for the District in the 2009-2010 school year.
"2. Employees who possess a BCLAD or equivalent, and are expected to teach one or more courses requiring a BCLAD for the District in the 2009-2010 school year.
"BCLAD" is an acronym for "Bilingual Crosscultural Language and Development." It refers to a certificate or authorization issued by the California Commission on Teacher Credentialing and is required to teach a bilingual class.
"Employees who meet any of the foregoing criteria for some but not all of their assignment(s) shall be retained only as to that portion of their assignment(s) in 2008-2009 that meets the foregoing criteria.
"The Superintendent or designee is authorized to determine which employees qualify to be 'skipped' from the Reduction in Force and to determine the manner in which the foregoing criteria shall be applied to each employee."
Exhibit C is entitled "Competency Criteria Pursuant to Education Code Section 44955(b), " and states:
"Pursuant to Education Code section 44955(b), 'Competent' shall be defined as follows: (1) The employee has actually rendered instruction or services in the subject matter area in which s/he claims to be entitled to render instruction or services in or after the 2001-02 school year, whether for the District or another school district; and (2) the employee possesses a BCLAD, CLAD, SB 1969, or other certificate authorizing him/her to instruct English Learner students.
"Additionally, an employee who, as of March 13, 2009, possesses a BCLAD or its equivalent shall be deemed 'competent' to serve in any assignment for which possession of a BCLAD is required, regardless of whether the employee has previously served in such an assignment, provided the employee possesses all other certifications necessary to serve in such assignment."
The Board delegated its authority to apply the skipping criteria to Sean Goldman, the District's Assistant Superintendent of Human Resources and Support Services. In selecting the teachers available for skipping, Goldman considered only those teachers who taught bilingual classes in 2008-2009.
Layoff notices were timely served. Twelve employees who received layoff notices requested a hearing. The hearing was held on April 16, 2009, before an administrative law judge (ALJ). At the hearing, Goldman testified that he considered only those teachers who had taught bilingual classes in 2008-2009 as a means of determining the number of BCLAD teachers who would be needed for the 2009-2010 school year. In response to a question concerning his reasoning, Goldman said: "It was my understanding that merely possessing a BCLAD was not sufficient criteria to skip someone, that there had to be a reasonable assumption that they would be teaching in a BCLAD class. [¶] Since the current... bilingual teachers, are in those classes, it's a reasonable assumption that they will continue in those classes. [¶] Otherwise, I would have had to have skipped all of the BCLAD teachers no matter where they are, regardless of whether I knew they were going to teach BCLAD classes or not." Goldman also stated that whether one BCLAD teacher was better qualified to teach a BCLAD class than another teacher was not a consideration in determining which teachers to lay off.
The ALJ found that the Board and superintendent had proceeded in accordance with the Education Code in developing and applying the skipping criteria. On May 6, 2009, the Board adopted the ALJ's decision.
CTA filed a petition for writ of mandate on June 5, 2009. After hearing, the trial court issued a writ of mandate setting aside the layoff notices on the grounds that (1) Goldman applied skipping criteria that was not adopted by the Board, and (2) applying the additional criteria exceeded his employment authorization and was contrary to section 44955, subdivision (d)(1).
On appeal, the Board contends the trial court erred because it was required to defer to the Board's discretion, Goldman properly exercised the discretion delegated to him by the Board, the finding that Goldman applied skipping criteria that were not Board-approved is not supported by substantial evidence, and the court improperly shifted the burden of proof to the Board on the issue of Goldman's regular performance of official duties. CTA asserts the trial court's decision is correct.
DISCUSSION
Standard of Review
Whenever an administrative decision substantially affects fundamental vested rights, the trial court uses the independent judgment standard of review. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, 44-45.) A teacher with tenure has a vested right to her position. (Bledsoe v. Biggs Unified School Dist., supra, 170 Cal.App.4th at p. 143.) In reviewing such rights, the trial court conducts de novo review and must independently judge the sufficiency of the evidence.
On appeal, we do not conduct a de novo review of the evidence; although we are confronted with the identical record examined by the superior court, we are limited to a search for substantial evidence. "As to issues upon which the trial court has properly exercised its independent judgment, the appellate court reviews the findings of the trial court to determine whether they are supported by substantial evidence on the whole record." (Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 501.) Where, as here, however, the issue on appeal involves application of a statute to undisputed facts, our review is de novo. (Smith v. Superior Court (2006) 39 Cal.4th 77, 83.)
The Consideration of a Single Year's Prior Teaching Experience In Determining Whether a Teacher May be Skipped Is Inconsistent with Statutory Tenure Rights
It is well established that the rule making authority conferred on the governing boards of school districts by the Legislature is necessarily limited to the adoption of rules not in conflict with other statutory restrictions. (Patton v. Governing Board (1978) 77 Cal.App.3d 495, 501; see also § 35010, subd. (b) ["The governing board of each school district shall prescribe and enforce rules not inconsistent with law, or with the rules prescribed by the State Board of Education, for its own government"].) It is equally well settled that administrative regulations which alter or amend a statute or enlarge or impair its scope are void. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1389.) These rules apply to dismissal of tenured teachers. (See California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 143-144 ["it is the function of the governing board of each district to suspend, demote or dismiss employees" as provided by statute. "To the extent [any rule or regulation] is contrary to these statutory provisions, it is void, for an administrative agency has no authority to enact rules or regulations which alter or enlarge the terms of legislative enactments"].)
The Education Code contains an extensive web of statutes governing the employment rights of public school teachers. Among other things, these statutes form the legal underpinnings for teacher tenure. (See, e.g., Gilliam v. Moreno Valley Unified School Dist. (1996) 48 Cal.App.4th 518, 521, fn. 1.) The purpose of the tenure law is to give employment security to teachers while protecting the community from ineffective teachers. (Curtis v. San Mateo Junior College Dist. (1972) 28 Cal.App.3d 161, 165.) A school district may not avoid the purposes of the tenure law by use of a subterfuge. Thus, administrative practices that circumvent valid expectations of reemployment created by the tenure statutes are not permitted. (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 830-831; Santa Barbara Federation of Teachers v. Santa Barbara High School Dist. (1977) 76 Cal.App.3d 223, 230.)
"[A] district is statutorily authorized to reduce teaching staff and is required to proceed according to seniority principles. 'The statute specifically protects tenure rights and seniority. Layoffs must begin with the most recently hired. Furthermore, tenured employees who are competent and properly credentialed must be reassigned to replace junior employees....'" (Duax v. Kern Community College Dist. (1987) 196 Cal.App.3d 555, 563 [construing section 87743 applicable to community college districts]; see also Cousins v. Weaverville Elementary School Dist. (1994) 24 Cal.App.4th 1846, 1854 [layoffs must proceed in accordance with the criteria set forth in section 44955]; and see Greer v. Board of Education (1975) 47 Cal.App.3d 98, 105 [layoffs must proceed in accordance with the procedures prescribed by statute, which are to be strictly followed].)
The statutory provisions governing economic layoffs serve two discrete purposes: they provide authority for the dismissal of permanent employees and serve to establish seniority as the principle controlling the order of layoffs and reemployment. (Cousins v. Weaverville Elementary School Dist., supra, 24 Cal.App.4th at p. 1855.) Section 44955, subdivision (b), provides in relevant part that when a school district deems it necessary for specified reasons to decrease the number of permanent employees in the district, "[e]xcept as otherwise provided by statute, the services of no permanent employee may be terminated under the provisions of this section while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render." The purpose of this provision is to give preference to qualified employees based upon their relative seniority. (Hildebrandt v. St. Helena Unified School Dist. (2009) 172 Cal.App.4th 334, 342-343.)
Subdivision (c) of section 44955 provides further that "[t]he governing board shall make assignments and reassignments in such a manner that employees shall be retained to render any service which their seniority and qualifications entitle them to render."
In pertinent part, subdivision (d) of section 44955 authorizes a district to deviate from the order of seniority (skipping) if it demonstrates a specific need for a certificated employee with special training and experience which others with more seniority do not possess.
Because subdivision (b) of section 44955 mandates that "the services of no permanent employee may be terminated... while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render, " junior employees may be given retention priority over senior employees only if they possess special skills or capabilities which their more senior counterparts lack. (§ 44955, subd. (d)(1); Alexander v. Board of Trustees (1983) 139 Cal.App.3d 567, 571; Moreland Teachers Assn. v. Kurze (1980) 109 Cal.App.3d 648, 655.)
Because subdivision (c) of section 44955 mandates that "assignments and reassignments [shall be made] in such a manner that employees shall be retained to render any service which their seniority and qualifications entitle them to render, " a senior employee whose position is discontinued has the right to transfer to a continuing position he is certificated and competent to fill, and in so doing may displace or "bump" a junior employee. (Lacy v. Richmond Unified Sch. Dist. (1975) 13 Cal.3d 469, 472-474; Alexander v. Board of Trustees, supra, 139 Cal.App.3d at p. 571.) Thus, a junior employee having the ability to serve the needs of a program may be retained by the school district, if reduction in staff is necessitated by lower average daily attendance or by reduction or discontinuation of a service, only where competency to fill a special need of the district is not possessed by a senior employee. (Moreland Teachers Assn. v. Kurze, supra, 109 Cal.App.3d at p. 655.)
The Board contends the skipping criterion applied by Goldman--that a teacher have taught a BCLAD class in 2008-2009--is authorized by section 44955, subdivision (d), because the criterion fulfills section 44955, subdivision (d)'s mandate that skipped teachers have experience "which others with more seniority do not possess."
The Board's narrow focus on "experience" and its even narrower definition of that term-- the previous year's teaching assignment--violates a well-established rule of statutory construction. The intent of a statute cannot be determined from a single word or sentence. "Experience" must be construed in context and harmonized with other provisions relating to the same subject matter. (Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91.)
When the entirety of section 44955 is read in context, it does not permit the dismissal of tenured teachers in violation of their seniority rights based on the fortuity of their previous year's teaching assignment. Once the Board chose to reduce its tenured teaching staff but retain BCLAD teachers, section 44955, subdivisions (b), (c) and (d) limited its discretion to evaluations of competency and certification. Appellant was obligated to appoint the most senior BCLAD employee found qualified for the position. Engrafting onto the statute a definition of "experience" that focuses exclusively on the prior year teaching assignment, is contrary to the definition of "competency" in subdivision (b), and also appears to contradict the Board Resolution itself which defines "competent" as "[t]he employee has actually rendered instruction or services in the subject matter area... in or after the 2001-2002 school year."
The Board has not met its burden of demonstrating that abrogating tenure rights is required to meet the needs of the District. It has not shown that junior employees who were skipped have anything more than the basic qualifications for teaching BCLAD classes. (See Bledsoe v. Biggs Unified School Dist., supra, 170 Cal.App.4th at p. 138 [only personnel who have special training and experience beyond basic qualifications may be skipped during a reduction in force].) Goldman admitted that each of the teachers laid off is as competent and qualified to teach BCLAD classes as those, more junior teachers, who were skipped. In such case, seniority rights, not an illusory "experience" criteria, must be applied when laying off teachers to achieve a reduction in force.
As we have determined that the Board developed and applied rules that are not authorized by statute, it is unnecessary that we discuss the parties' remaining contentions. (See San Jose Teachers Assn. v. Barozzi (1991) 230 Cal.App.3d 1376, 1383-1384 ["'If, in interpreting the statute, the court determines that the administrative action under attack has, in effect, "alter[ed] or amend[ed] the statute or enlarge[d] or impair[ed] its scope, " it must be declared void. [Citations.] Thus, if the court concludes that the administrative action transgresses the agency's statutory authority, it need not proceed to review the action for abuse of discretion; in such case, there is simply no discretion to abuse'"].)
The judgment is affirmed. Respondents shall recover costs on appeal.
The Board requests that we modify the writ and judgment in certain respects. We decline to do so. If clarification is necessary to comply with the writ of mandate, the proper procedure is to ask the trial court to do so.
We concur: GILBERT, P.J. COFFEE, J.