(Napa County Super. Ct. No. 26-38503), Honorable J. Michael Byrne.
The opinion of the court was delivered by: Pollak, Acting P.J.
CERTIFIED FOR PUBLICATION
When a school district lays off certificated employees because of a reduction of services, pursuant to Education Code*fn1 section 44955, are part-time employees with greater seniority entitled to "bump" a full-time employee with lesser seniority? We agree with the trial court that they are not and, therefore, shall affirm its judgment denying the writ of mandate sought by part-time certificated employees who were released while the school district retained a similarly credentialed full-time employee with lesser seniority.
Following the termination of a memorandum of understanding under which the St. Helena Unified School District (the district) had provided special education services to three other school districts, the district initiated lay off proceedings under section 44955 to reduce or discontinue five full-time certificated positions, including one full-time equivalent (FTE) school psychologist position. At the time, the district employed appellant Margaret Hildebrandt in a.8 FTE position as a certificated school psychologist and appellant Susan Wood-DeGuilio in a similar.2 FTE position. Both appellants had seniority dates that preceded the seniority date of Ramah Commanday, who was employed by the district as a full-time certificated school psychologist. Although timely termination notices were given to all three employees, the district subsequently rescinded the notice to Commanday. Following an evidentiary hearing, an administrative law judge found that it was necessary to eliminate one FTE psychologist position and rejected appellants‟ contention that because of their greater seniority the district was required to retain them in preference to Commanday. According to the administrative law judge, "District does not allow a part-time employee to bump a full-time employee. It also believes that a full-time psychologist is what is needed for program continuity. [¶]... [¶]... Wood-DeGuilio and Hildebrandt are entitled to the same part-time positions they would have held had no reduction in service occurred. The part-time positions which they are entitled to retain by virtue of seniority and qualifications have been discontinued. Wood-DeGuilio and Hildebrandt do not have the right to force District to divide a full-time position to accommodate their desire for part-time employment. Therefore, District may lay off both Wood-DeGuilio and Hildebrandt."
The district‟s governing board adopted the proposed decision of the administrative law judge, and the superior court subsequently denied a petition for a writ of mandamus seeking to set aside that decision. Appellants have timely appealed from that denial.
The issue presented by this appeal is essentially a question of law, as to which this court must exercise its independent judgment. (Pacific Gas & Electric Co. v. Department of Water Resources (2003) 112 Cal.App.4th 477, 491.) Insofar as the decision turns on questions of fact, the findings of the trial court, which adopted those of the administrative law judge, must be upheld if supported by substantial evidence. (Ibid.; Neumarkel v. Allard (1985) 163 Cal.App.3d 457, 460.)
Section 44955, subdivision (b) provides in relevant part that when the governing board of a school district deems it necessary for specified reasons*fn2 to decrease the number of permanent employees in the district, "the governing board may terminate the services of not more than a corresponding percentage of the certificated employees of the district, permanent as well as probationary, at the close of the school year. Except 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." Subdivision (c) 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."*fn3
Reading the statutory language literally, there is considerable force to appellants‟ position. Though part-time, both appellants are permanent employees certificated to render the services of a school psychologist that Commanday performs. Although the district argues that they are not "competent" to render those services because they are only part-time employees and not entitled to a full-time position,*fn4 that is not how competence is normally understood for purposes of the Education Code. (See, e.g., Forker v. Board of Trustees (1984) 160 Cal.App.3d 13, 19 ["the term "competent‟ as used in section 44956 relates to specific skills or qualifications required of the applicant"]; Duax v. Kern Community College Dist. (1987) 196 Cal.App.3d 555, 565.) And, as stated in Krausen v. Solano County Junior College Dist. (1974) 42 Cal.App.3d 394, 402, and repeated in numerous subsequent decisions, the language of the statute "is not ambiguous. It contains a mandatory directive to the board to determine whether any employee whose employment is to be terminated for a reduction in attendance or for a reduction in a particular type of service possessed the seniority and qualifications which would entitle him to be assigned to another position. It seems clear that the provision in question does confer seniority rights and bumping privileges upon probationary, as well as permanent employees. The provision has been interpreted to mean "that when a [particular] service is eliminated [or reduced] the holder of the position is not necessarily terminated, but is entitled to another assignment to which his seniority and qualifications entitled him.‟ " (E.g., Campbell Elementary Teachers Assn., Inc. v. Abbott (1978) 76 Cal.App.3d 796, 813.)
In rejecting appellants‟ contention, both the administrative law judge and the superior court relied primarily on two decisions rendered under section 44956, which confers on permanent employees terminated under section 44955 a preferred right to reappointment if the discontinued service is reestablished within 39 months of the employee‟s termination. Like section 44955, this section provides "that no probationary or other employee with less seniority shall be employed to render a service which said employee is certificated and competent to render." (§ 44956, subd. (a)(1).)
In King v. Berkeley Unified School Dist. (1979) 89 Cal.App.3d 1016, a certificated school counselor who had previously been terminated because of a reduction in services sought to enforce her right to preferential employment under what is now section 44956.*fn5
The school district hired a new employee to fill a new position that involved 50 percent counseling duties, and 50 percent teaching duties for which the former employee was not certificated. In rejecting her petition for a writ of mandate, the court observed that the former employee was not qualified for the teaching half of the new position and that "[n]o cited authority compels [the school district] to offer two separate half-time positions in order to accommodate those previously laid off." (Id. at p. 1021.)
In Murray v. Sonoma County Office of Education (1989) 208 Cal.App.3d 456 (Murray), a school nurse was employed by the Sonoma County Office of Education in a permanent.16 FTE position that was discontinued for budgetary reasons. She sought a writ of mandate when the Office of Education created a full-time nursing position the following year but employed another person with less seniority to fill the position and refused to reinstate her to a.16 FTE position. The nurse contended "that under section 44956 she is entitled to be rehired as a part-time school nurse before an employee with less seniority may be hired to fill a full-time school nurse position." (Id. at p. 460.) In rejecting this contention, the court stated, "First, the purpose of section 44956 is "to give a permanent [employee]... the same employment rights that she would have had if no layoff had intervened, but to no greater rights.‟ (Waldron v. Sulphur Springs Union School Dist. (1979) 96 Cal.App.3d 503, 505..., italics added.) Thus, when a part-time employee is laid off he or she is not entitled to a full-time position which subsequently opens up. Section 44956 ...