(Super. Ct. No. 39-2009-00227959-CU-WM-STK) APPEAL from a judgment of the Superior Court of San Joaquin County, Carter P. Holly, Judge. Reversed with directions.
The opinion of the court was delivered by: Blease , Acting P. J.
CERTIFIED FOR PUBLICATION
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.*fn1
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 . . . ."
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 probationary. (Bakersfield Elementary Teachers Assn. v. Bakersfield City School Dist. (2006) 145 Cal.App.4th 1260, 1280 (Bakersfield).) The purpose of the Education Code's classification scheme is to limit a school district's use of temporary employees so that a district will not subordinate the rights of teachers in secure employment to its own administrative needs. (Haase v. San Diego Community College Dist. (1980) 113 Cal.App.3d 913, 918 (Haase).) Temporary classifications are narrowly defined by the Legislature and must be strictly construed. (Zalac v. Governing Bd. Of Ferndale Unified School Dist. (2002) 98 Cal.Appp.4th 838, 843 (Zalac).)
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.
FACTUAL AND PROCEDURAL BACKGROUND
All of the employees at issue were hired pursuant to section 44909. The employees signed employment agreements with District.*fn2 The agreements stated that they were offers of temporary employment. The agreements indicated the employees were being hired pursuant to section 44909 "as a certificated employee assigned to a categorical program or as the replacement of a certificated employee who has been assigned to a categorical program." The agreements further stated: "As a temporary employee, you do not have a continuing right of employment with the District. Your service shall be deemed terminated no later than the date listed in paragraph 4, or the date on which funding for the categorical program is no longer available, whichever occurs earlier. Additionally, the District expressly reserves the right to dismiss you as a temporary employee at any time during the period in this paragraph based on the determination of the governing board."
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 the California 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 re-employ. (§ 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 Administrative Law Judge (ALJ) had no jurisdiction to expand layoff proceedings to temporary employees, since section 44955 authorizes layoff proceedings only for permanent and probationary employees, temporary employees being subject to summary release under section 44954.*fn3
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.*fn4 The ramifications of classification as a temporary employee, rather than as probationary employee, include the inability to earn credit toward a tenured position and the lack of notice and other procedural protections before termination. (California Teachers Assn. v. Governing Bd. Of the Golden Valley Unified School Dist. (2002) 98 Cal.App.4th 369, 376 (Golden Valley).)
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 re-hire 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.
The section 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 ...