Kalamaras v. Albany Unified School District

Opinion

In this case we hold a temporary teacher’s reemployment rights under Education Code section 44918 cannot be defeated by an unsatisfactory evaluation after he or she has served for 75 percent of the school year.

The Albany Unified School District (District) appeals a judgment issuing a peremptory writ of mandate ordering it to rehire Carol Kalamaras as a probationary certificated employee. We affirm.

The District hired Kalamaras as a full-time temporary certificated employee for the academic year 1987-1988, during which she functioned as librarian of Marin Elementary School. In November and again in February she received preliminary evaluations of “needs improvement,” and in April

A.

The trial court found that Kalamaras automatically became a probationary employee once she had completed 75 percent of the school year and that as such she was entitled to written notice of nonreemployment which she was not given. The trial court explicitly and repeatedly based this conclusion on language from Taylor v. Board of Trustees (1984) 36 Cal.3d 500 , 505 [ 204 Cal.Rptr. 711 , 683 P.2d 710 ], which it quoted out of context. In fact, the Taylor court was describing the effect of a predecessor statute when it said that a substitute who taught 75 percent of the school year “was automatically transformed into a probationary employee, regardless of the district’s failure to classify him as such.” The court went on to note that this provision could create “a significant problem” of overstaffing. (Ibid.) Continuing its historical survey, the court noted that ultimately the Legislature “added temporary employees to the coverage of the statute, and at the same time deleted the language providing automatic probationary status.” 9Id. at p. 506, italics in original.)

The current statute clearly states that a temporary who functions as a certificated employee for 75 percent of the school year “shall be deemed to have served a complete school year as a probationary employee” only retroactively, if rehired as a probationary for the following year. In other words, once the temporary gets on “tenure track,” her year as a temporary counts toward the two-year probationary period required to become a permanent employee. (Ed. Code, § 44929.21.)

That the trial court’s rationale was erroneous does not end our inquiry. “If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion.” (9 Witkin, Cal. Procedure (3d ed. 1985) § 259, p. 266, italics in original.)

B.

Kalamaras contends that by its terms Education Code section 44918 mandates her reemployment even though she remained a temporary throughout the 1987-1988 school year. The District contends she does not fall within the statute’s mandate because she had not “performed the duties normally required of a certificated employee of the school district,” as documented by her final unsatisfactory evaluation. In other words, the District maintains that in this context “performed” means “satisfactorily performed.”

The plain meaning of the disputed criterion is that the statute applies to those functioning as certificated rather than as classified employees, i.e., noncertificated employees or certificated employees performing jobs not requiring certification. (See Ed. Code, § 45104.) Thus, the Taylor court said of Mr. Taylor, “During the 1979-1980 school year, he was employed by the District as a substitute teacher and part-time coach. During this school year, he performed the duties of a certificated teacher less than 60 percent of the time.” (Taylor v. Board of Trustees, supra, 36 Cal.3d at p. 502.) Beginning October 15, 1980, Taylor was employed as a temporary to replace a language arts teacher on leave of absence for the rest of the school year. (Ed. Code, § 44920.) The court stated, “During this school year, Taylor served for at least 75 percent of the number of days the regular schools of the District were maintained and he performed the duties normally required of a certificated employee of the District. He also served as a track coach. His evaluations in both capacities were favorable.” (Id. at p. 503, fn. omitted.) The implications of this employment summary—especially the last two sentences—are that 1) Taylor was performing duties normally required of certificated employees when he taught English but not when he coached track, and 2) Taylor’s favorable evaluations were considered as a factor separate from performing duties normally required of certificated employees.

It is undisputed that Kalamaras functioned as a librarian, i.e., a certificated employee, rather than as a track coach or other classified employee. That is all the statute requires. If the Legislature meant “satisfactorily performed” rather than merely “performed,” it would have said so.

Although it is true the temporary teachers whose reemployment rights were upheld in Taylor v. Board of Trustees, supra, 36 Cal.3d 500 , and California Teachers Assn. v. Governing Board (1987) 195 Cal.App.3d 285

The District maintains it is not logical to assume the Legislature intended temporary employees to have “more rights” than probationary employees, so that an interpretation of the statute prohibiting summary dismissal after rehiring rights have attached is “not persuasive.” It is, however, not impossible the Legislature did intend to grant temporary teachers an extra modicum of protection given that, “The obvious purpose of the statute is to prevent school boards and administrators from abusing their discretion in hiring substitute [and temporary] teachers so as to circumvent the tenure rights of teachers.” (Centinela Valley Secondary Teachers Assn. v. Centinela Valley Union High Sch. Dist. (1974) 37 Cal.App.3d 35 , 38 [ 112 Cal.Rptr. 27 ], see also Taylor v. Board of Trustees, supra, 36 Cal.3d at p. 505.) As the Taylor court noted, “It is apparent that the Education Code is the product of many compromises between competing considerations . . . .” (id. at p. 509), and absent this protection, a District could fill permanent teaching positions with an endless string of temporaries, thereby saving the District money at a cost to students of salutary continuity and to teachers of equally salutary job security.

In most cases, a District should be able to decide whether or not it is sufficiently satisfied with a teacher’s performance to rehire him or her within the first three-quarters of the year while summary dismissal is still available. On the other hand, a District might reasonably believe it less disruptive for students to keep a somewhat unsatisfactory teacher in the classroom for the remainder of the school year than to remove him or her and bring in a new, perhaps untried, replacement. It is also possible that grounds for dismissal other than unsatisfactory performance (Ed. Code, § 44932) might arise or be discovered after rehiring rights have attached. In those situations, the District would be forced to rehire an unsatisfactory teacher for the following year if an appropriate vacancy occurred.

If that is not what the Legislature intends, it is for that body rather than this court to fill the lacunae in the statutory scheme. Meanwhile, the problem does not arise in this case, for the District does not claim to have dismissed or attempted to dismiss Kalamaras for unsatisfactory performance, for cause, or otherwise, at any time during the school year, before or after rehiring rights attached. Rather, it claims she never obtained rehiring rights because she received an unsatisfactory evaluation. As the statute is now written this is incorrect.

None of the cases the District cites compels a different interpretation; only one concerns Education Code section 44918 rehiring rights of tempo

In Fair v. Fountain Valley School Dist., supra, 90 Cal.App.3d 180 , plaintiff was one of 36 teachers with Education Code section 44918 rehiring rights (although no mention is made of his performance evaluations), with only 28 vacancies to be filled. The parties stipulated and the trial court found the district violated its ministerial duty under section 44918 by filling three of the vacant positions with non section 44918-eligible teachers. But the court affirmed the trial court’s conclusion that plaintiff was not thereby denied a clear and present right, because he made no showing that of the eleven eligible teachers not reappointed he would have been one of the three selected had the district completely complied with the statute. Finally, the court affirmed the trial court’s holding that the district did not abuse its discretion in choosing the 25 eligible temporaries who were reappointed on the basis of “qualification, experience, and performance” rather than seniority. (Id. at pp. 184-187.) This case permits performance to be considered in granting statutory reemployment rights only if there are fewer vacancies than eligible temporaries.

Finally, in King v. Berkeley Unified School Dist. (1979) 89 Cal.App.3d 1016 [ 152 Cal.Rptr. 782 ], the court affirmed the trial court’s holding that the district had not abused its discretion in determining that certain laid-off permanent teachers with preferential rehiring rights were not “certificated and competent” within the meaning of former Education Code section 13448 (now Ed. Code, § 44956) to claim particular vacant positions. Again, the District proceeds by false analogy. The criterion in Education Code section 44918 analogous to former Education Code section 13448’s “certificated and competent to render [certain services]” is “certified and qualified to serve,” with “qualified to serve . . . defined to mean the possession of an appropriate credential plus completion of appropriate academic prep