Santa Barbara Federation of Teachers, Local 1081 v. Santa Barbara High School District

Facts

The cases were submitted to the trial court upon the following stipulated facts:

Each of the individual petitioners (Lynn Milligen and Elliot Tucker in the high school district case; Gail Fenelon in the school district case)^[2] was employed by respondent as a temporary teacher for at least 75 percent of the days that schools were in session by a series of yearly contracts for the school years 1974-1975, 1975-1976, and 1976-1977.^[3] Petitioners have been informed at all times of their status as temporary teachers and were aware of that status when they accepted each of the yearly employment contracts. Each of the petitioners, however, has received the same salary and benefits as would be earned by a teacher with probationaiy or permanent status.

There is nothing in the record to indicate that any of the petitioners was employed to replace a specific certificated teacher on leave of absence. At all times, however, the number of temporary teachers in both districts has either equalled or been less than the number of probationaiy and permanent teachers missing from service on leaves of absence.

It additionally appears that probationaiy or permanent teachers on leave could have been assigned to teach the various classes taught by petitioners had they not been away, or, at least in one case, that a teacher on leave could have been assigned to teach the class of a certificated employee who could then have been reassigned to teach an industrial arts class taught by one of the petitioners.

Discussion

Although the contracts of employment accepted by petitioners purported to fix their status as that of temporary teachers, they are not estopped to claim probationary status if the statutory scheme of the Education Code compels the latter classification under the particular

facts of each petitioner’s employment situation.^[4] (See § 13338.1; Campbell v. Graham-Armstrong (1973) 9 Cal.3d 482 , 486-487 [ 107 Cal.Rptr. 777 , 509 P.2d 689 ]; Paulus v. Board of Trustees (1976) 64 Cal.App.3d 59 , 61 [ 134 Cal.Rptr. 220 ].) The statutory mandate must be clear, however, before the terms of the contracts may be abrogated. (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 Matthews v. Board of Education (1962) 198 Cal.App.2d 748 , 752 [ 18 Cal.Rptr. 101 ].)

The statutory classification system applicable in the present case is both complex and obscure; several sections of the code appear to conflict with each other. At the core of the classification scheme is a division of teachers into four basic categories: permanent, probationary, substitute, and temporary. “The essence of the statutory classification system is that continuity of service restricts the power to terminate employment which the institution’s governing body would normally possess. Thus, the Legislature has prevented the arbitrary dismissal of employees with positions of a settled and continuing nature, i.e., permanent and probationary teachers, by requiring notice and hearing before termination. [Citations.] Substitute and temporary teachers, on the other hand, fill the short range needs of a school district, and may be summarily released absent an infringement of constitutional or contractual rights. [Citations.] Because the substitute and temporary classifications are not guaranteed procedural due process by statute, they are narrowly defined by the Legislature, and should be strictly interpreted.” (Balen v. Peralta Junior College Dist., supra, 11 Cal.3d 821 , 826, fn. omitted.)

Petitioners Were Properly Classified As Temporary Teachers Pursuant to Section 13337.3

During the relevant years of petitioners’ employment, section 13337.3 provided in pertinent part for the employment of temporary teachers as follows: “Notwithstanding the provisions of Sections 13336 and 13337, the governing board of a school district may employ as a teacher, for a complete school year but not less than one semester during a school year, any person holding appropriate certification documents,

and may classify such person as a temporary employee. The employment of such persons shall be based upon the need for additional certificated employees during a particular semester or year because a certificated employee has been granted leave for a semester or year, or is experiencing long-term illness, and shall be limited, in number of persons so employed, to that need, as determined by the governing board.” (Italics added.)

The dispute between the parties centers on the italicized portion of the above-quoted language. The petitioners contend that the statute allows temporary status only when a teacher replaces a specific employee on leave, i.e., the temporary teacher must teach the classes that a particular teacher on leave would have taught. Since respondent failed to establish that petitioners were replacing any particular probationary or permanent employees on leave, petitioners conclude that their initial classification as temporary teachers under section 13337.3 was improper and that they should therefore have been classified as probationary teachers under section 13334.^[5]

Respondent, on the other hand, disputes petitioners’ contention that section 13337.3 contemplates replacement on a one-to-one basis, and contends that the statute requires only that the total number of temporary teachers not exceed the aggregate of probationary and permanent teachers on leave at any one time. In light of the fact that the number of temporary teachers in both districts has at all relevant times been equal to or less than the number of probationary and permanent employees on leave, respondent maintains that its classification of petitioners as temporary teachers was proper.

Courts must construe statutes so as to effectuate the intent of the Legislature. (Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222 , 230 [ 110 Cal.Rptr. 144 , 514 P.2d 1224 ]; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247 , 256 [ 104 Cal.Rptr. 761 , 502 P.2d 1049 ].) That intent must initially be sought in the language of the statute. (Moyer v. Workmen’s Comp. Appeals Bd., supra, at p. 230; Smith v. City and County of San Francisco (1977) 68 Cal.App.3d 227 , 231 [ 137 Cal.Rptr. 146 ].) But here the words of section 13337.3 are ambiguous and fairly susceptible to both of the constructions suggested by the parties.

additional teacher would stem from the fact that a math teacher was on leave.

Respondent contends that it should not be forced to reassign a teacher from mathematics to industrial arts so as to be able to classify the replacement teacher as temporary. We agree. To require respondent to shuffle its “line-up” in order to take advantage of the temporary replacement provisions of section 13337.3 would run contrary to the traditionally recognized authority of school districts to freely assign and transfer teachers according to the best interests of the educational process. (See Matthews v. Board of Education, supra, 198 Cal.App.2d 748 , 754; cf. 7 Ops.Cal.Atty.Gen. 200 (1946), construing different statutory language.) In interpreting legislation dealing with our educational systems, it must be remembered that the fundamental purpose of such legislation is the welfare of the children. (Centinela Valley Secondary Teachers Assn. v. Centinela Valley Union High Sch. Dist., supra, 37 Cal.App.3d 35 , 42; Knickerbocker v. Redlands High Sch. Dist. (1942) 49 Cal.App.2d 722 , 727 [ 122 P.2d 289 ].)

Petitioners have thus failed to show that they were improperly classified as temporary teachers under section 13337.3.

Petitioners’ Employment For Two Consecutive Years Did Not Compel Their Classification As Probationary Teachers

At the time of the relevant years of employment, section 13336 provided in pertinent part: “Any person employed for one complete school year as a temporary employee shall, if reemployed for the following school year in a position requiring certification qualifications, be classified by the governing board as a probationary employee and the previous year’s employment as a temporary employee shall be deemed one year’s employment as a probationary employee for the purposes of acquiring permanent status.” During the same period, section 13337.3, which has been previously discussed, contained the identical language.^[6]

Petitioners maintain that the quoted language compels their classification as probationary teachers since each of them has been employed as a temporary teacher for one school year and then reemployed for an additional school year.

At first glance, petitioners’ argument is very persuasive. However, when possible, sections of the Education Code bearing on the same subject must be read and construed together. (Certificated Employees Council v. Monterey Peninsula Unified Sch. Dist. (1974) 42 Cal.App.3d 328 , 333 [ 116 Cal.Rptr. 819 ]; see County of Placer v. Aetna Cas. etc., Co. (1958) 50 Cal.2d 182 , 188-189 [ 323 P.2d 753 ].) As amended in July of 1973, which is prior to petitioners’ first employment by respondent, section 13336.5 provided that advancement upon reemployment to probationary status following a year as a temporary teacher would only be compulsory if the teacher was rehired to fill a “vacant position.” A position is “vacant” within the meaning of section 13336.5 if the rehired employee is qualified to serve in it and the position is not being filled by a permanent or probationary employee; the definition excludes a position which would be filled by a permanent or probationary employee but for the fact that such employee is on leave. Section 13336.5 went on to provide for the reemployment of temporary teachers in the same capacity for the following school year when there are no “vacant positions”^[7] The provisions of section 13336.5, as amended in 1973, were thus patently inconsistent with the language of sections .13336 and 13337.3 which mandated probationary status for a temporary teacher who is rehired for a second year.

A court must reconcile statutes, whenever possible, and seek to avoid interpretations which would require it to elevate one statute over another. (Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1 , 6-7 [ 128 Cal.Rptr. 673 , 547 P.2d 449 ]; Organization of Deputy Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d 331 , 340 [ 122 Cal.Rptr. 210 ].) But when the provisions of one statute are in irreconcilable conflict with those of another, as in the present case, the later enactment, by implication, will be deemed to have repealed any contrary provisions contained in the earlier. (Adams v. Superior Court (1970) 8 Cal.App.3d 569 , 572 [ 87 Cal.Rptr. 667 ]; Cannon v. American Hydrocarbon Corp. (1970) 4 Cal.App.3d 639 , 648 [ 84 Cal.Rptr. 575 ].) Here, the language in sections 13336 and 13337.3 compelling automatic probationary status for a rehired temporary teacher was added by chapters 843 and 57 respectively of the Statutes of 1971; the conflicting language of section 13336.5, which permitted the reemployment of a temporary teacher without elevation of status, was added as an amendment by chapter 279 of the Statutes of 1973. Under the above-described rule, the later enactment of the language in section 13336.5 will be deemed to have abrogated any contrary language in sections 13336 and 13337.3.

This conclusion finds support in the fact that the Legislature subsequently amended section 13337.3 (Stats. 1975, ch. 885, § 1) so as to conform fully with the provisions of section 13336.5.^[8] Although the

amendment could not have retroactively changed petitioners’ classification (Balen v. Peralta Junior College Dist., supra, 11 Cal.3d 821 , 828), it may be considered to have merely clarified the pre-existing law embodied in the conflicting provisions of the statutes discussed^[9] (Steilberg v. Lackner (1977) 69 Cal.App.3d 780 , 787 [ 138 Cal.Rptr. 378 ]; Vittal v. Long Beach Unified Sch. Dist., supra, 8 Cal.App.3d 112 , 121.)

Petitioners are thus not automatically entitled to probationary status by virtue of the fact that they have each been reemployed following a year as a temporary teacher.

Petitioners Are Not Entitled To Probationary Status On The Basis Of Their Total Length of Service

Petitioners contend that even if they were properly classified as temporary teachers for two years, the classification ceased to be proper in the third year of their employment. Their conclusion is based on the fact that section 13336.5 (fn. 6 above) addressed itself only to the year of employment “following” an initial year of classification as a temporary employee. This, according to petitioners, mandated their classification as probationary teachers for the 1976-1977 school year since they had already served in a temporary capacity during the 1974-1975 and 1975-1976 school years.

A more reasonable interpretation of section 13336.5, however, is that its reference to the “following school year” is not restricted to the second year of employment as a temporary teacher, but applies to any year of employment following a year of service in a temporary capacity. This

interpretation is supported by the fact that a closely analogous statute concerning the employment of temporary instructors in community colleges, section 13337.5 of the prereorganized code, contained language explicitly limiting the number of semesters or quarters an employee could serve in a temporary capacity to two within any period of three consecutive years.^[10] (See Balen v. Peralta Junior College Dist., supra, 11 Cal.3d 821 , 828-829; Coffey v. Governing Board, supra, 66 Cal.App.3d 279 , 291-293; Ferner v. Harris (1975) 45 Cal.App.3d 363 , 372 [ 119 Cal.Rptr. 385 ].) Thus, by the enactment of section 13337.5, the Legislature demonstrated that it can be precise when it wants to place a limitation on the length of time an employee may be classified as a temporary teacher. Section 13336.5, which contained no such explicit limitation, should therefore not be restricted to two years’ application.

Petitioners additionally assert that they should be granted probationary status even without regard to the statutory classification system since their three years of employment in the instant school districts has created valid expectations of reemployment. They contend that their several years of employment have afforded respondent ample time to evaluate their performance, and argue that their classification as temporary teachers in an unlawful evasion of the tenure law since they have performed the same services with the same degree of training and experience as teachers with probationary status.

If allowed to prevail, petitioners’ argument would destroy the distinction made by the Education Code between permanent and probationary teachers on the one hand, and temporary and substitute teachers on the other; without this distinction, any teacher who taught in any capacity

could earn tenure simply on the basis of consecutive years of service. But mere continuity of employment by a temporary or substitute teacher in a position regularly held by a probationary or permanent teacher does not, by itself, give rise to tenured status. (Ham v. Los Angeles City High Sch. Dist. (1946) 74 Cal.App.2d 773 [ 169 P.2d 646 ].)

Petitioners rely principally on Balen v. Peralta Junior College Dist., supra, 11 Cal.3d 821 . Balen was hired as a part-time community college instructor for four and one-half years. At the time of Balen’s initial employment, there was no provision in law which permitted his classification as a temporary employee. But during the course of his employment, the Legislature enacted section 13337.5 (fn. 9, supra), which authorized the employment of community college instructors on a temporary basis. The California Supreme Court, however, concluded that Balen had already become a probationary employee under other sections of the Education Code, and held that section 13337.5 was not intended by the Legislature to apply retroactively so as to deprive him of that previously earned status. (11 Cal.3d at pp. 827-829.) Nothing in Balen indicates that a properly classified temporary teacher must be given probationary status merely because of continued service over several years. Thus, although petitioners may have a desire to be classified as probationary teachers, they have no legally based expectations of such reclassification.

Finally, it might be noted in passing that section 13446, cited by petitioners, is not pertinent to the case át bench. That section stated that a temporary employee who is not dismissed during the first three school months, or four in the case of a migratory school, shall be granted either probationary or permanent status.^[11] It is apparent from a complete examination of the Education Code, however, that the type of temporary employee referred to in section 13446 is the special type of “short-term” replacement described in section 13337,^[12] which is superseded by the

“notwithstanding” language at the beginning of section 13337.3 (fn. 5, supra) when the employee is hired, as in the present case, on a year-long basis.^[13]

Conclusion

We again recognize the potential for abuse inherent in the temporary teacher classification statutes as we have interpreted them, and are aware of the California Supreme Court’s dictate that the temporary classification be strictly construed. (Balen v. Peralta Junior College Dist., supra, 11 Cal.3d 821 , 826.) But when, as in the present case, the statutes plainly do not compel reclassification to a higher status, the terms of the contracts of employment must be deemed controlling. (Paulus v. Board of Trustees, supra, 64 Cal.App.3d 59 , 64.)

The judgments are affirmed.

Potter, Acting P. J., and Allport, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied February 22, 1978.