Summerfield v. Windsor Unified School District

Opinion

Although amendments to Education Code section 44911^[1] have been in effect for close to 20 years, no appellate court has interpreted them. This case requires us to do so. Lori Summerfield successfully petitioned the trial court for a writ of mandate directing the Windsor Unified School District and its governing board (collectively the District) to employ her as a permanent certificated teacher and compensate her for accrued benefits and backpay. Relying on section 44911, the District argued the two years Summerfield spent teaching under emergency permits (§ 44300) could not be counted toward the time necessary for her to attain permanent status, and thus the District had full discretion to terminate her employment when it did.

Considering the relevant statutory language and legislative history, we agree with the District’s interpretation and reverse the order issuing a writ of mandate. Under section 44911, time spent teaching under an emergency teaching credential may not be counted in computing an employee’s progress toward permanent status unless the employee is credentialed in another state and demonstrates adequate basic skills proficiency pending successful completion of the California Basic Educational Skills Test (CBEST).^[2]

Background

The District hired Summerfield as a long-term substitute teacher in September 1996. Because Summerfield did not have a teaching credential, the District helped her obtain an “Emergency 30-Day Substitute Teaching Permit” from the Commission on Teacher Credentialing, which authorized her

In 1988, the Legislature repealed section 44254 and replaced it with section 44300. (California Teachers Assn. v. Commission on Teacher Credentialing, supra, 7 Cal.App.4th at p. 1473; Stats. 1988, ch. 1355, § 15, p. 4478.) Section 44300 authorizes the Commission on Teacher Credentialing to issue and renew “emergency teaching or specialist permits” under specified conditions. (§ 44300, subd. (a).) Summerfield reads much into the fact that section 44300 did not retain the final sentence from former section 44254, which had deemed the phrase “provisional credentials” equivalent to “emergency credentials.” According to Summerfield, the Legislature’s failure to include this sentence in section 44300 must be construed as a conscious decision to abandon the definition. Reasoning that section 44300 reflects a legislative intent for “emergency” credentials to be viewed as something different from “provisional” credentials, Summerfield concludes the Legislature’s failure to amend section 44911 means that the Legislature intended section 44911 to apply only to those teachers who obtained “provisional” credentials under former provisions of the code.

We are not persuaded by this argument, which infers too much from the absence of a single sentence with no supporting legislative history. In keeping with the change in nomenclature from “emergency credentials” in former section 44254 to “emergency permits” in section 44300, it would not have made sense for section 44300 to repeat verbatim the sentence in section 44254 dealing with “emergency credentials.” Moreover, when it enacted section 44300 in 1988, the Legislature may well have believed clarification of the phrase “provisional credentials” was no longer necessary. “Provisional credentials,” as such, have not been issued since 1970.

Summerfield’s argument also leads to an implausible interpretation of section 44911. Section 44911 first states that time worked under provisional teaching credentials does not count toward tenure and then makes an exception for time worked under “emergency credentials” issued pursuant to specific statutes. If the “provisional credentials” referred to in the first paragraph of section 44911 mean something different from “emergency credentials,” as Summerfield argues, the statute’s entire second paragraph is surplusage: The Legislature had no need to exempt the holders of certain

In similar fashion, section 44830 forbids school districts from hiring a permanent, temporary or substitute teacher who has not passed CBEST, unless the teacher falls within one of the statute’s listed exemptions. (§ 44830, subd. (b).) The current version of section 44830, subdivision (h) provides a temporary exemption for holders of vocational teaching credentials, conditional upon their completion of CBEST at its next offering.^[4]

While Summerfield observes that section 44830, subdivision (h) is “not relevant” to her case because it affects only holders of vocational credentials, she claims her emergency credentials were issued in accordance with section 44252, subdivision (b) because she successfully completed CBEST, and thus the exception set forth in the second paragraph of section 44911 applies. In other words, Summerfield construes section 4491 l’s reference to section 44252, subdivision (b) to mean that emergency credential holders may accrue time toward permanent status as long as they have satisfied section 44252’s requirements by passing CBEST or fitting within an exemption. As Summerfield recognizes, however, such a requirement imposes no limitation. Since section 44300 went into effect in 1990, teachers must pass CBEST in order to obtain emergency credentials. (§ 44300, subd. (a)(2).) Thus, because all emergency credential holders are required to satisfy section 44252 by passing CBEST, all, according to Summerfield, are entitled to accrue time toward permanent tenure. Under Summerfield’s interpretation, the exception in section 4491 l’s second paragraph swallows the rule stated in the first. Clearly such a construction, which renders the entire statute surplusage, is disfavored. (See Reno v. Baird, supra, 18 Cal.4th at p. 658;

In 1982, the Legislature passed Assembly Bill No. 3253, which added the second paragraph to section 44911 (Stats. 1982, ch. 1388, § 6, p. 5295) and amended, among other Education Code provisions, sections 44252 (Stats. 1982, ch. 1388, § 3, p. 5290) and 44830 (Stats. 1982, ch. 1388, § 5, p. 5294). Section 44911 has not been altered since 1982; however, subdivision (h) of section 44830 was later moved and relettered as subdivision (m) of that statute. (Stats. 1983, ch. 1038, § 2, pp. 3631-3633.) The original section 44830, subdivision (h) addressed the hiring of teachers from outside California and was clearly a companion statute to section 44252, subdivision (b)(3). Former section 44830, subdivision (h) allowed school districts to hire teachers who were credentialed in another state but had not yet taken CBEST, and it observed that such teachers would be authorized to teach by “an emergency credential pursuant to paragraph 3 of subdivision (b) of Section 44252 . . . .” (Former § 44830, subd. (h).)^[5]

When the Legislature added the second paragraph to section 44911, it created an exception for teachers who held emergency credentials pursuant to two specific statutes, “subdivision (b) of Section 44252 and subdivision (h) of Section 44830.” (§ 44911, italics added.) It simultaneously enacted a procedure, in sections 44252, subdivision (b)(3) and 44830, subdivision (h), by which credentialed teachers from other states could obtain one-year emergency credentials before completing CBEST. Thus, it appears the Legislature intended to create a narrow exception to section 44911 for individuals who possess valid teaching credentials from another state: Although such individuals may teach under an emergency credential during their first year in California, while they are waiting to take CBEST, the Legislature has determined that this year should count toward their acquisition of permanent employment status. Any other reading of the second paragraph of section 44911 ignores the Legislature’s use of the word “and” between its references to sections 44252 and 44830.

Our interpretation finds support in the legislative history surrounding Assembly Bill No. 3253. Senate amendments to the bill were proposed, in

In short, we conclude the exception stated in the second paragraph of section 44911 applies only to teachers credentialed in another state who work under an emergency credential pending completion of CBEST. This interpretation is consistent with numerous provisions of the Education Code expressing the legislative preference for fully credentialed teachers and the goal of reducing the number of teachers employed under temporary or emergency credentials. (See, e.g., §§ 45023.1, subd. (a)(1) [salary increases available only to credentialed teachers, not those holding emergency permits], 44225.7, subd. (c) [“state policy directs the assignment of interns to classrooms when available in a given region, with decreased reliance on persons serving on emergency permits or credential waivers”].)

Because Summerfield did not hold a valid teaching credential from another state, the statutory exception does not apply, and the two years Summerfield worked for the District under emergency permits may not be included in computing her years of service toward attainment of permanent status. (§ 44911.) Accordingly, the District had complete discretion to terminate Summerfield’s employment by issuing a notice of non-reelection before March 15 of her first probationary year,^[6] and the trial court erred in granting Summerfield’s petition for writ of mandate.