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Court of Appeal, Second District, Division 1, California.

Judith A. MENAGH, Plaintiff and Respondent, v. MONTEBELLO UNIFIED SCHOOL DISTRICT, Defendant and Appellant.

No. B071753.

Decided: December 20, 1993

Karns & Karabian, and Jeff C. Marderosian, Los Angeles, for defendant and appellant. Reich, Adell & Crost, and Hirsch Adell, Los Angeles, for plaintiff and respondent.

When lack of funds force cutbacks of school personnel in grades K through 12, Education Code section 44955, subdivision (b), requires that “certificated and competent” employees be laid off in reverse order of seniority.1  We are called upon here to determine whether a senior employee who is certificated as a counselor but has never served in that capacity can be deemed “not competent” to fill an open counseling position, thereby allowing a junior employee with counseling experience to be retained.   We hold in the negative, and therefore affirm the trial court's judgment granting the senior employee's petition for a writ of mandate.


Judith Menagh was hired as a nurse by the Montebello Unified School District in 1977.   In 1990, she filed a pupil personnel services credential with the District.   Although this credential entitled Menagh to serve as a counselor, she continued to work as a nurse.

On February 20, 1992, as a result of a determination that anticipated revenue shortfalls for the 1992–1993 school year required the elimination of, inter alia, all but three of its nursing positions, the District adopted a resolution to reduce its work force.   Menagh, who was junior to more than three other District nurses, was listed as one of the employees to be terminated.

Menagh requested a hearing on her termination,2 which was conducted before the District's governing board.3  At the hearing, it was established that only those employees with actual counseling experience had been designated by the District to be retained.   The list of counselors to be retained included Susan Williams, who was originally hired as a certificated employee in 1981, four years after Menagh.   Like Menagh, Williams had filed a pupil personnel services credential with the District in 1990.   However, unlike Menagh, Williams had assumed a counseling position, and was serving in that capacity when the layoffs were announced.4  Neither Menagh nor Williams appeared before the governing board or offered any evidence as to their competence to serve as counselors.

In its proposed decision, the governing board found that “Menagh possesse[d] the appropriate credential but [was] not competent by background or experience to provide the counseling services rendered by Williams to the District.”   The District adopted the proposed decision as its own and notified Menagh that she was being terminated as of the end of the 1991–1992 school year.

On July 15, 1992, Menagh filed a petition for a writ of mandate in the superior court.   Following a hearing at which no additional evidence was taken, the petition was granted.   Utilizing the independent judgment test, the trial court determined that “the weight of the evidence [did] not support the [governing board's] findings that [Menagh] was not competent to perform the services of counselor so as to allow her termination under either Education Code section 44955(b) or 44955(d)․   Ms. Williams's two year prior experience [was] insufficient to show ‘special training and experience’ under Education Code section 44955(d).” 5  (Original emphasis.)

Judgment granting Menagh's petition for a writ of mandate was filed on September 23, 1992.   The District filed a timely notice of appeal.


 Where, as here, an administrative decision substantially affects fundamental, vested rights, the trial court must exercise independent judgment in its review of that decision.  (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34, 44–45, 112 Cal.Rptr. 805, 520 P.2d 29;  Duax v. Kern Community College Dist. (1987) 196 Cal.App.3d 555, 561–562, 241 Cal.Rptr. 860.)   On appeal, we review the findings of the trial court, and uphold them if supported by substantial evidence.  (Schmitt v. City of Rialto (1985) 164 Cal.App.3d 494, 501, 210 Cal.Rptr. 788.)   “ ‘Where the facts are not in conflict and the issue involves the proper application of a statute or administrative regulation, a reviewing court is not bound by the trial court's determination.’  [Citations.]”  (Neumarkel v. Allard (1985) 163 Cal.App.3d 457, 461, 209 Cal.Rptr. 616.)


The narrow question presented in this case is whether Menagh's lack of service as a counselor could render her not “certificated and competent” to serve in that capacity within the meaning of section 44955, subdivision (b).   In answering this question, we analyze the language of section 44955 and the case law which has interpreted both that provision and a related statute, section 44956.   As we explain, our analysis is aided by a 1983 amendment to section 44955, which added subdivision (d)(1) (Stats.1983, ch. 498, § 65), a provision which has not previously been addressed in any published opinion.6

1. Case Law

a. Section 44955

The leading case which has interpreted the “certificated and competent” language of section 44955 is Moreland Teachers Assn. v. Kurze (1980) 109 Cal.App.3d 648, 167 Cal.Rptr. 343.   In Moreland, a reduction was effected under section 44955, but certain junior employees “with special skills needed by the district” were not terminated.  (Id. at p. 652, 167 Cal.Rptr. 343.)   Senior employees protested, arguing that the statute required that layoffs be effected on a strict seniority basis.  (Id. at pp. 654–655, 167 Cal.Rptr. 343.)

The senior employees' construction of section 44955 was rejected on the ground that it “would lead to an absurd result” and “would clearly contravene the letter and obvious intent of the statute” by depriving the district of employees with needed, special skills.  (Id. at p. 655, 167 Cal.Rptr. 343.)   The Moreland court concluded:  “The only reasonable construction ․ is that whenever reduction in staff is necessitated by ․ reduction or discontinuation of a service, where competency is not demonstrated by a senior employee, a junior employee having the ability to serve the needs of a program may be retained by the school district even though it may result that the senior employee lacking such competence must be terminated.  [Citations.]”  (Ibid.)

Moreland was relied upon in Brough v. Governing Board (1981) 118 Cal.App.3d 702, 715, 173 Cal.Rptr. 729, to support layoffs where “the junior employees retained held skills lacking in the senior employees terminated.”   In Santa Clara Federation of Teachers v. Governing Board (1981) 116 Cal.App.3d 831, 842–843, 172 Cal.Rptr. 312, Moreland 's interpretation of section 44955 provided the basis for upholding the retention of a junior employee with administrative skills not possessed by senior employees.   In Alexander v. Board of Trustees (1983) 139 Cal.App.3d 567, 188 Cal.Rptr. 705, the court acknowledged Moreland 's interpretation of section 44955 (id. at p. 573, 188 Cal.Rptr. 705), but held that junior bilingual teachers could not be given a preference over monolingual senior teachers absent a showing that the junior teachers would actually be employed in a bilingual program (id. at p. 576, 188 Cal.Rptr. 705).

b. Section 44956

Section 44956 establishes rehiring rights for terminated permanent grade K through 12 employees.   We examine that statute because, like section 44955, it grants priority on a seniority basis where the employee is “certificated and competent” to render a service which is being reestablished (subd. (a)(1)), and was amended in 1983 to permit the rehiring of a junior employee with “special training and experience” (subd. (a)(3)(A);  Stats.1983, ch. 498, § 66).7

In King v. Berkeley Unified School Dist. (1979) 89 Cal.App.3d 1016, 152 Cal.Rptr. 782, a district was found to be acting within its discretion in rehiring a junior mathematics teacher where three senior teachers were found not competent under section 44956 by virtue of their “ ‘limited academic background[s] in mathematics.’ ”  (Id. at p. 1020, 152 Cal.Rptr. 782.)   The court reasoned that the statute “obviously requires that someone make informed determinations whether a laid-off employee ․ is both ‘certificated and competent,’ ” and that “these determinations necessarily involve ‘discretionary decisions' by a school district's responsible officials because they ‘have a special competence’ to make them.”  (Id. at p. 1023, 152 Cal.Rptr. 782.)

Martin v. Kentfield School Dist. (1983) 35 Cal.3d 294, 197 Cal.Rptr. 570, 673 P.2d 240 focused on the interplay between section 44956, subdivision (a)(1)'s provisions that the terminated senior employee not be subjected to any requirements not imposed on a continuing junior employee, and that the senior employee be “competent.”  Martin held that the school district could not refuse to rehire certain senior employees who lacked middle school experience because no requirement of prior experience had been imposed on continuing junior employees.  (Id. at pp. 301–302, 197 Cal.Rptr. 570, 673 P.2d 240.)

In reaching its conclusion, the Martin court observed:  “In section 44956, the Legislature has made seniority the sole determinant as to which tenured teachers on layoff status should be appointed to a vacant position.   The only limitation is that the teacher selected be ‘certificated and competent’ to render the service required by the vacant position.   Among employees who meet this threshold limitation, there is no room in the statutory scheme for comparative evaluation.   Thus, as the District concedes, which of the two employees under consideration ․ was ‘better’ qualified for the job is not the question here, nor was it properly the question before the board.   The question for the board's determination was simply whether ․ the senior tenured teacher on layoff status ․ was ‘certificated and competent’ to render the required service.  [¶] Such determinations, it has been held, involve ‘discretionary decisions' which are within the ‘special competence’ of the school districts.  (King v. Berkeley Unified School Dist., supra, 89 Cal.App.3d 1016, 1023 [152 Cal.Rptr. 782].)”  (Martin v. Kentfield School Dist., supra, 35 Cal.3d at pp. 299–300, 197 Cal.Rptr. 570, 673 P.2d 240.)

Martin was interpreted in Forker v. Board of Trustees (1984) 160 Cal.App.3d 13, 206 Cal.Rptr. 303.   There, a school district determined that a senior librarian was “not competent” to be rehired under section 44956 because of 73 instances of alleged “incompetence,” going back over several years.   (Id. at p. 17, 206 Cal.Rptr. 303.)   The Forker court determined that, because a continuing employee could not be dismissed for incompetence without being accorded procedural safeguards under the Education Code (e.g., notice of the charges and an opportunity to correct the alleged faults [§ 44938] and the right to a hearing conducted before a commission on professional competence [§ 44944] ), the senior librarian was also entitled to a hearing before the board could decide not to rehire her.  (Id. at pp. 18–20, 206 Cal.Rptr. 303.)

In ruling in favor of the librarian, the Forker court observed that “there is no language in Martin [v. Kentfield School Dist., supra, 35 Cal.3d 294, 197 Cal.Rptr. 570, 673 P.2d 240] equating competence, as used in section 44956, with the quality of work performance before the statutorily authorized lay-off․   As interpreted by the Martin court, the term ‘competent’ as used in section 44956 relates to specific skills or qualifications required of the applicant.”  (160 Cal.App.3d at p. 19, 206 Cal.Rptr. 303.)  “[T]he courts have interpreted section 44956's use of the term ‘competent’ as relating to special qualifications for a vacant position, rather than relating to the on-the-job performance of the laid-off permanent employee.”  (Ibid.)

2. Analysis

The District asserts its termination of Menagh was permitted by section 44955, subdivision (b), because, under Moreland Teachers Assn. v. Kurze, supra, 109 Cal.App.3d 648, 655, 167 Cal.Rptr. 343, Menagh failed to meet her burden of demonstrating competency.   The District further seeks to justify Menagh's termination on the ground that, under Martin v. Kentfield School Dist., supra, 35 Cal.3d 294, 301–302, 197 Cal.Rptr. 570, 673 P.2d 240, it constituted a “ ‘discretionary decision[ ]’ ” which was within the District's “ ‘special competence.’ ”   We disagree.

“In construing statutes, we must determine and effectuate legislative intent.  [Citations.]   To ascertain intent, we look first to the words of the statutes.  [Citations.]  ‘Words must be construed in context, and statutes must be harmonized, both internally and with each other, to the extent possible.’  [Citation.]   Interpretations that lead to absurd results or render words surplusage are to be avoided.  [Citation.]”  (Woods v. Young (1991) 53 Cal.3d 315, 323, 279 Cal.Rptr. 613, 807 P.2d 455.)

 From the perspective of providing the best educational opportunities for students, there are obvious benefits to a layoff procedure which favors junior employees with special skills over senior employees who do not possess such skills.   But these benefits do not justify the Moreland court's conclusion that the intent of section 44955, subdivision (b), is “obvious”;  that a contrary interpretation would “lead to an absurd result”;  and that the only “reasonable construction” is one which would permit the retention of employees with “special skills.”  (Moreland Teachers Assn. v. Kurze, supra, 109 Cal.App.3d at p. 655, 167 Cal.Rptr. 343.) 8

“It is apparent that the Education Code is the product of many compromises between competing considerations․”  (Taylor v. Board of Trustees (1984) 36 Cal.3d 500, 509, 204 Cal.Rptr. 711, 683 P.2d 710.)   The Moreland interpretation of section 44955, subdivision (b), places employees at the mercy of management's inevitably discretionary decisions about what constitutes “special skills needed by the district.”  (Moreland Teachers Assn. v. Kurze, supra, 109 Cal.App.3d at p. 652, 167 Cal.Rptr. 343.)   On the other hand, a strict seniority system offers employees the predictability of knowing their exact position on any layoff or rehiring list.

Were we in the position of the Moreland court, we would be hard pressed to say which of these competing considerations should prevail in an interpretation of section 44955, subdivision (b).   Fortunately, after Moreland and its progeny were decided, the Legislature made the task of statutory interpretation considerably easier by amending section 44955.   This amendment, among other things, added subdivision (d)(1), which permits a school district to “deviate from terminating a certificated employee in order of seniority” based on the employee's “special training and experience.” 9

We can see no reason for the addition of subdivision (d)(1), other than as a vehicle for creating an exception to the strict seniority system of layoffs.   Indeed, the stated purpose of this amendment was to “revise the rights of terminated certificated employees to permit the governing board to deviate from the seniority system under certain circumstances.”  (Legis. Counsel's Dig., Sen. Bill No. 813, Stats.1983 (1983–1984 Reg.Sess.) Summary Dig., p. 169.)   Moreland 's interpretation of “certificated and competent” as the equivalent of “special skills” would render subdivision (d)(1) surplusage.   We are required to avoid such a construction.  (Woods v. Young, supra, 53 Cal.3d at p. 323, 279 Cal.Rptr. 613, 807 P.2d 455.) 10

 We also disagree with the conclusion of King v. Berkeley Unified School Dist., supra, that a teacher's “ ‘limited academic background’ ” can render the teacher “ ‘not competent’ ” under section 44956.  (89 Cal.App.3d at p. 1020, 152 Cal.Rptr. 782, emphasis omitted.)   Again, although a senior teacher with a limited academic background in a specific subject may be less desirable than a junior teacher with greater proficiency in that subject, the senior teacher is not automatically rendered “not competent.”

Our disagreement with King does not, however, necessarily extend to Martin v. Kentfield School Dist., supra, 35 Cal.3d at pages 299–300, 197 Cal.Rptr. 570, 673 P.2d 240, which quoted King with approval, or to Forker v. Board of Trustees, supra, 160 Cal.App.3d at page 19, 206 Cal.Rptr. 303, which relied upon Martin.  Martin was based on section 44956, subdivision (a)(1)'s prohibition against subjecting a terminated senior employee to requirements not imposed on a continuing junior employee (35 Cal.3d at pp. 301–302, 197 Cal.Rptr. 570, 673 P.2d 240).   In Forker, unlike here, the employee was actually incompetent (160 Cal.App.3d at pp. 17, 19, 206 Cal.Rptr. 303).   Moreover, Martin and Forker addressed the version of section 44956 which existed before it, like section 44955, was amended to include a provision allowing a school district to “deviate from reappointing a certificated employee in order of seniority” based on “special training and experience.”  (§ 44956, subd. (a)(3)(A);  see also § 44955, subd. (d)(1).)

 The District asserts that interpretation of the phrase “certificated and competent” which we adopt in this opinion would render the words “certificated” and “competent” impermissibly redundant.   Not so.   In conformity with common usage and in order to avoid surplusage, “competent” must be construed (as in Forker ) to mean not incompetent.   Thus, the phrase “certificated and competent” as appears in section 44955, subdivision (b), simply means that the employee holds the appropriate certificate and is not actually incompetent to do the job.   Issues of the comparative desirability among multiple certificated and competent employees are left to be decided under the criteria of section 44955, subdivision (d).

 It may be that, in the eyes of the District, Williams's experience as a counselor made her more desirable than Menagh to serve in that capacity.   But such experience, standing alone, does not render Menagh “not competent” to serve as a counselor under section 44955, subdivision (b).  Accordingly, the finding of the trial court that Menagh was improperly terminated must be affirmed.


The judgment is affirmed.


1.   Education Code section 44955, subdivision (b), provides, in pertinent part:“Whenever ․ a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year, ․ and when in the opinion of the governing board of the district it shall have become necessary by reason of any of these conditions 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.”  (Emphasis added.)All further statutory references are to the Education Code.

2.   Menagh was one of over fifty certificated employees who contested their layoffs.

3.   Pursuant to section 44949, subdivision (c)(3), an administrative law judge presided over the hearing.

4.   The record on appeal does not reveal the nature of Williams's position with the District before her assignment as a counselor and the date on which her counseling assignment began.

5.   Section 44955, subdivision (d), provides:“Notwithstanding subdivision (b), a school district may deviate from terminating a certificated employee in order of seniority for either of the following reasons:“(1) The district demonstrates a specific need for personnel to teach a specific course or course of study, or to provide services authorized by a services credential with a specialization in either pupil personnel services or health for a school nurse, and that the certificated employee has special training and experience necessary to teach that course or course of study or to provide those services, which others with more seniority do not possess.“(2) For purposes of maintaining or achieving compliance with constitutional requirements related to equal protection of the laws.”  (Emphasis added.)

6.   Although the District made reference to subdivision (d) during the hearing before the governing board and the trial court found Menagh's termination to be unsupported under section 44955, subdivisions (b) and (d), we do not express an opinion as to the propriety of the ruling under subdivision (d).   In its opening brief, the District has limited the “issue presented” to one arising under subdivision (b), and properly so.   While the amendment adding subdivision (d) to the statute is an important factor in our interpretation of subdivision (b), the record of the hearing before the governing board does not reflect that the District offered any evidence which could establish that Williams possessed “special training and experience” as contemplated by subdivision (d)(1), or that the District argued such a position to the governing board.

7.   As pertinent to this opinion, section 44956 provides:“(a) Any permanent employee whose services have been terminated as provided in Section 44955 shall have the following rights:“(1) For the period of 39 months from the date of such termination, any employee who in the meantime has not attained the age of 65 years shall have the preferred right to reappointment, in the order of original employment as determined by the board in accordance with the provisions of Sections 44831 to 44855, inclusive, if the number of employees is increased or the discontinued service is reestablished, with no requirements that were not imposed upon other employees who continued in service;  provided, 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․“․“(3) Notwithstanding paragraph (1), a school district may deviate from reappointing a certificated employee in order of seniority for either of the following reasons:“(A) The district demonstrates a specific need for personnel to teach a specific course or course of study, or to provide services authorized by a services credential with a specialization in either pupil personnel services or health for a school nurse, and that the employee has special training and experience necessary to teach that course or course of study, or to provide those services, which others with more seniority do not possess.“(B) For purposes of maintaining or achieving compliance with constitutional requirements related to equal protection of the laws.”

8.   In Moreland, the court noted that the school board's findings were “supported ․ by evidence that retained juniors did possess competence in each case not shared by discharged seniors.”  (Ibid.)  However, the opinion is devoid of facts regarding either the absolute or comparative skills of the junior and senior employees.

9.   See complete text of subdivision (d), quoted in footnote 5, ante, at page 742.

10.   The District further relies on Duax v. Kern Community College Dist., supra, 196 Cal.App.3d 555, 241 Cal.Rptr. 860, which interpreted section 87743, the community college analogue to section 44955.   In Duax, a senior clinical psychologist was terminated after the board of trustees adopted resolutions cutting psychological counseling and establishing a “standard of competency” which required a psychologist to have taught for at least one of the past ten years.  (Id. at p. 559, 241 Cal.Rptr. 860.)   Under this standard, a senior psychologist who had not taught in that time period was properly found to be “not competent,” thereby permitting the retention of a psychologist with less seniority.   (Id. at pp. 564–565, 241 Cal.Rptr. 860.)We find Duax to be of little utility to this case.   Unlike the situation here, Duax involved a resolution specifically defining competency for the purpose of proposed layoffs.   Moreover, unlike sections 44955 and 44956, section 87743 was not amended to provide an exception to the seniority system based on special needs.   Rather, section 87743 was amended in 1988 to eliminate the phrase “certificated and competent,” and replace it with the requirement that the senior employee possess “the minimum qualifications prescribed by the board of governors and [be] competent to serve under district competency criteria.”  (Stats.1988, ch. 973, § 51.5.)

MASTERSON, Associate Justice.

ORTEGA, Acting P.J., and MIRIAM A. VOGEL, J, concur.