CALIFORNIA TEACHERS ASSOCIATION v. GOVERNING BOARD OF RIALTO UNIFIED SCHOOL DISTRICT

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Court of Appeal, Fourth District, Division 2, California.

CALIFORNIA TEACHERS ASSOCIATION et al., Plaintiffs and Appellants, v. GOVERNING BOARD OF RIALTO UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents.

No. E013807.

Decided: December 14, 1995

Charles R. Gustafson, Beverly Tucker, Rosalind D. Wolf and Robert E. Lindquist, for Plaintiffs and Appellants. Atkinson, Andelson, Loya, Ruud & Romo, Sherry G. Gordon and Byron C. Smith, for Defendants and Respondents.

Education Code section 44919, subdivision (b), provides that “a limited assignment supervising athletic activities of pupils ․ shall first be made available to teachers presently employed by the district.” 1  We hold that this provision means that, before such an assignment may be offered to anyone not then employed by the district as a teacher, the assignment must have been offered to and refused by any teacher then employed by the district who had applied for the assignment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are undisputed.   In 1992, Gary Stanley was a certificated employee employed as a teacher by the Rialto Unified School District (“District”).   The District notified Stanley and the District's other teachers that there were openings for a basketball coach and an assistant basketball coach at one of the District's schools, Rialto High School.   Stanley applied for both of them.   In addition, while the record does not indicate whether he received notice of or applied for it, Stanley interviewed for a third coaching position at Rialto High School, as an assistant coach for the freshman team.

The District never offered any of the three open coaching positions to Stanley.   Instead, it gave one to Martin Sipe, a credentialed teacher employed by the District.   The second position was filled by Keith Ellis, who was employed by the District as a security guard but did not have a teaching credential.   The District assigned the third position to Dion Downey, a new classified employee of the District, who also did not have a teaching credential.

Together with the California Teachers Association and the Rialto Education Association, two employee organizations (Gov.Code, § 3540, et seq.) to which he belongs, Stanley filed a petition in the trial court, asking for the issuance of a writ of mandate enjoining the District from filling coaching positions with anyone not employed by the District as a teacher unless no teacher employed by the District wanted the position.   The petition also prays for an award of damages equal to the money he would have received had he been hired for one of the coaching positions during the 1992–1993 basketball season, with interest.

The trial court denied the petition, concluding that section 44919, subdivision (b), “does not require that a teacher already employed in the District must get a coaching position to the exclusion of all others if he or she applies.”   Stanley and the organizations which represent him appeal.

CONTENTIONS

 Stanley and the District agree that the sole issue is the proper interpretation of the phrase “shall first be made available” in section 44919, subdivision (b).   Stanley contends that “[t]he plain meaning of ‘made available’ is ‘offered,’ that is, a teacher presently employed by the school district must be given the opportunity to accept or reject the coaching position before it is offered to a non-employee or to a non-certificated employee.”   The District, on the other hand, maintains that all that the statute requires it to do is to give reasonable notice of the openings to its teachers and to interview any teachers who apply for those positions before it decides to hire any non-credentialed applicant.

As we shall explain, the District's interpretation of the language of the statute is untenable, and the judgment of the trial court must be reversed.

EDUCATION CODE SECTION 44919 GIVES TEACHERS EMPLOYED BY THE DISTRICT A RIGHT OF FIRST REFUSAL.

Subdivision (b) of section 44919 provides in relevant part:  “Governing boards shall classify as temporary employees persons, other than substitute employees, who are employed to serve in a limited assignment supervising athletic activities of pupils;  provided, such assignment shall first be made available to teachers presently employed by the district.”

 In interpreting that subdivision, “[w]e begin with the fundamental rule that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.   In determining such intent the court turns first to the words themselves for the answer.   We are required to give effect to statutes according to the usual, ordinary import of the language employed in framing them.”  (Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 218, 246 Cal.Rptr. 733, 753 P.2d 689, internal quotations and citations omitted.)

The usual import of the adjective “available” is “that [which] is accessible or may be obtained;  personally obtainable (as for employment)․”  (Webster's Third New Internat. Dict. (1964), p. 150.)   Thus, the phrase “make available” means to make something accessible or personally obtainable.  (See DeKay v. DeKay Pneumatic Tools, Inc. (1955) 131 Cal.App.2d 625, 633, 281 P.2d 76 [“to make accessible or attainable”].)

The application of these definitions to this statute demonstrates that the District's interpretation is incorrect.  Section 44919, subdivision (b), requires, not just that an application for the coaching position be made available to the currently employed teachers, but rather that the coaching position be made available to those teachers.   Thus, the statute requires more than mere access to an application or to an interview;  the teachers must have access to the position itself.   If the coaching position is to be “personally obtainable” by the teachers, the decision to accept that position must be up to those teachers who have applied.   The District cannot retain the discretion to disregard a teacher's application and to hire someone who is not a teacher.

 Since this meaning is clear from the words of the statute themselves, it is not necessary to consult the legislative history of section 44919.   However, even if we were to do so, it would support the same conclusion.   Subdivision (b) was added to section 44919 in 1977 as the result of the passage of Assembly Bill No. 1690 of the 1977–1978 Regular Session.  (Stats.1977, ch. 565, § 1, pp. 1795–1796.)   To our knowledge, the only evidence of that bill's legislative history which sheds any light on the intended meaning of the particular language at issue here states:  “The district must offer these assignments to their regular teachers before hiring such temporary coaching assistance [sic ].”  (Sen.Com. on Education, Staff Analysis of Ass.Bill No. 1690 (1977–1978 Reg.Sess.) as amended June 1, 1977.) 2

In arguing that, despite the language of section 44919, subdivision (b), it retains the discretion to make a coaching assignment unavailable to currently employed teachers by hiring a non-credentialed person, the District invokes section 35160.   That section provides that “the governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.”   That broad grant of authority is of no assistance to the District, however, because its assignment of a non-credentialed employee to the coaching position instead of a teacher who had applied is in conflict with and inconsistent with law as set forth in section 44919, subdivision (b).

Similarly, the District cites section 35179, subdivision (a), which provides:  “Each school district governing board shall have general control of, and be responsible for, all aspects of the interscholastic athletic policies, programs, and activities in its district, including, but not limited to, ․ personnel․”   However, the next sentence of that subdivision restricts the scope of that discretion by requiring that all such policies, programs, and activities must comply with state and federal law.   Since the District's assignment of a non-credentialed employee instead of a credentialed employee does not comply with state law as set forth in section 44919, subdivision (b), the District's action does not fall within the scope of the discretion granted in section 35179, subdivision (a).

Finally, the District argues that our construction of section 44919 creates a conflict with section 44923, which provides:  “In the event a permanent employee of a school district has tenure as a full-time employee of the district, any assignment or employment of such employee in addition to his full-time assignment may be terminated by the governing board of the district at any time.”   There is no conflict.  Section 44919, subdivision (b), deals with who may be given a coaching assignment.   Section 44923, on the other hand, deals with a different subject, the district's power to terminate such an additional assignment.

The District nevertheless argues that the two laws could lead to an incongruous result, in that a district which did not want to give a coaching assignment to a particular teacher could assign him or her to the position as required by section 44919, subdivision (b), and then promptly terminate that additional assignment as authorized by section 44923.   Would the district then be free to hire a non-employee or a non-credentialed employee, or would its options be limited to either leaving the position unfilled or assigning another currently employed teacher to the position?

We need not and do not resolve that hypothetical question.   Since Stanley was never given the coaching assignment in the first place, the District never had occasion to terminate that assignment pursuant to section 44923.   We decline to render an advisory opinion concerning the interrelationship between the two statutes under a factual scenario which is not before us.

DISPOSITION

The judgment denying the petition for writ of mandate is reversed.   The trial court is directed to issue the writ (a) ordering the District to comply with Education Code section 44919, subdivision (b), by offering coaching positions to teachers presently employed by the District prior to offering the positions to any non-credentialed employees or to any non-employees, and (b) ordering such other relief as appropriate.

FOOTNOTES

1.   All further section references are to the Education Code.

2.   In addition to seeking legislative history materials from the State Archives, we suggested to the parties that they submit such materials to the extent they were relevant to our inquiry and request that we take judicial notice of them.   The District has done so.   As to the legislative records in its request, that request is granted.The District also asks that we take judicial notice of additional documents which are not records of the Legislature:  an enrolled bill memorandum to the Governor, an enrolled bill report from the Department of Finance to the Governor, and a letter from the bill's author to the Governor.   That aspect of the request is denied.Unless expressed in argument to either the Legislature or one of its committees, the views of a single legislator are not properly received as evidence of legislative intent, even if that legislator is the author of the bill in question.  (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699–701, 170 Cal.Rptr. 817, 621 P.2d 856.)   Under those circumstances, there is no assurance that the rest of the Legislature shared the legislator's view of the purpose or meaning of the legislation.  (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 589–590, 128 Cal.Rptr. 427, 546 P.2d 1371.)   Moreover, “there is the concern that letters such as those sent to the Governor on the question of signing the bill may never have been exposed to public view so that those with differing opinions as to the bill's meaning and scope had an opportunity to present their views also.”  (California Teachers Assn., supra, p. 701, 170 Cal.Rptr. 817, 621 P.2d 856.)For similar reasons, the views of particular offices within the executive branch should not be considered in determining the intent of the legislative branch.   Legislative staff analyses are considered only because “it is reasonable to infer that those who actually voted on the proposed measure read and considered the materials presented in explanation of it, and that the materials therefore provide some indication of how the measure was understood at the time by those who voted to enact it.”   (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465, fn. 7, 253 Cal.Rptr. 236, 763 P.2d 1326.)   By contrast, it is not reasonable to infer that enrolled bill reports and memoranda prepared by the executive branch for the Governor were ever read by the Legislature.We recognize that courts have sometimes cited the latter materials as indicia of legislative intent.  (Nickelsberg v. Workers' Comp. Appeals Bd. (1991) 54 Cal.3d 288, 295, 285 Cal.Rptr. 86, 814 P.2d 1328;  People v. Edwards (1991) 235 Cal.App.3d 1700, 1707, fn. 4, 1 Cal.Rptr.2d 631;  Transamerica Occidental Life Ins. Co. v. State Bd. of Equalization (1991) 232 Cal.App.3d 1048, 1058, fn. 2, 284 Cal.Rptr. 9;  City of Poway v. City of San Diego (1991) 229 Cal.App.3d 847, 866, 280 Cal.Rptr. 368;  Kishida v. State of California (1991) 229 Cal.App.3d 329, 335, 280 Cal.Rptr. 62;  People v. Tabb (1991) 228 Cal.App.3d 1300, 1310, 279 Cal.Rptr. 480;  Van de Kamp v. Gumbiner (1990) 221 Cal.App.3d 1260, 1278, 270 Cal.Rptr. 907;  Bell v. Superior Court (1989) 215 Cal.App.3d 1103, 1109, fn. 2, 263 Cal.Rptr. 787;  Tafoya v. Hastings College (1987) 191 Cal.App.3d 437, 444, 236 Cal.Rptr. 395.)   However, none of those opinions address the propriety of doing so.   Accordingly, we decline to follow their example.  “Such a departure from past rules of statutory construction, we believe, should be effected only after full discussion and exposure of the issue.”  (California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at p. 701, 170 Cal.Rptr. 817, 621 P.2d 856.)We also note that Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 218–219, 185 Cal.Rptr. 270, 649 P.2d 912, has been relied upon as authority for considering enrolled bill reports to determine legislative intent.  (Bank of the Orient v. Town of Tiburon (1990) 220 Cal.App.3d 992, 1002, fn. 11, 269 Cal.Rptr. 690, disapproved on another ground in Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743, fn. 11, 29 Cal.Rptr.2d 804, 872 P.2d 143;  accord, Jacobs, Malcolm & Burtt v. Voss (1995) 33 Cal.App.4th 1399, 1406, 39 Cal.Rptr.2d 774.)   However, that reliance is misplaced, because the Supreme Court in Commodore specifically noted that it had been requested to take notice of those reports and that the opposing party had not objected.  (Id., p. 218, fn. 9, 185 Cal.Rptr. 270, 649 P.2d 912.)   Moreover, while Commodore cites authority for taking judicial notice of such executive acts, it does not address the relevance of that evidence to determining legislative intent.

McKINSTER, Associate Justice.

HOLLENHORST, Acting P.J. and McDANIEL, J.*, concur.

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