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

Waldo TAYLOR, Plaintiff and Appellant, v. BOARD OF TRUSTEES, DEL NORTE UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents.


Decided: November 16, 1983

Diane Ross, Kirsten L. Zerger, Raymond L. Hansen, Ramon E. Romero, Burlingame, for plaintiff and appellant. Thomas S. Owen, Law Office of Schafer, Cochran, Follet & Owen, Crescent City, for defendants and respondents.

Waldo Taylor, a teacher, appeals from a judgment denying his petition for a writ of mandate to compel the Board of Trustees of Del Norte County Unified School District, et al., to employ him as a probationary certificated employee (i.e., probationary teacher) 1 and to pay him various back salary benefits.   Taylor's contention, in essence, is that he should have been employed as a teacher because he was granted preferential employment rights by Education Code section 44918.   He phrases his contention as follows:  “Section 44918 applies to temporary teachers hired under § 44920.”  “The District had a duty to employ appellant in a vacant position.”   We have reviewed the applicable facts and law and find that the contentions lack merit.

The relevant facts are set out in a “Stipulation Regarding Facts” which states that Taylor worked for the District as a “temporary” teacher for 75 percent of the 1980–1981 school year.  “Taylor was classified as a temporary employee because he was replacing a certificated employee who was on leave of absence.”   The District had seven vacant probationary teacher positions for the 1981–82 school year.   Taylor applied for the positions and possessed the “appropriate credential.”   He was not hired.   In filling the positions “the District gave no preferential hiring right to ․ Taylor, but rather hired whom it felt to be the most qualified applicant for each position.”

In addition, it is undisputed that during the 1980–81 school year the number of “temporary” teachers in the District did not exceed the number of teachers who were on leave of absence or extended sick leave.

The various general categories of teachers and the relative job security status of each was described by the Supreme Court in Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 826, 114 Cal.Rptr. 589, 523 P.2d 629, as follows:  “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.   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.   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.”  (Citations and footnotes omitted.)

The narrow definition of the substitute and temporary classifications called for by Balen is further compelled because the Education Code subdivides those categories.

Education Code section 44917 provides, in material part, that “Except as provided in sections ․ 44920” a school district is authorized to employ “substitute” teachers “to fill positions of regularly employed persons absent from service.”   These substitutes may be employed “After September 1 of any school year ․ for the remainder of the school year ․ in a position for which no regular employee is available.”   The District must positively establish the nonavailability of a regular teacher.   The section concludes, “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 purposes of acquiring permanent status.”

Education Code section 44918 provides, as pertinent, that “substitute or temporary” teachers who work at one school for 75 percent of the school year “shall be deemed to have served a complete school year as a probationary employee if employed as a probationary employee for the following school year.”

It then states:  “Any such employee shall be reemployed for the following school year to fill any vacant positions in the school district for which the employee is certified and qualified to serve.”  Section 44918 defines vacant position to mean a teaching position which is not “filled” by any “permanent or probationary” teacher.   A position is not vacant if it would be filled by such category of teacher “except for the fact” that they are “on leave.”   Qualified to serve is defined as having the “appropriate credential” and “academic preparation or experience.”   In the last pertinent clause, the section provides that “day-to-day,” “on-call,” “substitutes” are not entitled to the benefits of the section.

Education Code section 44920 provides, in relevant part, that, notwithstanding section 44917, a school district may classify as “temporary” employees the limited number of teachers who are hired to serve for an entire school year or a semester in replacement of a regular teacher who “has been granted leave for a semester or year, or is experiencing long-term illness ․”  The number of temporary teachers “so employed” “shall be limited ․ to that need, as determined by the governing board.”

Utilizing language identical to that set forth in section 44917, section 44920 then goes on to state that such “temporary” teachers “shall, if reemployed for the following school year in a vacant 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 purposes of acquiring permanent status.”   Vacant position is defined as in section 44918.

In the present case it is undisputed that Taylor qualifies as a temporary teacher under section 44920 and the question is whether he is also covered by section 44918.

 It is a basic rule of statutory construction that a court “should ascertain the intent of the Legislature so as to effectuate the purpose of the law.”  (Select Base Materials v. Board of Equalization (1959) 51 Cal.2d 640, 645, 335 P.2d 672, as quoted in Moyer v. Worker's Compensation Appeals Board (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   A literal construction will not prevail over one which accords with the obvious purpose of the statute.  (In re Kernan (1966) 242 Cal.App.2d 488, 499, 51 Cal.Rptr. 515.)   Moreover, “Once a particular legislative intent has been ascertained, it must be given effect ‘even though it may not be consistent with the strict letter of the statute.’  (Dickey v. Raisin Proration Zone (1944) 24 Cal.2d 796, 802 [151 P.2d 505].)”  (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049.)   Additionally, “the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.”  (Select Base Materials, supra, as quoted in Moyer v. Worker's Compensation Appeals Board, supra, 10 Cal.3d at pp. 230–231, 110 Cal.Rptr. 144, 514 P.2d 1224.)

 In determining the Legislature's intent we must also keep in mind that “[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed.”   (City of Port Hueneme v. City of Oxnard (1959) 52 Cal.2d 385, 395, 341 P.2d 318.)   Specific provisions are paramount over general ones.  (Code Civ.Proc., § 1859, Stafford v. Los Angeles County Employees' Retirement Board (1954) 42 Cal.2d 795, 798, 270 P.2d 12.)   Also, substitute and temporary classifications should be strictly and narrowly defined.  (Balen, supra, 11 Cal.3d at p. 826, 114 Cal.Rptr. 589, 523 P.2d 629.)

 Applying the foregoing rules we hold that section 44918 does not apply to temporary teachers, such as Taylor, who are hired pursuant to section 44920.   Accordingly, Taylor is not entitled to a reemployment preference.   While the two statutes do not conflict, as they apply to different categories of teachers, they are mutually exclusive.   Taylor contends that the Legislature's intention was that section “44920 authorizes districts to hire long-term temporary teachers and § 44918 establishes reemployment rights for long-term temporary teachers.”   In support of the contention Taylor argues, “Silence on the issue of reemployment rights in § 44920 should not be construed to indicate a legislative intent that no such rights be allowed, particularly in view of the express grant of those rights in § 44918.   There is nothing unusual about setting forth different rights in different statutory sections.”   He further argues, “Other sections of the Education Code authorize districts to hire temporaries for only short periods of time.   See §§ 44919 and 44921.”

Taylor has misconstrued the relevant Education Code provisions.  Section 44917 contains the general authorization to hire long term or short term temporary teachers although it sometimes calls them “substitutes.”   Under section 44917 a school district can employ a temporary teacher to replace a regular teacher who retires, resigns, dies, transfers to another district or leaves his or her job for any other reason.   Moreover, section 44917 pertains to both long and short term temporary teachers.   While it is true that section 44918 also deals with substitute or temporary teachers, its application is limited to a more specific category than is section 44917;  namely, those who teach for 75 percent of a school year.   For this reason, we construe section 44918 to regulate the benefits of just those teachers within the specific ambit of section 44917 who serve for 75 percent of a year.   However, section 44920 removes from the purview of sections 44917 and 44918 an even more specific, narrow and strictly defined category of temporary teachers:  those who replace regular teachers who have been granted a leave of absence or are experiencing a long term illness.   The Legislature expressed its intention that 44920 and 44917 be mutually exclusive by making each section an exception to the other.

For the foregoing reasons, and giving credence to every word of each section and meaning to the omission of certain words from the various sections,2 we conclude that the system intended by the Legislature is as follows.  Section 44917 authorizes the hiring of substitute or temporary teachers to replace regular teachers who depart and grants some job security benefits to such replacement teachers.  Section 44918 grants a reemployment preference to temporary or substitute teachers who serve 75 percent of the year and who replace regular teachers who permanently leave the district during a school year.   However, section 44920 exclusively governs the status of replacements for regular teachers who have indicated they will return to teaching after an extended leave of absence.   These replacement teachers are not given any preferential rights to reemployment.

Extrinsic factors additionally persuade us that the Legislature intended the interpretation we adopt.   The first such factor is that such interpretation is both reasonable and practical.  (See Stewart v. Board of Medical Quality Assurance (1978) 80 Cal.App.3d 172, 179, 143 Cal.Rptr. 641 and cases there cited.)   In the situation regulated by sections 44917 and 44918 a teacher has permanently left a district and been replaced by another teacher for 75 percent of the school year.   As a result there is a vacant position for the next year which in most cases doubtless can be satisfactorily filled by the temporary teacher who has previous experience with the specific job.   Such teacher is the obvious candidate for employment preference.3  On the other hand, in the situation regulated by section 44920, the replaced teacher has returned and there is no apparent connection between the new opening and the job previously filled by the temporary teacher.   The temporary teacher in this situation is not so obviously entitled to a preference over other unemployed teachers who may seek the newly opened position.

Further, our holding evenly balances two of the policies sought to be advanced by the statutes in question:  “[T]he general policy of the teacher classification system to afford teachers some measure of employment security ․ [and] the policy of the law authorizing temporary employment of teachers to permit flexibility in teacher assignments and to prevent over-staffing.”  (Kalina v. San Mateo Community College District (1982) 132 Cal.App.3d 48, 54, 183 Cal.Rptr. 12.)   Teachers who fill a permanently vacant position for a long term are provided a rehiring preference without material prejudice to the ability of school districts to flexibly select among all applicants for other positions.   Our construction of the statutory scheme thus gives effect to all relevant provisions, “leaving no part superfluous or inoperative, void or insignificant and so that one section will not destroy another.”  (Stewart v. Board of Medical Quality Assurance, supra, 80 Cal.App.3d at p. 179, 143 Cal.Rptr. 641.)

Moreover, we have also been mindful that, as noted in Centinela Valley Secondary Teachers Assn. v. Centinela Valley Union High School Dist. (1974) 37 Cal.App.3d 35, 42, 112 Cal.Rptr. 27, “․ in construing legislation dealing with the educational systems, courts must not lose sight of the welfare of the children which is the fundamental purpose of such legislation.”   Centinela, which involved the predecessor statutes to sections 44918 and 44920, also suggests that section 44918 is not a favored statute because it “serves under certain limited circumstances to obliterate the long established distinction between permanent and substitute teachers and in so doing seriously impairs the traditional discretion exercised by school administrators.”   (Ibid.)

The result we achieve is, in our view, entirely consistent with decisional law to the effect that section 44920 or the predecessor statute controls the status of those employees who fall within its purview.  (See American Federation of Teachers v. Board of Education (1977) 77 Cal.App.3d 100, 106–108, 143 Cal.Rptr. 264;  Paulus v. Board of Trustees (1976) 64 Cal.App.3d 59, 62, 134 Cal.Rptr. 220;  Rutley v. Belmont Elementary School Dist. (1973) 31 Cal.App.3d 702, 707, 107 Cal.Rptr. 671.)

The judgment is affirmed.


1.   Throughout this opinion we use the words “teacher” “certificated employee” and “employee” interchangeably.

2.   E.g., the absence of words granting preferential reemployment rights in section 44920.

3.   We must emphasize at this point that nothing in the code sections or in our opinion is intended to force a district to rehire or grant any job security status to a temporary teacher who has not performed in a satisfactory manner.

KLINE, Presiding Justice.

MILLER and SMITH, JJ., concur.

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