PALOS VERDES FACULTY ASSOCIATION v. GOVERNING BOARD OF PALOS VERDES PENINSULA UNIFIED SCHOOL DISTRICT

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

PALOS VERDES FACULTY ASSOCIATION et al., Petitioners and Appellants, v. GOVERNING BOARD OF the PALOS VERDES PENINSULA UNIFIED SCHOOL DISTRICT, Respondent.

Civ. 60863.

Decided: June 02, 1982

Lawrence B. Trygstad and Richard J. Schwab, Los Angeles, for petitioners and appellants. Liebert, Cassidy & Frierson and Larry J. Frierson, Los Angeles, for respondent.

This is an appeal by the Palos Verdes Faculty Association and named individuals from a judgment denying a petition for a writ of mandate.   The petition was filed to review the decision of the Palos Verdes Peninsula Unified School District not to rehire the named individuals for the 1979–1980 school year.   When this matter was first before us the exhibits including the transcripts of the administrative hearing had not been lodged in this court.   After decision, appellants petitioned for rehearing on the ground that it was not due to any omission on their part that said exhibits had not reached this court.   We denied the petition as we deem it to be the responsibility of appellants to insure that exhibits requested are indeed transmitted.   The Supreme Court thereafter granted a petition for hearing and transferred the matter to us with directions to reconsider the merits of the appeal.   We have done so.

STATEMENT OF FACTS

Palos Verdes Faculty Association, an employee organization, brought this action as the exclusive representative of the named petitioners.

Individual petitioners were certificated probationary and permanent employees of the respondent.

Respondent, Governing Board of the Palos Verdes Peninsula Unified School District (District), has been and now is the agency responsible for the overall administration of the school district.

On February 15, 1979, the superintendent of the respondent gave written notice to the respondent District that he recommended that notice be given petitioners that their services would not be required for the ensuing school year.   On February 23, 1979, the superintendent of the respondent District gave written notice to petitioners herein that he had recommended to the respondent that notice be given each petitioner that his or her services would not be required for the ensuing school year.   On February 23, 1979, the respondent adopted a resolution reducing the number of certificated employees for the school year 1979–1980 based upon a proposed reduction or discontinuance of particular kinds of services or both.   Accusations were timely served on petitioners, who timely filed notices of defense.   On or about the dates of April 3, 4, 5 and 6, 1979, a hearing was held before an administrative law judge who rendered his proposed decision on April 10, 1979.   On May 7, 1979, respondent District adopted that decision as its own, making the decision effective on May 15, 1979.

Pursuant to the “employment/seniority list” compiled by the school district, the superintendent sent notices to 69 certificated permanent employees of the District in the inverse order in which they were employed, except that some employees were skipped over and others with substantial seniority were given notice.

Many of the noticed employees had the identical seniority date of August 30, 1973.

For 1979–1980, the District reduced its force of certificated personnel by a total of 48.38 full-time equivalent positions through the reduction or elimination of particular kinds of services.

DISCUSSION

I

 Appellants contend that the trial court's findings of fact and conclusions of law are not supported by the weight of the evidence.   Stating in generalized terms that “the vast majority of Findings of Fact and Conclusions of Law as signed by the Trial Court lacked evidential support in the administrative record,” appellants urge reversal of the judgment.   Appellants do not summarize the evidence upon the various issues discussed, but rather argue insufficiency of the evidence in conclusional terms and without reference to the administrative hearing transcript.   The Supreme Court in In re Marriage of Fink (1979) 25 Cal.3d 877, 887, 160 Cal.Rptr. 516, 603 P.2d 881, stated, “ ‘It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.’  [Citations.]”  It is neither appropriate nor practical for us to search through five volumes of hearing transcript to validate or refute appellants' claim, and we therefore reject it.

II

Appellants contend that Education Code section 44955 1 requires the layoff of administrators in the order of employment, along with other permanent employees, unless the District proves that no permanent employee with greater seniority could perform the duties of the administrator.   It is their position that the District has the burden in these layoff proceedings to establish a need to retain the junior administrator in preference to a senior employee who has the required credential.   We disagree.

Section 44955 provides in pertinent part:  “․ 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․  [¶] The governing board shall make assignments and reassignments in such a manner that employees shall be retained to render any service which their seniority and qualifications entitle them to render.”

The superior court found, “Due to the often confidential and intimate relationship between administrative personnel and the Governing Board of the District, the ability of the Board to appoint administrative personnel who meet specific Board needs is essential.   Additionally, [appellants] in the administrative hearing below ․ did not demonstrate that apart from holding an administrative credential their members were otherwise qualified to be administrative personnel.”

 The relationship between top administrators and second and third level administrators is an intimate one based upon trust, confidence, and cooperation.  (Hentschke v. Sink (1973) 34 Cal.App.3d 19, 23, 109 Cal.Rptr. 549.)   Administrators have no vested rights to administrative positions, but only to their respective classroom positions (Barthuli v. Board of Trustees (1977) 19 Cal.3d 717, 722–723, 139 Cal.Rptr. 627, 566 P.2d 261, cert. den., 434 U.S. 1040, 98 S.Ct. 782, 54 L.Ed.2d 790), and the converse is also true.   That is, no classroom teacher threatened with layoff has a right to usurp the position of an administrator because the administrator's position on the teachers' seniority list is junior to his.   Nor can it be seriously contemplated that the administrative position should be left vacant after the incumbent is perforce discharged to comply with appellants' theory.   As was pointed out by Nancy B. Ozsogomonyan in Teacher Layoffs in California:  An Update (1979) 30 Hastings L.J. 1727, 1753, “If a district must risk invalidating dozens of otherwise proper layoffs in order to choose its administrators, the discretion to select administrative personnel becomes very limited.”   We hold that administrators, in their capacity of administrators, are not subject to the provisions of section 44955.

III

 The appellants contend that the District failed to determine the order of termination as between employees who first rendered paid service to the District on the same date and thus were in violation of section 44955 and that such failure constituted a denial of due process.

Section 44955 provides in this regard:  “As between employees who first rendered paid service to the district on the same date, the governing board shall determine the order of termination solely on the basis of needs of the district and the students thereof.   Upon the request of any employee whose order of termination is so determined, the governing board shall furnish in writing no later than five days prior to the commencement of the hearing held in accordance with Section 44949, a statement of the specific criteria used in determining the order of termination and the application of the criteria in ranking each employee relative to the other employees in the group.”

The superior court found that, “In selecting the above named employees for retention, the District properly relied on criteria contained in the then-current collective bargaining agreement between the District and the [Palos Verdes Faculty Association]․”

The court also found that “the District acted within its discretion by adopting the Administrative Law Judge's ruling that certificated employees David A. Bradbury, Richard Belcher and Donna Lee Dunlap sufficiently demonstrated factors justifying their retention under said criteria.   As to all these employees, it is determined that each of these persons is an employee whom the District requires to meet the needs of the District and its pupils.”   Our examination of pertinent portions of the record of the administrative hearing convinces us that these findings are supported by substantial evidence.

 The appellants' claim that the District had an affirmative duty to inform the named individual appellants of the order of termination confuses two separate issues:  the duty of the District to notify employees of their recommended termination, and the duty to notify said employees upon request of the criteria used to determine the order of termination.   The District has no duty to provide the employees with the order of termination.

 In Santa Clara Federation of Teachers v. Governing Board (1981) 116 Cal.App.3d 831, 841, 172 Cal.Rptr. 312, the court held that the initial termination notices were sufficiently specific since they complied with former section 13447 (now section 44955).   Statutory notice is clearly all that is required and is only the first step in the process of termination.  (Ibid.)  There is no requirement that “this preliminary notice specify the precise number of teachers to be terminated or the specific positions to be eliminated;  those details emerge as the administrative hearing process progresses.   It is enough that the Board specify in the March 15 notice the statutory grounds set forth in [former] section 13447 [now section 44955] for staff reduction.”  (Ibid.;  see Karbach v. Board of Education (1974) 39 Cal.App.3d 355, 361–362, 114 Cal.Rptr. 84.)

 No employee requested a statement of criteria utilized in determining the order of termination for employees who first rendered paid service on the same date.   The appellants claim that as they were not given notice of the order of their termination, they were prevented from requesting the specific criteria used.   This argument constitutes a non sequitur, but in any event, the failure to give such a written statement does not expand the legal rights or interests of employees affected by a notice pursuant to section 44955.   Section 44955 provides in this regard:  “This requirement that the governing board provide, on request, a written statement of reasons for determining the order of termination shall not be interpreted to give affected employees any legal right or interest that would not exist without such a requirement.”

IV

 Appellants contend that the District violated section 44955 when it failed to serve a layoff notice on Robert H. Kohler, whom they allege is a “permanent” employee, and whose seniority date was less than appellants.   Appellants contend that this failure mandates that they be retained in the 1979–1980 school year.

The superior court found that Mr. Kohler was a “temporary” teacher.   Having examined the transcript of the administrative hearing in this regard as well as having viewed the relevant exhibits, we find that the court's finding was based upon substantial evidence.  Section 44955 requires notice to probationary or permanent certificated employees only.   Thus, the failure to notify Mr. Kohler avails the appellants nothing.

V

 Appellants assert that respondent violated section 44955 by terminating petitioners without reducing or discontinuing particular kinds of services.   The superior court found, “For 1979–80, the District properly effectuated a reduction in force of its certificated personnel by a total of 48.38 full-time equivalent positions due to a reduction or elimination of particular kinds of services.”

In Degener v. Governing Board (1977) 67 Cal.App.3d 689, 695, 136 Cal.Rptr. 801, we stated:  “Here, we are faced with a reduction of a specific curricular offering, namely, physical education․  [L]ogic and sound policy dictate that ‘[a]s long as a district does not reduce its offerings in a code-mandated course below the level required by law, that reduction should be considered a reduction of a particular kind of service․’  [Citations.]”

Rutherford v. Board of Trustees (1976) 64 Cal.App.3d 167, 177, 134 Cal.Rptr. 290, held that “even though a service must continue to be performed in a school district, the particular kind of service of the employee may be eliminated.  [Citation.]”  For instance, traveling art teachers may be eliminated even though art is still taught by credentialed teachers at fixed locations.  (Davis v. Berkeley School District of Alameda County (1934) 2 Cal.2d 770, 40 P.2d 835.)

Campbell Elementary Teachers Assn., Inc. v. Abbott (1978) 76 Cal.App.3d 796, 812, 143 Cal.Rptr. 281, held that a school district may properly reduce services so long as the reduction does not result in an inability to perform legally-mandated services.

Our examination of the pertinent portions of the administrative transcript discloses that the District only reduced or discontinued particular kinds of services.   There is no evidence that mandatory services will not be provided.

The judgment denying the petition for writ of mandate is affirmed.

FOOTNOTES

1.   All statutory references hereinafter are to the Education Code.

DALSIMER, Associate Justice.

LILLIE, Acting P. J., and COOPERMAN,* J., concur.