MARTIN v. KENTFIELD SCHOOL DISTRICT

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Court of Appeal, First District, Division 3, California.

Janet MARTIN, Plaintiff and Appellant, v. KENTFIELD SCHOOL DISTRICT, Defendant and Respondent.

Civ. 51108.

Decided: July 27, 1982

Peter T. Galiano, Daly City, for plaintiff and appellant. Douglas J. Maloney, County Counsel, Ruth W. Rosen, Deputy County Counsel, San Rafael, for defendant and respondent.

Janet Martin appeals from a judgment entered after the trial court denied her petition for a writ of mandate to direct respondent Kentfield School District (the District) to rehire her as a teacher of Physical Science in respondent's Middle School.   Appellant contends that the District violated Education Code section 44956 1 by hiring a teacher with less seniority than she.   For the reasons discussed below we reverse.

At the end of the 1978–1979 school year, the District terminated several permanent certified employees, including appellant, as a result of a decline in student enrollment and a reduction in particular programs.   The reduction of permanent staff under these circumstances is provided by section 44955.

At the time of her departure appellant had been a full-time certified employee of the District since October 1973.   Immediately prior to termination appellant had been teaching science at the grade school level, grades 2–5.   She also had experience as a student teacher at the 6th grade level.   However, appellant never taught grades 7 and 8 at the Middle School level.

On or about September 5, 1979, respondent District reestablished the third-year science course for grades 7 and 8 in its Middle School.   The District published a Position Announcement for a Physical Science teacher with an emphasis in “Math Applications.”   The announcement listed several criteria and was mailed to those teachers entitled to preferential reemployment rights pursuant to section 44956.   Appellant was the most senior teacher on the reemployment list.

The District established the following criteria:  (a) Appropriate credential;  (b) Academic preparation;  (c) Experience in teaching Physical Science;  (d) Experience with Middle School programs and students;  (e) Recent experience teaching Physical Science;  and (f) Recent experience teaching Middle School students.

Only appellant and one Mike Eisan applied for the position.   It is uncontested that appellant had seniority over Eisan by 11 months.

On September 12, 1979, the Board of Trustees of the District (the Board) conducted a hearing to consider the applications.   After reviewing appellant's application together with her college transcripts, the Board specifically found that:  (a) Appellant had the appropriate teaching credential;  (b) Appellant did not have sufficient academic preparation in Physical Science to support the program as required;  and (c) Appellant did not have sufficient experience teaching Middle School programs and students.   Based upon the foregoing the Board concluded that appellant was not competent to teach the class.

The Board found that Eisan met all the criteria.   In fact Eisan had been teaching Physical Science at Middle School for the past five years prior to being laid off.   Eisan also had developed the Physical Science curriculum used at the Middle School.   The Board concluded that Eisan was “the most senior certificated and competent [teacher] for the position” and hired him.

In denying appellant's petition for a writ of mandate, the trial court found in pertinent part that:  (a) the Board had not imposed the requirement of prior Middle School experience upon continuing employees as a qualification to teach at the Middle School previously;  (b) the Board considered appellant's academic preparation along with all the other requirements;  and (c) the Board did not depart from the criteria enumerated in the Position Announcement.   Based upon the foregoing, the trial court issued the following Conclusions of Law:  (a) the Board had the discretion to establish a set of criteria;  and (b) the Board did not abuse its discretion in finding that appellant was not competent to teach the position.

 In support of her contention appellant argues that the District violated section 44956 by imposing a new requirement, i.e., prior experience teaching at Middle School, as a condition for rehiring, which was not imposed upon employees who continued in service.2

 Initially we note that mandamus will lie only to correct an abuse of discretion, but not the manner of its exercise.  (King v. Berkeley Unified School District (1979) 89 Cal.App.3d 1016, 1022–1023, 152 Cal.Rptr. 782.)   Our review is thus limited to a determination of whether there is sufficient evidence to support the trial court's conclusion that no abuse of discretion existed.

Section 44956 provides in pertinent part:  “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 ․, 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.”  (Emphasis added.)

 The trial court found that prior teaching experience at Middle School was not previously a prerequisite for assignment at Middle School.   This finding is amply supported by the testimony of the District Superintendent, Robert Caine.   Accordingly, it appears that the District violated the proscription against imposing new requirements upon those teachers entitled to preferential reemployment, as provided by section 44956, supra.

However, appellant's lack of Middle School teaching experience was not the only factor in the Board's determination that appellant was not competent.   The record demonstrates that the Board also based its decision on appellant's weaker academic background as compared to that of Eisan.

Evidence adduced at the hearing before the Board reveals that appellant graduated the University of California, Berkeley, with a B.S. in Conservation of Natural Resources.   She also possesses an Ed.M. in Science Education, a total of 57 1/313 postgraduate units.

Eisan graduated from U.C. Berkeley with a B.S. in Biology.   He also accumulated 66 postgraduate units.

Significantly, appellant's undergraduate transcript revealed that she completed two courses in Physical Science while the evidence demonstrated that Eisan completed eight courses in Physical Science.

 Certainly the District has the duty and authority to establish standards for determining an applicant's competence for a specific position.   (See King v. Berkeley Unified School District, supra, 89 Cal.App.3d at p. 1023, 152 Cal.Rptr. 782;  Krausen v. Solano County Junior College Dist. (1974) 42 Cal.App.3d 394, 402–404, 116 Cal.Rptr. 833.)   There is no dispute with the propriety of the District's decision to use an applicant's academic background as a qualification for the teaching position.   A school district is recognized as having a “ ‘special competence’ ” in determining whether a particular applicant is qualified.  (Ibid.)  This determination lies within the sound discretion of the District and its Board and will not be reversed in the absence of an abuse of discretion.  (King, supra, 89 Cal.App.3d at pp. 1022–1023, 152 Cal.Rptr. 782;  see generally Moreland Teachers Assn. v. Kurze (1980) 109 Cal.App.3d 648, 655, 167 Cal.Rptr. 343.)

 However, based upon the record before us, we cannot confidently state that the Board would have concluded appellant was “incompetent” had they not considered the improper criterion of prior Middle School experience.   It is conceivable that the weight given to appellant's lack of Middle School teaching experience improperly tipped the balance against a finding of competence.

It would be sheer speculation on our part to predict how the Board would have decided the issue of appellant's competence in the absence of the improper criterion.   Since the Board is uniquely suited to make this determination, it should be permitted the opportunity to reconvene and review appellant's application and her qualifications in light of the foregoing discussion.

The order denying the writ petition is reversed.   The Superior Court is directed to issue its writ of mandate in accordance with the views expressed herein.

I respectfully dissent.

Education Code section 44956,1 which sets forth reemployment rights of permanent certificated school district employees who have been laid off, provides in relevant part:  “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 ․, 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.”  (Emphasis added.)

A school district has discretion to determine whether a laid-off employee is both “certificated and competent” within the meaning of section 44956 to hold a position to which he or she claims reemployment rights.   A district has “special competence” to establish standards for determining teacher competence within the meaning of section 44956, and is entitled to consider an employee's academic background, specialized training or skills, and experience.  (King v. Berkeley Unified School Dist. (1979) 89 Cal.App.3d 1016, 1019–1020, 1023, 152 Cal.Rptr. 782 [construing former Ed.Code, § 13448, predecessor of § 44956].)   A district's determination of teacher competence will not be reversed absent an abuse of discretion.  (Id., at pp. 1022–1023, 152 Cal.Rptr. 782.)

The majority, however, has seized upon the underscored language in section 44956 to severely limit this discretion.   The majority has concluded that because prior middle school teaching experience was not a prerequisite to employment or assignment as a middle school teacher in the Kentfield School District, the district was absolutely foreclosed from considering appellant's lack of middle school teaching experience as a factor in determining her “competence” within the meaning of section 44956 to render service as a teacher of physical science at the middle school.   In effect, the majority equates competence to render a particular service within the meaning of section 44956 with minimum eligibility for employment in the first instance.   I cannot agree.

A district must assess its teachers' credentials and competence to render a particular service when teachers are being laid off, as well as when they are being reemployed.  (See Ed.Code, § 44955;  see generally Thompson v. Modesto City High School Dist. (1977) 19 Cal.3d 620, 628, 139 Cal.Rptr. 603, 566 P.2d 237;  Moreland Teachers Assn. v. Kurze (1980) 109 Cal.App.3d 648, 654–655, 167 Cal.Rptr. 343.)   If, as the majority seems to suggest, in assessing competence within the meaning of either section 44955 or 44956, a district can only consider factors which it has established as minimum job requirements in the first place, its power to make that assessment is meaningless, and both termination and reemployment must be based strictly on seniority.   That, however, is simply not the law.  (See, e.g., Thompson, supra, 19 Cal.3d at p. 628, 139 Cal.Rptr. 603, 566 P.2d 237;  Moreland Teachers Assn. v. Kurze, supra, 109 Cal.App.3d at pp. 654–655, 167 Cal.Rptr. 343;  King v. Berkeley Unified School Dist., supra, 89 Cal.App.3d 1016, 152 Cal.Rptr. 782;  see also Ozsogomonyan, Teacher Layoffs in California:  An Update (1979) 30 Hastings L.J. 1727, 1749–1753.)

The majority's interpretation of section 44956 cannot be squared with the result reached in King, supra, 89 Cal.App.3d 1016, 152 Cal.Rptr. 782, which directly addresses the scope of a district's discretion to determine competence.   In King, laid-off teacher Harris was reemployed to teach seventh and eighth grade math.   Three other laid-off employees, each credentialed to teach the position, each with some experience teaching math, and each senior to Harris, also applied for the job.   Because the three had a limited academic background in mathematics, the district concluded they were not “competent” within the meaning of the statute to render the services for which Harris was hired.   The appellate court concluded that the district had acted within its discretion in making that determination.  (Id., at pp. 1019–1020, 1023, 152 Cal.Rptr. 782.)   I find nothing in King implying that the school district's discretion was circumscribed in the manner suggested by the majority in this case.

I would read the language upon which the majority relies as unrelated to the district's discretion to determine competence.   I read that language to mean only that a district cannot impose as a barrier to reemployment generally any new requirements which were not also imposed upon teachers who continued in service, such as additional post-graduate units in excess of those required for a credential.

I would conclude that the district acted within its discretion when it determined that appellant was not competent within the meaning of section 44956 to render service as a teacher of physical science in its middle school.   I would affirm.

FOOTNOTES

1.   All statutory references hereinafter are to the Education Code, unless otherwise indicated.

2.   Appellant argues that the Board based its determination of not competent only upon appellant's lack of Middle School teaching experience.   In support of her argument she cites to the statement by the deputy county counsel wherein counsel stated:  “[Ms. Rosen]:  In King it was.   It was one of the factors.   And in this, in the Kentfield case it [academic background] is not the factor.   The factor is junior high experience and recent experience teaching physical science at the junior high level.”Counsel's comments are advisory only and are not binding upon the Board or District.   As the record reveals, the Board carefully considered appellant's academic background along with other factors before making its determination.

1.   Unless otherwise indicated, all statutory references are to the Education Code.

FEINBERG, Associate Justice.

WHITE, P. J., concurs.