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 and Respondent.

Civ. 60863.

Decided: January 04, 1982

Lawrence B. Trygstad, Los Angeles, for petitioners and appellants. Liebert, Cassidy & Frierson and Larry J. Frierson, and David G. Miller, Paterson & Taggart, Los Angeles, for respondent and respondent.

This is an appeal by the Palos Verdes Faculty Association and named individuals from the judgment denying a writ of mandate. The petition was filed pursuant to Code of Civil Procedure section 1094.5 and sought to review the decision of the Palos Verdes Peninsula Unified School District not to rehire the named individuals for the 1979-1980 school year.

STATEMENT OF FACTS

Palos Verdes Faculty Association is an employee organization joined in this suit in its capacity as such an employee organization, and in particular as the exclusive representative of said petitioners.

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

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

On or about February 15, 1979, the superintendent of the respondent gave written notice to the respondent Governing Board that he recommended that notice be given petitioners that their services would not be required for the ensuing school year. On or about February 23, 1979, the superintendent of the respondent Governing Board 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 or about February 23, 1979, the respondent adopted a resolution reducing the number of certificated employees for the school year 1979-80 based upon a proposed reduction and/or discontinuance of particular kinds of services. 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 in Los Angeles County before an administrative law judge who then rendered his proposed decision on or about April 10, 1979. On or about May 7, 1979, respondent Governing Board 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.

In selecting the employees for retention, the district relied on criteria contained in the then current collective bargaining agreement between the district and Palos Verdes Faculty Association, to wit:

1. Legal requirements of the district;

2. Individual training, experience, credentials;

3. Skills in areas which are secondary to the regular assignment;

4. Length of service rendered to the district by the unit member;

5. Balance of staff relative to training, experience and background;

6. Educational needs of the school or department to which the unit member is transferred or reassigned;

7. Preference of the unit member;

8. Best interests of the district;

9. Past written evaluations.

Pursuant to the above criteria, the District adopted the administrative law judge's ruling that certain certificated employees sufficiently demonstrated factors justifying their retention under said criteria. As to all these employees, it was determined that each of these persons is an employee whom the district requires to meet the needs of the district and its pupils. The district did not send a notice to Robert Kohler, a teacher.

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.

For 1979-80, the District reduced its force of certificated personnel by a total of 48.38 fulltime 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.

Appellants' brief sets out as fact portions of the testimony received at the administrative hearing. They imply that the evidence received at the hearing was insufficient to support the findings of fact of the superior court. However, appellants failed to provide this court with an evidentiary record and a reviewing court must accept and is bound by the record before it. (Weller v. Chavarria (1965) 233 Cal.App.2d 234, 246, 43 Cal.Rptr. 364.)

In the absence of an evidentiary record, sufficiency of the evidence is not an issue open to question. We must presume that the findings were supported by substantial evidence. (Smith v. Regents of University of California (1976) 58 Cal.App.3d 397, 405, 130 Cal.Rptr. 118; Estate of Kretschmer (1965) 232 Cal.App.2d 789, 798, 43 Cal.Rptr. 139.)

II

Appellants contend that section 44955 requires the layoff of administrators in order of employment, along with other permanent employees, unless the District proved as a part of its case that no permanent employee with greater seniority could perform the duties of the administrator.

It is their position that the school District has the burden in these layoff proceedings to establish the need for the junior administrator over the senior employee who has the same credential. Employees must be assigned and reassigned within the scope of their credential. We disagree.

Education Code section 44955 provides in its pertinent part:

“... that 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 entitled them to render.”

The superior court found in finding No. 11, “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 in the administrative hearing below petitioners herein, (appellants) did not demonstrate that apart from holding an administrative credential their members were otherwise qualified to be administrative personnel.”

In the case of Hentschke v. Sink (1973) 34 Cal.App.3d 19 at page 23, 104 Cal.Rptr. 549, the court stated: “(A) second or third level administrator bears to his superiors a relationship of the most intimate nature, requiring complete trust by the top administrators in the judgment and cooperative nature of the subordinate. The loss of that trust is not a matter susceptible of proof such as is involved in the cases where a classroom teacher is dismissed or demoted for objective acts of misconduct.”

In an article in 30 Hastings Law Journal (1979) 1727 at page 1753, entitled Teacher Layoffs in California: An Update, by Nancy B. Ozsogomonyan, states “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.” Administrators hold their position at the pleasure of the Governing Board. Anaclerio v. Skinner (1976) 64 Cal.App.3d 194, 197, 134 Cal.Rptr. 305. We hold that due to the often confidential and intimate relationship between administrators and the Governing Board of the District, administrators in their capacity of administrators are not subject to the layoff provisions of Education Code section 44955.

III

The appellants claim that the District's failure to determine the order of termination as between employees who first rendered paid service to the District on the same date constitutes a violation of Education Code section 44955 and a denial of due process.

Education Code section 44955 in its pertinent part says:

“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 in its findings of fact found in finding No. 8 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 superior court went on to find in finding No. 9 that “the District acted within its discretion.” As to the employees retained, “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.”

In the absence of an evidentiary record, sufficiency of the evidence is not an issue open to question. We must presume that the findings are supported by substantial evidence. (Smith v. Regents of University of California (1976), supra, 58 Cal.App.3d 397, 405, 130 Cal.Rptr. 118; Estate of Kretschmer (1965), supra, 232 Cal.App.2d 789, 791, 43 Cal.Rptr. 901.)

IV

The appellants claim that the district had an affirmative duty to inform the named individual appellants of the order of termination.

In the case of 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 stated both statutory grounds for termination under Education Code section 13447, now Education Code section 44955. Clearly statutory notice is sufficient. This notice is only the first step in the process of termination. It is not required 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 section 13447 for staff reduction.” (Santa Clara Federation of Teachers v. Governing Board (1981), supra, 116 Cal.App.3d 831 at p. 841, 172 Cal.Rptr. 312; see also, Karbach v. Board of Education (1974) 39 Cal.App.3d 355, 361-362, 114 Cal.Rptr. 84; Campbell Elementary Teachers Assn., Inc. v. Abbott (1978) 76 Cal.App.3d 796, 804, 143 Cal.Rptr. 818.)

The appellants claim that the vast majority of them had the same seniority date but none were given notice of their order of termination. This in turn prevented them from requesting the specific criteria used in determining their order of termination.

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. Education Code section 44955 states in pertinent part:

“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.”

V

The District's failure to serve Robert Kohler a layoff notice.

Appellants contend that the District violated Education Code section 44955 when it retained the services of Robert H. Kohler, whom they classify as a “permanent” employee, whose seniority date was less than appellants' who were competent to render the same services. Appellants contend that this failure mandates that they be retained in the 1979-1980 school year.

The superior court found that he was a “temporary” teacher. The Education Code section 44955 requires notice to only probationary or permanent certificated employees. Since this court is to presume that the findings are supported by substantial evidence, we find that Robert Kohler was a temporary employee and not entitled to notice of termination. (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 114 Cal.Rptr. 589, 533 P.2d 629; Brough v. Governing Board (1981) 118 Cal.App.3d 702, 173 Cal.Rptr. 729.)

VI

Appellants claim respondent violated section 44955 by terminating petitioners without reducing or discontinuing particular kinds of services.

The superior court found in finding No. 14, “for 1979-80, the District properly effectuated a reduction in force of its certificated personnel by a total of 48.38 fulltime equivalent positions due to a reduction or elimination of particular kinds of services.”

In the case of Degener v. Governing Board (1977) 67 Cal.App.3d 689, 696, at page 695, 136 Cal.Rptr. 801, the court stated:

“Here, we are faced with a reduction of a specific curricular offering, namely, physical education. (P) In the latter context, logic 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....’ ”

In Rutherford v. Board of Trustees (1976) 64 Cal.App.3d 167, at page 177, 134 Cal.Rptr. 290, it was stated 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.”

In the case of Campbell Elementary Teachers Assn., Inc. v. Abbott (1978), supra, 76 Cal.App.3d 796, 812, 143 Cal.Rptr. 281, it is stated that a school district may properly reduce services so long as the reduction does not result in an inability to perform legally-mandated services. See Teacher Dismissals under section 13447 of the California Education Code (1976); 27 Hastings L.J., 1401, 1411.

We find that the district did not violate Education Code section 44955 by terminating appellants without reducing or discontinuing particular kinds of services.

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

FOOTNOTES

FOOTNOTE.  

TUCKER,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

SPENCER, P. J., and DALSIMER, J., concur.