THOMPSON v. MODESTO CITY HIGH SCHOOL DISTRICT (1976)

OPINION

Plaintiff is a certificated school employee who is employed by defendant Modesto City High School District, hereafter referred to as the District; he is certificated as a counselor and as a teacher. Plaintiff instituted this action for a writ of mandate in the court below to compel the District and others to reinstate him to his former position of counselor. His petition essentially was grounded upon the proposition that he wrongfully was reassigned to a teaching position in violation of section 13447 of the Education Code.¹ This section reads in full as follows:

‘No permanent employee shall be deprived of his position for cause other than those specified in Sections 13313, 13327 and 13338, and Sections 13403 to 13441, inclusive, and no probationary employee shall be deprived of his position for cause other than as specified in Sections 13442 and 13443, except in accordance with the provisions of Section 13319 and Sections 13447 to 13452, inclusive.

‘Whenever in any school year the average daily attendance in all of the schools of a district for the first six months in which school is in session shall have declined below the corresponding period of either of the previous two school years, or whenever a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year, and when in the opinion of the governing board of said district it shall have become necessary by reason of either of such conditions to decrease the number of permanent employees in said district, the said governing board may terminate the services of not more than a corresponding percentage of the certificated employees of said district, permanent as well as probationary, at the close of the school year; provided, 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.

‘Notice of such termination of services either for a reduction in attendance or reduction or discontinuance of a particular kind of service to take effect not later than the beginning of the following school year, shall be given before the 15th of May in the manner prescribed in Section 13443, and services of such employees shall be terminated in the inverse of the order in which they were employed, as determined by the board in accordance with the provisions of Sections 13262 and 13263 of this code. In the event that a permanent or probationary employee is not given the notices and a right to a hearing as provided for in Section 13443, he shall be deemed reemployed for the ensuing school year.

‘The 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.’

After court trial, the court determined that the reassignment of plaintiff to a teaching position was within the lawful authority of the governing board of the District, and entered judgment denying plaintiff's petition for a writ of mandate; this appeal followed.

Plaintiff commenced employment with the District in September 1966; he was employed as a school teacher and worked in that position for the 1966–1967 and the 1967–1968 school years.

At the beginning of the 1968–1969 school year, plaintiff was elevated to the position of counselor; he remained in that position until the end of the 1971–1972 school year. In the meanwhile, at the commencement of the 1969–1970 school year, plaintiff was classified as and became a permanent employee of the District. (See § 13304.)

On March 13, 1972, the District's superintendent, by written notice, informed plaintiff that he was being reassigned to a teaching position starting with the 1972–1973 school year; later plaintiff was told that his counselor position was being eliminated because of a decline in school enrollment. Plaintiff requested a hearing on the question of the cause for his reassignment; in addition, he alleged that individuals with less seniority with the District than plaintiff were being retained as counselors, while he was being reassigned to a teaching position; the request for a hearing was denied. Thereafter, plaintiff on several occasions asked the District to reinstate him to his former counselling position on the basis that he wrongfully had been reassigned to the teaching position; the District refused to accede to plaintiff's requests and this litigation commenced.

Plaintiff's contention that he wrongfully was reassigned to a teaching position is twofold in nature. First, plaintiff maintains that under the first paragraph of section 13447 no certificated permanent employee of a school district may be reassigned to a position of lesser rank and grade, except for cause (e. g., immoral or unprofessional conduct; dishonesty, incompetency or evident unfitness for service), unless the reassignment is brought about by a necessity to decrease the number of permanent employees in the school district because of a decline in the school enrollment or a need to reduce or discontinue services due to budgetary or other similar reasons. Plaintiff insists that the language of the first paragraph of section 13447 which states that ‘[n]o permanent employee shall be deprived of his position for causes other than those specified in Sections 13313, 13327 and 13338, and Sections 13403 to 13441, inclusive, . . . except in accordance with the provisions of Section 13319 and Sections 13447 to 13452, inclusive,’ embraces demotions as well as dismissals. Plaintiff concludes that his reassignment to the classroom was improper because it was a demotion which deprived him of the higher position of counselor and was not made for one of the causes mentioned in the sections of the Education Code incorporated by reference in the first paragraph of section 13447.

Second, plaintiff alleges that even if it is assumed that his reassignment to a teaching position was brought about by a reduction in counselling services due to a decline in the enrollment, as he once was informed, the reassignment was improper since the District does not deny that employees with less seniority than plaintiff were retained to perform counselling services. Plaintiff adheres to the proposition that under the second and last paragraphs of section 13447, certificated employees who are employed to perform a particular kind of service have ‘bumping’ rights within the service they are rendering so that when reassignments to work of a lesser grade and rank result because of a reduction in the particular kind of service, the reassignments must be made in the inverse order of hiring.

On the other hand, the District insists that it long has been recognized that nothing in the tenure laws affects the general power of a school district to reassign a certificated permanent employee when the reassignment is to a position equivalent in rank and grade to the position the employee occupied at the time of reassignment. (Hodge v. Board of Education (1937) 22 Cal.App.2d 341, 344, 70 P.2d 1009; Mitchell v. Board of Trustees (1935) 5 Cal.App.2d 64, 69, 42 P.2d 397; Cullen v. Board of Education (1932) 126 Cal.App. 510, 512–513, 15 P.2d 227.) The District then argues that plaintiff cannot prevail in this appeal because he failed to prove that the teaching position to which he was reassigned was of a lesser rank and grade than the counselling position he was occupying at the time of reassignment.

Preliminarily, it should be noted that we are not concerned here with the question as to whether plaintiff's reassignment to the classroom can be justified under the second and last paragraphs of section 13447. While plaintiff at one time may have been told that he was being reassigned to a classroom teaching position due to a decline in the school enrollment, according to the written notice he initially received, the reassignment was made by the District under the school board's general power to reassign certificated permanent employees. The District not only takes this position in this appeal, but it took the same position in the court below; in fact, no evidence was presented by the District, and no findings were made by the court, to support the reassignment on the theory that it was brought about by a necessity to decrease the number of permanent employees in the District because of a decline in the school enrollment or a need to modify counselling services. (See Lacy v. Richmond Unified Sch. Dist. (1975) 13 Cal.3d 469, 475, 119 Cal.Rptr. 1, 530 P.2d 1377.)

Neither do we believe that the District can find solace in the argument that plaintiff cannot prevail in this proceeding because he failed to prove that the teaching position to which he was reassigned was of a lesser rank and grade than his former position of counselor. In the absence of exceptional circumstances, the work of a teacher is not of the same rank and grade as that of a counselor; the District offered no evidence of exceptional circumstances. (See otto v. Davie (1973) 34 Cal.App.3d 570, 577, 110 Cal.Rptr. 114.) In addition, the trial court found that as a result of the reassignment, plaintiff's pay was reduced between $510–$580 a year. As succinctly stated by the Supreme Court in Kacsur v. Board of Trustees (1941) 18 Cal.2d 586, 593, 116 P.2d 593, 596: ‘If [a] change in assignment warranted a reduction in salary, the work assigned could hardly be said to be of the same grade and rank.’

With these observations behind us, we return to plaintiff's contention that his assignment to the classroom was not a proper exercise of the school board's general power to make assignments of certificated permanent employees. In short, in making this contention, plaintiff assumes either that he had acquired permanent status as a counselor by the time the reassignment was made, or that the phrase ‘[n]o permanent employee shall be deprived of his position’ except for cause, as used in the first paragraph of section 13447, refers to the position the permanent employee occupies at the time of reassignment, whether he has tenure in that position or not.

At the outset, we discard the suggestion that the first paragraph of section 13447 pertains to the position a permanent certificated employee occupies whether he has permanent status in that position or not. The tenure laws are designed to give job security to certificated employees who meet the necessary qualifications and who satisfactorily have served the probationary period; they merely guarantee that except for specifically enumerated causes, a certificated employee who has attained permanent status in a given position always will have a job of a rank and grade equivalent to that position. (Abraham v. Sims (1935) 2 Cal.2d 698, 710, 42 P.2d 1029; Hodge v. Board of Education, supra, 22 Cal.App.2d 341, 343, 70 P.2d 1009; Mitchell v. Board of Trustees, supra, 5 Cal.App.2d 64, 68, 70, 42 P.2d 397; Cullen v. Board of Education, supra, 126 Cal.App. 510, 512–513, 15 P.2d 227.) Thus, when a certificated employee who has attained permanent status in a particular position is promoted to a higher position, he retains his initial permanent classification and serves in the higher position at the pleasure of the school board; otherwise, under plaintiff's suggested interpretation,, certificated employees who successfully serve the three-year probationary period and who are reelected to a particular position on the fourth year, for all practical purposes, would have permanent status or tenure in every position they thereafter occupy; they even would have tenure in administrative and supervisory positions in contradiction of the well-established law on this subject. (See § 13315; Board of Education v. Swan (1953) 41 Cal.2d 546, 555, 261 P.2d 261; Holbrook v. Board of Education (1951) 37 Cal.2d 316, 334, 231 P.2d 853; Council of Directors and Supervisors v. Los Angeles Unified Sch. Dist. (1973) 35 Cal.App.3d 147, 152, 110 Cal.Rptr. 624; Hentschke v. Sink (1973) 34 Cal.App.3d 19, 22–23, 109 Cal.Rptr. 549.) It is clear that the word ‘position’ in the first paragraph of section 13447 refers to the position in which the certificated permanent employee acquires permanent status or tenure.

The crucial question, therefore, is whether plaintiff had permanent status as a counselor at the commencement of the 1972–1973 school year when he was reassigned to the classroom.

It is reasonably certain that plaintiff initially acquired permanent status as a counselor at the commencement of the 1969–1970 school year when he was elected to that position after having completed three successive years of employment with the District, both as a schoolteacher and as a counselor. (See § 13304.) At that time, the decisional law adhered to the viewpoint that, in the absence of a statute to the contrary, when a certificated employee served in more than one position during the probationary period, he acquired permanent status in the position to which he was elected at the commencement of his fourth year of employment with the school district. (See Kacsur v. Board of Trustees, supra, 18 Cal.2d 586, 593, 116 P.2d 593; Abraham v. Sims, supra, 2 Cal.2d 698, 710, 42 P.2d 1029; Hodge v. Board of Education, supra, 22 Cal.App.2d 341, 343–344, 70 P.2d 1009; Mitchell v. Board of Trustees, supra, 5 Cal.App.2d 64, 68–69, 42 P.2d 397.) As was said in Adelt v. Richmond Sch. Dist. (1967) 250 Cal.App.2d 149, 152, 58 Cal.Rptr. 151, 153, ‘. . . the permanent employment protected is employment within the scope of the certificate under which tenure was acquired.’ (Italics deleted.) (See also Netwig v. Huntington Beach Union High Sch. Dist. (1975) 52 Cal.App.3d 529, 532, 125 Cal.Rptr. 170.)

However, in August 1972, almost three years after plaintiff acquired permanent employee status with the District, the California Legislature enacted section 13314.3. Under this section an employee who has multiple credentials, which includes a teaching credential, attains permanent status only as a classroom teacher. Accordingly, the issue narrows to whether section 13314.3 should be given retroactive application under the authority of section 13269. This latter section provides:

‘All employments under the provisions of . . . Sections 13252 to 13312, inclusive, [and] Sections 13314 to 13318, inclusive, . . . shall be subordinate to the right of the Legislature to amend or repeal [such sections], or any provision or provisions thereof at any time, and nothing herein contained shall be construed to confer upon any person employed pursuant to the provisions hereof a contract which will be impaired by the amendment or repeal of [such sections], or of any provision or provisions thereof.’

While we must admit that the issue is a close one, we have concluded that section 13314.3 should not be given retroactive application. In the absence of clear language to the contrary, statutes are given prospective application, and this is especially true where, as here, a retroactive interpretation would take away or impair what is tantamount to a vested or earned right and could raise serious constitutional questions. (State of California v. Ind. Acc. Com. (1957) 48 Cal.2d 335, 362, 310 P.2d 1; Barber v. Galloway (1924) 195 Cal. 1, 9, 231 P. 34; see 73 Am.Jur.2d (1974) Statutes, §§ 349–350, pp. 488–490.) A certificated employee's permanent classification has been treated by our Supreme Court as something in the nature of a vested or earned right. (See Kacsur v. Board of Trustees, supra, 18 Cal.2d 586, 591, 116 P.2d 593.) In addition, the Legislature stated that section 13314.3 was enacted ‘. . . to clarify the rights of permanent certificated employees at the earliest possible time in the 1972–1973 school year, . . .’ (Stats.1972, ch. 795, § 10, p. 1417; emphasis added); this language, of itself, suggests that the Legislature did not intend to interfere with tenure rights that had been earned and had accrued prior to the 1972–1973 school year under the decisional law. Thirdly, section 13314.3 was enacted as emergency legislation and was made effective as of August 11, 1972, to make certain that certificated employees with multiple certificates, one of which is a teaching credential, who would obtain permanent employee status at the commencement of the 1972–1973 school year would attain tenure only as a classroom teacher. If the Legislature intended the new law to apply retroactively under the authority of section 13269, the emergency clause was redundant and unnecessary; it must be presumed that in enacting a statute every provision was inserted for a purpose and that nothing was done in vain. (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672; Reimel v. Alcoholic Bev. etc. Appeals Bd. (1967) 256 Cal.App.2d 158, 167, 64 Cal.Rptr. 26.)

In summary, we hold that plaintiff acquired permanent status as a counselor and that the permanent status was not affected by the change in the law which became effective on August 11, 1972. We further hold that plaintiff's reassignment to a teaching position was not a reassignment to a position of a rank and grade equal to the position of counselor, as the District maintains, and that reassignment was improper.

The judgment is reversed.

FOOTNOTES

1.  Hereafter, unless otherwise indicated, all section references are to the Education Code.

GARGANO, Acting Presiding Justice.

FRANSON and THOMPSON,* JJ., concur.