HUTZLEY v. LAKE ELSINORE SCHOOL DISTRICT (1986)

This appeal is from a judgment denying the petition of a dismissed probationary school teacher for a writ of mandate, which, if issued as prayed, would have directed his employer school district to reinstate him.   The petition was filed following the district's decision and pre-March 15 notice of its election not to reemploy the teacher during the ensuing (1985–86) school year.   Such year would have been the second year of the teacher's probationary employment.

There is no dispute over the facts;  thus, disposition of the appeal turns entirely on interpretation of various sections of the Education Code with particular attention to the consequences of their amendment as part of the massive Hughes-Hart Education Reform Act of 1983.

In our view, the trial court correctly interpreted the applicable statutes in deciding that the teacher was not entitled to the writ he had sought.   Perhaps it would be enough to observe that the petition could have been denied, even on the theory of interpretation urged by counsel for the teacher, solely on the ground that the teacher was not entitled to reemployment, the only relief prayed for in the petition.   In other words, had the petition been granted, the teacher's legal entitlement would have been only to a hearing pursuant to section 44949 of the Education Code.   However, we shall deem the statutory interpretation issues raised by petitioner to have been addressed not to any claimed right to reemployment, but to the underlying question of whether the teacher could have been dismissed only for cause, which of course would have necessitated a hearing at which to demonstrate it.

As above noted, the trial court correctly interpreted the applicable statutes as permitting the district, without cause, not to reemploy the probationary teacher for the ensuing school year, and so we shall affirm the judgment.

BACKGROUND FACTS

Curtis Hutzley (petitioner) was a certificated probationary employee of Lake Elsinore School District (respondent) during the 1984–85 school year.   Before March 15 of 1985, i.e., on March 11, 1985, respondent wrote to petitioner advising him that respondent had “determined not to reemploy you after the end of this current (1984–85) school year.” ¹

The letter gave no reasons for respondent's decision not to reemploy petitioner for the ensuing school year.   Petitioner asked for a hearing;  his request was denied.   The following month, petitioner filed the petition noted, not to gain a hearing, but to compel his reemployment, with the results already indicated.   This appeal followed.

DISCUSSION

Reduced to its simplest terms, the issue presented by this appeal is whether petitioner, as a probationary teacher, whose employment as such began after the 1983–84 fiscal year, could be dismissed without cause before he succeeded to permanent employee status.   In our view, he could.

As earlier suggested, resolution of this issue lies in the interpretation of certain sections of the Education Code, amended as a part of the many-faceted Hughes-Hart Education Reform Act of 1983 which, during its movement through the legislature, was designated as SB 813.

Before 1983, subdivision (d) of section 44949 in relevant part read:  “(d) The governing board's determination not to employ a probationary employee for the ensuing school year shall be for cause only.   The determination of the governing board as to the sufficiency of the cause ․ shall be conclusive, but the cause shall relate solely to the welfare of the schools and the pupils thereof ․”

When section 44949 was amended in 1983, subdivision (d) was entirely deleted.   Neither did its language thereafter appear in any other amended section.

Otherwise, before 1983, subdivision (a) of section 44949 in pertinent part read:  “(a) No later than March 15 and before an employee is given notice by the governing board that his services will not be required for the ensuing year, the governing board and the employee shall be given written notice by the superintendent of the district or his designee, ․ that it has been recommended that such notice be given to the employee, and stating the reasons therefor.”

After amendment in 1983, subdivision (a) reads “(a) No later than March 15 and before an employee is given notice by the governing board that his or her services will not be required for the ensuing year for the reasons specified in Section 44955, the governing board and the employee shall be given written notice by the superintendent of the district or his or her designee, ․ that it has been recommended that the notice be given to the employee, and stating the reasons therefor.”   The new language in part includes the words “for the reasons specified in Section 44955.”   Section 44955 deals with the procedures for the reduction of the number of permanent employees where there has been a decrease in pupil enrollment.   In other words, subdivision (a) of section 44949, as it now applies to dismissal of probationary employees only, contemplates dismissals for the reasons stated in section 44955, and is therefore applicable in very limited circumstances, ones not here present.

Significantly, however, the categorical language of subdivision (d), as above noted, was deleted from section 44949 in 1983.   This deletion suggests in the first instance that dismissal of probationary employees and the circumstances under which such dismissal can be accomplished are now covered elsewhere.

Turning then to “elsewhere,” before 1983, section 44882 read:  “Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for three complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district.”  (Emphasis added.)   The apparent purpose of the section as it then read was to specify the probationary period to be served by a certificated employee before he or she could achieve permanent status.

In 1983, section 44882 was amended in a unique way.   The single paragraph legend as just above quoted was retained as subdivision (a), to which was added “This subdivision shall apply only to probationary employees whose probationary period commenced prior to the 1983–84 fiscal year.”

Otherwise, subdivision (b) was added as part of the 1983 amendment, and it reads:  “(b) Every employee of a school district of any type or class having an average daily attendance of 250 or more who, after having been employed by the district for two complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district.”  (Emphasis added.)

Subdivision (b) continues, “[t]he governing board shall notify the employee, on or before March 15 of the employee's second complete consecutive school year of employment by the district in a position or positions requiring certification qualifications, of the decision to reelect or not reelect the employee for the next succeeding school year to such a position.   In the event that the governing board does not give notice pursuant to this section on or before March 15, the employee shall be deemed reelected for the next succeeding school year.

“This subdivision shall apply only to probationary employees whose probationary period commenced during the 1983–84 fiscal year or any fiscal year thereafter.”  (Emphasis added.)

Comparing the two versions of section 44882, it can be said that subdivision (a) of the newer version is identical to the older except that it has an added sentence which limits its application to those employees who had been employed before the 1983–84 fiscal year.   The first paragraph of subdivision (b) of the newer version is identical to the legend of the pre–1983 version except that “three” in the older has been changed to “two” in the newer.   The second paragraph of subdivision (b) of the newer version added language very similar to that contained in subdivision (a) of section 44949 as it read before 1983.

Putting together the statutory provisions thus far noted, we see that subdivision (a) of section 44949 after 1983 is a provision of narrow application, and the general provisions involving notice before March 15 to preclude reemployment for an ensuing year have been moved into subdivision (b) of amended section 44882.   Significantly, as earlier noted, the deleted subdivision (d) of section 44949, providing for dismissal of probationary employees only for cause, has not been moved into any of the amended sections;  it is gone.

Continuing, section 44948, before 1983, read:  “Governing boards of school districts shall dismiss probationary employees during the school year for cause only, as in the case of permanent employees.”   This appears to be something of a duplication of the purpose of subdivision (d) of pre–1983 section 44949, now wholly deleted.

Section 44948 was also amended in 1983.   The single legend in the older version was preserved intact as subdivision (a) in the newer version, to which subdivision was added:  “This subdivision shall apply only to probationary employees whose probationary period commenced prior to the 1983–84 year or who are employed in a school district having an average daily attendance of less than 250 pupils.”

What to make of all this?

We interpret the changes in these statutes to have effected a compromise.   The time required for probationary employees to reach permanent (tenured) status was reduced from three to two years, but the employer district, as a trade off, was given a limited power during those two years to dismiss a probationary employee without cause.

In reaching this conclusion, it is our view that the legislature must have had something in mind when it moved the language dealing with the pre-March 15 notice, to preclude employment for a successive year, from section 44949 to section 44882, while at the same time deleting subdivision (d) of section 44949 which prohibited dismissal of a probationary teacher except for cause.

It is also significant that a number of the amended sections now carry the differentiating language as to those employed before and after fiscal year 1983–84.   The implication is clear that a different treatment of the two groups was intended.   Reading the language of the amended version of section 44948, the further implication arises, because of the content of the first paragraph of subdivision (a) “․ school districts shall dismiss probationary employees during the school year for cause only, as in the case of permanent employees,” and because of the differentiating language limiting its application to those employed before the 1983–84 fiscal year, that it is now possible to dismiss a probationary employee during the school year without cause, provided his employment began (as here) after the 1983–84 fiscal year.

 The question then to be addressed is whether there are other situations in which a probationary employee can be dismissed without cause, i.e., other than during the school year.   Here the petitioner was not dismissed during the school year;  he only received the pre-March 15 notice designed to preclude employment for the ensuing year.   Analyzing the relationship between amended sections 44949 and 44882, the implication is likewise clear that the Legislature intended also in instances of a decision not to reemploy a probationary teacher for the ensuing year to make such a decision possible without cause where the probationary employee had not been employed before the 1983–84 fiscal year.   We are thus persuaded because, while provisions for the pre-March 15 notice were moved into section 44882 from section 44949, the requirement of cause for dismissal contained in pre–1983 section 44949 was not.

The foregoing amounts to a wholly technical effort to divine legislative intent by comparing the language of the several statutes both before and after the 1983 amendments.   However, the interpretation we have reached can be confirmed on policy grounds to be gleaned from the broad purposes of all the 1983 amendments.   We quote from pages seven and eight of respondent's brief.

“Both parties agree that the Hughes-Hart Educational Reform Act Stats.1983, ch. 498, commonly called SB 813, changed the tenure and dismissal of probationary certificated employees.   To reflect the legislative intent, both Appellant and Respondents quoted the Legislative Digest to SB 813, ch. 498, Section 20, p. 582:

“ ‘This bill would establish streamlined procedures for dismissal of probationary employees during the first two school years which apply only to probationary employees whose period commenced with the 1983–84 fiscal year or any fiscal year thereafter․’  (Emphasis added.)

“The legislature intended to ‘maintain orderly and efficient school campuses ‘to encourage’ positive attitudes among students and high morale and high quality teaching from teachers.'  (Hughes-Hart Educational Reform Act of 1983, section 2, p. 591) By allowing school districts more discretion in dismissing probationaries, the legislature hoped for enhanced quality in the elementary and secondary schools.   Because the quality of education is largely a function of the quality of teachers, granting districts more flexibility in retaining or dismissing probationary teachers prior to the attachment of tenured rights and procedures, logically promotes ‘high quality teaching from the teachers'.

“The probationary teachers benefitted by the shortened length of probationary service prior to reaching permanent employee status.   The probationary period was reduced from 3 years to 2 years, allowing teachers to attain permanent status one year earlier.   The final bill balanced competing interests:  those of teachers for a shorter probationary period with those of school districts for a stream-lined nonreelection process.”   This “streamlined” reelection process now enables school districts to dismiss probationary teachers without cause, as the trial court here recognized.

In a further attempt to identify the legislative intent underlying SB–813 generally and the sections discussed above in particular, we note with interest a news release from the governor's office on July 28, 1983, the date the governor signed these provisions into law.   After discussing certain reforms aimed at dealing with unacceptable pupil attitude and behavior, the governor said, “These reforms will be accompanied by measures to improve the quality of teaching in California.   School boards will now have greater authority to dismiss inadequate teachers.”   Before these 1983 amendments, inadequate probationary teachers could only be dismissed for cause.   If these amendments mean that school boards have “greater authority” to dismiss teachers, it is reasonable to infer that the legislative objective here is to enable dismissal of probationary teachers without cause.

 In this connection, it has long been held that the governor acts in a legislative capacity and not in an executive role when engaged in considering bills passed by the Legislature and presented to him for approval or veto.   As a consequence, his public statements on such bills are pertinent to the subject of legislative intent (see People v. Tanner, 24 Cal.3d 514, 520, 156 Cal.Rptr. 450, 596 P.2d 328.)

Otherwise, the Senate Committee on Education prepared an extended summary of SB–813 which was circulated to all members of both houses for consideration in deciding how to vote.   Among the many capsule statements included in this summary was that this legislation would “Give school districts discretion to dismiss probationary employees during the first two years on the basis of district-determined criteria ” (emphasis added), which is as clear a recitation as could be imagined to convey the idea that the purpose of these amendments was to eliminate any concept of requiring cause for dismissal.

 We can rely upon this statement in the committee's summary in light of Southland Mechanical Constructors Corp. v. Nixen, 119 Cal.App.3d 417, 173 Cal.Rptr. 917.   In Southland the court said, “In our determination we follow the general rule that legislative records may be looked at to determine legislative intention, and it will be presumed that the Legislature adopted the proposed legislation with the intent and meaning expressed in committee reports.”  (Id., at p. 427, 173 Cal.Rptr. 917.)

More particularly, “․ when the Legislature has stated the purpose of its enactment in unmistakable terms, we must apply the enactment in accordance with the legislative direction, and all other rules of construction must fall by the wayside.   Speculation and reasoning as to legislative purpose must give way to expressed legislative purpose.”  (Milligan v. City of Laguna Beach, 34 Cal.3d 829, 831, 196 Cal.Rptr. 38, 670 P.2d 1121.)   So it is here;  the quoted item from the Senate Education Committee summary of SB–813 could not be more clear.

 All of the foregoing analysis is properly applicable unless there be some constitutional infirmity in the legislation.   On this point, petitioner urges that “he may not be terminated without due process,” citing Skelly v. State Personnel Board, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774.   This contention presupposes the deprivation here of some kind of right or property.   SB–813 is widely characterized by the differentiating language which treats those employed before the 1983–84 fiscal year differently from those employed during that year and thereafter.   Those employees hired before that fiscal year did succeed to certain rights, and petitioner's contentions would properly apply to those so employed.   However, petitioner did not begin his employment as a probationary teacher until the 1984–85 fiscal year.   By that time, the new legislation was effective, and, as interpreted above, a probationary employee no longer had any Skelly-type right to be protected by due process.   Hence, petitioner cannot point to any constitutionally impermissible deprivation here.   The statutes in force at the time of his employment defined his rights and they did not and do not include a right that he be dismissed only for cause.²  As stated in the Senate Education Committee summary, at all times during his first two years of employment, petitioner was subject to dismissal solely on the basis of “district-determined criteria.”

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Under section 44882, quoted infra, if before March 15 respondent had not sent petitioner a notice of intention not to reemploy him, he would have been reelected for reemployment for the ensuing school year.   All statutory references in this opinion are to sections of the Education Code unless otherwise specified.

2.   As our Supreme Court stated in Skelly, quoting from Board of Regents v. Roth (1972) 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548:  “ ‘Property interests, of course, are not created by the constitution.   Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ ”  (Skelly, 15 Cal.3d p. 207, 124 Cal.Rptr. 14, 539 P.2d 774, emphasis added.)   In petitioner's case, there is now no existing statute which supported his claim of entitlement to a hearing.

McDANIEL, Associate Justice.

CAMPBELL, P.J., and RICKLES, J., concur.