JANET MARTIN, Plaintiff and Appellant, v. KENTFIELD SCHOOL DISTRICT, Defendant and Respondent, 35 Cal. 3d 294

Opinion BIRD, C. J. Education Code

section 44956 provides tenured teachers who have been laid off with a preferred right to reappointment based on seniority. The sole question presented by this case is whether—in selecting between two such teachers—the Kentfield School District acted in accord with the requirements of

section 44956. More specifically, may an employment qualification not required of teachers who continued in service properly be used as grounds for not rehiring the more senior of two laid-off teachers? I. Appellant, Janet Martin, taught school in the Kentfield School District (District) from 1973 to 1979. During that time she was assigned to teach a broad range of subjects, including physical science, to elementary school classes in grades two through five. She attained tenured status in 1976. (See § 44882.) Due to decline in average daily attendance, the District terminated Martin’s employment in June of 1979. (See § 44955.) Pursuant to the mandate of

section 44956, Martin’s name was then placed on the District’s reemployment list for preferential rehiring. Late in the spring of 1979, a position opened up for a physical science teacher in the “middle school” (seventh and eighth grades). School officials determined that no continuing employees were available to fill the position. At that time, the District did not advertise the science opening to teachers on the reemployment list. The position was left open and the District decided to offer a third year of literature instead.

In September of 1979, a few days after the new academic year had begun, the literature instructor resigned. In place of the literature course, the District decided to reestablish the third year of middle school science. Having received no applications from continuing employees for the open science position, the superintendent sent a letter to teachers on the reemployment list announcing the availability of the job and inviting applications. The letter set forth several “criteria” for the job.

These were: “appropriate credential,” “academic preparation,” “experience in teaching Physical Science,” “recent experience teaching Physical Science,” “recent experience teaching Middle School students” and “experience with Middle School programs and students.” The only applicants were appellant Martin and Mike Eisan. On September 12, 1979, the District’s school board met to determine whether Martin or Eisan should be awarded the job. Since Martin was the more senior applicant, the board examined her qualifications first. The board found that she possessed the appropriate teaching credential for the job.

However, it also found that she “did not have sufficient academic preparation in physical science to support the physical science program as required in the Kentfield School District, Middle School” and that she did “not have any experience teaching Middle School programs and students.” On the basis of these findings, the board concluded that Martin was “not competent” to occupy the position offered. Having been found to meet all the announced criteria, Eisan, with less seniority than Martin, was chosen to fill the position.

Martin sought relief from the District’s decision by petitioning for a writ of mandamus in the Marin County Superior Court. Relying on

section 44956, she contended that the District had abused its discretion in failing to hire her. That

section provides that no employment requirements are to be imposed on teachers entitled to preferential reemployment that were “not imposed upon other employees who continued in service in the district.” Martin asserted middle school experience was not required of continuing teachers and should not have been required of her. Since the District based its determination that she was not competent to fill the middle school position solely on this requirement, Martin argued, an order should issue directing the District to hire her. The District argued that

section 44956 permits it to exercise discretion in choosing between employees entitled to preferential rehiring. The District contends that, under

section 44956, it is entitled to utilize criteria such as recent experience in evaluating competency. Only the most senior, competent applicant could be selected for an opening. The District thus asserts that, in requiring middle school experience, it was merely exercising its statutory authority to establish standards for determining applicants’ competence. Although the court found that the District “had not [previously] imposed the requirement of prior middle school experience upon continuing employees as a qualification to teach at the middle school,” the judge refused to order the District to rehire Martin.

The court concluded that it was within the District’s discretion to determine the criteria for the teaching position and that the District had not abused its discretion in choosing Eisan over Martin. This appeal followed. II. The sole issue presented is whether the District abused its discretion by applying employment requirements to Martin which are not authorized by

section 44956. The principles which guide this court’s determination are not in dispute. There exists, among employers in this country, a broad spectrum of policies with respect to the weight to be given seniority in the making of personnel decisions. The Legislature has clearly stated which tenured teachers on layoff status should be appointed to vacant positions.

Section 44956 provides in pertinent part that any such employee “shall have the preferred right to reappointment, in the order of original employment as determined by the board . . . with no requirements that were not imposed upon other employees who continued in service; provided, that no . . . employee with less seniority shall be employed to render a service which said employee is certificated and competent to render.” In

section 44956, the Legislature has made seniority the sole determinant as to which tenured teachers on layoff status should be appointed to a vacant position. The only limitation is that the teacher selected be “certificated and competent” to render the service required by the vacant position. Among employees who meet this threshold limitation, there is no room in the statutory scheme for comparative evaluation.

Thus, as the District concedes, which of the two employees under consideration, Martin or Eisan, was “better” qualified for the job is not the question here, nor was it properly the question before the board. The question for the board’s determination was simply whether Martin, the senior tenured teacher on layoff status, was “certificated and competent” to render the required service. Such determinations, it has been held, involve “discretionary decisions” which are within the “special competence” of the school districts. (King v.

Berkeley Unified School Dist., supra, 89 Cal.App.3d 1016, 1023.) As Martin concedes, it was within the power of the board to establish requirements for the vacant position. Such requirements could properly take into account both prior academic preparation in physical science and prior experience teaching middle school programs and students. However, the District’s discretion is subject to an important limitation. Under

section 44956, it may not impose “requirements that were not imposed upon other employees who continued in service.” Martin contends that the board’s reliance upon her lack of prior middle school teaching experience violated that statutory prohibition. The first disputed question is Martin’s contention that prior middle school teaching experience constituted a “requirement” for the job within the meaning of

section 44956. The District asserts that the “criteria” set forth in its letter announcing the middle school position were not employment “requirements” within the meaning of

section 44956. Rather, according to the District, the “criteria” were merely used as factors in evaluating the competence of applicants for the position. As such, the District claims, these “criteria” do not fall within the mandate of

section 44956 that employment “requirements” be applied equally to continuing employees and persons on the reemployment list. If the court were to accept this semantic sophistry, the absurd conclusion would result that there were no “requirements” at all for the District’s open position since the criteria announced in the letter were the only standards set forth by the District to determine eligibility for the position. Whether the standards promulgated by the District here are referred to as “criteria” or “requirements” is of no consequence.

The fact is that the published standards governed employability for the announced position and, as such, they function as the “requirements” referred to in

section 44956. Indeed, the argument that the “criteria” set forth in the District’s job announcement were merely to be used in assessing competence of the applicants and not as “requirements” for the job simply misses the point of the statute.

Section 44956 clearly allows use of standards (whether denominated “criteria” or “requirements”) to assess the competence of job applicants. However, the statute’s underlying purpose of protecting teachers’ seniority rights can only be accomplished by requiring such standards to be applied equally to both groups from which job applicants are drawn. The term “requirement” must, therefore, be construed to encompass all factors which are accorded any weight at all in the District’s decision-making process. Were the court to accept the District’s distinction between employment “requirements,” which are regulated by

section 44956, and competence “criteria,” which are not, the door would be opened to widespread abuse of the rehiring process. Such a construction of the statute would allow districts to use unequally applied, artfully drawn “criteria” to selectively employ or reemploy favored teachers. This would effectively circumvent the policy of protecting the employment rights of laid-off teachers which underlies

section 44956. This court will not interpret

section 44956 in a manner which would have the effect of subverting the very purpose for which it was enacted by the Legislature. The District is clearly correct in reasoning that it has the discretion to choose the most senior competent persons from the reemployment list to fill open teaching positions. Its discretion, however, is limited by the requirement set forth in

section 44956 that, in judging competence, a district may utilize only criteria also imposed upon continuing teachers. With this limitation in mind, the question remains whether the District abused its discretion in choosing Eisan over Martin for the physical science position. The answer turns on a factual inquiry: whether the requirement of prior middle school experience was applied evenhandedly to continuing and laid-off employees, or whether it was applied in a discriminatory manner. Unfortunately, the record as to that inquiry is unclear, and the findings incomplete.

In particular, the record is incomplete as to the manner in which applicants were recruited for the open teaching job. The record reveals that a physical science position “opened up” in the spring of 1979, that school officials determined that no continuing employees were available for the job, and that the position was not filled at that time. The record also indicates that in September of 1979, the school administration invited laid-off teachers to apply for an open physical science position. A letter was sent which listed “prior middle school experience” as one of the hiring criteria to be applied.

The record does not reveal, however, whether the position offered to laid-off employees in September was the same position offered to continuing employees the previous spring. In other words, it is unclear whether the September job announcement was part of a continuing recruitment process which began with the offer of the same job to continuing employees the prior spring. If it was, and if, as the record suggests, prior middle school experience was required only of the September group, then it appears that the District applied different criteria to continuing and laid-off employees in violation of

section 44956. Since the resolution of this factual question is essential to a determination of whether the District complied with

section 44956, the judgment is reversed and the cause is remanded to the trial court for a resolution of this factual issue. If the trial court determines that the District failed to comply with

section 44956, it must then determine, either on the record before it or by remanding the cause to the District, whether Martin is “competent” under application of the proper criteria. Broussard, J., Reynoso, J., and Grodin, J., concurred. All statutory references will be to the Education Code unless otherwise stated.

Section 44955 provides for termination of teachers upon a decline in attendance or discontinuance of services by the district. This

section requires, inter alia, that terminations be made in order of seniority, the least senior employees being laid off first.

Section 44956 reads in pertinent part as follows: “Any permanent employee whose services have been terminated as provided in

Section 44955 shall have the following rights: “1.

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. ” (Italics added.) “The remedy of ‘ordinary mandamus’ invoked here will lie to control an abuse of discretion ...” by a school district. (King v.

Berkeley Unified School Dist. (1979) 89 Cal.App.3d 1016, 1022 [152 Cal.Rptr. 782].) “[T]he legislative intent ... [of

section 44956 is] . . . to give a permanent teacher, validly laid off, if she applied within 39 months and the emergency causing the layoff had expired, ... the same employment rights that she would have had if no layoff had intervened . . . .” (Waldron v. Sulphur Springs Union School Dist. (1979) 96 Cal.App.3d 503, 505 [158 Cal.Rptr. 132].) That no continuing employee actually applied when the position was made available to that group in the spring of 1979 does not alter this analysis.

The proper inquiry is what criteria were in place to be applied at any given time to any application which may have been received. From the board’s findings, it appears that the board relied upon both Martin’s lack of academic preparation in the physical sciences and her lack of prior middle school teaching experience as grounds for finding her not “competent” for the job. If the board’s consideration of the second factor is found by the trial court to have violated

section 44956, that factor may not be considered in determining Martin’s competence. Since it is impossible from the record before this court to ascertain whether or not the District would have found Martin “not competent” absent application of the second factor, such a determination must be made on remand.