Davis v. Governing Bd. of Bellflower Unif. School Dist.

Filed 9/28/06 Davis v. Governing Bd. of Bellflower Unif. School Dist. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Judith C. Chirlin, Judge. Reversed.

Law Offices of Eric Bathen, Eric Bathen and Marcia P. Brady for Defendants and Appellants.

Schwartz, Steinsapir, Dohrmann & Sommers, Michael R. Feinberg and Susan M. Swan for Plaintiffs and Respondents.

Appellants Governing Board of the Bellflower Unified School District and Rick Kemppainen, Superintendent of Schools of the Bellflower Unified School District (collectively the district) appeal from a judgment of the superior court granting a writ of mandate and ordering the district to provide Lawrence E. Davis, Jr., Carolyn Dail, Marilyn Drunasky, Sandra Dubrowskij, Gordon Grieg, Gilbert Guevara, Jayne Mackley, Robert C. Rodgers, Linda Sinclair, Robbie Single, Laura Somers, Mary Tilton, Mark E. Allen, Robert Frankeberger, and Richard Walker (collectively petitioners) seniority and tenure rights that they held in their previous positions as employees of the Los Angeles County Office of Education (county). We reverse.

CONTENTIONS

The district contends that the superior court erred in determining that Education Code section 44903.7^[1] mandates that the district accord petitioners with the permanent status and seniority credit that they held in their previous positions as employees of the county. The district further contends that, because the district did not have a clear, present, and ministerial duty to accord petitioners such status, the writ of mandate was improperly granted.

BACKGROUND

1. The petition and stipulation of facts

On January 28, 2005, petitioners filed a verified petition for writ of mandate. The petitioners sought a writ of mandamus ordering the district to comply with section 44903.7 by classifying them as permanent employees of the district and/or according them seniority at the district based on the respective seniority dates from their previous employment at the county. On March 7, 2005, the district filed its verified answer. On April 27, 2005, the parties entered into a stipulation of facts and agreed that as a result of the stipulation, no discovery was needed and none would be promulgated in this matter.

The stipulation set forth the following facts: Prior to the 2003-2004 school year, petitioners were credentialed employees of the county in the county’s special education programs. The district is a member district of the Mid-Cities Special Education Local Plan Area (Mid-Cities SELPA), and historically, some of the district’s special education students have been served by special education programs offered by the county. Beginning with the 2003-2004 school year, and continuing in the 2004-2005 school year, the district took back certain services provided by the county, such that those services would be provided by employees of the district instead of the county. Petitioners applied for speech therapist and special education positions with the district and were hired as first-year probationary employees in school years 2003-2004 and 2004-2005, respectively. The district had no obligation to hire petitioners. None of the petitioners had been subject to a reduction in force from their employment with the county under Education Code section 44955 during school years 2003-2004 and 2004-2005.

2. The motion for writ of mandate

On June 21, 2005, petitioners filed their notice of motion and motion for writ of mandate pursuant to Code of Civil Procedure section 1085. They sought a writ compelling the district to credit each of them with the status and seniority that he or she earned while employed by the county. The motion was brought on the ground that the district had a clear, present, and ministerial duty under section 44903.7 to credit them with the status and seniority they earned while employees of the county.

On July 8, 2005, the district filed its opposition to petitioners’ motion. The district opposed the writ on the grounds that petitioners were not entitled to the protections afforded by section 44903.7. The district concurrently filed the declaration of Rick Kemppainen, Superintendent of Schools of the Bellflower Unified School District. The declaration included the following facts: Beginning prior to the 2003-2004 school year the district initiated with the county an “intra-SELPA program transfer.”^[2] This was not a reorganization of the district’s or the county’s special education programs. No services were changed. No individual education plans (IEPs) required reconsideration as a result of this transfer. Special education students continued to receive services at the same locations they received services prior to the intra-SELPA program transfer.

As support for these assertions, Kemppainen’s declaration attached a copy of a June 24, 2003 notice sent by the Superintendent of Schools notifying the county and other Mid-Cities SELPA member school districts of the district’s intent to transfer programs pursuant to section 56207.^[3] It also attached a copy of January 23, 2004 correspondence from Mr. Kemppainen and the president of the Bellflower Board of Education to parents of special education students notifying them of the “transfer of the operation of Language and Speech services,” and explaining that the change “involves the administration of these programs and services only, and will not have any impact on [any] child’s [IEP] or on the location of the programs and services.”

Kemppainen’s declaration further asserted that the petitioners who were hired by the district participated in a competitive hiring process. They were placed on the district salary schedule according to their years of experience, education, and certifications. Further, several weeks prior to commencement of their employment with the district, petitioners received written offers of employment. Copies of the signed written offers were attached to Mr. Kemppainen’s declaration. The written offers detailed the classifications and positions of seniority that the district was offering to the petitioners. Petitioners did not have to resign from their positions at the county until they learned the fate of their applications with the district. The county did not cease to provide special education and speech therapy services for the Mid-Cities SELPA.

Petitioners’ reply brief, filed July 20, 2005, included two declarations, prepared by Robin Devitt, Executive Director of Rancho Cerritos United Teachers and a representative of the California Teachers Association, and Robert Barner, Assistant Superintendent for Educational Programs at the county. The district filed an objection to petitioners’ proffer of these declarations as evidence on the grounds that petitioners failed to show good cause as to why they could not have been included in their initial petition or motion. The trial court later indicated that it did not consider the two declarations filed by petitioners in arriving at its decision, and that “[t]he only evidence considered [by] the Court was that contained in the Stipulation filed by counsel on July 27th.”^[4]

3. The trial court’s decision

After a brief hearing, the trial court granted petitioner’s motion for writ of mandate. After the court’s oral ruling, counsel for the district requested an explanation of why section 44903.7 applied in this case. In response, the trial court stated, “Because I think he’s right.”

On or about August 1, 2005, petitioners filed a proposed judgment granting writ of mandate, a proposed peremptory writ of mandate, and a proposed statement of decision. On August 2, 2005, the district filed and served objections to the proposed judgment granting writ of mandate and writ of mandate. The objections were that there was no hearing in the case where evidence was received by the court; the court did not give any indication that it had considered the briefs or arguments of counsel; the court did not consider or rule upon the district’s objections to evidence untimely proffered by petitioners; the court made no order of costs for petitioners; the case was never submitted for decision; the court made no findings of fact or law and no basis for the court’s ruling at the hearing was provided by the judge; no statement of decision was ordered or prepared; and no judgment should be entered or writ issued until the court had ruled upon the district’s objections to evidence, received evidence, and issued a statement of decision. The district also filed an objection to proposed statement of decision, reiterating the district’s objections and asking that the case be set for further hearing.

On September 6, 2005, the trial court adopted without modification the proposed judgment granting writ of mandate and the proposed peremptory writ submitted by petitioners and issued the judgment granting writ of mandate and a peremptory writ of mandate.

On September 12, 2005, the trial court responded to the district’s request for statement of decision pursuant to Code of Civil Procedure section 632, which was filed on July 27, 2005. The court sustained the district’s evidentiary objections to the declarations of Robin Devitt and Robert Barner, and stated, “The Court believes that the Statement of Decision adequately reflects its reasons for granting the writ and signs the Proposed Statement of Decision, the Proposed Writ and Proposed Judgment.” This appeal followed.

DISCUSSION

I. The writ of mandate

A writ of mandate “may be issued by any court . . . to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station . . . .” (Code Civ. Proc., § 1085, subd. (a).) To be entitled to relief, petitioners must show that the district has a clear, present, and ministerial duty to accord them the permanent status and seniority credit they held in their previous positions as employees of the county. Petitioners must further show that they have a clear, present, and beneficial right to performance of that duty entitling them to a writ of mandate. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 (Kavanaugh).)

Whether the district had a clear, present and ministerial duty to accord petitioners the permanent status and seniority credit that they held as county employees depends on the meaning of section 44903.7. (See Kavanaugh, supra, 29 Cal.4th at p. 916.) Although an appellate court defers to a trial court’s factual determinations if supported by substantial evidence, in this case the trial court’s decision did not turn on any disputed facts. Accordingly, the trial court’s legal interpretation of section 44903.7 is subject to de novo review. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.)

II. Petitioners failed to show that section 44903.7 mandates that the district accord them the permanent status and seniority credit they previously held as county employees

Section 44903.7 states, in pertinent part:

“When a local plan for the education of individuals with exceptional needs is developed or revised pursuant to Chapter 2.5 (commencing with Section 56195) of Part 30, the following provisions shall apply:

“(a) Whenever any certificated employee, who is performing service for one employer, is terminated, reassigned, or transferred, or becomes an employee of another employer because of the reorganization of special education programs pursuant to Chapter 797 of the Statutes of 1980, the employee shall be entitled to the following:

“(1) The employee shall retain the seniority date of his or her employment with the district or county office from which he or she was terminated, reassigned, or transferred, in accordance with Section 44847. . . .”

In order to determine whether this statute mandates that the district accord petitioners the permanent status and seniority credit that they held in their previous positions as county employees, we must first determine whether the transfer of special education services from the county to the district constituted the development or revision of services “pursuant to Chapter 2.5 (commencing with Section 56195) of Part 30.” (§ 44903.7.) Chapter 2.5, entitled “Governance,” generally addresses the administration of SELPAs such as the SELPA of which the district is a member. Chapter 2.5 encompasses sections 56195 through 56197.

A. Petitioners failed to show that the transfer of services was undertaken pursuant to chapter 2.5, as required by section 44903.7

The evidence before the trial court showed that the transfer of services from the county to the district was carried out pursuant to section 56207 (titled “Transfer of educational programs and services already in operation; plan; date; disputes”), which is contained within chapter 3 of part 30, and section 56370^[5] (titled “Transfer of programs; approval”), which is contained within chapter 4 of part 30. The April 27, 2005 stipulation indicated that the district took back certain services provided by the county, such that those services would be provided by employees of the district instead of the county. Further, the June 24, 2003 letter indicates that the district’s intention was to transfer certain programs pursuant to sections 56207 and 56370. While it did not make specific findings of fact, the trial court appeared to accept the district’s position that the transfer of special education programs took place pursuant to section 56207, which is part of chapter 3.^[6]

The plain language of section 44903.7 limits its applicability to one situation: where “a local plan for the education of individuals with exceptional needs is developed or revised pursuant to Chapter 2.5 (commencing with Section 56195) of Part 30.” Thus, the plain language of the statute suggests that it is inapplicable in this matter.

The trial court came to a different conclusion. The “Proposed Statement of Decision” (decision), which the trial court adopted in full, first explains that section 56207 does not “deal directly with the employment of certificated staff, or the conditions of such employment.” In response to the district’s argument that section 56207 is outside of the scope of section 44903.7 because it is contained within chapter 3 of part 30, rather than chapter 2.5 of part 30, the decision explains that chapter 2.5 and chapter 3 “do not represent separate and distinct schemes bearing on the development and revision of educational plans, including SELPA’s, but are inherently linked and integrated.” In support of this position, the decision explains that “Chapter 2.5, entitled ‘Governance,’ pertains to the administration of SELPAs and their requirements. Education Code, § 56195 provides that each SELPA ‘shall administer local plans submitted pursuant to Chapter 3 (commencing with Section 56205) . . . .’” The decision points to another reference to Chapter 3 within section 56195.7. Thus, the decision concludes, “the District’s asserted Section 56207 ‘plan for the transfer’ of special education programs or services from [the county] to [the district] is part and parcel of the SELPA plans governed by Education Code, § 56195.”

We disagree with the trial court’s analysis of section 44903.7 as encompassing transfers carried out pursuant to section 56207. If the words of a statute are not ambiguous, the plain meaning of the statute controls. (County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 442.) There is nothing ambiguous in the language at issue here, which specifies that section 44903.7 applies “[w]hen a local plan for the education of individuals with exceptional needs is . . . revised pursuant to Chapter 2.5.” Nor did the trial court indicate that there was any ambiguity in this language. It is only upon a finding of ambiguity that the trial court may proceed to examine the context in which the statute appears or the legislative history of the statute in order to determine the intent of the legislature. (Ibid.)

Because the plain language of section 44903.7 indicates that its application is limited to revisions of special education programs that occur pursuant to chapter 2.5, we find that it is inapplicable here.^[7]

B. Petitioners failed to show they were entitled to the protections of section 44903.7, subdivision (a)

We have determined that petitioners are not entitled to the protections of section 44903.7 because the transfer of services was not undertaken pursuant to chapter 2.5 of part 30, as required. However, even if the transfer of special education services had been carried out pursuant to chapter 2.5, there is a second, independent reason that section 44903.7 does not apply. In order to be entitled to the protections they seek under section 44903.7, petitioners must show that they were “terminated, reassigned, or transferred, or [became employees] of another employer because of the reorganization of special education programs pursuant to Chapter 797 of the Statutes of 1980.” (§ 44903.7, subd. (a).) Petitioners have failed to show that their decisions to discontinue employment with the county resulted from any of these circumstances.

1. The transfer of services from the county to the district did not constitute a “reorganization of special education programs pursuant to Chapter 797 of the Statutes of 1980”

The decision states generally that “[the district’s] decision to shift responsibility from [the county] to itself by using its employees to provide speech therapy services was a reorganization of the [d]istrict’s program.” In support of this statement, the decision cites the definition of the term “reorganization” as set forth in the American Heritage Dictionary. Nothing in the trial court’s decision addresses the language of section 44903.7 which specifies that the statute is only applicable where a reorganization has taken place “pursuant to Chapter 797 of the Statutes of 1980.” (Italics added.)

We sought additional briefing from the parties on the question of whether the transfer of special education services from the county to the district constituted a “reorganization of special education programs pursuant to Chapter 797 of the Statutes of 1980.”^[8]

Chapter 797, Statutes of 1980 (the 1980 master plan legislation) added part 30 (commencing with section 56000) of the Education Code.^[9] As the Legislature explained in section 9 of chapter 797, it was the intent of the legislature “to unify and improve special education programs in California under the flexible program design of the Master Plan for Special Education.” (Stats. 1980, ch. 797, § 9, p. 2411.) Thus, section 44903.7’s reference to chapter 797, Statutes of 1980 indicates that section 44903.7’s employment protections are only applicable where the reorganization that has taken place has occurred as a result of the 1980 master plan legislation.

The more flexible program design implemented by the 1980 master plan legislation allowed the governing boards of the various state school districts to decide which programs would best suit their particular district’s needs, whether it be a program exclusively within the school district, a program joined with other districts (a multi-district plan), or a program in affiliation with the county office. As a result of chapter 797, school districts were now in a position to provide greater special education services directly to their students through the creation of what were then called “Special Education Services Regions,” now known as SELPAs.^[10] (See Legis. Analyst, analysis of Sen. Bill No. 769 (1981-1982 Reg. Sess.), p. 9 [“Chapter 797, Statutes of 1980 required LEAs (Local Education Agencies, such as school districts and county offices of education) to organize into Special Education Services Regions”].) In other words, it allowed school districts to develop SELPAs such as the Mid-Cities SELPA of which the district is a member. Thus, the district argues, the protections afforded by section 44903.7 are limited to situations where a SELPA such as the SELPA at issue here engages in action to form, dissolve or lapse, to annex all or part of its territory to another SELPA, to unify or deunify the SELPA, to otherwise alter the boundaries of the SELPA, or any combination of such actions. The transfer which occurred here did not alter the Mid-Cities SELPA of which the district is a member. Because it was an “intra-SELPA” transfer which did not change the SELPA itself, the district argues, it falls outside of the scope of section 44903.7.

Petitioners disagree. They argue that the legislature envisioned the reorganizations that were to occur pursuant to chapter 797, Statutes of 1980 to be an ongoing and evolving process, which would continue to impact teachers in years to come. Petitioners point out that the Legislature first directed that “the Master Plan for Special Education be implemented . . . by all school districts and county offices during a two-year transitional period commencing with fiscal year 1980-81, with full implementation to be completed by June 30, 1982.” (Stats. 1980, ch. 797, § 9, p. 2412.) However, the deadline language at the end of this section was eliminated by subsequent amendments, indicating, petitioners argue, the Legislature’s recognition of the continuing nature of the restructuring of special education programs. (See § 56000, which currently provides: “It is the intent of the Legislature that the restructuring of special education programs as set forth in the Master Plan for Special Education be implemented in accordance with this part by all school districts and county offices.”)

The deletion of the June 30, 1982 deadline does not change the purpose of the 1980 master plan legislation, which was to create SELPAs, such as the Mid-Cities SELPA of which the district is a member. Section 44903.7 does contemplate that SELPAs will continue to be reorganized. However, our review of chapter 797, Statutes of 1980 leads us to agree with the district’s interpretation of the language of section 44903.7, subdivision (a) limiting the statute’s application to changes of employment that occur because of a significant reorganization of one or more SELPAs.

The evidence in the record and the facts to which the parties have stipulated do not indicate such a reorganization. (See sec. 2, infra.) On the contrary, the Mid-Cities SELPA has remained intact and functioning as it did prior to the transfer of services that took place. The district continues to be a member of the Mid-Cities SELPA. Petitioners point to no evidence suggesting that the Mid-Cities SELPA was altered or that its membership has changed. The evidence, including the district’s letter notifying the county and other Mid-Cities SELPA member school districts of its decision to undertake the transfer, suggests that the transfer that took place is properly categorized as a section 56207 intra-SELPA transfer of services.

Because the transfer in question was not a “reorganization of special education programs pursuant to Chapter 797 of the Statutes of 1980,” petitioners are not entitled to the protections of section 44903.7, subdivision (a).

2. Petitioners were not terminated from their positions with the county

In the alternative, petitioners argue that their decision to leave their employment with the county and commence employment with the district constituted a “termination” within the meaning of section 44903.7. In support of this argument, petitioners claim that the word “termination” covers both those actions initiated by the employer and those actions initiated by the employee. Petitioners cite a passage from Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244 (Turner), in which the Supreme Court stated, “Employment relationships are generally terminated by resignation or discharge. [Citation.] An employee voluntarily severs the relationship by resignation; the employer does so by actual discharge. [Citation.]”

We disagree with petitioners’ position that the quote from the Turner case sets forth a blanket rule defining the term “termination“ to include both voluntary and involuntary departures from employment. We decline to interpret the term “terminated,” as it is used in section 44903.7, to include the situation that took place here. The plain meaning of the statute suggests that the termination must be involuntary. (See § 44903.7, subd. (a)(1) [“The employee shall retain the seniority date of his or her employment with the district or county office from which he or she was terminated . . . .” (Italics added)].)

All evidence, including that stipulated to by petitioners, indicated that the petitioners’ departure from the county’s employment was voluntary and that they were not in danger of losing their positions with the county. Several weeks prior to commencing employment with the district, petitioners received written offers of employment from the district detailing the classifications and positions of seniority the district was offering them. Petitioners willingly accepted the district’s offers and left the county’s employment. Thus, petitioners were not “terminated” from their jobs.

III. Because section 44903.7 does not mandate that the district provide petitioners with their previous seniority and tenure status, the writ of mandate was issued in error

Petitioners failed to show that, under section 44903.7, the district had a clear, present, and ministerial duty to accord them the permanent status and seniority credit that they held as county employees. (Kavanaugh, supra, 29 Cal.4th at p. 916.) Further, petitioners failed to show that section 44903.7 provides them a clear, present, and beneficial right to performance of that duty entitling them to a writ of mandate. (Ibid.) Thus the writ of mandate was improperly issued.

DISPOSITION

The judgment granting the petition for writ of mandate is reversed and the writ of mandate is vacated. Respondents shall pay the costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

_______________________, P. J.

BOREN

_______________________, J.

ASHMANN-GERST

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^[1] All further statutory references are to the Education Code unless otherwise indicated.

^[2] In its reply brief, the district clarified that while both parties had used the term “inter-SELPA program transfer” throughout the proceedings, the correct term is “intra-SEPLA program transfer,” indicating that the transfer was within the SELPA, rather than between multiple SELPAs.

^[3] Section 56207, captioned “Transfer of educational programs and services already in operation; plan; date; disputes,” sets forth the issues which must be addressed before an educational program or service already in operation pursuant to Part 30 (commencing with Section 56000) may be transferred from a county office of education to a school district.

^[4] The record does not contain a stipulation filed on July 27. We assume the trial court is referring to the stipulation filed by the parties on April 27, 2005. The trial court’s indication that this stipulation was the “only evidence” it considered suggests that the trial court also did not consider Kemppainen’s declaration, which was attached to the district’s opposition. However, the Kemppainen declaration is specifically referenced in the trial court’s statement of decision. Further, there was no objection to the Kemppainen declaration below, and both parties refer to the evidence set forth in the Kemppainen declaration in their briefs to this court. Thus we assume that the trial court considered the Kemppainen declaration in reaching its decision.

^[5] Section 56370 was repealed effective January 1, 2004.

^[6] Petitioners suggest that there was no evidence that a section 56207 “intra-SELPA program transfer” that met the requirements of section 56207 actually took place. Petitioners argue that the evidence showed only that the district intended to make such a transfer and that it believed it met the necessary requirements. Nothing in the record suggests that the trial court accepted this evidentiary argument. Further, a failure of the district to meet the specific requirements of section 56207 would not transform the transfer of services into a revision of the local plan “pursuant to Chapter 2.5,” which petitioners were required to show.

^[7] After setting forth its reasoning as to why section 56207 should be considered to be “part and parcel” of chapter 2.5, the statement of decision comments that “to reorganize a special education plan is to arrange it differently from its current state. Rearranging the delivery of special education services so that [the district] would constitute a ‘single District SELPA’ (as indicated in the June 24, 2003 letter from former BUSD Superintendent Rebecca Turrentine, Exhibit A to the Declaration of Rick Kemppainen submitted by the District) and provide those services to students directly rather than through employees of [the county] is undeniably a ‘reorganization’ within the meaning of Education Code, § 44903.7.” While the reorganization from a multi-district SELPA to a single district SELPA may indeed constitute a reorganization within the meaning of section 44903.7, the trial court never made a finding that such a reorganization occurred. The June 24, 2003 letter, which the decision references, reads: “we believe that the District meets the requirements necessary to make applications as a single district SELPA.” (Italics added.) There is no evidence that such applications were ever made, nor does the decision indicate a finding that the reorganization from a multi-district to a single district SELPA ever occurred. We thus consider this comment to be superfluous.

^[8] Pursuant to petitioners’ request, we took judicial notice of the following: chapter 797, Statutes of 1980; analysis of Senate Bill No. 769, prepared by the Legislative Analyst, August 31, 1981; chapter 1094, Statutes of 1981; and chapter 1201, Statutes of 1982.

^[9] Section 56207 was not added pursuant to chapter 797, Statutes of 1980. It was later added to part 30 by Statutes of 1997, chapter 854.

^[10] See section 56027, which states that, “‘Local plan’ means a plan that meets the requirements of Chapter 3 (commencing with Section 56200).”