Education Code section 44929.21, subdivision (b)1 provides that the governing
board of a school district must notify a probationary teacher on or before March 15 of the
teacher’s second complete consecutive school year of employment of the decision to
reelect or not reelect the teacher for the next succeeding school year. If the notice is not
given, the teacher is deemed reelected for the next school year and must be classified as a
permanent employee of the district at the commencement of that year.
No method of giving notice is stated in the section.2 The gap was filled by
Hoschler v. Sacramento City Unified School Dist. (2007) 149 Cal.App.4th 258
1 All further statutory references are to the Education Code unless otherwise specified. 2 Section 44929.21, subdivision (b) provides: “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. “The 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 the 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.”
2
(Hoschler). The parties here interpret Hoschler differently. Grace argues that personal
notice of the decision not to reelect (rehire) her is required and was not given. The
District argues that actual notice is sufficient and that it was given. We therefore begin
with Hoschler.
II
DISCUSSION
In Hoschler, the District sent a notice of nonretention to Hoschler by certified mail
on March 12, but he did not receive actual notice until weeks later. (Hoschler, supra, 149
Cal.App.4th at p. 262.) The trial court found that the use of certified mail complied with
the statute. However, the appellate court disagreed and reversed. (Id. at p. 261.)
Hoschler claimed that he did not receive the letter from the District and did not see
it until he received it from his attorney on May 8. (Hoschler, supra, 149 Cal.App.4th at
p. 262.) The District did not produce a signed return receipt, and the parties agreed that
Hoschler did not willfully refuse to pick up his mail. (Ibid.)
The appellate court applied a de novo standard of review in interpreting the
statute. (Hoschler, supra, 149 Cal.App.4th at p. 262.) After reviewing the statute and
notice requirements of similar statutes, the court applied the principle that, when a statute
requires notice but does not prescribe a method of notice, personal notice is required. (Id.
at pp. 263-267.)
The court also reviewed the history of probationary dismissal statutes. (Hoschler,
supra, 149 Cal.App.4th at pp. 267-268.) This lengthy discussion culminates in the
sentence at issue here: “We therefore conclude that the notification requirement of
3
section 44929.21, subdivision (b) contemplates personal service or some other method
equivalent to imparting actual notice.” (Id. at p. 269, italics added.) Interestingly
enough, the opinion does not discuss what “some other method equivalent to imparting
actual notice” might be. The implication, however, is that if an employee has actual
notice, personal service is not required.
The language is broad enough to include service by certified mail if a return
receipt shows that the letter was received before March 15. In such a case, the
probationary employee would have actual notice before March 15. This possible
interpretation is bolstered by the opinion’s discussion of the retroactivity of its opinion.
Before the 1983 adoption of section 44929.21, many districts used certified mail to give
the requisite notice. (Hoschler, supra, 149 Cal.App.4th at p. 271.) After the statute was
adopted, without a specific requirement that notices be served in any particular manner,
many districts continued the practice. (Ibid.) Accordingly, the decision was given
limited retroactive effect. (Ibid.)
Subsequent cases have followed Hoschler. In Sullivan v. Centinela Valley Union
High School Dist. (2011) 194 Cal.App.4th 69, 71 (Sullivan), the notice was one day late.
The court said, “In this case, we hold a probationary teacher may not assert failure of
service under section 44929.21, subdivision (b) when the probationary teacher avoids
service where, under the circumstances, it reasonably can be inferred the teacher did so
with knowledge of the nonretention decision. Based upon substantial evidence in the
record, we invoke the exception here, and affirm on those grounds.” (Id. at pp. 71-72.)
4
The court found evidence that Sullivan knew the board’s decision to terminate him
and that he had willfully evaded service by certified mail. (Sullivan, supra, 194
Cal.App.4th at p. 76.) “Implied in this finding is that Sullivan knew the Board’s decision.
Thus, Sullivan cannot assert failure of service.” (Ibid.) The court found that “Sullivan’s
conduct in avoiding service demonstrates his knowledge (actual notice) of the decision
not to retain him.” (Ibid., fn. omitted.)
The court also affirmed the alternative ground that Sullivan had actual notice, as
required by Hoschler, before the statutory deadline. (Sullivan, supra, 194 Cal.App.4th at
pp. 71-72, 76-77.) The alternative ground was based on evidence that Rita Sullivan had
signed a receipt for the certified mail, which was received at the Sullivan residence on
March 15. (Id. at p. 77.) Even before that, Sullivan was orally told that he would not be
rehired, and this was also sufficient. (Ibid.)
Of some relevance here, there was evidence that Sullivan attended a school district
board meeting at which the termination decisions were adopted and published by
employee number.3 (Sullivan, supra, 194 Cal.App.4th at pp. 72-73.) The court also
stated that this was actual notice. (Id. at p. 77 & fn. 8.)
Thus, the Sullivan court approved the Hoschler statement that actual notice was
sufficient and affirmed on this alternate ground. (Sullivan, supra, 194 Cal.App.4th at p.
77.)
3 Although Sullivan was outside the room when the decision was announced, his friend/attorney was present. (Sullivan, supra, 194 Cal.App.4th at pp. 72-73.) Since the attorney submitted a declaration that he was not acting as Sullivan’s attorney, the court did not rely on this notice evidence in reaching its decision.
5
III
APPLICATION TO THE FACTS OF THIS CASE
At her deposition, Grace testified that she was present at the board meeting of
March 3, 2009. At that meeting, the board met in closed session to discuss actions to take
pursuant to section 44929.21. In open session, the board announced its decision to lay off
12 employees, identified by employee number. According to a note, which was
apparently added to the document later, one of the numbers belonged to Grace.4 At that
time, therefore, Grace learned that the resolution applied to her. Subsequently, the
District confirmed that the action was passed and that it included Grace’s employee
number.
On March 11, Grace was sent an e-mail asking her to be available for a meeting
that day. She responded that she was unable to meet then and asked the purpose of the
meeting. Mr. Hovey, assistant superintendent for personnel services, responded that the
purpose of the meeting was “to provide you notice that the district will not be offering
you a contract for next school year.” The e-mail went on to state that, if Grace preferred,
the District would mail her notice by certified mail. Grace responded by asking that the
District notify her by certified mail. This response was a waiver of any right to a meeting
to discuss the issue personally.
4 The document was provided by plaintiff as an exhibit to her reply to the District’s opposition to the mandamus petition.
6
The District then mailed her a certified letter on March 11.5 It was unclaimed and
subsequently returned to the District. As in Sullivan, it appears that plaintiff was aware
the letter was coming and merely failed to claim it before March 15.
In any event, we agree with the District that, under Hoschler and Sullivan, actual
notice of the decision not to rehire Grace for the next school year was communicated to
her by the resolution adopted by the District board at a meeting she attended. The
resolution, containing her employee number, gave her actual notice of her impending
termination on March 9.6
In addition, Grace’s rejection of Mr. Hovey’s request that they meet personally to
receive notice that her contract would not be renewed, and her request to receive notice
by certified mail, effectively waived any right she had to be personally served. In effect,
she chose the method of notice, and her choice was sufficient to relieve the District of
any obligation it had to personally serve her with a written notice.
The purpose of the statute is to provide the probationary employee with ample
notice to allow the employee “an opportunity to find another job and plan for the future.”
5 Grace repeatedly claims that the letter was mailed to the wrong address, but she admitted in her deposition that the address used was her correct address. The return receipt attached to the back of the letter omitted a portion of the street name, but it was never used. 6 In her deposition, Grace testified that two reduction-in-force proposals were presented to the board. Both included termination of a school nurse. The board selected one alternative and also passed the nonreelect list. Grace testified, “I got both votes.” Subsequently, she claimed she did not understand that the board had named her until April. The trial court considered her deposition as evidence. However, it did not decide if she was present at the board meeting in making its decision. It relied solely on the undisputed evidence provided by the e-mails.
7
(Sullivan, supra, 194 Cal.App.4th at p. 77.) Actual notice gives the probationary
employee that opportunity, and we agree with Hoschler and Sullivan that, in effect, the
receipt of actual notice of nonretention trumps any requirement of personal service.
Actual notice fully meets the purpose of the statute. (Hoschler, supra, 149 Cal.App.4th
at p. 269.)
Accordingly, we find that Grace had actual notice of nonretention before March
15, and the District therefore complied with section 44929.21.7
IV
DISPOSITION
The judgment denying a petition for writ of mandate is affirmed. The District
shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION
RICHLI Acting P. J.
We concur:
KING J.
CODRINGTON J.
7 In view of this conclusion, we do not need to reach Grace’s other contentions.
8
AI Brief
AI-generated · verify before citing
Holding. The court held that a school district's notice of non-reelection to a probationary employee is sufficient under Education Code section 44929.21 if the employee receives actual notice of the decision before the March 15 deadline.
Issues
Whether an e-mail notice or other forms of communication satisfy the notice requirements of Education Code section 44929.21 for a probationary teacher.
Whether actual notice of a non-reelection decision satisfies the statutory requirement for notice regardless of the method of service.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Actual notice gives the probationary employee that opportunity, and we agree with Hoschler and Sullivan that, in effect, the receipt of actual notice of nonretention trumps any requirement of personal service.”