Zhigulina v. Board of Education of Los Angeles Unified School District

Opinion

ORTEGA, J. Introduction

Respondent Julia Zhigulina, a probationary teacher with the Board of Education of the Los Angeles Unified School District (hereinafter appellant), was terminated for cause under the provisions of Education Code section 44948.3.1 She sought issuance of a writ of mandate claiming that section 44882, subdivision (b) (hereinafter section 44882(b)) (since renumbered 44929.21), providing for the attainment of tenure, took effect notwithstanding the pendency of termination for cause proceedings. The superior court issued the writ. A timely appeal followed. We will reverse the judgment and hold that section 44882(b) does not supersede section 44948.3 to grant tenure to a probationary employee against whom dismissal proceedings for cause are pending.

Facts

Respondent began her employment with appellant January 21, 1985. On June 10, 1986, respondent was served notice of dismissal for cause under section 44948.3. She asked for a hearing before an administrative law judge. The hearing was conducted on August 1 and November 3, 1986. On December 5, 1986, the judge issued his recommended decision that no grounds for dismissal were established. On June 29, 1987, appellant rejected that [161]proposed decision and terminated respondent who had remained employed by appellant throughout this time period.

Issue

Do the provisions of section 44882(b), which confer tenure after the passage of a certain time, do so notwithstanding the pendency of dismissal for cause proceedings under section 44948.3?

Discussion

Section 44882(b) provides that a probationary employee whose service commenced during the 1983-1984 fiscal year or later may be terminated by nonrenewal of the employment contract for the succeeding year provided that notice of such action is served on the employee no later than March 15 of the second complete consecutive year of employment. If such notice is not timely served, the employee is automatically reemployed for the following year and becomes a permanent employee as of July 1, the first day of that new school year.

Section 44948.3 provides for the termination of a first or second year probationary employee for cause and requires 30 days prior written notice of dismissal, no later than March 15 in the case of second year employees. In addition, it requires a statement of the reasons for the dismissal and notice of opportunity to appeal and includes the right to a hearing. If the dismissal is for unsatisfactory performance, a copy of the performance evaluation must accompany the written notice.