Court of Appeal, Fourth District, Division 1, California.

Charles Joseph TUCKER, Jr., Plaintiff and Respondent, v. GROSSMONT
UNION HIGH SCHOOL DISTRICT, Defendant and Appellant.
No. D050266.
October 28, 2008

Stutz, Artiano, Shinoff & Holtz, Daniel R. Shinoff, Paul V. Carelli, IV, San Diego,
for Defendant and Appellant.Patrick F. O'Connor, La Mesa; and Boudreau
Williams, Jon R. Williams, San Diego, for Plaintiff and Respondent.

Grossmont Union High School District (District) appeals an order granting an
extraordinary writ to require District to reemploy Charles Joseph Tucker, Jr., in
preference to new applicants for any available position with District for which
Tucker applies and for which he is qualified.   District contends under the plain
meaning of relevant statutes Tucker does not have reemployment rights to
positions outside of the class from which he was laid off.   We affirm the


Tucker began working for District in 1982 as a general maintenance worker and
after one and one half years was promoted to maintenance supervisor.   He left
District's employ from 1988 until 1996 during which time he worked for another
school district and earned an MBA. In 1996 Tucker returned to work for District
and held the position of director of maintenance and operations.   He later
assumed additional responsibilities in connection with the building of a new high
school and compliance with the Americans with Disabilities Act (Pub.L. No. 101-
336 (July 26, 1990) 104 Stat. 327), and some of his former responsibilities were
delegated to others.   His job title became director of operations, safety and
special projects.

District's former assistant superintendent stated that in 2004 District asked a
state agency, the Fiscal Crisis and Management Team (FCMAT), to review its
classified management structure.   FCMAT recommended eliminating Tucker's
position and combining his duties with those of other positions to reduce
expenditures.   On January 13, 2005, District's Board of Trustees voted to
eliminate Tucker's position because of lack of work and/or lack of funds.   He
was laid off effective April 2005.

In April 2005 Tucker applied for the position of maintenance manager with
District.   According to District's human resources director, this position was of
a lower class and had different job responsibilities than Tucker's previous
position.   Although Tucker was qualified for the position, District hired
someone else, an individual who had never before worked for District.

Tucker petitioned for a writ of mandate.   He alleged District illegally laid him
off;  it did not comply with his “bumping rights,” which he claimed gave him the
right to move into a job held by a current employee;  and it violated his right to
reemployment under Education Code section 45298,1 which gives employees
laid off for lack of work or lack of funds reemployment preference over new
applicants.   He also petitioned for declaratory relief.

The superior court granted Tucker's petition in part and denied it in part.   The
court found District had legitimately laid off Tucker for lack of work and/or lack
of funds and Tucker had no “bumping rights.”   The court also found Tucker
had and continues to have the right to be reemployed in preference to new
applicants under section 45298, and this right was violated when he was not
reemployed in April 2005 as maintenance manager.   The court found section
45298 does not limit reemployment to a job only within a particular
classification.   It stated in order to exercise his right to reemployment, Tucker
must apply for an available position and satisfy the qualifications promulgated
by District for the position sought.   The court declined to award damages
without prejudice to Tucker seeking damages in a separate action.


 District contends the court erred by finding section 45298 provides Tucker
with the right to be reemployed by District in preference to new applicants for
any position for which he applies and for which he is qualified.   It argues
section 45298 must be read together with section 45308, and analyzing the two
statutes together leads to the conclusion that Tucker has preference to
reemployment only for a position within the class from which he was laid off.

 Because the resolution of this issue involves a question of law where the
facts are not in dispute, we are not bound by the trial court's decision, but may
make our own determination.  (Rodriguez v. Solis (1991) 1 Cal.App.4th 495,
502, 2 Cal.Rptr.2d 50.)   In deciding the proper interpretation of statutes, the
primary goal is to determine the intent of the Legislature when the law was
enacted.   The goal of statutory construction is to ascertain the legislature's
intent to effectuate the purpose of the law.  (Torres v. Automobile Club of
Southern California (1997) 15 Cal.4th 771, 777, 63 Cal.Rptr.2d 859, 937 P.2d
290.)  “ ‘[E]very statute should be construed with reference to the whole system
of law of which it is a part so that all may be harmonized and have effect.’ ”  
(Landrum v. Superior Court (1981) 30 Cal.3d 1, 14, 177 Cal.Rptr. 325, 634 P.
2d 352.)

The reviewing court seeks to give the statute a reasonable construction and to
promote rather than defeat the policy underlying the legislation.  (County of
Alameda v. Johnson (1994) 28 Cal.App.4th 259, 263, 33 Cal.Rptr.2d 483.)  
We first look at the language of the statute, attributing to the words their plain,
usual, ordinary and commonsense meaning.  (Garcia v. McCutchen (1997) 16
Cal.4th 469, 476, 66 Cal.Rptr.2d 319, 940 P.2d 906;  Torres v. Automobile Club
of So. California, supra, 15 Cal.4th at p. 777, 63 Cal.Rptr.2d 859, 937 P.2d
290.)   When the statutory language is clear and unambiguous, judicial
construction is neither necessary nor proper.  (Cortez v. Purolator Air Filtration
Products (2000) 23 Cal.4th 163, 179, 96 Cal.Rptr.2d 518, 999 P.2d 706.)

The governing board of a school district prescribes written rules and
regulations governing the personnel management of the classified service. (§ 
45113, subd. (a).)  However, “the governing board may lay off and reemploy
classified employees only in accordance with procedures provided by Sections
45298 and 45308․” (§ 45114.)

We thus examine the pertinent language of these statutes.  Section 45298

“Persons laid off because of lack of work or lack of funds are eligible to
reemployment for a period of 39 months and shall be reemployed in preference
to new applicants.”

Section 45308 provides in part:

“Classified employees shall be subject to layoff for lack of work or lack of
funds.   Whenever a classified employee is laid off, the order of layoffs within
the class shall be determined by length of service.   The employee who has
been employed the shortest time in the class, plus higher classes, shall be laid
off first.   Reemployment shall be in the reverse order of layoff.”

District asserts because sections 45298 and 45308 must be read together and
section 45308 refers to classes of classified employees and designates the
orders for laying off and reemploying members of a class, an employee's rights
to preference for reemployment are for reemployment only within the class in
which he or she was formerly employed.   District argues the rights do not
include any preference for reemployment in a lower or different class even if
the laid-off employee is qualified for the position.

This argument is not persuasive.  Section 45298 describes the rights of a laid-
off employee in relation to new applicants and specifies the laid-off employee
has a right to reemployment in preference to a new applicant.   Section 45308
explains the order in which members within a class must be laid off and
rehired.   The language of section 45308 is relevant to the rights of the
individual members of a class vis-a-vis each other.   It is not relevant to the
rights of laid-off employees versus new applicants.   To take the language of
section 45308 regarding the rights of class members in relation to each other
and interject it into the language of section 45298 that describes the
reemployment rights of laid-off employees versus new applicants would change
the plain meaning of section 45298.

If the Legislature had intended to limit a laid-off employee's right to
reemployment, it easily could have stated the former employee “shall be
reemployed within the same class from which the employee was laid off in
preference to new applicants.”   It did not do so, and the language of the
statute has remained essentially the same since it was first enacted in 1935 as
section 5.798 of the School Code. (Stats.1935, ch. 618, § 1.) In other sections
of the code the Legislature has included language relating to classes of
employees.   Section 45195, which applies to classified employees in
elementary and secondary schools, states an employee who returns to work
after a leave “shall be restored to a position within the class ․ and, if at all
possible, to his or her position․” (Italics added.)   Section 88127 and 88195,
which apply to classified employees in community colleges, refer respectively to
the order of lay off of classified employees within a class and of returning to
work to a position within a class after a leave of absence.   In enacting section
45298, however, the Legislature did not specify that the laid-off employee's
preference to reemployment over a new employee was restricted to
reemployment only in the same class from which he was laid off.   Because the
Legislature did not include this language, we conclude it did not intend to so
restrict a laid-off employee's preference to reemployment versus a new

  District's suggestion that language in the second paragraph of section
45298 supports its interpretation is not convincing.   The second paragraph of
section 45298 states:  “Employees who take voluntary demotions ․ shall be
granted the same rights as persons laid off ․ provided, that the same tests for
fitness under which they qualified for appointment to a class shall still apply.”  
These words simply mean that employees who took voluntary demotions and
laid-off persons have the same rights vis-a-vis each other to reemployment as
long as they are still qualified for the class of employment.   The language
does not suggest that a laid-off employee's reemployment rights versus a new
applicant are restricted to the same class from which he or she was laid off.

District's argument that reemployment preferences under the Government
Code support its argument is also flawed.   Rules for reemployment found in
Government Code sections 18904, 18905, 19054 and 19056 that refer to
placement on reemployment lists for classes of employees are like the rights
referred to in section 45308 and the second paragraph of section 45298.  
They are relevant to the rights of former employees in relation to each other.  
They do not support District's argument that would restrict an employee's
preference for reemployment against new applicants to the class from which he
or she was laid off.

Our California Supreme Court's analysis of another section of the Education
code is instructive.   Although, as District points out, California Teachers Assn.
v. Governing Board of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632,
59 Cal.Rptr.2d 671, 927 P.2d 1175 (Rialto ) involved interpretation of a
different statute, the court's reasoning is useful.   Section 44919, subdivision
(b), provides that a limited assignment supervising pupils in an athletic activity
“shall first be made available to teachers presently employed by the district.”  
(Rialto, at p. 632, 59 Cal.Rptr.2d 671, 927 P.2d 1175.)   The school district had
asserted the hiring preference provided by the statute only required it to make
the application and interview process available to current credentialed
teachers.   The court, however, observed this would in effect give current
teachers no advantage over other applicants.   The court ruled by section
44919, subdivision (b), the Legislature intended to give preference to
employment in coaching positions to credentialed teachers currently employed
by a district over noncredentialed employees or nonemployees.  (Rialto, at p.
634, 59 Cal.Rptr.2d 671, 927 P.2d 1175.)   The court noted because the
district has the authority to set the criteria it uses to determine the qualifications
for the position Section 44919, subdivision (b), does not provide a guarantee of
employment, but the preference is limited to those applicants qualified for the
coaching position based on the criteria that the district itself creates.   A
teacher applying for a coaching position would have to show he or she meets
the qualifications promulgated by the district before the district would be
prohibited from hiring a noncredentialed employee or nonemployee in
preference to the teacher. (Rialto, at p. 644, 59 Cal.Rptr.2d 671, 927 P.2d

Here, also, section 45298 provides a preference for a laid-off employee vis-a-
vis new applicants for reemployment in a position for which the laid-off
employee is qualified.   District's contrived reading of sections 45298 and
45303 together could eliminate any advantage for the laid-off employee versus
a new applicant.   By requiring that the preference be available only if the laid-
off employee is applying for a position within the exact same class from which
he or she was laid off, a district would be free to simply eliminate the position or
class after laying off the employee, thereby doing away with the benefit the
Legislature intended to afford to the laid-off employee by enacting section
45298.   District has broad discretion to define the qualifications required for
any position for which it seeks applicants, thus it may ensure that only
applicants who meet the prerequisites of a given position will be hired.  
Providing a preference for laid-off employees who can fulfill the qualifications of
a position protects both the interests of the laid-off employee as intended by
the Legislature and the interests of the District in having an employee qualified
for the position.

District's fears that an employee laid off for lack of work and/or lack of funds will
have inappropriate priority over other employees are unfounded.   Nothing in
the statutory provisions gives the laid-off employee the right to a position
currently held by another employee.   District's worries that a laid-off employee
would have an unjustifiable preference over a much better qualified new
applicant are also unwarranted.  Section 45298 does not provide a guarantee
of reemployment.   A district has the ability to set its own hiring criteria for any
given position to ensure that it may hire a well-qualified individual to fill the

We also find unpersuasive District's arguments in its reply brief regarding
Gately v. Cloverdale Unified School Dist. (2007) 156 Cal.App.4th 487, 67 Cal.
Rptr.3d 377 (Gately ).   In Gately the court ruled the facts supported a finding
that an individual who had been employed as a business manager had been
laid off for legitimate fiscal and organizational reasons.  (Id. at p. 497, 67 Cal.
Rptr.3d 377.)   The court also ruled the former business manager was not
entitled to special notice when the position of chief financial operations officer
(CFO) became available although she could have applied for the CFO position
had she chosen to do so.  (Ibid.)

In Gately the former employee's position had been eliminated and her former
duties were assumed by a CFO, the highest ranking executive after the
superintendant, and whose duties were more demanding and required skills
that the laid-off employee lacked.  (Gately, 156 Cal.App.4th at p. 497, 67 Cal.
Rptr.3d 377.)   Thus, she was not qualified for the CFO position and would not
have a right of preference over a new applicant.   By contrast, the record
indicated Tucker, who had been laid off from a position that was eliminated,
director of operations, safety and special projects, would presumably have met
the qualifications for the position of maintenance manager since he earlier had
been employed as director of maintenance and operations.   He should have
been afforded a preference over a new applicant.   The holding of Gately does
not support District's position

Under the provisions of sections 45298 and 45308, Tucker has preferential
reemployment rights over any new applicants to available positions for which he
is qualified.


The judgment is affirmed.


1.   Statutory references are to the Education Code unless otherwise

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