To: Superintendents, Member School Districts (K-12)
From: Robert J. Henry, General Counsel
Lawrence M. Schoenke, Assistant General Counsel
Subject: Classification and Evaluation of Teachers Who Serve Under Emergency Credentials or Permits
Memo No. 5–2001
For many years it was the common practice for many public schools in California to classify as temporary those teachers who were serving under emergency credentials. As a precautionary matter, and for the reasons that follow, we now recommend that the decision to classify teachers as temporary should be based on the statutory authority to classify teachers as temporary and not on the credentials held by such teachers. In addition, litigation is occurring in California that may cause permanent status to be conferred on teachers serving two years under emergency permits, if the position in which the teacher served is a regular position with no other employee on leave. In light of the above, we strongly urge that each of these teachers with emergency permits be evaluated as you would evaluate any other probationary teacher and that a decision on continued employment be made prior to March 15 of the second year of employment.
Following is a summary of the Education Code requirements and restrictions in this area.
The Education Code Provides that All Teachers Must Be Classified as Permanent, Probationary, Temporary, or Substitute
Education Code Section 44915 provides as follows:
Governing boards of school districts shall classify as probationary employees, those persons employed in positions requiring certification qualifications for the school year, who have not been classified as permanent employees or as substitute employees. (Emphasis added.)
Education Code Section 44916 provides as follows:
The classification shall be made at the time of employment and thereafter in the month of July of each school year. At the time of initial employment during each academic year, each new certificated employee of the school district shall receive a written statement indicating his employment status and the salary that he is to be paid. If a school district hires a certificated person as a temporary employee, the written statement shall clearly indicate the temporary nature of the employment and the length of time for which the person is being employed. If a written statement does not indicate the temporary nature of the employment, the certificated employee shall be deemed to be a probationary employee of the school district, unless employed with permanent status. (Emphasis added.)
Case law under these sections demonstrates that a failure to classify a certificated employee will result in probationary status even where the district had a basis to classify the teacher as temporary. (See C.T.A. v. Governing Board (1987) 240 Cal.Rptr. 549)
Education Code Section 44845 defines seniority as follows:
Every probationary or permanent employee employed after June 30, 1947, shall be deemed to have been employed on the date upon which he first rendered paid service in a probationary position. (Emphasis added.)
Tenure Follows from Service In a Probationary Position
Education Code Section 44929.21(b) provides, in pertinent part, as follows:
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.
Note: All of the sections set forth above refer to service in a position requiring certification qualifications and none of them exempt service under emergency credentials or permits.
An Emergency Credential or Permit Is a Credential
Education Code Section 44911 provides in pertinent part as follows:
Service by a person under a provisional credential shall not be included in computing the service required as a prerequisite to attainment of, or eligibility to, classification as a permanent employee of a school district. (Emphasis added)
The legislative history of this section demonstrates that for purposes of this section the term “provisional” includes “emergency” credentials. However, we have experienced one decision from a superior court judge that states that this is not the case and that time served under an emergency permit does count toward tenure. This matter is being appealed, but Districts need to take this into account in evaluation and retention practices.
Thus, while arguably a teacher who is serving under an emergency credential may not earn credit toward tenure it does not necessarily follow that the teacher may be classified as temporary. Once again, the issue of whether a teacher is in a tenure track position is not controlled by the credential he or she holds. The most prudent course of action is to classify the teacher as probationary unless the teacher is properly employed and classified as a substitute or temporary teacher in a position identified by the Education Code as temporary (e.g., replacement for permanent employee on leave of absence; categorically funded, non-mandated position; or other recognized categories. See attached.)
Notes:
1. As a precautionary matter, teachers serving under emergency credentials or permits in other than those positions properly classified as substitute or temporary assignments should be classified as probationary and assigned a seniority date as specified in Section 44845. For convenience, we have referred to these teachers as “prob zeros” to distinguish them from “prob one” and “prob two” probationary teachers. As noted above, service under an emergency credential may or may not “count” toward tenure. Thus, a “prob zero” should not advance beyond that status while serving under an emergency credential or permit. However, out of an abundance of caution, these teachers should be evaluated and retained just like a fully credentialed probationary certificated employee.
2. This analysis does not apply to teachers who are employed under Education Code Section 44909 (categorically funded). Categorically funded teachers may be classified as temporary. The teacher must agree in writing to this status.
3. Teachers who serve under temporary county certificates in other than substitute or temporary positions must be classified as probationary, assigned a seniority date, and will earn credit toward tenure while employed.
4. For your convenience we have attached a list of the reasons for which the Education Code authorizes a teacher, including a teacher serving under an emergency credential, to be classified as substitute or temporary.
Reasons for which the Education Code authorizes a teacher
to be classified as substitute or temporary
1. Coaches on limited assignment may be give temporary status. (Section 44919(b).)
2. Employees assigned to teach temporary classes that will last 3 months or less. (Section 44919(a).)
3. Teachers who are assigned to migrant programs. (Section 44919(a).)
4. Replacements for employees on illness leave. (Sections 44917 and 44920.)
5. Hirees for only the first semester in a unified or high school district, when it is expected that mid-year graduation will deplete the student population. (Section 44921.)
6. Twenty (20) day emergency employees. (Section 44919(c).) (This section was enacted to prevent the stoppage of school district business when an actual emergency arises and persons are not immediately available for probationary classification.)
7. ROP teachers hired after 1974. (Section 44910.)
8. Employees identified as categorically funded. (Section 44909.)
9. Replacements for permanent employees who have been granted disability allowance or benefit, for a maximum of 39 months. (Section 44986(b)(1).) Caveat: If the term of employment extends beyond the disability leave period, the employee must be credited for all days served, as a probationary employee.
10. County community school and juvenile court school credentialed employees, hired to serve for periods of less than one year due to temporary increased in enrollment. (Section 1294.1.)
11. Adult school teachers working no more than 60% of the hours per week considered full-time. (Section 44929.25.)
12. Retired teachers, reemployed to assist because of the class size reduction program. (Section 24216.5.)
13. A certificated teacher who has been conditionally hired pending CBEST results or the availability of an opportunity to take the test. (Section 44830(n).)
14. If, after September 1, the governing board is unable to hire a regular employee to fill a vacant position, the vacancy may be filled by a temporary for whom the Committee for Teacher Preparation has issued a temporary or emergency credential based on the district’s demonstration to the Committee that no regular employee is available. (Section 44917.)
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