SCHOOL AND COLLEGE LEGAL SERVICES of California

A Joint Powers Authority Serving School and College Districts Throughout the State

THE LEGAL UPDATE

July 31, 2002

To: Superintendents, Member School Districts (K-12)

From: Robert J. Henry, General Counsel

Re: Classification of Teachers With Emergency Teaching Permits Addendum to Memo 5-2001

For the reasons that follow we recommend that teachers who are hired to serve under emergency teaching permits be classified as probationary teachers unless they are hired to serve as a long term replacement for a teacher who is on an approved leave of absence. If they are hired on a leave replacement basis they may be classified as temporary.

Education Code section 44911 provides 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.

This section shall not be applicable to teachers granted a one-year emergency credential under the conditions specified in subdivision (b) of Section 44252 and subdivision (h) of Section 44830.

In Summerfield v. Windsor Unified School District we were successful in confirming the long-held belief that the antiquated reference to “provisional credential” now refers to emergency permits. Thus, Summerfield holds that the time during which teachers serve under emergency permits does not count toward the attainment of tenure.

This does not mean, however, that they may be classified as temporary teachers. In Golden Valley the Court of Appeal held that teachers who serve under emergency permits cannot for that reason be classified as temporary teachers.

Significance

1. A probationary teacher serving under an emergency permit does not acquire tenure nor service toward tenure. Thus, such teachers do not complete a school year as a probationary teacher. (Summerfield). This means that they may be non-reelected by notice given prior to the end of the first or any subsequent year of service under an emergency permit.

2. Since such teachers are probationary their seniority date will reflect the first date of paid service as a probationary teacher.

3. Such teachers may not be summarily released during the school year without providing statutory due process. (Golden Valley).

4. If such teachers are not laid off or non-reelected at the end of a school year they would have a right to be rehired if they are able to renew the emergency permit or obtain a qualifying credential.

For most of you the recommendations and conclusions set forth above will constitute a significant change in the past practice of your district. We recommend that you implement these changes prospectively and as soon as possible.

Please let me know if you have any questions.

RJH/tw