Friday, April 8, 2011
Page 3
Teacher Could Not Stop Termination by Avoiding Service, C.A. Rules
By a MetNews Staff Writer
A local teacher who willfully evaded service of a formal notice that his contract would not be renewed did not thereby acquire tenure, the Court of Appeal for this district ruled yesterday.
Div. Three affirmed a ruling by now-retired Los Angeles Superior Court Judge David Yaffe, who denied Michael Sullivan’s petition for a writ of mandate that would have directed the Centinela Valley Union High School District to rehire him.
Sullivan taught business in the district, at Hawthorne High School, in the 2006-2007 and 2007-2008 school years. The district denied him a third year of employment in accordance with Education Code Sec. 44929.21.
The statute provides that a probationary teacher is automatically retained for the following school year unless the employing district serves him or her with notice to the contrary on or before March 15. If the teacher is retained for a third year, he or she acquires tenure and cannot be terminated without good cause.
In Sullivan’s case, the district presented evidence that its human resources officer informed Sullivan on March 10, 2008 that he would not be retained. Sullivan subsequently discussed the decision with the principal and appeared before the school board with an attorney on March 13, but the decision was not changed.
The district formally notified Sullivan by certified mail of its decision. The letter was delivered to his home on March 15, but Sullivan was not home and Rita Sullivan—whose relationship to Michael Sullivan was not disclosed in the appellate opinion—signed for it.
Michael Sullivan presented evidence that he was not home on March 15 and did not read the letter until the following day.
Yaffe agreed with the school district that Sullivan could not run out the clock by willfully avoiding timely service, and that even if the formal service was untimely, Sullivan did not acquire tenure because he had actual notice of the district’s action.
Justice Richard Aldrich, writing for the Court of Appeal, said Yaffe correctly applied Hoschler v. Sacramento City Unified School Dist. (2007) 149 Cal.App.4th 258, which requires that the statutory notice be given by “personal service or some other method equivalent to imparting actual notice.”
The justice cited Hankla v. Governing Bd. (1975) 46 Cal.App.3d 644, which held that a teacher who failed to sign for certified mail, under circumstances suggesting that he knew the mailing contained a dismissal notice, could not assert defective service.
“We reject Sullivan’s argument that the exception in Hankla v. Governing Bd....cannot be applied here because in Hankla the dismissal notice was properly served by certified mail whereas here the notice should have been personally served,” Aldrich wrote. “Sullivan misses the point; the exception focuses on his conduct. In any event, had Sullivan been home on March 15, he would have signed for the letter and been personally served via messenger (post office) with the District’s letter.”
In any event, the jurist went on to say, the denial of tenure was consistent with Hoschler’s actual notice requirement.
“The undisputed evidence is that on March 10, the director of human resources told Sullivan that he would not be reelected, and she offered him the option to resign,” Aldrich explained. Sullivan contends this information was a prediction of what the Board might do, and did not become an expression of fact until the Board’s vote. But an option to resign signals more than a prediction. By March 10, when Sullivan was given the option to resign, he had genuine knowledge or actual notice that the Board would vote not to reelect him for the following school year. This oral notice is sufficient under Hoschler....”
Sullivan was represented on appeal by Lawrence B. Trygstad of Trygstad, Schwab & Trygstad, while Sue Ann Salmon Evans, Amy R. Levine, Candace Bandoian and Damara L. Moore of Dannis Woliver Kelley represented the district.
The case is Sullivan v. Centinela Valley Union High School District, 11 S.O.S. 1797.
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