• Actual Notice May Be Sufficient in Probationary Employee Non-Reelection
  • July 4, 2013
  • Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
  • A California Court of Appeal has recently confirmed that actual notice may be legally sufficient to accomplish a probationary certificated employee non-reelection, even where personal service of formal written notice is required under Education Code section 44929.21. The appellate court held that statutory notice requirement was met because “receipt of actual notice of nonretention trumps any requirement of personal service.” (Grace v. Beaumont Unified School District (Cal.App. 4 Dist., June 4, 2013).

    What This Means To You
    Although personal service of notice of non-reelection before March 15th is still the best practice pursuant to section 44929.21 and Hoschler, a school district may be found to comply with the requirements of Education Code section 44929.21 by way of actual notice to the employee pursuant to the appellate decision in Sullivan and now Grace. So, depending on the circumstances, actual notice of non-reelection may be sufficient to release probationary employees, particularly where personal service is not possible, such as where an employee does not claim mailed notice. However, districts should always strive to provide personal service of written notice before March 15 whenever possible.

    Del M. Grace (“Grace”) was a probationary school nurse with Beaumont Unified School District (“District”). Grace was present at the meeting where the Board decided in closed session to non-reelect her for the 2009-2010 school year. While in open session on March 3, 2009, the Board announced that it had decided to “lay off” 12 employees, who were identified by employee number. One of the employee numbers belonged to Grace.

    Grace next received an e-mail on March 11, 2009, asking her to be available that day for a meeting. Grace replied that she was unable to meet that day and asked about the purpose of the meeting. The assistant superintendent for personnel services responded that the purpose of the meeting was to provide notice that the District would not be offering her a contract for the next school year. The e-mail also stated “that, if Grace preferred, the District would mail her notice by certified mail.” Grace chose to be notified by certified mail. Grace also waived her right to an in-person meeting to discuss the issue. On March 11, the District mailed Grace a certified letter which was not claimed.

    Grace filed a petition for writ of mandate claiming that the notice of her termination was insufficient pursuant to Education Code 44929.21 because she did not receive formal, written notice on or before March 15. The trial court denied the petition concluding “that an e-mail notice from the District’s head of human resources was sufficient notice.”

    The Court of Appeal affirmed the decision of the trial court, and in doing so further interpreted the previous appellate decisions in Hoschler v. SCUSD (2007) 149 Cal.App.4th 258 (“Hoschler”) and Sullivan v. Centinella Valley Union High School District (2011) 194 Cal.App.4th 69 (“Sullivan”). Pursuant to Education Code section 44929.21 (b), “the governing board of a school district must notify a probationary teacher on or before March 15 of the teacher’s second complete consecutive school year of employment of the decision to reelect or not reelect the teacher for the next succeeding school year.” If the governing board does not give notice, “the teacher is deemed reelected for the next school year and must be classified as a permanent employee of the district at the commencement of that year.”  Section 44929.21 (b) does not provide the method that must be utilized when giving notice.

    Grace asserted personal service notice of the decision not to rehire was required by Hoschler and the District failed to provide such personal notice. The District asserted actual notice was sufficient as approved in Sullivan, and that it gave Grace actual notice.

    The appellate court agreed with the District and found that actual notice was sufficient. Actual notice of the board’s decision was communicated to Grace by the resolution adopted at the board’s meeting, which Grace attended. The appellate court concluded that the District complied with section 44929.21 because Grace had actual notice of nonretention before March 15.

    Further, when Grace rejected the request to meet with the assistant superintendent for personnel services and then requested notice by certified mail, Grace “effectively waived any right she had to be personally served.” The appellate court concluded that Grace had in effect “chose the method of notice, and her choice was sufficient to relieve the District of any obligation it had to personally serve with a written notice.” The purpose of the notice statute is to give an employee an opportunity to find another job and plan for his or her future. The appellate court decided that actual notice gives a probationary employee that opportunity. Furthermore, the appellate court concluded that “in effect, receipt of actual notice of nonretention trumps any requirement of personal service.”