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“One-to-One Credential Match May be Required for Certificated Categorical Back-Fill Temporary Employees”

Following the California Court of Appeal’s holding in Santa Barbara Federation of Teachers v. Santa Barbara High School District (1977), California school districts have commonly engaged in a practical manner of counting temporary employee entitlements:

Total regular FTE on leave
+   Total regular FTE assigned to categorically funded assignments
=   Total FTE available to be filled by temporary employees

It has been the common understanding that a temporary employee need not be tethered to a specific regular employee on leave or a particular regular employee assigned to a categorically funded program. Rather, temporary entitlements have been counted in the aggregate.

A recent certificated layoff decision has called this common practice into question as applied to temporary entitlements created by regular employees assigned to categorically funded assignments under Education Code 44909.

In the opinion, Administrative Law Judge Jonathan Lew opined that Section 44909’s temporary entitlement language is more restrictive than Section 44920, which was specifically at issue in Santa Barbara. Thus, Judge Lew stated that Section 44909 “may” require a “greater showing” than that required by Section 44920. What exactly that showing must be is unclear, but Judge Lew’s opinion suggests two (2) possibilities:

  • A credential match between the temporary employee and the regular employee in the categorically funded assignment; or
  • A hypothetical scenario where a series of potential reassignments creates an opening that may taught with a credential held by the temporary employee.

Either of these possibilities may create a host of practical problems including those problems identified in the Santa Barbara case. While Judge Lew’s opinion is not binding, it is worth consideration as school districts plan for and document certificated staffing and potential certificated layoffs in the 2011/2012 school year.

Please contact Kim Kingsley Bogard or Paul Gant with questions on this topic.

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