Memo 5:

Provisional Authorizations & Other Temporary Employments

EMPLOYMENT STATUS OF HOLDERS OF EMERGENCY PERMITS, WAIVERS, OR TEMPORARY COUNTY CERTIFICATES; IMPORTANCE OF SELECTING THE APPROPRIATE FORM OF TEMPORARY EMPLOYMENT CONTRACT

California education law has traditionally recognized two types of new teacher employments, probationary and temporary, with two subsets of “temporary”: provisional and those which may earn certain rehire preferences.

In the last few years, the number of teachers lacking credentials has grown rapidly. The practice of hiring non-credentialed applicants can leave applicants, employees and employers confused as to employment status. Specific concerns include the exact nature of the temporary employment, reemployment rights (if any) and possible claims to tenure track progress.

This memorandum addresses several questions about the employment rights of these temporary, non-credentialed teachers, collectively called provisional authorization teachers. We conclude with a strong recommendation that our member entities use the correct employment contracts for this particular type of temporary employment.

What is a Provisional Authorization?

This memorandum deliberately creates and uses the term “provisional authorization” to unify three different, though related, terms of art.

Emergency Permit. Created and authorized by Education Code section 44300, this document, issued by the Commission on Teacher Credentialing (CTC), is the current manifestation of an emergency credential (see Education Code section 44300 prior to the 1988 legislative revision of the term). The courts likewise recognize that an emergency credential is not a credential at all. (CTA v. Credentialing Commission (1992) 7 Cal.App.4th 1469; 10 Cal.Rptr.2nd 126.)

Waiver. These documents are generally regarded as permission by the Commission on Teacher Credentialing to work in an area of authorization despite the lack of minimum course or credential requirements for that service.

Temporary County Certificate. This is a transitional document issued under Education Code section 44332 by a county office of education or other authorized local entity. The holder may work in a teaching position, but only pending action by CTC on whether to issue (or deny) a credential.

Each of these provisional authorizations (emergency permit, waiver or temporary county certificate) is a “provisional” credential within the meaning of Education Code section 44911. That section reads 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 . . . .” [Followed by two narrow exceptions not applicable here.]
This means that service under a provisional authorization is temporary rather than probationary.

What Employment Rights Apply to Holders of Provisional Authorizations?

No Tenure Track Status. With two narrow exceptions, a person serving solely under a provisional authorization (emergency permit, waiver or temporary county certificate) is ineligible for placement on a tenure track, the road toward permanent status. This is because Education Code section 44929.21 requires two consecutive complete years in a probationary status in order to attain permanent status.

Salary Schedule Advancement. The statute is silent on the question of whether a provisional authorization holder may advance on the salary schedule. A collectively bargained variation from the uniform salary schedule requirement in Education Code section 45028 is now expressly authorized. The issue should be covered in board policy or, in districts with certificated unions, in the bargaining agreement text.

Layoff Seniority. The statute makes no provision for different treatment of provisional authorization holders when determining layoff seniority ranking, but a break in service and loss of seniority should occur by June 30 each year. Any rehire documents typically would have a starting date after July 1, thus showing a clear break in service and loss of any seniority date.

No Priority for Transfers. Absent a board policy or bargaining agreement provision to the contrary, provisional authorization holders should not be given priority basis in bidding on openings for transfers.

No Right to Either Reemployment or a Rehire Preference. While most types of temporary employment may generate claims to either a job the succeeding school year or some sort of rehire preference for any openings which occur, employment under a provisional authorization does not create any reemployment rights.

When May a Provisional Authorization Holder Earn Progress Toward Permanent Status?

A school district may not, by error or by intent, confer permanent status in a manner contrary to statute. This issue was decided some years ago in an appellate court decision (Fleice v. Chualar Union School District (1988) 206 Cal.App.3d 886; 254 Cal.Rptr. 54). The employee must serve the two full consecutive years in a probationary status required by Education Code section 44929.21. Education Code section 44911 excludes provisional service from that computation. We should note, however, that a trial court in a non-precedent setting case noted that service under a provisional authorization might arguably qualify for credit toward permanent status if that person also holds a valid qualifying credential. To qualify under that theory, the credential would have to be a preliminary or greater, and registered with the county superintendent of schools supervising that district. We believe that the general practice among school districts has been to read Education Code section 44911 literally and not recognize any tenure track progress for service rendered under the provisional authorization.

What Methods May be Used to Terminate the Provisional Employment?

Provisional employment may be terminated any time during the year upon written notice. There is no right to an evidentiary hearing.

What Employment Contract Should be Used for Provisional Authorization Staff?

Since Education Code section 44915 may put the employer at peril for failure to use the correct employment contract, provisional authorization staff must be hired using a particular form of temporary contract. Provisional authorizations should use Form A, attached to this memo. Other temporary employments should use Form B. In no case should a probationary contract be used for a temporary employment.

Features in Both Form A (Provisional) and Form B (Other Temporary) Contracts.

Termination Date. In each case the term of employment ends not later than June 30. Earlier dates may apply at the discretion of the employer.

Fringe Benefit Package. The text should be customized by the employer to account for the indicated variables, such as salary schedule placement and whether the employment might qualify for the district’s fringe benefit package.

No Reemployment Rights. Form A reaffirms that provisional authorization service does not generate reemployment rights. Form B contains language which recognizes the clear cessation of the current employment not later than June 30.

No Nonreelection Process. The statutory nonreelection process under section 44929.21 does not apply to provisional authorization employments. The same considerations generally apply to other temporary employments, although in unusual circumstances districts may occasionally want to consider a nonreelection notice under section 44954.

Not a Layoff/Rehire Situation. The March 15 program reduction and layoff notice process under sections 44949-44955 does not apply.

Courtesy Letter. No confirming letter is required, although as a practice some districts send a courtesy letter in February confirming the scheduled expiration date.

Conclusion

The message is simple. Use Form A for provisional authorization employments. Other temporary employments should use Form B.

A probationary contract should be reserved for use solely with probationary certificated staff.

If you have any questions or comments, please feel free to contact us.

Attachments:

Form A: Contract For Temporary Provisional Certificated Employment

Form B: Contract For Temporary Teaching Service



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