
    Philip J. BURNS v. STATE of Louisiana, Through the BOARD OF ELEMENTARY AND SECONDARY EDUCATION, DEPARTMENT OF EDUCATION.
    No. 87 CA 0471.
    Court of Appeal of Louisiana, First Circuit.
    May 17, 1988.
    On Rehearing Aug. 24, 1988.
    Pamela C. Keller, David K. Nelson, Baton Rouge, for plaintiff-appellee Phillip J. Bums.
    R. Bruce Macmurdo, Baton Rouge, for defendant-appellant State of La., through the Dept, of Elementary and Secondary Educ., Dept, of Educ.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Philip J. Burns (plaintiff) brought this suit against the State of Louisiana, through the Board of Elementary and Secondary Education, Department of Education (BESE), contending he was removed from his position as a tenured teacher in violation of LSA-R.S. 17:45. The trial court found in favor of plaintiff and ordered that he be reinstated to his teaching position and paid all back wages. From this judgment BESE appeals.

Plaintiff has a B.A. degree in psychology from Gallaudet University and a background in carpentry work. Plaintiff had two years non-certified teaching experience out of state but was not certified to teach in Louisiana when he was offered a substitute teacher position at Louisiana School for the Deaf (LSD) in August, 1980, for the 1980-81 school year. The offer was contingent upon his obtaining Louisiana certification to teach trade and industrial classes.

During the 1980-81 school year, the state was reimbursed for plaintiff’s salary through a federal grant because plaintiff was teaching multi-handicapped students, i.e., those with other handicaps in addition to deafness. Dr. Harvey Corson, superintendent at LSD, testified that in addition to teaching multi-handicapped students during that year, plaintiff was permitted to teach a double-period carpentry class to the regular students so he could gain teacher certification. Dr. Corson further testified that although plaintiff was paid a full-time teacher’s salary, his contract described him as a substitute because plaintiff lacked teacher certification and because the position was federally funded.

In June, 1981, plaintiff was offered and accepted a position with LSD to teach mul-ti-handicapped students for the 1981-82 school year. Although plaintiff had become certified, he was again designated as a substitute teacher in the contract because of the federal funding.

Federal funding was discontinued for instructors of the multi-handicapped after the 1981-82 school year, but Dr. Corson successfully sought funding from the Louisiana Legislature for state funds to continue the multi-handicapped instructor positions at LSD. Plaintiff was offered and accepted regular teacher’s contracts teaching multi-handicapped students for the 1982-83 and 1983-84 school years. Plaintiff testified that approximately two weeks after the 1983-84 school year ended he was advised that his contract would not be renewed for the following year. Plaintiff’s request to BESE for a tenure hearing was denied, and on October 4, 1984, BESE advised plaintiff by letter that he had been terminated effective June 4, 1984. This lawsuit resulted.

The applicable statute in this case is LSA-R.S. 17:45, which governs probation and tenure of teachers in special schools. LSA-R.S. 17:45(A) provides in part:

A teacher shall be entitled to tenure benefits as follows:
(1) Each teacher shall serve a probationary term of three contract years to be computed from the date of his first appointment in the special school in which the teacher is serving his probation. During the probationary term, the board may dismiss or discharge any probationary teacher upon the written recommendation of the superintendent or other head or director of the special school accompanied by valid reasons therefor.
Any teacher found unsatisfactory by the board, at the expiration of the probationary term, shall be notified in writing by the board that he has been discharged or dismissed; in the absence of such notification, such probationary teacher shall automatically become a regular and permanent teacher in the employ of the special school where he has successfully served his three year probationery term....
(2) A permanent teacher in a special school shall not be removed from office except upon written and signed charges of wilful neglect of duty, or incompetency, or dishonesty, and then only if found guilty after a hearing by the board or by a committee of the board ....

“Teacher” is defined in that statute as “any certified employee in a special school who holds a teacher’s certificate and whose legal employment requires certification under the regulations of the board or of any certification authority established by law.” Plaintiff contends he is a certified teacher; his employment requires certification; and he gained tenure when BESE renewed his teaching contract for the 1983-84 school year.

The primary issue contested by the parties at trial and on appeal is whether plaintiff’s two years in a federally-funded position should be considered “contract years” under LSA-R.S. 17:45(A)(1). We pretermit discussion of this issue, however, because we find that plaintiff failed to prove he was a “teacher,” as defined by LSA-R.S. 17:45(A)(1), the first year he taught at LSD.

When a law is clear and free from all ambiguity, it must be given effect as written. LSA-C.C. art. 13; Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La. App. 1st Cir.1984). The tenure provisions of LSA-R.S. 14:45 clearly apply only to certified teachers. Plaintiff failed to prove he was a certified teacher during the 1980-81 contract year; he thus failed to prove he was a “teacher” entitled to the benefits of LSA-R.S. 17:45 that year.

Even assuming that the 1981-82 school year in which plaintiff taught under the federal program counts toward tenure, plaintiff did not gain tenure upon completion of the 1983-84 school year because he was found unsatisfactory by BESE and was notified by BESE in writing that he had been dismissed at the expiration of the probationay term, all in accordance with LSA-R.S. 17:45(A)(1).

The trial court thus was clearly wrong in holding that plaintiff was a tenured teacher who had a right to a tenure hearing prior to dismissal. We must reverse the judgment of the trial court and render judgment in favor of defendant, dismissing plaintiff's suit. All costs are taxed to plaintiff.

REVERSED AND RENDERED.

LANIER, J., concurs in the result and assigns reasons.

LANIER, Judge,

concurring.

I do not agree with the majority factual holding that “[pjlaintiff failed to prove he was a certified teacher during the 1980-81 contract year; ...” The plaintiff failed to file in evidence an appropriate teacher’s certificate for the 1980-81 contract year. However, he testified he held certification since 1980-81; plaintiff’s exhibit 2-A, a special education staff sheet, shows plaintiff held a certificate in carpentry during the 1980-81 school year; and the letter of August 12, 1980, from the school to the plaintiff offered him a job contingent on proper certification. Apparently, the trial court felt this was satisfactory proof. I do not agree that this holding is manifestly erroneous.

I concur in the result reached based on Hayes v. Orleans Parish School Board, 256 La. 677, 237 So.2d 681 (1970) and Thompson v. East Baton Rouge Parish School Board, 303 So.2d 855 (La.App. 1st Cir.1974).

ON REHEARING

PER CURIAM.

The majority decided this case by finding as a fact that plaintiff failed to prove he was a certified teacher during the 1980-81 school year, even though this issue was not raised in an assignment of error by BESE. The concurring opinion pointed out that the record contained sufficient direct and circumstantial evidence from which it could be concluded that plaintiff did have the requisite certificate for the 1980-81 school year. Additionally, plaintiff has appended to his brief in support of his application for a rehearing a copy of State Department of Education VTIE Certificate No. T-1165, dated August 5, 1980, and valid for the period of August 4, 1980, to August 4, 1981, which was issued to show that Philip John Bums, III, was eligible to teach carpentry in the approved schools of Louisiana. This document is not part of the record on appeal and legally cannot be considered by this court as evidence at this time. Capital Drilling Company v. Graves, 496 So.2d 487 (La.App. 1st Cir. 1986). Normally under such circumstances, in the interest of justice, we would remand for the trial court to take additional evidence on this issue. LSA-C.C.P. art. 2164. See, e.g., Smith v. Parish of East Baton Rouge, 510 So.2d 1 (La.1987) and 509 So.2d 24 (La.App. 1st Cir.1987.) However, we need not do so in this case because we agree that the holdings in Hayes v. Orleans Parish School Board, 237 So.2d 681 (La.1970), and Thompson v. East Baton Rouge Parish School Board, 303 So.2d 855 (La.App. 1st Cir.1974), apply to the facts of this case, assuming that plaintiff was certified. The following language from Thompson v. East Baton Rouge Parish School Board, 303 So.2d at 860, is pertinent:

In Hayes, the Supreme Court held that the Teachers’ Tenure Law applies only to “offices” regularly maintained and supported by state revenue and not to programs funded by “massive infusions of federal funds.” The teacher therein had already acquired permanent status. She had been transferred to the Teachers’ Aid Program as supervisor. When the federal program terminated at the end of one year she was returned to her former position which was a lower-paying position. Plaintiff contended that she had acquired tenure in the Teachers’ Aid Program and could only be reassigned to a position of equal pay and status, otherwise the reassignment would amount to dismissal without cause. It should be noted that the court had before it for consideration the Orleans Parish Teacher Tenure Law, LSA R.S. 17:461-463, however, its provisions are virtually identical to those of the Teacher Tenure Law in question here.
The Court held that within the intendment of LSA R.S. 17:462 (same language as in R.S. 17:443), the “office” means a regular position in the school system maintained by recurring state or local revenues and that plaintiff had not been employed in such a position and, therefore, could not avail herself of the Tenure Law. In so holding the Court said:
“The tenure provision was obviously included to assure the continued employment of worthy teachers within the regularly maintained school system, a system built upon state and local revenue. Massive infusions of federal funds, resulting in a proliferation of special, short-term programs, were never contemplated. The major premise of the legislation was that public education was a state and local responsibility.”_
“When the tenure provision is read in the light of its history, the intent of the lawmakers becomes clear. The positions they sought to protect were those in the regularly maintained school system. These positions were sustained by recurring revenues, over which they had a measure of control.
“It is true the statute at no place defines the term office. To apply the term however, to a position in a special project created and maintained by federal funds produces an absurd result. It freezes the higher salaries of these projects into the state educational system, with no assurance that the system has adequate revenues to pay them.
“Within the intendment of the LSA R.S. 17:462, office means a regular position in the school system maintained by recurring state or local revenues. We conclude it is inapplicable to a position in the special Teachers’ Aide Project, funded under the United States Elementary and Secondary Education Act. It follows that plaintiff acquired no permanent status as a supervisor.”
The Supreme Court in Hayes reasoned that if an employee were allowed to acquire tenure by appointment to a federally funded program, a heavy economic burden would settle upon the local school boards. The Court considered such a result inconsistent with the tenure law, for the only positions the Legislature sought to protect were “those in the regularly maintained school system ... sustained by recurring revenues, over which they had a measure of control.”

Our original opinion, which reversed and rendered, was correct.  