[375]*375Opinion
NEWMAN, J.
— The principal question in this case is whether former section 13337.5 of the Education Code withholds tenure rights from community college teachers hired over a period of years to serve less than 60 percent of full time.1
I. Did teachers hired before November 8, 1967, acquire permanent status?
Section 13337.5 became law on November 8, 1967. It does not affect teachers hired before then. (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821 [114 Cal.Rptr. 589, 523 P.2d 629].) With respect to the facts here and rights of pre-1967 teachers the Court of Appeal opinion in this case, written by Justice Devine and concurred in by Justices Draper and Scott, reads as follows (and we adopt these paragraphs as part of our opinion);
“Twelve teachers who have been employed by Peralta Community College District (supported by plaintiff federation of which they are members) sought writ of mandate to compel the district and its governing board to grant them tenured status and to compensate them at a certain rate of pay. The trial court granted the writ to classify some of the teachers as permanent and others as contract employees, but denied the [376]*376petition as it relates to pay. The district appeals from that portion of the judgment which has to do with classification and the teachers cross-appeal from the part which concerns compensation.
“1. Preliminary Explanation
“The district employs between 1200 and 1300 instructors at its five campuses. There are three classes of instructors: regular (‘permanent’ or ‘tenured’), contract (‘probationary’) and temporary. [Fn. omitted.] Some regular and contract teachers are employed part time, and these are paid a salary prorated to the salary of a full-time teacher. Temporary teachers are paid a flat hourly rate which is less than the rate which the salaried employee receives; they do not receive certain fringe benefits which are accorded those of the two higher classes; they may be dismissed without notice or hearing.
“Plaintiffs all work less than 60 percent of full time. They receive a written letter of notification from the district regarding their employment for the coming academic year. The letter states the instructor’s potential assignment and specifies that his position is a temporary one. They are hired from quarter to quarter or from semester to semester, as the case may be. They are uniformly dismissed at the end of each year.
“Because different questions of law are applicable to teachers hired at different times, it is necessary to divide the twelve individual plaintiffs into two categories and to consider each category separately. (This is not a class action.)
“2. Teachers Employed Before November 8, 1967
“Three of the plaintiffs have been employed year after year, but as temporary employees, annually discharged and rehired, commencing at dates earlier than the statutory changes ... of November 8, 1967. The trial judge ordered that the three plaintiffs be classified as part-time regular employees.
“In order to become a regular (permanent) employee, one must first become a contract (probationary) employee. Prior to September 1, 1972, three years’ service as a contract (probationary) employee was needed as a basis for permanent (tenured) status.
[377]*377“Two questions, then, are before us at this point: (1) Did these three plaintiffs become contract (probationary) employees? and (2) did they attain tenure as regular employees? The district argues that the teachers may rightly claim neither status .... [If] [W]e deem the first question to have been answered by the decision in Balen v. Peralta Junior College Dist., 11 Cal.3d 821 [114 Cal.Rptr. 589, 523 P.2d 629]. Balen had been employed for four successive years since 1965 by the district as a temporary instructor. Then he was informed that his contract would not be renewed. It was held that under Education Code section 13334, which provides that ‘Governing boards of school districts shall classify as probationary employees, those persons employed in positions requiring certification qualifications for the school year, who have not been classified as permanent employees or as substitute employees,’ Balen met the statutory prerequisites for probationary employment, although he was a part-time instructor. (At p. 829.) Plaintiffs meet the same prerequisites. Section 13337.5 of the Education Code, enacted in 1967 . . . was held to be nonretroactive; it could not divest plaintiff of his previously acquired status. [Fn. omitted.] The three pre-1967 employees became contract (probationary) employees prior to the enactment of section 13337.5.
“The second question is whether they acquired regular (permanent) status. Pursuant to section 13304 each such employee would be entitled to regular status if he had served three complete consecutive school years. A ‘complete school year’ was defined for community college employees as ‘75 percent of the number of hours considered as a full time assignment for permanent employees.’ (§ 13328.5.) It was found by the trial court that none of the above named employees met the 75 percent requirement. In 1972, major revisions in the Education Code were made with respect to community college instructors (the ‘Rodda Act’). The teachers contend that by virtue of the new provisions, the 75 percent rule set forth in section 13328.5 has no further application.
“Section 13346.25, effective in 1972, provides that if a contract (probationary) employee is employed under his second consecutive contract, the governing board has two options: to employ him as a regular employee for all subsequent academic years or not to employ him as a regular employee. But in the case of a contract (probationary) employee, the district’s right to do this is limited by the requirement of section 13443 that notice of nonemployment be given with the reasons stated. It would not be sufficient reason, under Balen, to declare that the employment had been temporary only, no matter what the teacher’s contract might say [378]*378(Campbell v. Graham-Armstrong, 9 Cal.3d 482, 486-487 [107 Cal.Rptr. 777, 509 P.2d 689]), because these teachers had attained contract status before 13337.5 was enacted. In the case of contract (probationary) teachers, the decision not to reemploy must be based on ‘thoughtful, deliberate, and individual consideration.’ (Balen v. Peralta Junior College Dist., supra, [11 Cal.3d] at p. 830, fn. 10.) These teachers were simply regarded as ‘temporaries’ and were not afforded the prescribed decision.
“But was it still required that a part-time pre-1967 contract employee serve 75 percent of the hours under section 13328.5 in order to qualify for reemployment under the new (1972) section 13346.25 as a regular part-time employee in the absence of a decision of the board, supported by a valid reason, not to reemploy? It is concluded that the 75 percent requirement of 13328.5 does not apply to these pre-1967 employees; that the provisions of the later section 13346.25 take precedence. We agree with an opinion of the Attorney General to the effect that, although section 13328.5 remains on the books, it has been rendered meaningless, at least insofar as the acquisition of tenure is concerned. (58 Ops. Cal. Atty.Gen. 703 (1975).) The pre-1967 teachers must be classified as part-time regular employees as of July 1, 1974 (this date is in accordance with section 25490.20, subd. (b)).”
II. Did the temporary status of teachers hired after November 8, 1967, require compliance with the first three paragraphs of section 13337.5?
Plaintiffs who were employed after November 8, 1967, when section 13337.5 took effect, contend their status is unaffected by that section’s fourth paragraph because their employment did not meet the conditions of the first three paragraphs. The first paragraph provides that a district “may classify” community college (“grade 13 and 14”) teachers as temporary if they were employed to fill needs arising from increased enrollment or from absences of teachers on leave or ill. The third paragraph states, “No person shall be so employed ... for more than two semesters or quarters within any period of three consecutive years.” (See text in fn. 1, ante.) Plaintiffs’ employment admittedly complied with none of those conditions. Justification for their temporary status thus depends on whether the section’s fourth paragraph applies despite noncompliance with paragraphs one and three.
The district contends that the fourth paragraph’s independent applicability is clear from section 13337.5’s language. Words in the fourth [379]*379paragraph support the contention. Unlike the first three paragraphs, the fourth paragraph (1) states it is operative “[notwithstanding any other provision to the contrary,” (2) applies not only to community college instruction but also to adult classes at lower grade levels, (3) applies only to employees assigned to teach not over 60 percent of full time, and (4) makes the classification as a temporary employee, and the. limitation on becoming probationary, mandatory rather than permissive.
In contrast to the fourth paragraph’s expressions of self-containment and command, the words of the first three paragraphs are permissive. They impose no conditions on the fourth. Thus the section’s first sentence simply permits temporary employment of community college teachers, and each succeeding sentence of the first three paragraphs contains words that limit its operation to the previously described employment: “employment of such persons”; “[s]uch employment”; “[n]o person shall be so employed.”
Section 13337.5’s legislative history seems to confirm the independent operation of the fourth paragraph. The section was first enacted in 1967, in substantially its present form, as Senate Bill No. 316. As introduced on February 8, 1967, the bill contained the substance of only the present first three paragraphs. The Senate referred the bill successively to its committees on local government and education and adopted amendments proposed by the local government committee. The principal amendment added the present provisions of the fourth paragraph but applied them to “any person who is employed for 15 hours or less per week to teach adult or junior college classes.” (See 1 Sen. J. (1967 Reg. Sess.) pp. 333, 369, 833, 863, 887.)
In light of evidence in the present record that 15 teaching hours per week is ordinarily a full-time assignment, that amendment probably would have relegated nearly all newly employed adult and community college teachers to temporary status, virtually depriving the original bill of practical meaning. Such an outcome was prevented by an “author’s amendment,” adopted by the Assembly and concurred in by the Senate, that limited applicability of the fourth paragraph to employees working no more than 60 percent of full time. (See 2 Assem. J. (1967 Reg. Sess.) p. 3006; 3 Assem. J. (1967 Reg. Sess.) p. 4422; 3 Sen. J. (1967 Reg. Sess.) pp. 3141, 3296.) Neither author of the original bill belonged to the Senate’s local government committee, which had proposed" the vitiating amendment. One of them, Senator Gronsky, was a member of the [380]*380Senate’s education committee. (See Sen. Final History (1967) pp. 505, 507-508.)
The history thus indicates that the section’s fourth paragraph as initially adopted by the Senate was at cross-purpose with the first three paragraphs. As modified and finally enacted the fourth paragraph was a compromise between (1) the objective of the authors to impose limits of purpose and duration on the authority to hire temporary community college teachers, and (2) the proposal of the local government committee to place virtually all newly hired community college teachers on temporary status.
Plaintiffs have submitted a copy of a letter dated June 26, 1967, from Senator Grunsky to the Governor, who then had the bill before him for signature. In urging the Governor to sign, Senator Grunsky said that it “allows the district to use hourly teachers without having them become probationary employees no matter how many months they are employed, provided such persons teach less than sixty percent of the hours considered a full time assignment for permanent employees, and provided they do not employ such person more than two semesters or quarters during any three year period.” Those words do indicate a representation to the Governor by a coauthor of the bill that a district’s authority under the fourth paragraph to hire temporary teachers for 60 percent or less of full time was subject to the third paragraph’s limitation of no more than two semesters or quarters of temporary employment in any three-year period. The representation is offset, however, not only by the words of the bill but also by the Legislative Counsel’s digest, which contradicts the Grunsky letter by portraying the fourth paragraph as independently operative.2 That digest, printed on the bill’s first page, was prominently available not only to the Governor but also to all legislators.
Finally, plaintiffs contend that language in Balen v. Peralta Junior College Dist., supra, 11 Cal.3d 821, 829, authoritatively construes the [381]*381fourth paragraph as subject to the third paragraph’s limitation of temporary employment to no more than two semesters or quarters within three years. As pointed out above in connection with plaintiffs who were employed before 1967, Balen held that section 13337.5 could not be applied retroactively to divest them of previously acquired status. (11 Cal.3d at pp. 828-829, 830, fn. 9.) The holding of nonretroactivity would not have been necessary if the section by its terms did not purport to impose temporary status on a teacher in Balen’s position. Balen taught continuously for four and a half years, never exceeding 40 percent of full time. (11 Cal.3d at pp. 825, 828.) Thus his employment went beyond the two-semester limitation of the third paragraph and could not be rendered temporary by the section unless — as we now hold — the fourth paragraph is applicable independently of the first three. Our present holding therefore was implicit in Balen’s reaching the issue of nonretroactivity. Coffey v. Governing Board (1977) 66 Cal.App.3d 279, 291-293 [135 Cal.Rptr. 881], and Ferner v. Harris (1975) 45 Cal.App.3d 363, 371-372 [119 Cal.Rptr. 385], are disapproved insofar as they hold to the contrary.
III. Has any statute consistently with section 13337.5 provided for a change from plaintiffs’ temporary status?
The fourth paragraph of section 13337.5 imposes two restrictions on giving other than temporary status to persons employed to teach community college classes only 60 percent of full time: the teacher (1) “shall be classified as a temporary employee,” and (2) “shall not become a probationary employee under the provisions of Section 13446.” The second restriction would be superfluous if the first were not construed to apply only to initial classification and not to preclude an otherwise authorized subsequent change from temporary status. That interpretation of the first restriction accords with the policy of strictly construing the temporary classification (Balen, supra, 11 Cal.3d at p. 826), and we adopt it here.
The second restriction prohibits the teacher’s becoming a probationary employee under section 13446, which states that a “temporary employee who is not dismissed during the first three school months ... of the school term for which he was employed . . . shall be deemed to have been classified as a probationary employee from the time his services as a temporary employee commenced.”
[382]*382That specification of section 13446 implies noninterference with reclassification under any other statute.3 Yet we find no such statute. None of the sections pointed to by plaintiffs — 13334, 13336, 13337, and 13337.3 — supports plaintiffs’ reclassification as other than temporary within the limitations of the fourth paragraph of section 13337.5.
Section 13334, which antedates section 13337.5, provides that “districts shall classify as probationary employees, those persons employed in positions requiring certification qualifications for the school year, who have not been classified as permanent employees or as substitute employees.” Those words deal not with reclassification but with initial classification. Thus their application to plaintiff's is precluded by section 13337.5’s command that they “shall be classified as . . . temporary
Before 1971, section 13336 simply required that teachers be classified as “substitute employees” when employed “to fill positions of regularly employed persons absent from service.” Plaintiff's do not claim substitute status; and in any event section 13336’s application to plaintiff's is precluded by section 13337.5’s restriction on initial classification.
A 1971 amendment to section 13336 added the following: “Any person employed for one complete school year as a temporary employee shall, if reemployed for the following school year in a position requiring certification qualifications, be classified by the governing board as a probationary employee and the previous year’s employment as a temporary employee shall be deemed one year’s employment as a probationary employee for purposes of acquiring permanent status.” Application of those words would not be prohibited by either restriction of section 13337.5’s fourth paragraph because they provide not for initial classification but for reclassification under a provision other than section 13346. They apply, however, only to persons “employed for one complete school year as a temporary employee.” (Italics added.) Other sections define a [383]*383complete school year of probationary employment as service for 75 percent of the days in the school year (§ 13328)4 or 75 percent of the number of hours considered a full-time assignment (§ 13328.5).5
Those 75 percent requirements must have been intended to apply to the year of temporary employment qualifying (under § 13336) as the equivalent of “one year’s employment as a probationary employee for purposes of acquiring permanent status.” Plaintiffs do not claim to have met the 75 percent requirements; nor is it apparent how they could be met by anyone employed to teach “for not more than 60 percent of the hours per week considered a full-time assignment” (§ 13337.5).6
Section 13337’s first paragraph provides; “Governing boards of school districts shall classify as temporary employees those persons requiring certification qualifications, other than substitute employees, who are employed to serve from day to day during the first three school months of any school term to teach temporary classes not to exist after the first three school months of any school term or to perform any other duties which do not last longer than the first three school months of any school term, or to teach in special day and evening classes for adults or in schools of migratory population for not more than four school months of any school [384]*384term. If the classes or duties continue beyond the first three school months of any school term or four school months for special day and evening classes for adults, or schools for migratory population, the certificated employee, unless a permanent employee, shall be classified as a probationary employee. The school year may be divided into not more than two school terms for the purpose of this section.” (Italics added.) Plaintiffs fail to qualify for reclassification under that section because there is no showing that the existence of their duties or the classes they were hired to teach was limited to the first three months of the term, or that they were employed to teach special classes for adults or in migratory schools for not more than four months in a term.
Section 13337.3, enacted in 1971, (1) authorizes employment of temporary teachers under conditions that also are stated in the first paragraph of section 13337.5 and were not met by plaintiffs, and (2) provides in the language of section 13336 that a temporary employee “for one complete school year,” if reemployed for the following year, shall be classified as probationary and the year of temporary employment shall be deemed probationary.7 As already seen, reclassification under this provision, as under section 13336, required temporary employment for 75 percent of the days or full time teaching hours of a complete school year (§§ 13328, 13328.5) and so was not available to plaintiffs.
[385]*385IV. Salary Claims and Procedural Defenses
All plaintiffs claim additional compensation that would make what they receive for part-time work proportionate to the amounts paid full-time employees as provided by section 13503.1.8
The plaintiffs employed after November 8, 1967, however, are not entitled to that section’s benefits because of its express exclusion of “any person classified as a temporary employee under Section 13337 and 13337.5.” Since section 13337 and section 13337.5 each contains its own provisions for temporary classification, not dependent on those of any other section, we construe section 13503.l’s exclusion to apply to employees such as plaintiffs who are classified under section 13337.5 alone.
As to the plaintiffs employed before November 8, 1967, the Court of Appeal correctly resolved their claims of additional compensation and the procedural defenses raised by the district. We therefore adopt the following parts of Justice Devine’s opinion covering these matters:
“[Section 13503.1] requires pro rata pay for part-time regular or contract employees. Thus, apart from the defenses of the statute of limitations, loches and failure to seek administrative relief, the three pre-1967 plaintiffs are entitled to prorated wages as back pay. Against this conclusion, the district argues that section 13503.1 applies only to elementary and secondary schools and schools for the handicapped by its reference to sections 11003 to 11008, inclusive, and to 11052. But this reference merely points out the places where a minimum school day is defined. Section 13503.1 refers to \a\ny person employed by a district.’ (Italics added.) Further, the reference to 13337 and 13337.5, in excluding temporary employees classified under these sections, clearly implies that section 13503.1 does embrace community college districts in its positive part, otherwise the specific exclusion would be unnecessary.
[386]*386“The district contends that the instructors are bound by the terms of their employment contracts. This is so when there is no statutory provision to the contrary. But it is not so in the face of statutory specification. (Campbell v. Graham-Armstrong [1973] 9 Cal.3d 482, 486-487 [107 Cal.Rptr. 777, 509 P.2d 689].) In Campbell, the teachers had contracted to teach one session of kindergarten at part-time salary at a rate of pay below the minimum salary set by statute for full-time employees. On the issue of a contractual waiver, it was held that pursuant to section 13338.1, the teachers’ contractual agreement did not preclude their entitlement to full-time salary.
“The part-time employee who has attained regular or contract status ‘generally serves under conditions comparable to those of his full-time counterpart.’ (Balen v. Peralta Junior College Dist., supra, [11 Cal.3d] at p. 829.) The three regular teachers are entitled, under substantive law, section 13503.1, to pro rata pay.
“. . . Statute of Limitations
“A mandamus proceeding by teachers seeking proper classification and salary is subject to Code of Civil Procedure section 338, subdivision (1), the three-year statute, because it is upon a liability created by statute. (Vittal v. Long Beach Unified Sch. Dist., 8 Cal.App.3d 112 [87 Cal.Rptr. 319]; Ingram v. Board of Education, 36 Cal.App.2d 737, 739 [98 P.2d 527]; Baldwin v. Fresno City etc. School Dist., 125 Cal.App.2d 44, 51 [269 P.2d 942].) The petition was filed on May 2, 1974, so it relates back to May 2, 1971. Those plaintiffs who are declared herein to have temporary status do not have rights that are affected by the statute of limitations. The three pre-1967 employees’ status as probationary employees was acquired before May 2, 1971; their right to pro rata compensation commences July 1, 1971, and not earlier, because of the statute of limitations.
“. . . Laches
“The trial judge did not make a finding on the subject of loches as related to the three employees who, under our decision, are entitled to probationary status and to pro rata pay. But we decide that, as a matter of law, these employees’ rights are not barred by loches, because of the rather bewildering array of statutory changes which confronted them, so that, as was said in Balen: ‘[I]t is understandably difficult for an individual teacher to define conclusively his status at a particular time.’ [387]*387[11 Cal.3d at] p. 827.) How and when to proceed toward judicial determination was not a simple matter. Indeed, [Balen’s] case, which is similar to that of our three pre-1967 employees, filed December 4, 1970, was decided against him in the superior court by summary judgment and this judgment was sustained by the Court of Appeal [in a published opinion] though it was reversed by the Supreme Court June 28, 1974. But these', plaintiffs commenced this proceeding even before the Supreme Court’s decision. They should not be charged with unreasonable delay, in view of the complexity and duration of the comparable Balen litigation and of the district’s uncompromising position (also understandable conduct in the circumstances).
“. . . Failure to Exhaust Administrative Remedies
“The district argues that no writ of mandate can be issued because the plaintiffs have not exhausted their administrative remedies.
“Prior to the enactment of the Rodda Act, there was no statutory procedure for an administrative review of an instructor’s classification or salary. Accordingly, it was held that no application need be made to the college by the employee for acquisition of his proper status; no affirmative action was required by the governing board. The attainment of the proper classification was automatic. (Vittal v. Long Beach Unified Sch. Dist., supra, [8 Cal.App.3d 112 (87 Cal.Rptr. 319)]; Holbrook v. Board of Education [1951] 37 Cal.2d 316, 333-334 [231 P.2d 853]; 43 Cal.Jur.2d, Schools, § 461, p. 847.)
“Since 1972, under the Rodda Act, a second-year contract employee has been entitled to a hearing upon objection to the governing board’s decision not to employ him as a regular employee. (§ 13346.32.)
“However, this statutory remedy presupposes that a decision is made by the board not to employ the second-year contract employee as a regular employee. In the case at bar, the district made no such decision with respect to plaintiffs, because the district considered plaintiffs to be temporary employees. Accordingly, plaintiffs received no notice of the board’s decision pursuant to section 13346.30.
“Moreover, it has been held that the rule requiring exhaustion of administrative remedies is subject to exception if the petitioner knows what the agency’s determination will be. (Ogo Associates v. City of [388]*388Torrance [1974] 37 Cal.App.3d 830, 834 [112 Cal.Rptr. 761].) In the present case, the board refused to discuss the matter because the issues were in other litigation.
“The district’s contention is rejected.”
The judgment is reversed with directions to the superior court to issue a writ of mandate ordering defendants to classify those plaintiffs who were employed prior to November 8, 1967, as part-time probationary certificated employees as of July 1, 1971, and as part-time regular certificated employees as of July 1, 1974, and to award them back pay from July 1, 1971, prorated according to their classifications; and to deny the writ as to those plaintiffs who were employed on or after November 8, 1967. Each side will bear its own costs of appeal.
Bird, C. J., Tobriner, J., Mosk, J., and Manuel, J., concurred.