(dissenting).
I respectfully dissent.
Section 168.104(4) defines permanent teacher as: “[A]ny teacher who has been employed or who is hereafter employed as a teacher in the same school district for five successive years and who has continued or who thereafter continues to be employed as a full-time teacher by the school district * * *” (Emphasis added). Probationary teacher is defined in Section 168.104(5) as: “[A]ny teacher * * * who has been employed full time in the same school district for five successive years or less. * * *” The intent and purpose of these two sub-sections of the teacher tenure act appear to be the establishment of a uniform system by which a school district determines whether a teacher is qualified to remain permanently within that district, and once that determination is made, the system provides security for the teacher who is retained. It is obvious that at any time during this probationary period of five years the school district may determine that the “probationary teacher” is not qualified or suitable to its needs and that the district does not desire this teacher as a “permanent teacher”. The district may then terminate the relationship.
Equally obvious is the point that when this probationary period is completed, if the district chooses to continue the employment as a full-time teacher, that teacher becomes a “permanent teacher.” I believe Mr. Lopez has become a “permanent teacher.”
During his five year probationary period, Mr. Lopez taught electronics five periods per day and supervised the cafeteria for one period. Clearly he was a “probationary teacher.” Section 168.104(5) provides that he must be employed full time and Mr. Lopez was employed full time as a teacher and cafeteria supervisor (assuming that as per Mr. Vance this school system pays full salary for six periods per day). When Mr. Lopez was given a contract to teach five periods of electronics for the 1971-1972 school year, this constituted continuation as a full-time teacher in that the number of hours he was teaching remained the same as during his five year probationary period and he became a permanent teacher. This obviously meets the purpose and intent of the tenure act in that the school district was evidently satisfied with Mr. Lopez’s teaching ability and wished to retain that ability.
This is not to say that a school district may not define “full-time teaching” as requiring a certain number of hours composed of both teaching and supervisory activity. But this record is devoid of anything more concrete than the assertions of administrative personnel that six periods constitute full-time for purposes of salary. The question of remuneration does not, however, determine tenure. Surely a tenured teacher may be employed part time at part time pay. But without a showing that Mr. Lopez was made aware that teaching and supervising for six periods per day was required to become tenured, or of a written rule defining full-time as it applied to tenure in this district, I believe Mr. Lopez did in fact become tenured when he continued to teach full-time in the school district in the sixth year.
This is not to say, however, that Mr. Lopez must continue to draw full salary during the years he teaches five periods but has no other duties the sixth. If Mr. Lopez is in fact not qualified to supervise the cafeteria or study hall or to perform a necessary function in this sixth hour, the school district may reduce his pay according to the number of hours worked. If the situation in fact deteriorates within the district as Mr. Vance and Mr. Pensel predict and the need for an electronics teacher dwindles to only two periods a day, the district should not have to pay Mr. Lopez *206full salary for working two periods. The district must, of course, determine'if Mr. Lopez is qualified to fill other needs within the school such as supervisory duties in the gymnasium, lunchroom or study halls in order to accumulate his six periods for full-time employment and pay. But if the needs of the school and qualification of Mr. Lopez dictate that he only be employed to teach the five periods of electronics, he should be paid only % of full-time salary. If the district was arbitrary in not permitting Mr. Lopez to work the additional periods to get full-time pay, his remedy is under Count II.
I would reverse the judgment.