*1 23467. July No. 22. [S.F. 1977.] BARTHULI,
ROGER Plaintiff and Appellant, OF OF ELEMENTARY SCHOOL BOARD TRUSTEES JEFFERSON DISTRICT, Defendant and Respondent.
Counsel Brown, E. William Gerald A. Conradi and Brown & Conradi for Plaintiff and Appellant. J.
Maurice and Nelson Daniel L. as Gardner Amici Curiae on behalf of Plaintiff and Appellant. Johnston, R.
William V. Keith and P. for Joseph Bingaman Breon and Defendant Respondent. Opinion
CLARK, of mandate J. writ denying Petitioner appealsjudgment his reinstatement as associate sought compel superintendent business in school district. We affirm the respondent judgment.
Petitioner held the associate of business for superintendent On 1 a contract entered eight years. July petitioner respondent (§ 35031),1 to Education Code section 938 his em- renewing pursuant term. voted The board trustees to rescind four-year ployment his contract on “because breach of [petitioner’s] prior July contract.” all times was at for writ of mandate alleges petitioner petition rescission, was not notified not consent to did ready perform, rescission, demanded a statement of reasons prior provided not lie because mandamus would The trial court ruled reinstatement. action for breach at law in an remedy adequate petitioner possesses of a the status The court held had contract. petitioner acquired had not teacher but certificated classroom found the court to that reinstatement Additionally, sought position. *4 had a was not entitled to writ because peremptory respondent petitioner evidence, shown, a breached of petitioner by preponderance was The of the court’s decision contract. latter portion his fulfill the of based on failed to findings responsibilities petitioner failed out accounts and to carry concerning budgets, payroll; position directives; to avoid orders purchase legally respondent’s improperly split school and allowed use of mandated bidding; competitive improper district property. when been as an
Reinstatement has recognized remedy appropriate has been in violation of his discharged (e.g., employee statutory rights 183, 190 v. Board Trustees 20 (1971) Cal.Rptr. Blodgett Cal.App.3d [97 of 136, 141 v. 252 406]; (1967) Ball Council City Cal.App.2d Cal.Rptr. [60 v. 6 139]) (1972) or constitutional Bekiaris Board Education rights (e.g., 16, 575, Cal.3d 593 493 P.2d 480]; v. Cal.Rptr. Bagley Washington [100 401, 499, 65 Cal.2d 503-505 (1966) Dist. Hospital Cal.Rptr. Township [55 61 421 P.2d Fort v. Civil Service Commission Cal.2d 409]; (1964) 625, 385]). 392 P.2d Cal.Rptr. [38 of associate of the Education Code Provisions govern employment in relevant (§ 35031) Section 938 “Any provided part: superintendents. schools, elected a term of .. . be for . .. associate may superintendent district, The board of with the consent four school governing any years. terminate, concerned, on the at time effective of the any of, and the term of next first an)' succeeding day July, of the . . . with . . . associate . . . schools contract superintendent indicated, all 1Unless otherwise references are to the Education Code. Education Code was renumbered effective 30 1977. This retains the former section April opinion numbers followed notation the new numbers. parenthetical indicating district, on such terms and reelect or reemploy employee, board and be conditions as may mutually agreed upon by employee, the effective of the termination of for a new term to commence on date term existing employment.” 44893, that a teacher 87454) tenured (§§ Section provided from a to an administrative or “when advanced teaching position . . . retain his as a shall classification supervisory added.) (§§ 87458) (Italics classroom teacher.” Section stated: “A in administrative person employed supervisory position certification completing requiring qualifications upon probationary teacher, time as a same served classroom period, including any district, shall... classified as become a permanent employee added.) (Italics classroom teacher.” teacher'dismissal, for numerous statutes list
Although grounds (see, of teacher Turner providing hearings charges e.g., misconduct Board Trustees 16 Cal.3d Cal.Rptr. P.2d there no 1115]), similar assistant statutory provisions governing misconduct. superintendent
In the absence 44893, of such (§§ sections 13314 and 87454) provisions 44897, 13315 (§§ 87458) must read be as that administrative establishing and do not a to their supervisory personnel possess statutory right The statutes vest such with to the of positions. persons rights position teachers, classroom not to administrative (See Board positions. 546, Education v. (1953) Swan 41 Cal.2d 555 P.2d v. 261]; Holbrook [261 316, Board Education (1951) 37 Cal.2d 334 P.2d 853]; Council [231 Directors and v. Los Sch. 35 (1973) Dist. Supervisors Angeles Unified 147, 152 v. 624]; (1973) Hentschke Sink 34 Cal.App.3d Cal.Rptr. [110 19, 22 549].) Petitioner has not Cal.App.3d [109 Cal.Rptr. sought to reinstatement a classroom nor has teacher position, respondent indicated that be would refused such Petitioner does petitioner position. not contend the contract of for an administrative is position Code, 1, 2; Witkin, Civ. enforceable. subds. (See 7 § specifically 1974) of Cal. Law (8th ed. 5270-5271.) § Summary Equity, pp.
We are that satisfied in absence of a of a constitutional deprivation reinstatement to his former is not available right, position remedy a associate reinstatement is to available discharged only superintendent; of classroom teacher. v. Insofar as Titus Lawndale School Dist. (1958) 157 and 822 P.2d Main v. Claremont 56], Cal.App.2d [322 are 573], P.2d Dist. (1958) School Cal.App.2d [326 Unified
contrary, they
disapproved.
because he was
a denial of constitutional
Petitioner claims
rights
reasons,
notice,
to
and no
no
no
specification
given
asserts he
termination of his contract. Petitioner
to the
respond prior
of entitlement
to continued
a
employ
possessed
legitimate expectation
administrator,
he
denied his
ment
therefore was
preremoval
this court’s
He relies
rights.
primarily upon
procedural
v.
Personnel Bd.
Cal.3d
(1975)
decision in
State
Skelly
[124
14,
In Skelly permanent therefor, action, a the reasons “notice of copy proposed based, the action is and materials which right charges upon or in to the either initially authority imposing orally writing, respond, is on 215.) at This {Id., finding holding predicated p. discipline.” in continued civil service employees possess property law, cannot, under because disciplined they statutory at {Id., 207.) without cause. p. 408 U.S. at 206 from Board Roth Quoting Regents page 548, 560-561, out that 92 S.Ct. we 2701], pointed “ have a interest in interests take forms: ‘To property
property many benefit, an abstract need or must have more than person clearly of it. He than a unilateral desire for it. He must have more expectation must, instead, to it. It is a have a claim of entitlement purpose legitimate which those claims of the ancient institution of upon protect lives, that must not be in their reliance arbitrarily rely daily people *6 to a undermined. It is a of the constitutional hearing right purpose those claims. to vindicate provide person [H] Rather, interests, course, created the Constitution. are not by Property or and their are defined rules are created dimensions by existing they such as state that stem from an source understandings independent certain, and that benefits that secure law—rules understandings ” v. benefits.’ State claims of entitlement those {Skelly support Bd., 207.) Cal.3d at Personnel p. supra, administrator,'
Petitioner, is not as an in his v. Los Directors and Angeles Supervisors employee. {Council Unified has not Dist., The 152.) given Sch. Legislature Cal.App.3d supra, Rather, the in the administrative him a Legisla- position. property ture has made clear sections 13314 (§§ 87454) and 13315 by 44897, 87458) that tenure (§§ and thus his petitioner’s rights property are those of a classroom teacher and not those of an administrator. rights has not denied or classroom teacher Respondent repudiated petitioner’s interests, and the property procedural rights recognized Shelly inapplicable. Sindermann 408 U.S.
Perry S.Ct. is It held that 2694], a nontenured teacher distinguishable. for four had a interest based years employed prior discharge property on The “mutually case involved the issue explicit understandings.” whether there was a interest when no statute property provided one—not the issue whether a statute concededly creating interest should be effect as the interest. given defining
Petitioner has not for breach of contract. sought damages The is affirmed. judgment J.,
Mosk, Richardson, J., J.,* Sullivan, J.,† concurred. Wright, Although I TOBRINER, J.,C. Acting Concurring Dissenting. concur in the initial conclusion that no majority’s plaintiff enjoys tenure to his assistant I statutory cannot rights superintendent position, that defendant board of trustees agree dismissed in the properly plaintiff middle of his contract term without four-year him affording notice of the him or a In sort. the- charges against hearing reaching conclusion that is entitled to none of the plaintiff procedural process afforded protections numerous recent decisions of both United States court, Court and this on Supreme majority rely solely the fact that no plaintiff entitlement to his administra- possessed statutory tive overlook, however, position. the fundamental majority principle interests” the state and “property federal due protected by arise from terms provisions of a contract as well as of a statute. language *7 *Retired Chief of Justice California under sitting the assignment by Acting
Chairman of the Judicial Council. Associate †Retired Justice of the Court under the Supreme sitting assignment by Chairman of the Judicial Council. case, with contract him
In this clearly provided employment plaintiff’s the for of to continued a claim entitlement” employment “legitimate Thus, while the of of his contract.1 board of the term duration four-year to the the terminate contract retained trustees authority unquestionably the due the discussed in the on the basis of charges majority opinion, federal the board clause the state and Constitutions of precluded process without the basis of such from on affording charges dismissing plaintiff the to to him notice or respond charges. any brief a in becomes The flaw the just analysis apparent upon majority’s decision of Board States Court of the United review seminal Supreme of 548, S.Ct. a 2701], 408 U.S. Roth (1972) Regents Roth, In the court the which decision rely. purport upon majority which of interests” to at the nature the some “property length explained “The Fourteenth Amendment’s clause the due proce- applies. that the of interests of of is dural security safeguard protection These has in benefits. interests—prop- already acquired specific person . area . . the take forms. public interests—may many erty [U] [I]n of dismissed has held that the Court college professor public employment, and held under tenure office college provisions [citation] the terms their contracts and members dismissed during professors of staff in that are have interests continued by safeguarded [citation] the Court held that this last ‘proscribing year, principle process. Only Jefferson continue Associate plaintiff. of stipulated four reserves the salary service will be contract. constituted subsequent month of service covered under the continue entitled to a to take his “The annual 1The record trustees, urgency be determined rate year The the his [II] Elementary Superintendent-Business, provisions that just paid during school this meeting stated in entitlement or term, contract, thirty-day expressly required entitlement or salary contract school vacation beginning year. salary beginning July of this contract.” by increase School full; will as set the first reflects that the district entered into a In the same, vacation district with Board rate shall “At purchase twelve July forth in Roger District, vacation $26,336.04 for the event that the Associate year at action be taken the business, with full which time the Board exception months of shall be Barthuli Associate 1972. of service under this the record regular meeting said subsequent held on time under the annually, prior [11] payable at entitlement he shall so notify specified pay during the end of the current Associate that the The Superintendent’s salary full June and ending salary three at the rate signed below: Associate provisions at his regular Superintendent June each years rate contract. Superintendent-Business, the shall take by July daily for year four-year Board of Trustees of the chairman of the board shall service it was the Board at a Superintendent 1; 1976. subsequent $2,194.67 [$] of service under this rate of however, not be less than the this year It is regularly positive at during The should be unable contract with the contract, stipulated compensation per salary three the Board time. It is action to calendar voted to the next shall be legally period due to of the years the *8 dismissal without a summary public employment hearing due also to a teacher hired inquiry required by process’ applied recently contract, without tenure or a formal but nonetheless with a clearly added; of continued (Italics implied promise employment. [Citation.]” 408 U.S. at L.Ed.2d at 560-561].) pp. pp. [33 demonstrates, this
As the existence of a contract clearly passage for an individual’s for a term of itself providing employment years gives clause, rise to interest” the due without “property protected by to the or absence of tenure regard presence any complementary statutory Indeed, Roth, all oí the that a provisions. justices agreed governmental dismissal of an in the middle of an entity’s employee employment contract must be notice and some kind of accompanied by hearing. Roth, that divided the court in and in the
controversy
case of
companion
(1972)
v. Sinderman
Indeed, in the wake of Roth and
a number of federal and state
Perry,
decisions have
held that school administrators in
explicitly
precisely
same
entitled to notice and an
plaintiff
constitutionally
to be heard
to the
termination of their
prior
contracts.
Dist.,
etc.,
v. Board
Junior
No.
(E.g.,
Ill.
Hostrop
College
den.,
(7th
1972)
Cir.
471 F.2d
cert.
their majority sufficiency.” p. these decision or other of precedents. directly applicable Hostrop to an has been of his constitutional Plaintiff opportunity deprived trustees, that the the to be heard defendant board body possesses I over his therefore believe ultimate discretionary authority employment. issue, mandate should board writ of directing requested after him reconsider dismissal affording plaintiff’s (Cf. him. Coast to the Pinsker Society charges against respond Pacific 245, 526 (1974) 12 Cal.3d Orthodontists Cal.Rptr. P.2d 253].) clear effect failure to With all respect, majority’s give mind, is, in of the Roth and decisions mandate my simply Perry inexplicable. Bird, was denied 1977. petition
Appellant’s rehearing August J., Tobriner, J., C. were of that the should opinion petition granted.