*1 ordi forgetfulness negligent such shows want not nary unless inapplicable, and an instruction was care. ...” Such (Ackles Cal.App. 188 properly Lane, v. [35 refused. was 200].) P.2d that it error to refuse Appellants’ contention was dangerous means that a or defective condition an instruction have caused question the reasonably that would a condition of streets ordinary who, persons for them be safe purposes using safety, them for their own care accompanied permitted by city, intended or as argument authority. discloses, how- The record or citation proffered instruction principles ever, that the stated given to the in other instructions were covered jury. court Angeles City judgments in of Los favor of the affirmed. Fourt, J., J., and concurred.
Wood, P. August 1962, petition rehearing denied A for a hearing by Supreme Court appellants’ petition for September 26,
was denied 1962. July 26, 1962.] 10051. Third Dist. No.
[Civ. THE THE OF OF LASSEN UNION BOARD TRUSTEES Respondent, DISTRICT, Plaintiff HIGH SCHOOL Appellant. OWENS, Defendant and v. JACK *2 Marshall Bendich and W. Krause Albert M. Defendant Appellant. behalf Joseph as Amicus Curiae on Genser Defendant Appellant. County Counsel, Tennant, Pardee, Paula District James B. Long Levit, & Bert Levit J. Trost Attorney, W. and Ronald Respondent. for Plaintiff and Stanton, Johnson, Stanton, B. & Thomas
Johnson Gardiner Jr., Staunton as Amici Curiae on behalf of and Marshall A. Respondent. Plaintiff and appeal judgment per is an from a
PEEK, P. J.This mitting to terminate his plaintiff to dismiss defendant and permanent in the Lassen Union employment as teacher “unprofessional grounds on the District conduct.” School (a).) (Ed. Code, 13403,subd. § *3 charges by plaintiff formulated al- May 13, 1959, were
On for defendant’s dismissal. After leging that causes existed plaintiff’s him of intention to dismiss notice was the written hearing upon charges received, demanded defendant provisions seq. of sections 13403 et in accordance thereupon elected file this Code. Plaintiff the Education inquire charges, asking into determine the court to action they and, so, true if whether con- not were whether grounds (Ed. for dismissal. defendant’s stituted sufficient 13412.) Code, § dispute set the pretrial statement issues
Although the of five letters publication (1) whether unprofessional conduct Advocate constituted Lassen service, (2) whether the contents for unfitness evident dishonesty, the such constituted false and as were the letters superior findings on, nor mention, did made court charges. The court found dishonesty unfitness or evident “unwarranted,” “un- were in the letters allegations evidence,” and that “unsupported founded,” unprofessional constituted the five letters publication dismissal, degree justifying of a conduct purport appeal of defendant’s contention on this is that punished solely expression political has for he been ideas generally, County par- critical education Lassen ticularly, and that such is not a constitutional for basis dis- missal, guise unprofessional either under the conduct or on other Defendant further contends that inasmuch basis. expressed opinions inquiry is an as exceeding “warrantedness” power adjudicate, any court’s constitutional inquiry sufficiency into support of the evidence to findings is irrelevant. entirely agree reasoning
We do not with defendant’s for expressed, reasons later to be we hold defendant’s presented all of the conduct under circumstances does unprofessional constitute conduct of a justifying nature dis Furthermore, support missal. the record does not dismissal grounds dishonesty on However, and evident unfitness. appear to point, there would be no reason to elaborate on this findings charges on since no were made and no discussion these thereto at the was directed trial. particular factual importance Since the circumstances are nature, they length.
in a case of will be out at set eighth year in his of teaching Defendant was and was em- ployed College the Lassen Junior when the taught against him. filed He had in both the Lassen College the Junior for preceding School and years five position. and had attained his tenure All of his teaching during experience County, Lassen which time he had problems relating been active teaching profession. example, organization he For was instrumental in the chapter local of the California Teachers (here- Association CTA) ; referred to as the president inafter he had served as Secondary Teachers (hereinafter Susanville Association SSTA) period to as the for referred two years; he had years on the served three Board of Directors of the CTA Section; Northern and he had served chairman of the local chapter’s professional CTA relations committee. *4 The record indicates that some time defendant had teaching critical of the been conditions the district. In president SSTA, of the presented while he a list improvements proposed meeting at a of the board of trustees. meeting representatives that Defendant testified at greeted great the association hostility, were with deal of shortly being he was and that thereafter considered for dis.- that the 1957 of trustees stated of the board member missal. A meeting judge, trial in his quite and the cordial been had testimony. accepted It is undis- this opinion, memorandum by suggested the asso- improvements puted that some by However, it accepted the board. ciation in 1957 left the year of teachers during a number that that appears of the they thought efforts SSTA that the because district at trial conceded The members board had been failure. problem had been troublesome. turnover teacher by points many of raised appears that it Additionally, among educators comment had been source defendant state; of this editorials major universities of the some newspapers; large metropolitan and that the appeared in had Sys- Advisory on the Public Education Commission Citizens suggested by many proposals of the recommended tem had defendant. strongly professional relations committee the SSTA given be defendant a contract recommended to replied year. Although the board that it would for his tenure accept personnel matters on recommendations given his administrators, tenure contract. defendant was nothing indicating record the nature of There relationship board, or his other extra- defendant’s regarding County, activities education Lassen curricular 24, 1958. this date defendant wrote a until December On Advocate, appeared newspaper letter which Lassen announcing general County, circulation Lassen forth- coming during following discussions series of three months County, sponsored on which would Lassen by the Public Affairs Forum. apparently a was Public Affairs Forum “town meet- ing” type gathering which been founded had issue, at Prior to the education it some undisclosed date. had explored questions political problems of various and such local specific request at water fluoridation
interest city citizens, including council. Various Lassen teach- presentations. ers, were the forum active 24, 1958, letter, news- The December addressed the local paper signed defendant, was critical local educa- conditions, urged tional turnout to discuss the Although among letter was not the five matter. included ultimately constituted the basis the dismissal against defendant, not unnoticed the board. Imme- diately letter, upon appearance at the December
152 request president board Lassen school admin- representative in a istrators called CTA “advice.” The meeting However, results of this are not of on record. Janu- ary 10, 1959, time defendant had written two letters, neither charges of which was listed in the statement later against him, the filed CTA commission met with ethics defend- stop ant in an effort to cording him writing; but, his letter ac- commission, to the Owens made known that “Mr. he planned newspaper his continue article and the Public knowing group forum full a well that as such ours could never ’’ go along with him. February 4, 1959, published letter, On defendant which written, ultimately was the fifth he had but the first to be him.1 against included as basis later filed representative again The CTA met with the board on Febru- ary 25,1959, suggested to discuss the situation. It appear ask it, out, board defendant to before thrash the matter stop adopted. Although the letters. This idea was not apparently approached had never the board with grievances inauguration his at time between the letter-writing campaign trial, and the nor he been re- had quested so, did, February 5, do he on invite the board to participate in However, the education forums. its letter February invitation, declining commended “very principle American of the Public Forum and the very great local inspired,” interest it has and thanked defend- ant for his “kind” invitation. 1“Wednesday, February Purposeful To the Education example, know, possibilities Editor: I The teacher is the best pur ‘purposeful subtly particular for a education’—education done pose regard with scant for truth. “(The up term ‘teacher’ include educators who make does county personnel department education, in the state district administration, college university departments.) Lindsay, department’s “Mr. Frank director of the state bureau of secondary education, was asked Commission the California Citizen’s rating high go on Education how he would about business school. “ ’ Lindsay replied boys Mr. that he would visit toilet and the question library, janitor implied driver, that he bus didn’t superintendent. (Incidentally, superintendents group trust so.) call themselves when ‘teachers’ convenient do Lindsay thing—the “Mr. did not note the classroom existence teacher. Conner, department education, recently “Mr. also of the state did ‘Jargon song’ (always confuse)
the educators’ done obscure before the State Citizen’s Commission on Education. top authority “Conner is the of the State Central Committee for changing begot the social studies curriculum. That Committee com- begot session workshops summer finally committees mittees sug- ‘constructive could offer leash, usual, on where program hodge-podge been gestions’ already which had probably about upon. decided about with doubts some classroom teachers “At that workshop grades, changes or told maneuvered, were either seduced proposed recognized nature of the there the true Most of the teachers to shut up. but are silent. situation is that a dollars, promoted backed by salary instilled belief, “The *6 discerning not Yet person, an administrator. teacher becomes can see that of his observations, plainly to admit the results ashamed teaching different entirely occupations. are two and administration not teacher who wants to teach is the able What the position administrate? teacher 100,000 per per year in excess of pay “Teachers $22 belong The record indicates California Teachers Association. to the changing organization is effective California’s extremely securing laws. appropriate constitution and legally has Teachers Association also accepted “The California which covers situations and controls quietly nasty Ethics Commission hiring junior and classroom teachers where the power administrators firing and fails at the local level. sit on committees and are counted for publicity pur- “The making sit the world but ‘educators’ at the controls safe for poses, given such dubious half crumbs kind. Teachers are tenure, their programs. and insurance salary laws, minimum ‘given’ local have their voices support pro- “Teachers deteriorating. grams admit are absurd and At a they privately teach in unaccepted ways some risk, quietly public personal be much further the mire. would led to and their own publicly, therefore, stamp “Teachers make for others. chains and those undergraduates, teachers are to take a number required “As of educa- junk content of which is and repetition. We return to courses, tion college great (and taxpayer) at personal from time to time expense trash required repetition! more of the same and We spend take time be used to take academic courses that would us help that could unsaddle eventually. ourselves increasing “Now we teachers are about to lend our voices passive change being through A teacher certification misery. pushed organizations, following ‘taking’ the usual process usual the teachers and the public. I offer for consideration summary, ethically “In and intellectually first American, castrated echelon—the teacher the classroom. solution for “In our above has past problems been to run and conditions have become worse. bow, obligation “Now the needs us. We have a moral public desparately and as to that professionals as citizens public. us run from “Let not the California Teachers Association and our Stand and districts reform! wrest employment. Help the power of (the from the few California decision Teachers Association and the districts) give it to the many. must do this now or forever “We be the ethically intellectually or Eussian altered American national as the force of circum- unhappy dictate. may stances . “Now is the time for us to to stand and be attempt the professionals propaganda the ‘educator’ reasons has said that we are. dignity strength “Stand with before with so “ l " unprofessiona letter next deemed was written on March 4.2 meeting On 10, March of the Lassen College Junior faculty acting was called director of college question grievances. defendant on the exact nature of his acting group director testified that was not satisfied with answers, any group defendant’s not decided to take action publish a other than to letter in Advocate, the Lassen dated 18, representing
March to indicate that defendant faculty letter-writing campaign. letters, his more later Two adjudged “unprofessional,” followed on March 11 and March full, only While the letter of 18. March is set forth in dignity courage we have the chance to be may classroom. ‘' Thus we teach. may “Jack Teacher Owens, College” Junior “Lassen Changes Needed 2“Wednesday, March To the Editor: College Union School and Junior “The Lassen administration trustees have well illustrated board of disease that part sinking education, first, American California that of rapidly had and still have believe that have autocracy. These absolute high junior college. authority final over their school and 'empire,’ and That time is more. through mainly ineptness “They created, indifference, *7 and beneficial and desired primarily only obviously by themselves, mess if have created and situations by anyone. They permitted and conditions gross dignity in those that does violence to the schools and decency They teachers and students. have many standards created and in which a situation the possibility maintained reasonable education can teachers teach hampered. is How and students learn seriously under both? distasteful and shameful to conditions justifiably questioning is and seriously “The now the public type of protecting. and situation that these insist on people school educational administration and some the members are and obviously The large enough the in a public space reluctant to meet contain naturally who wish obviously Lassen to ask questions all those people straight large groups complete and expect answers; and who will are to bluff and confuse. Neither difficult does the Forum have an more which board and into the administration can ‘executive session’ retreat revealing nor answers; seek does the Forum when questions permit squelching persons means of who ask as a questions. rudeness and some members of probably fully the board, are aware administration, decent, for would be asked which questions they that have pertinent answer. changes is a for reasonable one and the desperate “The need public, right have schools, the even those really question own who who failing of the school This is have been situation. the part way changes based on reason. to make go “With us the this in let forward then to March Forum mind, College High School and Junior District on the dedicated to action guided judgment firmness, with and reason tempered and Owens” “Jack appear in record before letter of March portions us.3 3 “ the Editor: 1959 CTA Organization March Wednesday, To changes that are in education help public effect efforts “My ranks of into the led me and public both teachers desired organization. in that then into office and Teachers Association California the CTA directors for board of member of
I served as during recently was reelected and years three past Northern Section in board and on this Most the people term. for three year another and people are educators—administrative key positions other professors. (teachers), of com- CTA channels us people “For lower echelon clogged for are public confused as are as munication ignored simply efforts to reform are districts; local school energy projects.’ energy My is with ‘side dissipated reformers things, among organizing union a credit and time was used other CTA Northern Section. for 9,500 people the approximately thing; of over membership is a has “The entire CTA powerful budget its The efforts of $2,200,000. an annual over 100,000 and passage other laws; of taxes and lobbyists are effective extremely and defeat candidates for office. It also public it can and does elect and assists the administration automatically protects and almost quickly or subordinates is local district where difficulty if two administrators the senior one encountered; quarrel supported. organizations, through the CTA and local and public other “Thus, has educator is in eliminated; of education been practically control charge firing any) hiring (if and he much controls pretty policy designed campaign among was to show My present curriculum. things CTA in other action. to this were started my paper “After letters local educators, sought and obtained CTA assistance. local teachers asso- expected, locally) urged (people investigate; can be fired ciation who Mr. CTA field man whose home San was office Hewlett, Francisco, secretly in and met with the administration and board. He called I recommended, early apparently February, dismissed, conduct, my public because criticism of unprofessional probably education. Plans have been made to subsequently accomplish this. is the usual as this “This situations such are handled and way talking do publicly. you Now understand kept why to talk complain bitterly private teachers in refuse or take a stand to the educator? opposition ‘long job CTA has a arm’ can “The affect permanently of any teacher. opportunity had talked with Hewlett he “Mr. Greenleaf when in this expressed, about Forum compliments I am a paper, part. “The and activities of Mr. Hewlett appearance and Mr. Greenleaf interesting an demonstrate attitude toward of Susanville College; and the teachers of the Lassen School Junior neither knew he here. really “Who owns controls the local schools? *8 “Jack Ownes” “ ‘ I In taken [March 18, 1959] my letters, opposite have the in badly stand; needed here Lassen have serious in County we problems should cured; education. These it is more to talk important bouquet-tossing game. than to continue the problems would be interested After who all, remedying anything in that is already nearly adjudged “unprofessional,” pub- letter, final also May the same date that were for- 13, the
lished on
by
against
the board.4
mulated
our
the Russians
quite
don’t
and cure
problems
If we
see
perfect?
will cure us of
habit. Cer-
will;
they
“liberty”
soon
also
the
probably
in
all the
the United States
problems
we cannot cure
tainly
do
share.
but let us at least
our
“ ‘
is
sitters
insist
that
issue
confused
fence
who
Fourth,
every
see no
We have tried to knock down the fence and
they
reason to act.
or
clarify
thus
changing.
the
local education
either
does
does not need
issue;
It is time to decide.
‘“
to illustrate
that
the
Fifth,
hoped
board,
public,
we have
the
conditions,
have all been isolated and
under
cannot,
present
they
communicate
cannot meet and discuss current
adequately;
issues
in
created,
education.
The educators
have
for
their own
interest,
strong wedge
groups.
distrust
between these
Thus
problems
edu-
during
highlighted
Events
the past years,
cation cannot be cured.
high
school board and administration
refusal
Forum,
appear
justify this viewpoint.
‘“
large
organizations
that administrators
backed
Sixth,
state
board-given
to hire
and fire have
authority
deprived
teacher of
dignity and security necessary
independence
adequate public
responsibility.
“ ‘
that
here
Susanville
and Lassen
Finally,
people
changes
been unable
to secure reasonable
badly
have
wanted
Regardless
their own educational
system.
law,
administration
has
authority
escapes
the boards
responsibility;
(the
but no real
responsibility
authority
administration
has
that—it
job
faculty),
is on the
all
the time and has effective
control over
(the
has
tax bills and a mess but
control
recent
flurries
meetings,
ges-
school
curriculum construction,
etc.,
pacification
are
something
thought,
sleep).
it
tures;
lull
will,
the public back to
“
go
ge
‘Where shall
here? All
interested
people should come
’’
’
night
to the Forum
Friday
and talk
over.
Tuesday’s
13, 1959
Election
To the Editor:
4“Wednesday, May
guilty
in this
“The
school boards
area have been
of a practice
fitting in
would be more
Russia than in the United States;
that of -per-
mitting
placing
unlimited
and unsupervised
authority
the hands
the administration.
This practice
has cost
Lassen
County untold
sums of
many
money,
excellent
and it
teachers,
has
our
most
deprived
children
eases
an
adequate
system. The
high.
has been
price
very
“Boards
have become little more than
stamps
rubber
for adminis-
being
their
trators,
authority
is simply
used. These
administrators
use
its
apparently
authority
they wish.
After
few
board sessions over
the conference
table board members
see both the
public and the teachers
as enemies and
quite
to rubber
ready
stamp
the administrator’s
autocracy
one man rule.
“The
(1.)
basis of
job
administrative
supremacy
He is on the
just
every day—the
(2.)
board member
is there
once each month.
He
has with the board
consent,
service staff
to do research and to back
along
him
with the CTA and other
such administrative
protective
asso-
ciations—the
board member has no one.
“If
high
the people of
this area want decent
school and Junior
college
strongly urge
I
education,
elect
the maximum number
of new board
strength
members. Elect people who have the
to be re-
go
sponsible
meeting
then
public,
to each board
and back the
*9
of
that one
the directors of
forum,
It should be noted
speaker
at one of the
in
also had been
sessions
the edu-
who
series,
candidate
cation
successful
board
May
alluded to
13.
election
in.the-letter
presented
discussing the
at the
Before
additional
primarily
we
of this
because
feel
trial court
cause,
trial
necessary
approach
problem,
to this
we believe it
erred in its
concept
“unprofessional
conduct.”
to discuss
Basically,
“unprofessional”
is a
the word
relative
phrase
meaning,
“un-
expression without technical
and the
professional
the Education Code
been
conduct”
used
has
(Board
Swan,
legislative
Education
given
v.
definition.
261].)
P.2d
(i junior college . the record shows that the high being managed conducted, . are properly school . dled, . han- proper (Italics manner careful added.) ...” It was not the court’s function to debate the proper system. of administration of the school Within the previously (disruption impairment limitations discipline discussed of teaching process), or the defendant had the con- right to differ with the stitutional court and the administrators proper management, over what at least in responsible manner. record, Furthermore, of a matter substantial County that indicates of Lassen
evidence had ex- pressed of concern over the results local education. For ex- February the board’s letter of 13 ample, to defendant noted “very petitions great request- local interest” in the forum, the ing superintendent withdrawal of the were circulated forums, at time and a “reform” candi- backing was date who had defendant’s elected to the board. board, we have mentioned the comment we should Since testimony principal high also note the school English high median one of the classes was that the incoming freshmen, “way to 150 14 down” inability English to not because of their read and tested felt it of the test.” “because we was waste except findings, examine the court’s to We will further presented properly relevant that the to indicate evidence above, support will not inquiry, framed as delineated general finding “unprofessional conduct.” That small ftipount record uncon- revealed evidence relevant
159
partially
pertinent
information is
dearth
This
tradicted.
for his
predilection to excoriate defendant
plaintiff’s
due to
to
effectually place
upon defendant
the burden
letters, and
spent its
might
profitably more
justify
Plaintiff
them.
effect harmful to edu-
attempting
establish what
time
engendered
the letters.
been
had
cation in Lassen
reveals that defendant
The uncontradicted
by publicly airing his
policy
no board or school
violated
had
appears
and school
grievances; indeed, it
procedures.
vio
grievance
Neither did defendant
no written
any
school rule.
other ascertainable
late
(Cf.
or insubordination.
There is no issue
disobedience
Swan,
v.
546
P.2d
Education
Cal.2d
Board
[261
261]
Midway
Griffeath,
Furthermore,
there is
the facts
judg
support
appeal
plaintiff’s sole contention on
support
ment
“incontrovertible”
decisions
finds
Swan,
v.
to his the CTA on gen- he erally subscribed to the association’s recommended code ethics, resignation but since he his to his subscribed own code teachers, including acting ethics. Other director at College, they Lassen Junior testified that followed their own personal code of ethics. approximately record 102,000 po- indicates that 120,000 belong tential CTA, the state to the they support it, agree take oath to do nor they join. subscribe to the CTA code of ethics when The CTA way any legislation. in no code is embodied California report professional Nevertheless, panel of CTA ethics opposition. into was introduced evidence without Section Code, 13417 procedure, Education which seems to authorize this part: “Upon any reads trial such as the [such may us], any party case before the court or call and examine expert testify any professional witnesses to toas matter of personnel professional standards ... or other such matters may be involved matter at issue. < Í ' may “. . the court also . receive and consider as evidence report... expert panel such or a submitted witness ... professional . . . maintained statewide educational association....” *12 panel panel A CTA member testified that the believed de- fendant’s to ethics, conduct violate the CTA code of and the panel’s report deciding written so was filed with the court. report An examination of indicates that defendant’s publicly criticizing board’s policy, act of once it had been prime in established, was factor its decision. This is con- testimony repre- sistent with the uncontradicted that the CTA January had told defendant that the sentative CTA could along” go letter-writing campaign (which “never his discussion). merely urged public defendant, clear that
It is even while member of the CTA agreed nor part to neither subscribed with this of the CTA (from testimony It is of ethics. likewise clear their code conduct) that the several teachers prepara- who assisted public the letters tion of the administration of the forums did not subscribe this “maxim.” Nevertheless, the court concluded that ig- defendant had professional ethics,” “all codes of nored when he chose to publicly aspects criticize of local education. This conclusion supported by testimony not uncontradicted mentioned thus, investigation above and ethical codes the teach- ing profession was of little assistance. say phraseology this is However, of defend upon scholarly ant’s letters can be looked as a clarity, model of intemperate language employed nor that the somewhat therein teaching profession. commended But it is a matter great public record that deal of debate on the occurring, was both in education California nationwide, at time Susanville forums. It is not sur prising many arguments temperately were not phrased in clarity, terms of universal much personal logic employed was experience. flavored De fendant, school-age a father of children, not precluded was joining great in this from debate becahse of his status precluded criticizing as a Nor teacher. was he electioneering support the course his of his choice of coming candidate for school board election. Fur us, plaintiff thermore, in the case opportunity before had the protagonist publicly purposes with its meet However, postpone clarification rebuttal. choice was to until on this encounter the trial presented. trial, partially basing At the defendant’s conduct his
opinions published newspapers on material California rejected by plaintiff unsatisfactory because was *13 “personal knowledge.’’ Indeed, plaintiff required not any expressing defendant name teacher his, views similar to bring testify the teacher into the trial to if firsthand he rely upon “justification” wished to his statement for his opinions. designated by Few so were named defend- appeared quasi- ant few Considering witnesses. plaintiff’s inquisitional nature trial tactics and the fact against defendant, had been filed it is not sur- prising presented. that more this “evidence” not was previously indicated, plaintiff’s As we have and the court’s exhaustive examination the “evidence” to “warrant” de- (for example, regard “purposeful fendant’s statements education,” “injustice “autocracy” teacher,” “proper handling of system”) helpful the school not a problem approach “unprofessional to the conduct.” only bearing The scintilla on the decisive issue by case, raised the facts of this whether defendant’s conduct impairment in an teaching process had resulted or had disciplinary problems, panel report raised previously is found the CTA report following mentioned. That contains the statement: panel “The concludes that Mr. Owens’ employ- continued
ment this district is untenable and would lead to himself and the embarrassment district. antagonism rift, created his actions has caused a which if continued, program would undermine educational degree to a compensated not could be for even effectiveness as a class- ’’ room teacher. baldly is This statement set forth in the record without explanatory comment. Accordingly, the basis for the state- ment, “rift,” the nature of the the “embarrassment,” or the “undermining,” are not before us. Nor was it before the trial surprising then, court. It is that no mention aspect of this report was made the court, nor were there find- ings on the matter. prediction The flat that the employment continued of de- fendant “would undermine program” the educational is sim- charge against ilar to levied principal a school par- after ticularly acrimonious Florida school campaign. election Supreme Florida Court apprehension answered: “This necessarily speculative .. . logical there is [and] reason now to determine animosity that because of growing out of inevitably election the relator will be so recalcitrant position she excluded from a of authority should [as (Fla.) v. (Adams 309, 311.) State 69 So.2d principal].’’ appropriate to the is most record we have This statement present case. examined us, the basis of the record before reasons On judgment discussed, allowing dismissal because of above “unprofessional conduct” reversed. Pierce, J., concurred.
SCHOTTKY, J.I dissent. Applying, must, governing familiar apel- as we rules an *14 tribunal, supports am late I convinced that the record finding “unprofessional trial court’s of conduct.” matter, question As I into a view resolves itself of faculty justified whether or not a of a school is member having published public press containing in the letters only undermining statements which can have the result public character, efficiency in the the confidence integrity of the school administration. majority opinion. The several letters are included purposes only necessary For the to of this dissent I think it is quote excerpts published certain of from the letters appellant. 4,1959, appellant
In the letter of March wrote: “To the Editor: “The Lassen Union College School and Junior ad- part of
ministration and a the board of trustees have well rapidly illustrated a education, that is sinking public disease American first, autocracy. California that of These they had and have believe that still have absolute and final authority ‘empire,’ high over their junior school and college. That time is no more. “They mainly created, through ineptness have and indiffer- ence, obviously primarily a mess beneficial and desired anyone. themselves, by They if per- have created and mitted situations and conditions those schools that does gross dignity decency violence to the many standards of They teachers and students. created and maintained a possibility situation which the of reasonable education is seriously hampered. How can teachers teach and students learn under conditions distasteful and shameful to both?” 18, 1959, appellant
In the letter of March
stated: “.
. . If
problems
quite
we don’t see
cure
prob-
our
the Russians
habit,”
ably
will;
soon
will
‘liberty’
also
cure
us
“
appellant
May
1959,
stated: The school
In the letter
practice
guilty of a
that would
have been
in this area
boards
States;
that of
than
the United
fitting in Russia
more
be
authority
unsupervised
placing unlimited
permitting practice
cost the
This
has
administration.
in the hands
many
money,
untold sums of
excel
people of Lassen
deprived
cases
teachers,
it has
our children most
lent
price
very high!
system.
has been
adequate
of an
stamps
than
little more
rubber
become
“Boards have
simply
authority
being
used. These
administrators,
their
authority as
apparently
the board and its
use
administrators
they wish. ...”
appellant upon
justify
letters of
majority
seeks
language
was “somewhat in-
used
ground that while
precluded
joining
appellant should not be
from
temperate,”
They
subject
of education.
great public debate on
say
phraseology
this is not to
“However,
state:
scholarly
upon as a
can
looked
model
letters
defendant’s
intemperate language employed
the somewhat
clarity, nor that
teaching profession.
But it is a
is commended
therein
great
on
that a
deal of
debate
of record
matter
occurring, both in California and
of education
forums. It is
nationwide, at the time
Susanville
arguments
temper-
many
not
surprising that
clarity,
ately phrased in terms of universal
much
by personal experience.
logic employed was flavored
De-
school-age children,
precluded
fendant,
was not
a father
great public
his
joining in this
debate because of
status
*15
a teacher.”
as
only
quotations
a
of a series of
few
The above
by appellant
in what can
be
written
construed
letters
persistent campaign to
confidence in
undermine
as a
in
and administration
school which
the administrator
faculty.
a member of the
he was
speech
appears
right
that
majority
to believe
of free
The
but,
case,
involved in this
as I view the
public debate is
and
matter,
right
speech
is not the
of freedom
but is
the issue
publication of such statements
a mem-
whether
rather
unpro-
faculty was under the circumstances
ber of the school
conduct.
fessional
Jurisprudence
217,
2d
it is stated: “The
In 44 California
authorizing
permanent
provision
dismissal of a
that the
fact
employee
unprofessional conduct
not define
for
does
does not
uncertainty.
'Unprofes
void for
it
render
phrase
expression
is
sional conduct’
a relative
without
technical
meaning
arbitrary
phrase
or
connotation. It
to be con
commonly
according
approved
to its
strued
usage, having
regard
legislature
context
uses
it.
It
designates conduct that
or
violates
rules
the ethical code
profession
unbecoming
of a
or that
profes
a member of a
good standing.”
sion in
Swan,
Education
In Board
v.
conduct, Code, as used Education is to be construed according approved having usage, regard to its common and Legislature for the (Ed. context in which Code, used it. §10; Cal.Jur., p. 745.) ‘unprofessional’ The word § expression is a relative meaning arbitrary without technical or ‘Unprofessional Corpus connotation. conduct’ is defined p. 55, Juris, ‘that which violates the rules ethical code profession of a unbecoming or such conduct which is a mem- ” profession good standing.’ ber majority As stated in the opinion, the record indicates approximately 102,000 120,000 state belong to the California Teachers Association which maintains personnel contemplated a commission on As standards. (now 13417) authorized section 13533.5 of the Education § respondent requested Code the trustees appoint panel commission report the commission to on professional appellant’s matters involved in case. The panel appointed, a study, report made and submitted a which was offered received at trial without objection. report panel the facts summarizes substantially appellant’s case, agreement in a manner subsequently court, the facts found trial and then professional judgment” panel states the “considered panel as follows: “The it does consider unethical or in- oppose administration, vigorously, subordinate even during preceding adoption policy. discussion Neither would considered unethical to continue utilize demo- procedures professional cratic within in an channels effort However, pressing personal to revise earlier decisions. view- intemperate point in an disregard manner which manifests contempt opinion colleague, or disrupts for the status of or which procedures, acting effective democratic is not in a professional manner.” report panel’s summary concludes as “The follows: published editor, conclusion is that Mr. Owens’ letters to the *16 persistent paper, profes- in the constitute breach of local unprofessional ethics, represent sional conduct. addition, “In Mr. criticisms nature Owens’ concern- ing system in his district and his educational method of publicly seriously airing his colleagues, them alienated the Board Trustees and administration. employ- panel
“The concludes Mr. Owens’ continued district ment is untenable and would lead antagonism to himself and the district. The embarrassment by his actions has caused a if rift, created which continued, program degree would the educational undermine compensated by even could not effectiveness as a class- be room teacher.” part 13417 of the Education Section Code reads as fol- any “Upon us], such trial as the before lows: ease [such any party may expert call and court or examine witnesses to any professional
testify personnel as to matter of or stand- professional or other ., may ards . . such matters as at in the matter issue. . . . involved “ may any court also receive and consider [T]he expert report ., . . panel . . submitted such witness . or a professional ., . . maintained statewide and educational ...” association clear, therefore, that the court It is was entitled to consider report panel in weighing
the written determining unprofessional conduct. the issue days ease The trial the instant lasted 14 and the re- porter’s transcript occupied pages. It was tried before an experienced judge adjoining from an able and mountain Findings county an who filed exhaustive “Decision, and Con- in which he reviewed the evidence. I am satis- clusions” supports amply findings fied that the record conclu- particularly following: trial court sions of the nothing feels that there is “The Court record to show any apparent deep concern, kind, concern of poor Lassen over results within locally, School, the Lassen Union wherein is junior college which located the Mr. Owens one of the teachers, in this because the record ease abounds with irrefu- junior college high table evidence and the school are functioning proper manner, in have been and are obtaining good good rating such, and have and as results heretofore higher stated, learning institutions of accredited to *17 appear statement of California. And said would in the State unsupported by being and the unfounded to the Court engaged from unbecoming person and unethical evidence, teaching, especially profession of and one who is a member the High faculty junior college in the Lassen Union District. School
C( materially wrong college anything was or If “. . . place go operation, the to for correction and the he knew its follow, take, any change for proper procedures to to needed good the might that college. or made for and benefit could be Trustees He knew the Board of was the executive They ready the willing head of the school. and administrative anyone any desiring to listen to committee to and present any improvement matter of concern for or benefit college. changed regular meeting its board time any- daytime evening, from to make it more convenient for legitimate one had a matter present, who to afford opportunity them to do so. going governing before the proper “Instead board changes junior manner for needed or reform in the col-
lege, thereby Mr. part which Owens a teacher and system parcel of and the school the Lassen Union District, he, ignoring all professional School codes of ethics proper legal orderly processes and the channels and handling conducting public our schools in California, publicly chose to fairly, condemn, unjustly criticize and un- case, the Board of Trustees, administration, superintendent and, fact, per- all junior sonnel with said college, connected of which he is and teacher, was a tenure letters published, said so as here- findings, unprofessional tofore referred to said constituted part conduct on the of Mr. Jack Owens.’’ judgment supported I believe the decision of Supreme our supra. Court Board Swan, Education v. case, case, appeal The Swan like this involved an from a judgment authorizing permanent the dismissal of a teacher under the tenure law. trial that, among court had found appellant things, other derogatory had “made statements concerning superintendent of schools and criticized bringing board of Angeles’’ education for him to (p. Los 549) during the course of a Parent Teachers Association meet- ing had superintendent “called the of schools and other
school administrators ‘henchmen’ and the ” (P. 550.) Kremlin.’ office ‘The Little judgment affirming Supreme In Court answered the argument urged by appellant constitutional here as follows: prevail in “Nor can defendant her claim that affirmance of infringes upon guarantee her dismissal constitutional speech, thereby in that right her freedom of she is denied the superiors upon pain losing to criticize her position. her (U. Const., XIV; I Const., 1, §9.) S. amends. Cal. art. employed service does not One have a constitutional right employment such super to reasonable governmental vision restriction body authorized discipline proper may or officerto the end that maintained, among employees may and that activities not be allowed disrupt impair (Christal service. v. Police *18 Com., Cal.App.2d 564, City ; 33 569 P.2d Los [92 416] of Angeles Angeles Bldg. Council, v. Los & Constr. Trades 94 Cal.App.2d 36, 305].) 48-49 P.2d of this Because domi [210 interest, public nant the exercise of such control over the public employee only right is not a but is a duty, and the discharge a thereof wide discretion is allowed, which will not point illegality until the (Hayman be disturbed of is reached. City Angeles, Cal.App.2d v. Los 674, 17 679 P.2d [62 of 1047].)” (P.556.) Pranger Break, In the case of Cal.App.2d recent v. 186 551 Cal.Rptr. 293], which involved dismissal of a civil service [9 employee unbecoming public for “conduct employee,” a the discussing right court the claimed violation of the of free speech page said at 555: right “The issue is not the of speech, freedom of whether petitioner right had the to make such editorial statements, or statements of whether such the nature presented which present danger, a clear and but the real issue is whether the publication statement, of under the the circumstances and position petitioner’s a employee view in a sensi- ipso governmental office,was, facto, tive unbecoming conduct question public employee. fairly This is well treated in Hayman City Angeles, Cal.App.2d 674, v. Los 17 679 [62 by (hearing Supreme P.2d denied the Court) where 1047] it is said: “ right peti- ‘The which is here is involved not that which him, tioner thinks has right been denied but is the of re- spondents supervision city exercise reasonable over employees, proper discipline that bemay the end main- among employees that activities be not tained and allowed disrupt impair the is service. Such not the right duty city departments. several and its duty, they In the of this dis- exercise must be allowed wide by cretion their acts are not courts to review point peti- they illegality. until reached the If ... tendency tioner’s had a activities to create dissension and among city employees unrest to interfere with by prescribed rules of enforcement reasonable conduct Works, Board Public it is not for courts to declare upon a dismissal based these facts cause would without authority without therefore under the charter ” city.’ County county population Lassen is a mountain with a published 14,000. less than The Lassen Advocate Susan- ville, county seat, population approximately 5,000. Rogers, Cal.App.2d Cote v. As this court said in Cal.Rptr. probably : “. . . It could be 767] [19 knowledge said that a matter of common the smaller community greater prominence importance persons newspaper residing stories which name refer to the area served.” We would be naive indeed to assume appellant by published the letters written by great many Advocate were not read in Lassen appellant and that intended that should be read. As set forth, court, hereinbefore and as found the trial “ merely letters contained statements which were not some what intemperate,” majority, as stated upon character, efficiency integrity reflected school administration, but which were found the court *19 proper have no foundation fact. hold that To a teacher carry who a faculty is himself member of of school can campaign public on persistent such a to undermine confidence in the administrator and administration of the school and guilty unprofessional according not be to the conduct teaching profession my would, ethics and standards of opinion, system. teach detrimental to our educational good protection ers of a have the benefit and California system amply permanent protects them tenure which against unjust in improper it was dismissal, never justify tended that tenure excuse or conduct such should appellant that of A teacher who is a the instant case. faculty member of the school district owes it to a employing him to endeavor to the interest advance the school appellant pursued and its students. Instead, a course of conduct that could not benefit either school or the. its findings students. As stated court, trial supported amply record, going “Instead of before the governing proper board in a changes manner for needed junior college, or reform in the of which Mr. Owens was thereby part system parcel teacher and the school District, he, of the Lassen ignoring Union all School professional proper legal orderly codes of ethics and the processes handling conducting channels for our California, publicly condemn,, schools unjustly chose to criticize and unfairly, ease, from the in this superintendent and, of Trustees, administration, Board fact, personnel junior college, all connected with said teacher, he and was which said letters so tenure published, findings, as heretofore referred to consti said ’’ unprofessional part tuted conduct on the of Mr. Jack Owens. foregoing, my finding
In view of the it is that the conclusion appellant guilty unprofessional trial court that supported by evidence, law, conduct is and sound judgment. policy. I affirm would petition rehearing August 20, 1962. A for was denied opinion Schottky, J., petition was of the that the should’ be petition hearing by Supreme granted. Respondent’s September 26, Schauer, J., and Court was denied 1962. petition J., opinion should be Comb, Me were of the granted.