297 So. 2d 208 | La. Ct. App. | 1974
Lead Opinion
Defendant School Board has appealed from a judgment ordering it to reinstate as of June 13, 1973, the four plaintiffs, Julius P. Palone, Gerard Heslin, Mildred Heard and Frank Dalferes, to positions of Assistant Principals.
In 1970 the Board implemented a policy of assigning an* additional assistant principal at each high school or platoon thereof, and in connection therewith on July 14, 1970, appointed Palone as Assistant Principal at Bonnabel High School, Mrs. Heard as Assistant Principal at L. W.
On June 13, 1973, the Board adopted a resolution “that the second Assistant Principal position be abolished in each high school and in each platoon session.” Pursuant thereto the four plaintiffs were returned either to their previously tenured positions or in one instance to a higher position, but in all cases the result was a substantial reduction in salary. Significantly, Palone, Mrs. Heard, and Heslin were on the verge of acquiring tenure in their positions as assistant principals at the time their positions were abolished.
Plaintiffs maintain that the Board’s action which was taken without written recommendation of the Parish Superintendent of Schools was in violation of the following provisions of LSA-R.S. 17:442:
“Each teacher shall serve a probationary term of three years to be reckoned from the date of his first appointment in the parish or city in which the teacher is serving his probation. During the probationary term the parish or city school board, as the case may be, may dismiss or discharge any probationary teacher upon the written recommendation of the parish or city superintendent of schools, as the case may be, accompanied by valid reasons therefor.”
Plaintiffs also contend that the resolution was adopted in bad faith and with the intention to circumvent the teachers’ tenure law found in LSA-R.S. 17:441 ét seq. and that the Board’s action was in bad faith, was arbitrary and capricious because it was taken under the guise of an economy measure when, in fact, no substantial savings if any were effected by the Board’s action in abolishing the positions held by plaintiffs.
In his reasons for judgment the trial judge made the following findings :
“It is apparent, therefore, that there is no ‘second assistant principal position’ to be abolished. The school board abolished certain openings within a positioned category. It did not abolish all assistant principals, nor did it delete the functions of the position. Instead it spread the duties of said positions among other teachers.
“The attempt to abolish a position without abolishing the duties and functions of said position is contrary to the letter and spirit of a teacher tenure system.” (Citing cases from other jurisdictions)
The trial judge reasoned that the abolition of the position held by the plaintiffs constituted a demotion of plaintiffs without complying with the requirements of R. S. 17:442 and in violation of the provisions of R.S. 17:444, as follows:
“Whenever a teacher who has acquired permanent status, as set forth in R.S. 17:442 and 17:443, in a parish or city school system is promoted by the employing school board by moving such teacher from a position of lower salary to one of higher salary, such teacher shall serve a probationary period of three years in the higher position before acquiring permanent status therein, but shall retain the permanent status acquired in the lower position from which he or she was promoted.
“During the probationary period in the position to which promoted a teacher shall not be disciplined, removed or demoted to the lower position from which he or she was promoted except in compliance with the provisions of R.S. 17:442. At the expiration of the probationary period in the higher position, a teacher, unless removed or demoted in accordance with R.S. 17:442, shall auto*210 matically acquire permanent status in the higher position and thereafter may not be disciplined, removed or demoted from such higher position except in compliance with the provisions of R.S. 17:443.”
The central issue to be resolved in this case is whether the action of the School Board in abolishing plaintiffs’ positions was such that R.S. 17:442 and 17:444 were applicable and specifically whether the written recommendation of the superintendent was a prerequisite to the Board’s action in the case.
Members of the School Board and of the administrative staff of the Board testified that the Board’s action was taken as an economy measure and resulted in a saving of approximately $50,000. There had been prior to the 1973 action a total of 18 assistant principals and the result of the action was the elimination of nine of these jobs. Of the nine three had acquired tenure in their new positions and as a practical matter were not affected by the Board’s action, and of the six remaining the four plaintiffs initiated these proceedings.
The plain wording of R.S. 17:442 reveals that this statute is concerned with action taken regarding an individual teacher whose dismissal or discharge is at issue. This becomes especially obvious upon a reading of the second paragraph of the statute which has to do with the procedure applicable to a teacher who has gained tenure and which paragraph begins “Any teacher found unsatisfactory . . .,” clearly demonstrating that the statute must be implemented in connection with the removal or dismissal of a teacher who is performing duties or engaged in conduct which is unsatisfactory. R.S. 17:444 modifies and relates itself to 17:442, and speaks of removal or demotion in the same context as that of discipline, suggesting clearly that this statute has to do with action taken by the board with respect to an individual teacher.
The action of the Board in the instant case did not address itself to any individual teacher, and certainly not to any one of the plaintiffs. The testimony shows that the Board did not even know the identity of the persons who would be affected by its action and although the Board was aware of the fact that some of those affected would acquire tenure in their positions as assistant principals unless the action was taken at that time, they were motivated not by any wish to prevent the individuals from acquiring tenure but rather by a desire to effect as much of a saving as possible, it being understood that any delay in their action would result in some of the probationary assistant principals, including three of the plaintiffs, acquiring tenure and thereby necessitating payment to them of salaries as assistant principals even if the jobs were thereafter abolished. The testimony of Mr. Sidney Rosenthal, Jr., a member of the School Board, is especially significant in this connection, where he explained that the Board’s action was not taken pursuant to a recommendation by the superintendent:
“Now I’m not going to agree with that, Mr. Greenberg, because I don’t believe —in my opinion, on the night of the resolution the board did not demote anyone. The board established a policy of abolishing a job position within the school system. That’s all it did. It did not designate any teacher, any person, to be demoted, or transferred in any way. It és-tablished a policy for this school system of eliminating a position in every high school in this parish.”
There is a distinction in the facts of this case and those before the Court in State v. Vernon Parish School Board, 222 La. 91, 62 So.2d 111, where the Supreme Court ordered reinstatement of a dismissed probationary teacher to his position of supervisor of classroom instruction upon a finding that after the plaintiff had served in that capacity for two years and upon offering his services to the board for the
The facts of the case do not support plaintiffs’ contention that when their jobs were abolished they nevertheless were required to continue with their same duties even though they had been deprived of their positions and corresponding emoluments of their offices.
When the Board originally embarked upon the policy of having two assistant principals in each school and platoon thereof, it drafted specifications on the “duties of an assistant principal — academic services” and “duties of an assistant principal —pupil services.” Previous to the creation of the additional position as assistant superintendent, these various duties were performed by the principal and assistant principal, assisted by one or more teachers in each school. A principal could designate a teacher as discipline coordinator and that teacher would perform some of the duties specified among those of the assistant principal in charge of pupil services. Such a discipline coordinator would also receive some additional compensation for his extra duties. After the assistant superintendent positions were abolished two of the plaintiffs, after returning to tenured positions as teachers, were also designated as coordinators of discipline in their respective schools, and while they testified that many of the duties required of them as discipline coordinators were included among the duties specified as assistant principals in charge of pupil services, there is no testimony that any individual teacher in the school system was required after the Board’s action to perform all of the duties one had to perform as assistant principal. An insight into the situation is provided by the testimony of one of the Board members to the effect that ideally, and if unlimited funds were available, the School Board would like to have many more assistant principals and specialized teachers but that the confines of the budget do not permit such an optimum situation. We cannot condemn the Board’s decision to abolish the extra assistant principal position under those circumstances where the duties previously performed by them now reverted to the remaining assistants and the principals with assistance from the teachers in the system.
Finally, there is no merit whatsoever to plaintiffs’ complaint that the amount of the saving effected by the abolition of the extra positions was not sufficient to justify the action taken by the Board. There is much testimony in the record to show that while the School Board was attempting to save this $50,000 they were spending more money in other areas. Plaintiffs take the position that the $50,000 saved was only a “drop in the bucket” of the $45,000,000 plus which the Board was budgeted to spend. The record shows that the Board was trying to reduce its gigantic deficit of over $5,000,000 experienced the previous year; that it was conservatively estimating the income from sales tax revenues; and that many positions in addition to plaintiffs’ were abolished in an effort to
Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of the Jefferson Parish School Board and against the plaintiffs, Julius P. Palone, Gerald Heslin, Mildred Heard and Frank Dalferes, dismissing their suit at their cost.
Reversed and rendered.
MORIAL, J., dissents with written reasons.
Dissenting Opinion
(dissenting with written reasons).
On June 13, 1973, the Jefferson Parish School Board passed a resolution abolishing the position of “second assistant principal” at each school and at each platoon session. In effect, this resolution caused a reduction in the number of assistant principals from eighteen to nine; of the nine that lost their jobs, four were nontenured in that position and were reassigned to positions lesser in rank and lower in salary. The four so affected are the petitioners who sought a writ of mandamus and/or an injunction directing that the Jefferson Parish School Board reinstate them to the positions they held as of June 13, 1973, with all the accompanying emoluments of office, contending that the June 13th resolution was illegal because it was not a valid abolition of a position, but merely a demotion via reduction of the number of persons in that position, and as such, it violated the provisions of the teacher tenure law, specifically LSA-R.S. 17:442 which are applicable by virtue of LSA-R.S. 17:444. LSA-R.S. 17:442 provides :
“Each teacher shall serve a probationary term of three years to be reckoned from the date of his first appointment in the parish or city in which the teacher is serving his probation. During the probationary term the parish or city school board, as the case may be, may dismiss or discharge any probationary teacher upon the written recommendation of the parish or city superintendent of schools, as the case may be, accompanied by valid reasons therefor.
“ * * * »
LSA-R.S. 17:444 provides in part:
«* * *
“During the probationary period in the position to which promoted a teacher shall not be disciplined, removed or demoted to the lower position from which he or she was promoted except in compliance with the provisions of RS. 17:442. * * * ” (emphasis supplied)
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Petitioners also filed a supplemental petition alleging that the action of the school board was willful, arbitrary and in bad faith. The trial judge found no bad faith on the part of the school board, but ordered petitioners reinstated to their positions as assistant principals retroactive to June 13, 1973, with all the accompanying emoluments, finding in fact that no such position as “second assistant principal” ever existed and, therefore, the abolition of the position resulted in the demotion of the petitioners in contravention of the above quoted section of the teacher tenure law.
On July 14, 1970, Mr. Julius Palone was appointed assistant principal in the Jefferson Parish school system. He was ultimately placed at Bonnabel High School, where he was designated as assistant principal in charge of pupil services. At the time of the abolition of his position, he was approximately thirty days away from fulfilling his three year probationary term established by the teacher tenure law and
On July 14, 1970, Mrs. Mildred Heard, another petitioner, was appointed assistant principal at L. W. Higgins High School. She was designated assistant principal in charge of academic services. After the school board’s resolution she was transferred to the position of principal of West-wego Elementary School which resulted in a $4,000.00 per year reduction in pay. Mrs. Heard’s previously tenured position was that of teacher. Although she received a reduction in pay, her transfer was to a higher position than her last tenured one. Like Palone, she received no notice of the impending action of the school board, nor was any recommendation submitted by the superintendent asking that she be discharged or demoted. Mrs. Heard learned that her position had been abolished at the June 14, 1973 meeting in the superintendent’s office. On June 25, 1973, Mrs. Heard was notified that her position as assistant principal had also been abolished in conjunction with the termination of her permanent position. Mrs. Heard testified that after her dismissal, a classroom teacher was made a principal for the remainder of the summer school session.
Mr. Gerald Heslin, another plaintiff had been appointed as an assistant principal on July 14, 1970, and was also on the verge of acquiring tenure when his position was abolished. After the school board’s resolution he was transferred to Bonnabel High School, first as a teacher, his previously held tenured position, and then as a discipline coordinator, the job which had originally been offered to Mr. Palone. Mr. Heslin’s resulting reduction in pay amounts to $5,200.00 per year, and like all other petitioners, he received no prior notice that any action was pending before the school board and no recommendation was made by the superintendent that he be discharged or demoted. He first learned that his position was abolished at the June 14th meeting with the superintendent. In contrast to
Mr. Frank Dalferes was the only one of the petitioners who was not on the brink of acquiring tenure as an assistant principal at the time of the school board’s action. He had been appointed to his position on August S, 1972 from his tenured position as head coach. At the June 14, 1973 meeting in the school board office, he specifically asked that he not be returned to his previously tenured position because of the disruption his reassignment would cause in the athletic training programs at Metairie Middle School. As a result of his request, he was made a discipline coordinator at East Jefferson High School, which resulted in a $5,200.00 reduction per year in salary. At no time did he receive any notice of the pending action before the school board, nor did the superintendent make a recommendation that he be demoted or discharged before June 13, 1973.
The issue in this case is twofold: Can the school board validly abolish a position, and if it can, was a position validly abolished in this case ?
Our jurisprudence has long recognized that school boards are recipients of certain expressly delegated powers from the legislature. LSA-R.S. 17:81
In Dugas v. Ascension Parish School Board, 228 La. 80, 81 So.2d 817 (1955), cited by plaintiffs and defendant, the court said thát by virtue of the teacher tenure law, teachers enjoy greater protection than an ordinary civil service employee who may lose his job through a good faith abolition of a position and “the doctrine that a permanent teacher may be deprived of tenure by a bona fide abolition of a position has never been recognized in Louisiana.” In citing with approval State ex rel. Parker v. Vernon Parish School Board, 222 La. 91, 62 So.2d 111 (1952), that court also said:
“This court has but recently held to be illegal the dismissal of a probationary teacher by abolition of his position (Supervisor of Classroom Instruction) without the compliance with R.S. 17:442 which provides that probationary teachers may not be dismissed except upon written recommendation of the Superintendent of Schools accompanied by valid reasons therefor.”
In Dugas and Parker, the courts held that in order for a teacher to be discharged or demoted, whether permanent or probationary, the teacher tenure law must be strictly
The board’s actions constituted a demotion of the plaintiffs and in effect their discharges as assistant principals. In State ex rel. Rathe v. Jefferson Parish School Board, 206 La. 317, 19 So.2d 153 (1944), the court held: “ * * * A demotion from one position to another when accompanied by a substantial reduction in pay is tantamount to a discharge and no teacher or principal can be removed from office except upon charges of willful neglect of duty or incompetency or dishonesty. if; ‡ sft f>
In Parker the plaintiff was a probationary supervisor, and a tenured teacher, when he was informed that his services would no longer be required because his position had been abolished. The petitioner prayed that the school board be ordered to grant him employment in a position of equal standing and like pay. The court granted his demand after finding that the superintendent had not provided the required written recommendation accompanied by valid reasons that he be discharged. No question exists that a board can abolish a position in good faith, but it cannot use that abolition to indirectly violate the provisions of the teacher tenure law.
Parker must be read in conjunction with State ex rel. Nobles v. Bienville Parish School Board, 198 La. 688, 4 So.2d 649 (1941). That case involved the illegal discharge of a teacher, although not in connection with the abolition of a position. The Nobles court held that in order to effect a discharge of a probationary teacher, the law had placed a responsibility on the superintendent and the board that must be specifically discharged by each. Any failure of compliance which results in a discharge is illegal, and such a teacher is entitled to be reinstated to his former position. In Nobles as in this case, the probationary teacher was on the eve of acquiring tenure, and the court said:
“The present scholastic year will complete the plaintiffs probationary term and place him in line for employment as a permanent teacher provided the provisions of the Act are complied with. To award the plaintiff the amount of salary without reinstating him to the status from which he had been illegally dismissed would not give the relief that the plaintiff is entitled to.”
The acquisition of tenure is one of the most important emoluments of office to which a teacher is entitled. To merely order that the petitioners be placed in positions of like standing and salary would be to deny to them the tenure to which they are entitled had there been compliance with the provisions of the teacher tenure law.
I do not find that the school board did validly abolish the position. Even if it did abolish a position, it was in contravention of the teacher tenure law and the petitioners must be reinstated to the positions held as of June 13, 1973.
Further, I do not find that the resolution was a good faith abolition of a position, but merely the reduction of a certain number of positions within a category, accordingly, in my opinion, the petitioners must be reinstated to the positions from which they were illegally discharged. I would so hold because I find no evidence in the record to substantiate the contention that
In 1970, the school board enlarged the number of assistant principals within the Jefferson Parish school system in anticipation of certain problems arising out of the then recent court ordered school desegregation. It was at that point in time that Palone, Heslin, and Heard were appointed. The school board contends that these additional. assistant principals appointed subsequent to 1970 were “second assistant principals” and that these “second assistant principals” are no longer needed; that the school board is merely trying to reduce the total number of assistant principals to the pre-1970 number. The school board argues the post-1970 appointments were the ones affected, and that to quibble whether such position as “second assistant principal” existed is merely a matter of semantics. I do not agree.
None of the petitioners in this suit was ever referred to as “second assistant principals.” On the date of their appointments they were appointed assistant principals with the duties of assistant principals. For administrative purposes each assistant principal was either designated “principal of academic services,” or “principal in charge of pupil services.” There is no consistency in what particular designation was not the basis for one assistant principal being a “second,” and another a “first.” No discrimination in rank existed among the eighteen assistant principals before the June 13th resolution.
With the attempted abolition of the position, no corresponding duties were abolished. The duties that these petitioners performed are still being performed by other assistant principals or other employees of the school board. In fact two of the petitioners, Dalferes and Heslin, now hold the position of discipline coordinator, and perform some of the duties they performed as principals in charge of pupil services.
In view of the foregoing, I find that the school board did not legally and validly abolish any position. I understand what the school board intended to do but, nevertheless, there was no such position as “second assistant principal” to be abolished. The position was that of assistant principal. Because this reduction was not a valid abolition of a position, it resulted in the illegal discharge and demotion of petitioners in contravention of the teacher tenure law which requires that they can only be discharged or demoted pursuant to the recommendation of the superintendent accompanied by valid reasons. Mr. Sisung the present superintendent and Mr. Bertucci, the former superintendent, both testified that they had never made a recommendation that any of the petitioners be demoted or discharged. Since the procedure as mandated by the teacher tenure law was not followed, the petitioners’ demotion was illegal and, therefore, they must be reinstated to the positions that they held as of June 13, 1973. Since this discharge was illegal and without effect, the petitioners, who would have acquired tenure had they not been discharged illegally, have not acquired tenure and are permanent assistant principals within the Jefferson Parish school system.
Since I decide that no valid abolition of a position was effected by the school board’s resolution, I do not decide whether or not this action was in good faith or bad faith. However, I point out though no single act of bad faith of the board appears on the record, a member of the board knew from a composite listing of personnel he had obtained which persons would be affected by the abolition. The record read as a whole can be construed to reflect that the board’s action was not in good faith. The fact that these petitioners were never informed that the abolition of their positions was under consideration by the school board seems inequitable under the circumstances.
I was not impressed by the action of the school board in firing two of the petition
The allegation of the board that its action was solely motivated by economic concerns is untenable at best. Certainly an argument can be made that any saving, however small, is an economy measure. The size of the school board’s budget in excess of $45 million, compared to the saving, about $60,000 is not the crucial point. No other evidence was produced by the school board to reveal that any real economy efforts were taking place in the Jefferson Parish Public School System. In fact, evidence was introduced to show that the school board had actually authorized increased expenditures. For the 1973-74 term, there are more teachers and more pupils in Jefferson Parish than ever before. At the time of the resolution, the voters of Jefferson Parish had just authorized greater flexibility on the part of the school board in the use of revenue obtained by a sales tax.
These factors combined with the fact that this action was in direct contravention of the teacher tenure law, make me skeptical as to whether good faith actually existed on the part of the school board.
Appellants major contention is that its action should be upheld because it did not violate the teacher tenure law. It urges this court to distinguish between the action of the school board, and the effect of that action. It is their contention that the school board had the unquestioned right to abolish a position in good faith, with which this court agrees, and that their action was just such an abolition. They argue that the demotion of the petitioners is separate and apart from their action, and came only after the meeting of the petitioners and the superintendent on June 14, 1973, at which the superintendent informed petitioners that their positions had been abolished, and subsequently made written recommendations that the petitioners be returned to their previously held tenured positions. Supposedly the petitioners now hold their present positions as a result of the post abolition written recommendation of the superintendent supported by valid reasons. Even if this distinction were to be accepted by me, valid reasons do not mean any good reason, but just cause or a reason personal to the teacher discharged because of his unsatisfactory performance. Andrews v. Union Parish School Board, 191 La. 90, 184 So. 552 (1938). The fact that no teacher, permanent or probationary, can be discharged or demoted without just cause, is at the heart of the teacher tenure law, and is the very kind of protection that the law was designed to give to teachers. No evidence exists in the record that any of the petitioners performed their duties in an unsatisfactory manner.
For the foregoing reasons, I respectfully dissent.
. “Each parish school board shall determine the number of schools to be opened, the location of the school houses, the number of teachers to be employed, and select such teachers from nominations made by the parish superintendent, provided that a majority of the full membership of the board may elect teachers without the endorsement of the superintendent. The boards shall have authority to employ teachers by the month or by the year, and to fix their salaries; provided that there shall be no discrimination as to sex in the fixing thereof and provided further, that it is not the purpose of this Section to require or direct the reduction of any salary, or salary schedule, presently in force. The boards shall see that the provisions of the state school laws are complied with. “ * * * »