WOODLAND JOINT UNIFIED SCHOOL DISTRICT, Plaintiff and Respondent, v. COMMISSION ON PROFESSIONAL COMPETENCE, Defendant; EDWARD F. ZUBER, Real Party in Interest and Appellant.
No. C006672
Third Dist.
Jan. 28, 1992
1429
Beeson, Tayer, Silbert, Bodine & Livingston and Neil Bodine for Real Party in Interest and Appellant.
OPINION
SIMS, J.—In this case, we confront the formidable task of making sense out of the California Education Code. (Statutory references are to this code unless otherwise indicated.) Among other things, we consider when a teacher demonstrates “evident unfitness for service” within the meaning of subdivision (a)(5) of section 44932.1
PROCEDURAL BACKGROUND
Appellant Edward F. Zuber, a permanent certificated employee of respondent Woodland Joint Unified School District (District), was served by the District with notice of intent to dismiss him from his position as an English teacher at Douglass Junior High School on grounds of “evident unfitness for service” and “Persistent . . . refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the State Board of Education or by the governing board of the school district.” (
The charges against Zuber fell into the following categories: failure to follow proper procedures for disciplining students, writing sarcastic and belittling notes about students, insulting students in class, using profanity in
A commission on professional competence (Commission), convened to hear the charges pursuant to
The District filed a petition for writ of mandate with the Yolo County Superior Court, challenging certain findings of the Commission and requesting the trial court make a further finding that the pattern and course of Zuber‘s conduct showed him temperamentally unfit to teach, so that his continued employment would pose a substantial danger to faculty, administrators, students, and parents. After reviewing the entire record and exercising its independent judgment on the evidence pursuant to
“FINDING NO. 10: [¶] On or about January 8, 1986, Zuber was approached in the faculty lounge by Barbara French . . . a substitute teacher, who was upset that Zuber had sent a note to Principal Parker suggesting that Ms. French detain her students after school, rather than during the first part of the student‘s period. French confronted Zuber and in a determined posture, suggested that he come to her directly in the future with faculty problems, rather than approach the administration. French was upset because she felt insulted by Zuber‘s note to Parker. In a voice loud enough for other teachers to hear, French told Zuber to the effect, ‘in the future, I would appreciate it if you have a problem with my students that you approach me.’ Zuber became incensed and at some point in a voice loud enough for other faculty members to hear stated, ‘I don‘t give a shit what you think.’ Later in the argument he said, ‘First, you‘re a woman and second I don‘t care.’ Zuber placed his face inches away from the face of French and shouted after her as she walked away, ‘and you know where you can put that too!’ [¶] Zuber was subsequently ordered by Principal Parker to apologize to Ms. French. He did
so, but only in a sarcastic tone. That [sic] at the end of the school year each apologized to the other at a cocktail party. “FINDING NO. 12: Between January 6th [sic] and February 7, 1986, Zuber referred a total of 15 of his students to Vice-Principal Jerry Courter for discipline. On many of the referral slips which the students were required to carry to the office and present to administrators, Zuber wrote sarcastic and belittling comments about his students. On several occasions he provided no explanation as to why he wanted the student punished. The sarcastic comments to the students were on two specific occasions, at least, comical in nature but quite belittling to the students.
“FINDING NO. 17: [¶] The evidence establishes that Zuber was confrontational and contemptuous in dealing with the administration at Douglass Junior High School. That [sic] he challenged Vice-Prinicipal Courter on February 11 and May 14, 1986, in an aggressive and belligerent manner. Zuber wrote an angry letter to Courter on May 19, 1986, questioning Courter‘s competence and administrative knowledge. This was contributed to in part by memos of Courter dated February 10 and May 14, 1986 which contained mistakes and incorrect information. However, Zuber‘s conduct was angry and belligerent when confronting Courter in the administration building lobby in front of parents, students and staff. Soon thereafter he wrote a memorandum to Courter containing inappropriate and sarcastic references to Courter‘s ‘obvious lack of knowledge.’ [¶] The Vice-Principal‘s memos contained only minor errors, and were insufficient to excuse Zuber‘s acts of aggression and open hostility to the school administrator. This was observed by both parents and students, and it disrupted the educational process.
“FINDING NO. 18: [¶] On April 28, 1986 Zuber wrote a letter to Principal Parker in response to a parent‘s complaint and the subsequent handling of the complaint by the administration. In this letter Zuber referred to a proper reprimand by Principal Parker for his rude treatment of the mother of a student. Zuber‘s letter contained a series of personal attacks on Principal Parker and another teacher whom he castigated with foul language, approaching the profane. Undoubtedly it was an expression of Zuber‘s opinion in this matter. [¶] On May 13, 1986 Zuber wrote a second letter to Parker in response to Parker‘s evaluation of him. The tone of this letter was hostile, critical, and contemptuous. It is true that the evaluation by Parker was later determined by an arbitrator to be improper and in violation of the collective bargaining agreement. [¶] Despite the fact that Zuber prevailed in that difference of opinion with the administration the conduct and the letters by
Zuber relating to this matter are matters of great concern. In the faculty lounge, Zuber waived [sic] his evaluation in the air, announcing to the other teachers that he was going ‘to get’ Parker and that it was going to be fun to do so. In his written response to Parker‘s evaluation it [sic], among other things, referred to Parker as an individual who does not possess the necessary skills for an honest and contractually secure evaluation, nor inclined to accept responsibility of leadership in the development and maintenance of an effective plant; refers to Parker‘s ‘limited administrative skills, obvious lack of dedication to the school site, and laissez-faire approach to policy application‘; and, in reference to Parker, that ‘before a man can be a good carpenter, he has to be smarter than the wood‘; accused Parker of having ‘unmitigated gall’ for criticizing his teaching presentation, and characterized administrative support of teachers at Douglas [sic] to be ‘a myth at best and professionally odious on most occasions.’ [¶] While the letters and verbal discussions in the faculty lounge do not demonstrate insubordination they circumstantially evidence an unwillingness to accept administrative direction. “FINDING NO. 20: [¶] The evidence establishes that research specialist teacher Jeanne Hanna and Zuber had an ongoing and intense interpersonal conflict during the period from December 1985 through November 1986. This conflict resulted in a number of confrontations and disagreements. There was a disagreement over the content of the lesson plans prepared by Zuber for Bryan G. on April 24, 1986. Zuber gave Hanna the lesson plan for the student as contemplated and Hanna expected a lesson plan with more details. [¶] There was a heated confrontation on November 26, 1986. Zuber and Hanna were both concerned about a Special Ed. student. [¶] The instructional programs for special education students are developed by special education teachers at Douglas [sic]. Hanna and teacher Buffington were working with special education student Debbie G. An individual education program meeting was held for Debbie G. on November 21, 1986. In preparation for the meeting, Mrs. Hanna, a resource specialist teacher, requested progress reports from each of Debbie‘s teachers, including Zuber. All teachers responded except Zuber. However, at the meeting Debbie told both Hanna and Buffington that she had been given a test by a counselor, Mr. Hadden. The mother of Debbie asked for the test results and Hanna and Buffington agreed to obtain the test results for her. After the meeting counselor Hadden informed Hanna that Zuber had asked him to give the test and that Zuber now had the test scores. Before this meeting neither Hanna nor Buffington had been aware that any individual testing had been done for Debbie. On November 24, 1986 Hanna wrote to Zuber a note requesting the test scores. She received no reply to her request. Hanna went to Zuber‘s
classroom prior to the commencement of class to obtain the results of the diagnostic reading test. Zuber told Hanna that the test results were at his home. Hanna was adamant in her request for the test results and requested further discussions outside the classroom. They continued discussing the matter just outside the classroom door. The discussion intensified and Zuber described Hanna with grossly profane words.4 This resulted in Hanna becoming upset and feeling intimidated. Upon the ringing of the classroom bell Zuber entered his classroom breaking off the argument[;] however[,] Hanna followed him. She persisted in the presence of the students in demanding the test results. Zuber, in turn, demanded that she leave so that he could commence instruction. Finally, in the presence of students Zuber became more forceful in his demands, including ‘hit the ramp, champ!’ [¶] Hanna then went directly to Principal Parker‘s office where she broke down, crying, while trying to tell Parker what happened. [¶] In making its finding, the court notes that a determination of the credibility of the two participants in this heated argument is an issue. The court finds the above facts, but also finds that a substantial degree of provocation existed. “FINDING NO. 21: [¶] On December 16, 1986, Zuber began an extended leave for medical reasons. His classes were assigned to a long-term substitute teacher who was instructed by the administration to determine the grades for Zuber‘s former students. On January 13, 1987 Principal Parker requested in writing that Zuber provide information and assistance in obtaining semester grades for students in his classes. Such grades were scheduled to be issued by the end of the month. This letter was by registered mail but was not picked up by Zuber until January 28. Zuber testified, however, that he sent a letter to Parker with the grade records enclosed on January 16, 1987. Such letter was never received by Parker. The memorandum indicated Zuber‘s decision to cut off the grading periods for all of his former classes on January 9, about three weeks before the end of the grading period. Zuber made this decision, because, in his view, the district had ‘disrupted his instructional program’ and that it would therefore, [sic] be ‘unfair to expect the students to take their term and semester tests.’ [¶] Since Principal Parker had not received the letter from Zuber the substitute teacher, Caryl Summers, proceeded to calculate the students’ grades based on her own evaluation and grading materials left in the classroom by Zuber. Some students, upon learning from Mrs. Summers what their grade was going to be, called and complained to Zuber about unexpectedly lower grades. Zuber therefore decided to call all of the students or their parents and inform them of the grades he had submitted for the quarter. He instructed them to see a counselor friend, Mr. Hadden if their grades were different than those
promised by Zuber. He told them that Hadden would have the grades changed. He also told them what substitutes do and that ‘substitute work’ doesn‘t count. [¶] At the time he made his calls, Zuber had not spoken to either Summers or to Parker about the grades or about his intention to call students. At the time he made his calls, Zuber knew only what the students told him about the work they had done for Summers since January and about the grades they had achieved on their final examinations. While there may have been no district rule against this, the evidence indicates Zuber was not authorized or requested to telephone parents or students to indicate verbally what their grade would be, and such authorization would not be expected when a substitute teacher has taken over the class. [¶] When Zuber made these calls, discipline in the classes of Ms. Summers immediately deteriorated. For example, one student told Summers that since Zuber had given them their grades, her class was a ‘total waste.’ Discipline deteriorated to the point that Principal Parker came into the classes of Summers and told the students that Ms. Summers was authorized to assign and grade their work. [¶] As a result of all the foregoing, classroom discipline was adversely affected and Ms. Summers felt that her authority was completely undermined.
“FINDING NO. 22: [¶] On February 6, 1987, Principal Parker requested that Zuber meet with the new teacher, Caryl Summers, and with Parker so that Summers could obtain the grade book of Zuber, which contained more complete information necessary to complete the grading process. A meeting to discuss the situation was scheduled for 7:30 a.m. on February 9, 1987, at the school. Parker and Summers met in the administration office at 7:30 a.m. but Zuber did not appear. In fact, Zuber went to the faculty lounge, and it was his testimony that the meeting was scheduled to take place at that location rather than the administration office. Zuber did not go to the Principal‘s office to ascertain the whereabouts of the Principal or Ms. Summers nor did he attempt to call the Principal, although there was a telephone in the faculty lounge. Instead, Zuber pinned to the bulletin board in the lounge his purported students’ grades [sic] along with a memorandum which he had written. Zuber also tore the edges off the memorandum and wrote in the margin: ‘this one should stand out in your mind & be difficult to lose. Maybe just crouch.’ The court infers this related to the fact that Parker had not received the letter of grades from Zuber [see Finding 21]. [¶] At best, Zuber‘s conduct on this occasion was negligent in that he did not use the telephone in the faculty lounge to call Parker when it was apparent that Parker was not making the appearance in the lounge [sic] expected by Zuber. If he had called, he would realize the meeting was scheduled in the administration office. Instead, Zuber left the grades in the lounge with a
very sarcastic note that was demeaning to Parker and visible for other faculty members to read. This action disrupted the education process (re-posting of students’ grades) and evidenced Zuber‘s disrespect for Principal Parker. It affected his relationship with the administration at Douglas Jr. [sic] High School as well as his relationship with a fellow staff member[,] Caryl Summers.”
The trial court measured Zuber‘s conduct against the criteria for unfitness for service set out by our Supreme Court in Morrison v. State Board of Education (1969) 1 Cal.3d 214 [82 Cal.Rptr. 175, 461 P.2d 375]. In Morrison the court held that under former section 13202, a predecessor provision of section 44932, “unprofessional conduct” meant “conduct indicat[ing] that [a teacher] is unfit to teach.” (1 Cal.3d at p. 229.) The court then provided the following list of factors relevant to determining unfitness to teach: “... [T]he [fact finder] may consider such matters as the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers. These factors are relevant to the extent that they assist the [fact finder] in determining whether the teacher‘s fitness to teach [sic], i.e., in determining whether the teacher‘s future classroom performance and overall impact on his students are likely to meet the [fact finder‘s] standards.” (Id. at pp. 229-230, fns. omitted.)
The trial court found that four of the Morrison criteria counted against Zuber: (1) the likelihood that his conduct adversely affected both students and fellow teachers; (2) the fact that aggravating circumstances surrounding the conduct outweighed mitigating circumstances; (3) the blameworthiness of Zuber‘s contempt for fellow teachers and the administration, which had prevented him from working with the administration in the best interests of students and could be expected to do so in future; and (4) the “quite strong” likelihood of the recurrence of conduct similar to that charged. (1 Cal.3d at pp. 229-230.)5
The trial court stated that although no individual finding was sufficient in itself to authorize Zuber‘s dismissal, the cumulative effect of the findings
The trial court granted the writ sought by the District, ordering the Commission to modify its findings in accordance with those of the trial court and to render judgment dismissing Zuber.
Zuber appeals from the trial court‘s judgment on both procedural and substantive grounds. We shall affirm the judgment.
DISCUSSION
I
“Evident Unfitness for Service” Is Not Synonymous With “Unprofessional Conduct“; “Evident Unfitness” Requires a Defect of Temperament.
Several of Zuber‘s contentions require us to determine the proper meaning of “evident unfitness for service,” as used in
A. Cases equating “evident unfitness for service” with “unprofessional conduct.”
The first line of cases is traceable to Morrison v. State Board of Education, supra, 1 Cal.3d 214, discussed above, where our Supreme Court concluded
In Oakland Unified Sch. Dist. v. Olicker (1972) 25 Cal.App.3d 1098 [102 Cal.Rptr. 421], the court concluded the Morrison “unfitness-to-teach” definition and test would exclusively determine whether a teacher had shown “evident unfitness for service.” Noting that “each of the causes for removal stated in the code substantially overlap one another,” the court stated that “‘evident unfitness for service’ should not be given a definite technical meaning” or “subsumed under some set formula.” (Id. at p. 1108.)
Olicker‘s adoption of the Morrison definition and test was followed in San Dieguito Union High School Dist. v. Commission on Professional Competence (1982) 135 Cal.App.3d 278, 284 [185 Cal.Rptr. 203] (construing current
Because the Olicker line of cases eschews a further definition of “evident unfitness for service,” and because the latter term is defined exclusively by reference to Morrison‘s criteria for “unprofessional conduct,” the practical result of the Olicker line of cases is that “evident unfitness for service” means the same thing as “unprofessional conduct.”
B. Cases distinguishing “evident unfitness for service” from “unprofessional conduct.”
The second line of cases has its origin in Fresno City H. S. Dist. v. De Caristo (1939) 33 Cal.App.2d 666 [92 P.2d 668] (hereafter De Caristo). There, the court had to decide whether the terms “physical or mental condition unfitting [a teacher] to instruct,” “incompetency,” and “evident unfitness for service” in section 5.650 of the former School Code were mutually distinguishable. Applying the rules of statutory construction that “where possible, every clause and word of a statute should be given effect and meaning” (33 Cal.App.2d at p. 672) and that “in construing the component parts of a legislative act the courts should, where possible, give force and effect to each so that the whole act may have life and vitality” (ibid.), the court concluded the Legislature must have intended each ground for dismissal to refer to some act or omission not necessarily included in any of the others; otherwise the statute‘s use of all three terms in question would be redundant. (Id. at p. 671.) The court suggested that “‘evident unfitness for
De Caristo‘s approach was followed in Tarquin v. Commission on Professional Competence (1978) 84 Cal.App.3d 251 [148 Cal.Rptr. 522]. In Tarquin a teacher was charged under former section 13403 with incompetency, evident unfitness for service, and persistent violation of school laws and regulations. (84 Cal.App.3d at p. 255.) Incompetency, like unprofessional conduct, required that the teacher receive prior notice of the offensive conduct under former section 13407. (84 Cal.App.3d at p. 257.) The teacher did not receive notice. The commission sustained the charges and ordered the teacher dismissed, but the trial court found that the failure of notice on the incompetency charges had tainted the entire proceedings; therefore it issued a writ of mandate directing the commission to set aside the dismissal. The reviewing court agreed that the failure of notice precluded the school district from proceeding on the charges of incompetency but held that the proceedings as a whole were not tainted because the evidence on the remaining charges was independent of the evidence on incompetency. (Id. at pp. 260, 262.) The court applied the rule of De Caristo that each cause for removal specified in the statute refers to acts or omissions not necessarily included in the others. (Id. at p. 260.) Citing De Caristo‘s definition of “evident unfitness for service” as a matter of “‘temperamental defects or inadequacies‘” (ibid.), the court remanded the cause to the trial court to reconsider whether substantial evidence supported the commission‘s findings on this ground. (Id. at p. 262.)7
A third case has proferred a definition of “evident unfitness for service” that helps to distinguish that term from “unprofessional conduct.” In Palo Verde etc. Sch. Dist. v. Hensey (1970) 9 Cal.App.3d 967 [88 Cal.Rptr. 570], the court started with the rule requiring that the terms used in the Education Code “are to be construed according to their common and approved usage having regard for the context in which the Legislature used them.” (Hensey, supra, at p. 971.) The court applied this rule as follows: “Insofar as the phrase ‘evident unfitness’ is concerned, the parties refer us to dictionary definitions in which ‘evident’ is defined in Webster‘s Collegiate Dictionary as ‘Clear to the vision and understanding,’ . . . and ‘unfit’ as defined in
C. Established canons of statutory construction compel adoption of the De Caristo line of cases.
As we shall explain, we believe the De Caristo-Tarquin-Hensey line of cases contains the preferred analysis. Combining the definitions offered in Hensey and De Caristo in light of the context of the statute as a whole, “evident unfitness for service” in
Our conclusion is dictated by two established canons of statutory construction.
The first, as De Caristo properly recognized, is that, “Significance should be given, if possible, to every word of an act. [Citation.] Conversely, a construction that renders a word surplusage should be avoided. [Citations.]” (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798-799 [268 Cal.Rptr. 753, 789 P.2d 934].) This canon does not allow “unprofessional conduct” and “evident unfitness for service” to mean precisely the same thing. Moreover, we must give significance to the word “evident” in “evident unfitness for service.” A requirement of temperamental defect gives significance to this term.
Nor is this conclusion at odds with the teaching of our Supreme Court that, “Manifestly, a particular act or omission of a teacher may constitute unprofessional conduct, evident unfitness for service, and a persistent violation of or refusal to obey prescribed rules and regulations.” (Board of Education v. Swan (1953) 41 Cal.2d 546, 551 [261 P.2d 261], construing
The second canon of statutory construction compelling our conclusion is: “[T]he meaning of [an] enactment may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.]” (Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91 [255 Cal.Rptr. 670, 767 P.2d 1148].) As we shall explain in a moment,
D. The Morrison criteria must still be considered.
Our conclusion does not mean that the criteria for unfitness set out in Morrison v. State Board of Education, supra, 1 Cal.3d at pages 229-230 may be disregarded where “evident unfitness for service” is at issue. These criteria must be analyzed to determine, as a threshold matter, whether the cited conduct indicates unfitness for service. (Board of Education v. Jack M. (1977) 19 Cal.3d 691, 696 [139 Cal.Rptr. 700, 566 P.2d 602].) If the Morrison criteria are satisfied, the next step is to determine whether the “unfitness” is “evident“; i.e., whether the offensive conduct is caused by a defect in temperament.
With this background, we turn to Zuber‘s contentions.
The District Was Not Obligated to Give Zuber Notice Pursuant to Section 44938.
Zuber contends the District failed to give proper notice under
Where a school district seeking the dismissal of a permanent certificated employee on charges of unprofessional conduct fails to comply with the notice provision of
It is undisputed that Zuber did not receive the 45-day notice which would have been required had he been charged with unprofessional conduct. However,
Zuber‘s argument is foreclosed by
In our view,
Zuber also cites Livermore Valley Joint Unified Sch. Dist. v. Feinberg, supra, 37 Cal.App.3d 920. There, a teacher was charged with unprofessional conduct, evident unfitness for service, and persistent violation of school laws and regulations. He received no notice of remediation under former section 13407 (the predecessor to
The dissenting opinion argues that the duty to give notice should not depend upon the label attached to the offensive conduct. If, in fact, the offensive conduct constitutes “unprofessional conduct” then notice must be given regardless of the charges brought.
In our view, this argument proves too much. As we have said, the term “unprofessional conduct” is broad enough to embrace the vast majority of grounds of discipline specified in section 44932. (See fn. 1, ante.) Consequently, if the dissent‘s view were to prevail, notice would have to be given whenever a school district sought to discipline a teacher for refusal to obey the school laws, or for conviction of a crime involving moral turpitude, or for any of the other statutory grounds constituting de facto unprofessional conduct. We cannot reconcile this result with the teaching of
We conclude the District was not obligated to give Zuber notice under
III
By Failing to Raise the Issue Below, Zuber Has Waived Any Contention That Material Kept Unlawfully in Private Files Was Used Against Him.
Zuber contends he was prejudiced, and denied his due process rights, when certain material assertedly kept in unlawful private files of the principal and vice-principal was introduced in evidence before the Commission.
However, as the District notes, Zuber has waived this contention by failing to object to the material on this ground either before the Commission or in the trial court.12 (
The District Was Not Obligated as a Matter of Law to Warn Zuber of His Bad Conduct Nor to Engage in Progressive Discipline; Moreover, Substantial Evidence Shows Zuber‘s Conduct Was Irremediable.
Zuber contends his dismissal is unlawful because, he asserts, the District failed to warn him on each occasion of his bad conduct and because the District failed to discipline him progressively. His claim is premised on the following legal arguments: (a) warnings and progressive discipline are required by the Education Code; (b) warnings and progressive discipline are required by constitutional requirements of due process of law; and (c) warnings and progressive discipline are required to demonstrate substantial evidence of “evident unfitness for service.” We address these arguments serially.
A. The Education Code does not require warnings of offensive conduct.
To the extent Zuber suggests a warning is a necessary precondition for a finding of “evident unfitness for service” under the Education Code, the suggestion is without legal authority. Midway School Dist. v. Griffeath (1946) 29 Cal.2d 13 [172 P.2d 857] and Governing Board of the Oakdale Union School Dist. v. Seaman (1972) 28 Cal.App.3d 77 [104 Cal.Rptr. 64, 527 P.2d 104], cited by Zuber are inapposite. They hold that a teacher may not be dismissed for “Persistent violation of or refusal to obey the school laws . . . or reasonable regulations” (
Zuber apparently recognizes that neither
In our view, Zuber does not appreciate appropriate constitutional limitations on the power of this court to construe statutes. We have no general power to rewrite statutes to conform to some underlying “policy.” As a rule, there can be no intent in a statute not expressed in its words; the intention of the Legislature must be determined from the language of the statute. (In-Home Supportive Services v. Workers’ Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 739 [199 Cal.Rptr. 697].) The only conceivable basis for reaching Zuber‘s proposed result would be to find that the cited statutes require warnings by necessary implication.
“[W]hatever is necessarily implied in a statute is as much a part of it as that which is expressed.” (Johnston v. Baker (1914) 167 Cal. 260, 264 [139 P. 86], italics added.) “But an intention to legislate by implication is not to be presumed. [Citation.]” (First M. E. Church v. Los Angeles Co. (1928) 204 Cal. 201, 204 [267 P. 703].) “Although in years past it may have been necessary for courts to read into a statute provisions not specifically expressed by the Legislature, the modern rule of construction disfavors such practice. [Citation.]” (San Diego Service Authority for Freeway Emergencies v. Superior Court (1988) 198 Cal.App.3d 1466, 1472 [244 Cal.Rptr. 440].)
“The usual standard used to interpret a statute by implication or inference is used to determine if the statute embraces such consequential applications and effects as are necessary, essential, natural or proper. Although these are not terms having precise meaning capable of measured application, it seems fair that in order for a consequence to be implied from a statute there must be greater justification for its inclusion than a consistency or compatibility with the act from which it is implied. ‘A necessary implication within the meaning of the law is one that is so strong in its probability that the contrary thereof cannot reasonably be supposed.’ And it has been more fully explained that: ‘[s]uch implication, inference, or presumption, as the fact may be, is always indulged to supply a deficiency, and is never permitted to contradict the act, grant, or instrument whatsoever involved.‘” (2B Sutherland, Statutory Construction (5th ed. 1992) § 55.03, pp. 279-280, italics added, citations and fns. omitted.)
We do not perceive how
Nor is a warning of offensive conduct necessarily implied in
We have noted the general reluctance of the courts to find statutory requirements by implication. (San Diego Service Authority for Freeway Emergencies v. Superior Court, supra, 198 Cal.App.3d at p. 1472.) Our reluctance here is heightened because we are construing statutes that are the eventual product of strong competing political currents. We had occasion recently to note, “Enactment and amendment of provisions of the Education Code concerning teacher discipline have historically been the product of political scrums involving sizable organizations seeking to influence the Legislature one way or the other. [Citation.] In this context, it is particularly appropriate to note that our judicial task is to decide what the Legislature has done, not what it should have done. ‘Courts do not sit as super-legislatures to determine the wisdom, desirability or propriety of statutes enacted by the Legislature. [Citations]’ [Citation.]” (Crowl v. Commission on Professional Competence (1990) 225 Cal.App.3d 334, 351 [275 Cal.Rptr. 86, 90].)
Unless the offensive conduct of a teacher is reduced to writing, the Education Code does not currently require that a teacher be warned of the
B. Neither warnings nor progressive discipline is required by due process.
Zuber contends his constitutional rights to due process of law were violated because the District did not warn or progressively discipline him for his offensive conduct.
Zuber grounds his due process claim in Morrison‘s recognition that, “Civil as well as criminal statutes must be sufficiently clear as to give a fair warning of the conduct prohibited, and they must provide a standard or guide against which conduct can be uniformly judged by courts and administrative agencies. [Citations.] The knowledge that he has erred is of little value to the teacher when gained only upon the imposition of a disciplinary penalty that jeopardizes or eliminates his livelihood. [Citation.]” (Morrison, supra, 1 Cal.3d at p. 231, fn. omitted.)
However, Morrison concluded that its promulgation of criteria for unfitness to teach “gives [former] section 13202 the required specificity.” (1 Cal.3d at p. 233.) Those criteria (which do not contain a requirement of warnings or of progressive discipline) were properly applied by the trial court here to measure Zuber‘s conduct.
The essence of Zuber‘s claim is that he could not tell his conduct was wrongful. However, as we shall discuss below, Zuber could reasonably know his cited conduct was wrongful. “Teachers, particularly in the light of their professional expertise, will normally be able to determine what kind of conduct indicates unfitness to teach.” (Morrison, supra, 1 Cal.3d at p. 233, fn. omitted.) Zuber‘s due process claim is not meritorious.
C. Substantial evidence supports the trial court‘s conclusion that Zuber‘s conduct was irremediable.
Zuber argues that, because he was allegedly not warned, reprimanded, or progressively disciplined he could not know his conduct was wrongful and in need of correction, so that there is no substantial evidence to support the trial court‘s finding, under Morrison, that his conduct was likely to recur. Moreover, he says on those occasions when he was warned, he corrected his conduct.
Where the trial court has reviewed the decision of the Commission by exercising its independent judgment on the evidence pursuant to
- “Finding No. 10“—the confrontation with Barbara French.
Zuber states that after this confrontation “neither the Principal nor the Vice-Principal either warned, reprimanded nor [sic] disciplined [Zuber] regarding his conduct.” The trial court found that the principal ordered Zuber to apologize to Mrs. French. This order was a warning.
- “Finding No. 12“—the “sarcastic and belittling” comments on discipline slips.
Zuber states that these comments ceased after February 10, 1986, when the vice-principal sent him a memo criticizing them, and that the vice-principal “never even spoke to Appellant regarding the tone of his referral memos much less reprimanded him.” To say the least, these points are inconsistent. To the extent the second point is meant to show that Zuber was not warned about his misconduct, this is mere quibbling. And while it is true that he stopped writing objectionable comments on discipline slips after receiving the vice-principal‘s memo, this change of conduct was not a true reform. As the trial court‘s next finding shows, Zuber simply trained his sights on a new target: the vice-principal.
- “Finding No. 17“—the oral and written confrontations with Vice-Principal Courter.
Zuber asserts: “After Appellant‘s confrontations with the Vice-Principal in February and May, 1986, and his letter to the Vice-Principal, neither the Principal nor the Vice-Principal either warned, reprimanded nor [sic] disciplined him regarding his conduct.” It is significant that Zuber omits the exact dates of these “confrontations.” The first occurred on February 11, the day after Zuber received the vice-principal‘s memo criticizing his comments on discipline slips. The second occurred on May 14, in response to a second
Moreover, Zuber‘s complaint that he was not warned, reprimanded, or disciplined for his acts of “angry,” “belligerent” confrontation, carried on in the administration building lobby in full view of parents, students, and staff, or for his subsequent “angry letter . . . questioning Courter‘s competence and administrative knowledge,” rests on an unsupportable premise: that if not warned, reprimanded, or disciplined for such conduct he had no way of knowing it was wrongful. We cannot imagine how a teacher of Zuber‘s experience could have failed to realize the wrongfulness of his acts.14
- “Finding No. 18“—the letters to Principal Parker.
Zuber complains that after the principal received these letters he did not issue any warning, reprimand, or discipline, nor did he tell Zuber that his job was in jeopardy if he did not change his behavior. This complaint, like the previous one, misses the mark. It is inconceivable that Zuber needed an official rap on the knuckles to alert him to the disrespect shown by sending these letters or the inappropriateness of their insulting language. On the contrary, the trial court‘s undisputed finding that before sending the second letter Zuber told fellow teachers he was going “to get” the principal and it would be fun to do so proves that he set out on this occasion to flaunt his contempt for the principal. Likewise, a professional educator should not need to be told that it is improper to launch personal attacks on a fellow teacher using “foul language, approaching the profane,” as Zuber did in the first letter to the principal in which he described the teacher as an “egg-sucking dirty dog” who was in need of a “gut check.”
- “Finding No. 20“—the confrontation with Jeanne Hanna.
Zuber complains he was not warned, reprimanded, or disciplined concerning his conduct on this occasion. Again, we are puzzled by his apparent contention that he could not have known his acts were wrongful in the absence of a warning or a reprimand. His awareness of the true character of his conduct toward Hanna can be detected from his attempt, in testifying about this incident below, to paint that conduct in a better light than the trial court found justified by the evidence as a whole. Before the Commission Zuber denied losing his temper with Hanna or saying to her “You are a
- “Finding No. 21“—the telephone calls to students and parents concerning the substitute teacher‘s grades.
Zuber‘s complaint that the principal never discussed these calls with him, or otherwise warned, reprimanded, or disciplined him about them, is disingenuous given that he avoided meeting with the principal to discuss the grading problem (see “Finding No. 22,” quoted supra). Moreover, he does not contest the trial court‘s findings that he made these calls without authorization or any other reason to believe they were appropriate, and that he told students and parents “‘substitute work’ doesn‘t count.” It is impossible to believe he did not realize his conduct would sabotage the substitute teacher‘s efforts or that he did not intend this result.
- “Finding No. 22“—the missed meeting and the posted memo to the principal.
Since Zuber‘s acts on this occasion were the proverbial “final straw” leading to the District‘s dismissal action, his complaint that he received no lesser discipline is beside the point. Moreover, he does not contest any of the trial court‘s findings about this incident, which amply show his intent to display once again his disrespect for the principal and to hold him up to ridicule, as well as to refuse to cooperate with the principal and the substitute teacher in solving the grading problem in his classes.
Substantial evidence supports the trial court‘s finding that Zuber‘s unacceptable conduct was likely to recur and was ultimately traceable to a defect in temperament, i.e., the contempt he felt for fellow teachers and the administration. Moreover, contrary to Zuber‘s claim, the evidence, taken in the aggregate, shows that Zuber‘s retention would pose a significant danger of psychological harm to students and fellow teachers. (See Morrison, supra, 1 Cal.3d at p. 235.)
V
It Was Not Error to Apply the Morrison Factors to the Charges in the Aggregate.
Zuber contends the trial court could not properly apply the Morrison factors to all the charges in the aggregate. However, the contention is
Moreover, Zuber‘s contention defies common sense. When a camel‘s back is broken we need not weigh each straw in its load to see which one could have done the deed. We conclude that in determining whether Zuber‘s conduct made him unfit to teach under Morrison, the trial court properly considered the totality of his offensive conduct.
DISPOSITION
The judgment is affirmed.
Davis, J., concurred.
BLEASE, Acting P. J.—I dissent.
At issue is whether to reinstate Edward F. Zuber, a dedicated but crusty teacher, or to uphold his dismissal by a school administration that failed to warn him, as required by
Zuber is a teacher whose competence is unquestioned. The trial court explicitly found his “desire . . . to properly educate his students is uncontradicted.” He taught in the Woodland School District from 1969 to 1981 without incident. He was on disability leave from 1981 until December 2, 1985, when he returned to find a new school administration. He again went on extended medical leave on December 16, 1986. Four months after going
A hearing was held before a three-member commission on professional competence (Commission). The Commission unanimously found many of the charges not to be true, and, as to others, found that Zuber was not informed of a change in school rules he violated and that he modified his conduct after being so notified. The remaining charges were found not to constitute evident unfitness for service.
The trial court disagreed with the latter conclusion, relying upon the remaining charges as evidence supporting the finding that Zuber was evidently unfit for service. It reversed the decision of the Commission.
I
The ground of discharge—evident unfitness for service—is based upon numerous acts of intemperate (and therefore unprofessional) conduct occurring over a period of one year. The school district took no action on any of these acts, suffering them to occur, without notice to Zuber that it considered them grounds of discipline, until a decision was made to cumulate them as evidence of “evident unfitness for service.” The majority opinion reasons that the notice and period for remediation, required by
The majority opinion thus permits the district to avoid the strictures of
II
The Education Code establishes a detailed procedure for the discipline of teachers.
Unprofessional conduct is given special consideration.
“The purpose [of
The question is how to apply
This reading is also impelled by the fact that
It is often said that we are to read significance into changes in the statutory language. (See, e.g., People v. Cicero (1984) 157 Cal.App.3d 465, 476-477 [204 Cal.Rptr. 582].) I do not rest the resolution of the ambiguity in
Zuber claims that the individual acts alleged and made the basis of discipline on the ground of “evident unfitness to teach” are in fact “charges of unprofessional conduct” and that he was not given the notice and opportunity for remediation required by
This reasoning ignores the question presented by Zuber, whether charges of unprofessional conduct can be acted upon without compliance with
The problem should not be resolved by the label which the school district affixes to its charging allegations. That would permit the district to avoid the notice provisions of
Feinberg held that “the notice described in section 13407 [the predecessor to
The majority opinion rejects Zuber‘s reliance upon Feinberg, with the assertion that it “is distinguishable because there the teacher was charged with ‘unprofessional conduct.‘” If that is intended to endorse the labeling device as a means of avoiding the strictures of
The majority opinion misses the point. The teacher in Feinberg was charged with a violation of unprofessional conduct in (now)
V
The majority opinion hews to the view in Fresno City High School Dist. v. De Caristo, supra, 33 Cal.App.2d 666 that each separate ground of removal “refers to some act or omission not necessarily included in any of the others.” (Id. at p. 671.) This is unobjectionable as far as it goes. However, the fact that different meanings are assigned to the subdivisions does not mean that they can never overlap the same acts or omissions and De Caristo does not stand for that proposition.
Acts that are unprofessional conduct may at the same time be evidence of evident unfitness, i.e. a fixed character trait or temperamental defect which renders the teacher incapable of avoiding acts that are unprofessional. (See, e.g., Morrison v. State Board of Education (1969) 1 Cal.3d 214, 233 [82 Cal.Rptr. 175, 461 P.2d 375] [“the prohibitions against immoral and unprofessional conduct and conduct involving moral turpitude by a teacher constitutes a general ban on conduct which would indicate his unfitness to teach“]; Tarquin v. Commission on Professional Competence (1978) 84 Cal.App.3d 251, 260 [148 Cal.Rptr. 522] [“It is true that a particular act or omission on the part of a teacher may constitute more than one of the causes for his removal specified in
The question is what to do with acts that come within both the causes of unprofessional conduct and evident unfitness in this manner. De Caristo provides an answer to that question as well, one not recognized by the majority opinion. The teacher in De Caristo was given a notice of intention to dismiss which alleged several charging allegations arising under different subdivisions of the dismissal statute analogous to
“‘4. That you have committed acts of unprofessional conduct, in that you have in the presence and hearing of pupils in the school started disputes with other teachers and severely criticized them.
“‘5. That for the causes above stated, you are evidently unfit for service, and for the further reason that you do not properly conduct yourself in the presence and hearing of pupils in and out of your classrooms, and in this connection you fly into fits of temper and rage and make unwarranted statements of abuse of pupils and teachers; that you, without cause or justification, accused the Superintendent, Principal and teachers of attempting to and persecuting you, and have made statements to such effect publicly to others.‘” (De Caristo, supra, 33 Cal.App.2d at p. 669.)
At the time the predecessor to
“The purpose [of the notice statute, then former School Code § 5.652] is to enable a permanent teacher to remedy correctable faults or defects that might be corrected in [the time allotted] and thus prevent discharge. This is in harmony with the entire purpose of the Teachers’ Tenure Act which is to insure an efficient permanent staff of teachers for our schools whose members are not dependent upon caprice for their positions as long as they conduct themselves properly and perform their duties efficiently and well.
“The [faults related in the charging allegations quoted above] relate to very serious delinquencies on the part of the teacher. They indicate a quick temper and an uncontrolled tongue. While such faults are not to be excused, often they can be corrected. Many persons have learned to curb their tempers and to control their tongues when confronted with the necessity of so doing.” (De Caristo, supra, 33 Cal.App.2d at pp. 674-675.)
What is first to be observed is that the notice requirement was found applicable to charged causes of unprofessional conduct and evident unfitness for service notwithstanding that the notice statute did not refer to them at all. If the majority opinion is right, this case turns on the simple proposition fact that unprofessional conduct was not alleged as a cause in addition to that of evident unfitness for service. But that makes no sense of De Caristo. If collective acts of unprofessional conduct can constitute evident unfitness for service without notice then the result in De Caristo should have been to predicate discipline solely upon that ground of accusation, the charge of unprofessional conduct failing for lack of notice. Instead, De Caristo reversed the disciplinary action.
De Caristo obviously does not stand for that proposition that this case can be resolved on the label affixed to the ground of discipline alleged in the accusation. I find De Caristo‘s view more pragmatic and more equitable than the circular view of the majority opinion that the notice provision serves no purpose as to a charge of “evident unfitness” because “where a flaw of temperament is the root cause of a teacher‘s bad conduct, there is no reasonable likelihood the teacher can so reform his or her temperament within 45 days as to assure the employing school district the bad conduct will not recur.” (See maj. opn., ante, at p. 1445.) There may be cases where the facts afford an inference of an irremediable defect in temperament. But with De Caristo I would say that where the school administration never draws a disciplinary line as to rudeness, the argument that notice would have served no purpose will not lie in its mouth.
The majority opinion rejects the argument that the duty to give notice should not depend upon the label attached to the offensive conduct in the charging document. It says that the argument proves too much, that “if the dissent‘s view were to prevail, notice would have to be given whenever a school district sought to discipline a teacher for refusal to obey the school laws, or for conviction of a crime involving moral turpitude, or for any of the other statutory grounds constituting de facto unprofessional conduct.” (Maj.
The point of the rule requiring notice of unprofessional conduct is to give the teacher an opportunity to avoid conduct which amounts to a cause for dismissal. If the teacher has already engaged in sufficiently egregious conduct to meet incontestably some statutory criterion for dismissal the rule is not applicable to bar dismissal. “When the reason of a rule ceases, so should the rule itself.” (
However, certain statutory criteria may only be met by multiple instances of misconduct (unprofessional conduct, persistent violation of school laws) and others such as evident unfitness for service at least ordinarily will require such multiple acts or omissions. The notice argument does not “prove too much,” for it is only applicable to these latter circumstances. It is notable, as the trial court found, that there is no tenable claim that any one of Zuber‘s acts of unprofessional conduct taken in isolation would afford an inference of evident unfitness for service.
In this circumstance the result is to permit the avoidance of
The majority suggests that Zuber‘s behavior indicates “a fixed character trait, presumably not remediable merely on receipt of notice that one‘s conduct fails to meet the expectations of the employing school district.” (Maj. opn., ante, at p. 1444, italics added.) The presumption that ought to be indulged in light of
The policy of
The majority opinion misses the point of notice in deriding Zuber‘s claim that he needed to be warned that his behavior was unprofessional on the ground that he must have known his conduct was wrongful. The purpose of the notice requirement is not to inform about abstract mores, telling an uncouth teacher what is nice behavior and what is naughty behavior. It is performative—a warning—shape up or we will ship you out. Failing to give notice within the requisite time or to make a lawful record in the personnel file in keeping with
There is a place for righteous anger in the education system, albeit when displayed in an unprofessional manner, as here, it can lawfully be suppressed by disciplinary means. However, it is not an unduly burdensome requirement to ask the school administration to warn a teacher who crosses its line of unacceptable behavior before acting to dismiss him.
The core of De Caristo‘s reasoning on this point has been applied under language parallel to the present formulation of the notice statute in Feinberg, supra. In that case the school district “sought and was granted judicial authorization to discharge appellant upon grounds of unprofessional conduct, evident unfitness for service, and persistent violation of school laws and regulations.” (37 Cal.App.3d at p. 921.) The notice statute then provided, “‘Unprofessional conduct’ and ‘incompetency’ as used in this section means, and refers only to, the unprofessional conduct and incompetency particularly specified as a cause for dismissal in Section 13403 [the dismissal section; now
“Here, the great bulk of the specific deficiencies charged and proven against appellant fall within the term ‘unprofessional conduct,’ even though they may also go to establish either ‘evident unfitness’ or ‘persistent disregard of regulations.’ It follows that we cannot attribute the judgment to grounds other than unprofessional conduct, and must reverse the judgment in its entirety (see [De Caristo], decided under a predecessor statute).” (Feinberg, supra, 37 Cal.App.3d at pp. 922-923.)
As related, the majority opinion cursorily dismisses Zuber‘s reliance upon Feinberg with the assertion that it “is distinguishable because there the teacher was charged with unprofessional conduct.” (Maj. opn., ante, at p. 1448.) This is a difference without a principled distinction. (See McKee v. Commission on Professional Competence (1981) 114 Cal.App.3d 718, 721-722 [171 Cal.Rptr. 81] [“Failure to give the teacher such minimum written notice will deprive the district of authority to discharge a teacher on grounds of unprofessional conduct or unfitness for service.“], citing Feinberg, italics added.) Plainly, under the logic of the majority opinion the correct action in Feinberg would have been to reverse the judgment not “in its entirety” but only insofar as it purported to justify the action of dismissal under the label of unprofessional conduct. The majority opinion would permit “astute counsel” to evade De Caristo and Feinberg by simply choosing to omit appending the label of unprofessional conduct to the acts alleged in the accusatory pleading.
This is not in keeping with our code pleading theory nor the thrust of these precedents. The majority opinion should have faced up to its disagreement with these precedents rather than purporting to distinguish them.
For the reasons given I would not take the majority‘s course.3 The existing provisions of the Education Code under which Feinberg was decided are
substantially similar to the present pertinent provisions of the Education Code. There is no indication in the present language that the rule of these precedents has been found unsatisfactory by the Legislature. The only textual indication is to the contrary. We are directed to construe the present statutes as restatements and continuations of their predecessors. (
I would reverse the judgment.
The petition of real party in interest for review by the Supreme Court was denied April 23, 1992. Mosk, J., and Panelli, J., were of the opinion that the petition should be granted.
Notes
“(1) Immoral or unprofessional conduct.
“(2) Commission, aiding, or advocating the commission of acts of criminal syndicalism, as prohibited by Chapter 188, Statutes of 1919, or in any amendment thereof.
“(3) Dishonesty.
“(4) Incompetency.
“(5) Evident unfitness for service.
“(6) Physical or mental condition unfitting him to instruct or associate with children.
“(7) Persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the State Board of Education or by the governing board of the school district employing him.
“(8) Conviction of a felony or of any crime involving moral turpitude.
“(9) Violation of Section 51530 of this code or conduct specified in Section 1028 of the Government Code, added by Chapter 1418 of the Statutes of 1947.
“(10) Violation of any provision in Sections 7001 to 7007, inclusive, of this code.
“(11) Knowing membership by the employee in the Communist Party.
“(12) Alcoholism or other drug abuse which makes the employee unfit to instruct or associate with children.” Education Code section 44933 provides in pertinent part, “A permanent employee may be dismissed . . . on grounds of unprofessional conduct consisting of acts or omissions other than those specified in Section 44932, but any such charge shall specify instances of behavior deemed to constitute unprofessional conduct.”