Bekiaris v. Board of Education

• Decision Date: 09 February 1972
• Docket Number: S.F. 22805
• Citation: 6 Cal.3d 575,493 P.2d 480,100 Cal.Rptr. 16
• Court: California Supreme Court
• Parties: , 493 P.2d 480 Christo Tom BEKIARIS, Plaintiff and Appellant, v. BOARD OF EDUCATION OF the CITY OF MODESTO, Defendant and Respondent. In Bank

Page 16

100 Cal.Rptr. 16

6 Cal.3d 575, 493 P.2d 480

Christo Tom BEKIARIS, Plaintiff and Appellant, v. BOARD OF EDUCATION OF the CITY OF MODESTO, Defendant and Respondent.

S.F. 22805.

Supreme Court of California,

In Bank.

Feb. 9, 1972.

Levy & Van Bourg, Victor J. Van Bourg and Stewart Weinberg, San Francisco, for plaintiff and appellant.

Paul N. Halvonik and Charles C. Marson, San Francisco, as amici curiae on behalf of plaintiff and appellant.

T. W. Martz, County Counsel, Jonathan H. Rowell, Asst. County Counsel, John F. Christensen and Harry P. Drabkin, Deputy County Counsels, for defendant and respondent.

SULLIVAN, Justice.

Plaintiff Christo Tom Bekiaris (hereinafter referred to as petitioner) appeals from a judgment denying a writ of mandate to compel defendant Board of Education of the City of Modesto (Board) to set aside his allegedly wrongful dismissal from employment and to reimburse him for damages suffered by reason of lost employment. For the reasons explained below we hold that the judgment must be reversed because the trial court and the Board failed to resolve petitioner's contention that the true reason for his dismissal was the Board's disapproval of his exercise of First Amendment rights through out-of-school political activities.

Petitioner, a probationary teacher at Thomas Downey High School in Modesto, was originally hired for the 1967--1968 school year, and was rehired for the following year. However, on March 4, 1969, petitioner received notice of the recommendation that his employment not be continued for the 1969--1970 school year. Pursuant to Education Code section 13443, ¹ he requested a hearing in the matter, and, on March 10, 1969, was served with an accusation ² and notice of hearing.

The hearing was held on April 7, 1969, before a hearing officer provided by the state Office of Administrative Procedure. At the hearing, two witnesses testified in support of the accusation against petitioner. Evelyn Hanshaw, the director of curriculum, stated that in September 1968 she had requested petitioner to supply her with a course outline. She said that petitioner had responded by submitting a copy of a course outline used in prior years which she had sent him as an example of a course outline. To this outline, petitioner had appended a list of film strips which had been prepared by another teacher for a summer school program. By contrast, Mrs. Hanshaw indicated, a team of instructors teaching the same course had submitted a very lengthy and detailed course outline. However, on cross-examination, Mrs. Hanshaw stated that she had never told petitioner that she thought his outline was inadequate.

Hazel Gotshall, the assistant principal in charge of instruction, stated that on three occasions she had visited petitioner's classroom. On each occasion she found that petitioner conducted the class primarily as a lecture session, that there was little student participation, that the students had not been properly prepared for the class, and that the material covered was too advanced for the 'Y-E', or low-average students composing the class. Mrs. Gotshall testified that after each visit she spoke to petitioner and advised him of the inadequacies of his teaching methods. She also stated that during the 1967--1968 school year, petitioner had been one of three instructors team-teaching a government-in-action course, that there had been dissension among the members of the team, and that, in an attempt to improve the situation, petitioner, the junior teacher, had been taken off the team. Thereafter, the team functioned more smoothly.

On cross-examination, Mrs. Gotshall stated that she had evaluated petitioner's performance twice during the 1967--1968 school year; the first time, she had rated him as a 'good' teacher; the second time, as 'satisfactory.' Mrs. Gotshall also testified that she felt that petitioner had indicated his personal views to the class on several controversial social issues, such as homosexuality. She said that she had raised several questions as to these views during the classes she visited.

Petitioner presented several witnesses to rebut the charges of the accusation. Two of petitioner's former students testified about the visits of Mrs. Gotshall to their classes. They stated that toward the end of the class period, Mrs. Gotshall had begun questioning petitioner in a derogatory manner which petitioner and the class found disconcerting. Ed Maurice, another teacher with a class including 'Y' students, stated that he had used some materials which Mrs. Gotshall found too advanced for petitioner's 'Y' students. Robert Jackson, an instructor team-teaching government in action, testified that petitioner had not been responsible for the dissension which had developed on the team in the 1967--1968 school year, but that such dissension had been caused by the differing political views held by the other members of the team.

In his own testimony, petitioner denied the charges of the accusation, and confirmed the testimony of the other witnesses in his behalf. Petitioner admitted that he had requested the opportunity to have a witness present at meetings with the school administration, but stated that he thought he had a legal right to do so, and that, in any event, no one had ever objected to his request.

During the cross-examination of Mrs. Gotshall, petitioner attempted to elicit testimony proving his contention that the true reason for the recommendation that he not be rehired was dissatisfaction with his political activities--including his appearance before the Modesto City Council on behalf of the Peace and Freedom Party and his letters to the editor of the Modesto Bee expressing political views. The county counsel, representing the Board, objected to this line of questioning, and the hearing officer, relying upon Neely v. California State Personnel Bd. (1965) 237 Cal.App.2d 487, 493--494, 47 Cal.Rptr. 64, ruled that the motivations of petitioner's superiors in bringing the disciplinary action were not material 'providing that the facts are such as would justify that disciplinary action.' ³ However, the hearing officer also held that testimony regarding the motivations of petitioner's superiors would be material and admissible 'if it has a direct bearing upon the credibility of their evidence.' Under this ruling the following evidence was admitted Only for impeachment purposes.

Upon cross-examination Mrs. Gotshall admitted that she had spoken with Mr. Olson, the school's principal, about petitioner's appearance before the Modesto City Council and about the letters which petitioner had written to the editor of the Modesto Bee.

Petitioner testified that on several occasions Mr. Olson had told him to stop writing letters to the paper and threatened that, if he did not and continued to take extreme positions, he would not be rehired. According to petitioner, Mr. Olson also stated that petitioner's participation on Armed Forces Day in a nonviolent demonstration against weapons 'was not helping (his) situation at (Thomas) Downey (High School).' Petitioner testified that on other occasions Mr. Olson had asked him why he was 'continually taking extreme . . . positions and involving (himself) with minorities' like Negroes, and had questioned his appearance before the city council, since it seemed that he was 'protecting criminals.' Mr. Olson also ordered him to remove from his car several bumper stickers which indicated support for farm workers and the Peace and Freedom Party. Finally, petitioner stated that Mr. Olson had said that he felt petitioner would do better in another community, but that he would not give him a recommendation since petitioner was not an objective teacher.

Called as a witness by petitioner, Robert Elliott, former director of personnel for the district, testified that petitioner's personnel file contained material concerning his appearance before the city council and his letters to the editor. He also stated that petitioner's activities had prompted the personnel office to write a letter to the county counsel inquiring whether a teacher could be fired for writing letters to newspapers. The response of the county counsel had been that a teacher could be fired only on the basis of his teaching.

The Board offered no evidence to rebut any of the foregoing testimony.

On April 9, 1969, the hearing officer filed his proposed decision. He found that the evidence was insufficient to support any of the charges made in the accusation. He recommended that the Board find that '(t)he evidence did not establish that sufficient cause exists to refuse to reemploy (Bekiaris) for the school year 1969--70' and that it order that '(t)he recommendation that (Bekiaris) not be reemployed to serve in the Modesto High School District for the school year 1969--70 is disapproved.' Because of this determination the hearing officer was not required to reach petitioner's contention that he had been dismissed for the exercise of his constitutional rights. However, as indicated above (fn. 3, Ante), the hearing officer was of the view that this issue was not properly before him in any event.

The Board declined to adopt the hearing officer's proposed decision. Instead, acting pursuant to section 11517, subdivision (c), of the Government Code, ⁴ it reviewed the record of the hearing and, without taking additional evidence, concluded that certain charges against petitioner were supported by the evidence ⁵ and constituted sufficient cause to refuse to rehire him. Although petitioner appeared through counsel before the Board and argued that the real reason for his dismissal by school authorities was dissatisfaction with his political activities--and although petitioner submitted comprehensive points and authorities to the effect that dismissal for such a reason was improper--the Board failed to make a finding on the issue thus raised.

Petitioner filed a petition for a writ of...