Crowl v. Commission On Professional Competence

• Decision Date: 16 November 1990
• Docket Number: No. C006788,C006788
• Citation: 275 Cal.Rptr. 86,225 Cal.App.3d 334
• Court: California Court of Appeals Court of Appeals
• Parties: , 63 Ed. Law Rep. 972 Don CROWL, Plaintiff and Appellant, v. COMMISSION ON PROFESSIONAL COMPETENCE OF THE GOVERNING BOARD OF THE SAN JUAN UNIFIED SCHOOL DISTRICT et al., Defendants; SAN JUAN UNIFIED SCHOOL DISTRICT, Real Party in Interest and Respondent.

Page 86

275 Cal.Rptr. 86

225 Cal.App.3d 334, 63 Ed. Law Rep. 972

Don CROWL, Plaintiff and Appellant, v. COMMISSION ON PROFESSIONAL COMPETENCE OF THE GOVERNING BOARD OF THE SAN JUAN UNIFIED SCHOOL DISTRICT et al., Defendants SAN JUAN UNIFIED SCHOOL DISTRICT, Real Party in Interest and Respondent.

No. C006788.

Court of Appeal, Third District, California.

Nov. 16, 1990.

Marcus Vanderlaan, Carmichael, for plaintiff and appellant.

Kronick, Moskovitz, Tiedemann & Girard and Linda S. Somers, Sacramento, for real party in interest and respondent.

SIMS, Associate Justice.

Education Code section 44938, subdivision (a), provides in relevant part: "The governing board of any school district shall not act upon any charges of unprofessional conduct unless at least 45 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unprofessional conduct, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for such charge...." (All further undesignated statutory references are to the Education Code.) The principal question in this case is whether a school district "act[s] upon any charges of unprofessional conduct" when it suspends a teacher from employment for unprofessional conduct. We conclude it does, so that the notice prescribed by section 44938 must be given.

Don Crowl, a permanent certificated employee of respondent San Juan Unified School District (District), was ordered suspended for 15 days without pay for unprofessional conduct (§ 44932, subd. (b)) following a hearing before the Commission on Professional Competence (Commission). ¹

Crowl filed a petition for writ of mandate in superior court. The trial court issued a statement of decision denying the petition and entered judgment for the District. We shall reverse the judgment and direct the trial court to grant Crowl's petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

We state the facts in the light most favorable to the judgment, resolving all conflicts in the evidence in favor of the District. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362.) We begin with the incident that precipitated the District's action, then discuss the earlier incidents mentioned in the District's notice to Crowl.

1. The Weber Incident.

On September 12, 1986, a campus monitor requested Crowl's help in taking a student, Rudy German, to the principal's office. The monitor asked Crowl, who was the football and wrestling coach at San Juan High School, to help her because she had heard German might give her trouble.

As they were walking down the hall, the lunch bell rang and the halls became crowded. Students were standing at the end of the hallway in front of the door where the monitor was supposed to pick up German. Students were yelling and German appeared to be facing off as if to fight, but the monitor saw no one actually raising his fists.

Chris Weber, a friend of German, intended to back him up in any fight that might develop. When he went into the hallway with German, however, the students from whom German and Weber expected trouble were not there.

The monitor put her hand on German's shoulder and said "Come with me." He complied. As they were walking away, she told Crowl she no longer needed his help, but she didn't know whether he heard her.

Weber saw Crowl grab German and proceed down the hall with him, Crowl on one side of him and the monitor on the other. Weber followed and said twice: "Rudy didn't do fucking shit." Crowl turned around and ordered Weber to go to the principal's office. Weber said no. Crowl repeated the order and grabbed Weber's right forearm. Weber pulled his arm away. While Crowl's attention was distracted by another student, Weber walked away about 15 feet to his locker.

Crowl came up behind Weber at his locker. Weber still refused to come along with him, saying "Fuck you, I don't have to do what you want me to do." Crowl reached up and put his forearm around the front of Weber's neck. ² Weber lost consciousness briefly. After Crowl and another teacher picked him up, Crowl took Weber to the principal's office with his arm held behind his back.

When Weber's father learned of the incident he called the sheriff's office, believing his son had been assaulted. Weber later transferred to another high school because his father did not feel it was safe for him to remain at San Juan.

Elizabeth Hofmann, the principal of San Juan High School, testified that a teacher should never use physical force on a student unless the student is in danger of hurting himself, another student, or the teacher. It is inappropriate to grab students to detain them. If a student directs four-letter words at a teacher (a not uncommon event), the student may be suspended or otherwise punished, but such conduct

does not entitle the teacher to use force against the student.

2. The Coley Incident.

In April 1985, Trevor Coley, a student in Crowl's class, refused to stop talking after Crowl told him several times to be quiet. Crowl called him out of class and the two walked down the hall to the boys' restroom. Crowl followed Coley into the restroom, shoved him against the wall, then put one hand around Coley's throat. He ordered Coley not to misbehave in his class again. He released Coley and they returned to the classroom. After class Coley went to the office complaining his neck hurt. Other people told him his neck was all red. ³ Coley was uncomfortable around Crowl for the next day or two.

Charles Berger, then principal of San Juan High School, sent Crowl a letter informing him that the use of physical force on a student was permissible only where the student's or the teacher's safety was in question and warning him that a second incident could result in disciplinary action.

3. The Lorrekovich Incident.

On November 18, 1983, Jacqueline Lorrekovich, a student at San Juan High School, celebrated her 14th birthday. Her sister's boyfriend Dave Raby was a member of the school wrestling team, coached by Crowl. Raby had told her shortly before her birthday that the coach had a custom of spanking the team members on their birthdays and that they were going to "get her in there" on her birthday. She replied, "Oh, no you're not."

On Jacqueline's birthday her sister, Raby, and others took her to Crowl's classroom at lunchtime, promising her a "joke." After she entered the room, she was held down on a table while Crowl hit her several times with a paddle. ⁴ When the spanking ended Jacqueline ran out of the room in tears and called her mother to pick her up.

The next day it was painful for Jacqueline to sit down. She and her mother observed bruises from the spanking.

Mrs. Lorrekovich testified she had never given the District permission to use corporal punishment on her daughter.

Mrs. Lorrekovich wrote a letter to the principal complaining of Crowl's conduct. Crowl wrote a letter to the principal apologizing for his actions and promising they would not recur.

B. Procedure

On October 23, 1986, Crowl was served with a "Notice of Deficiencies/Unprofessional Conduct" pursuant to section 44938, informing him of the District's intention to take disciplinary action against him based on the three incidents discussed above. The Weber incident, the most recent, was termed the most significant. The notice concluded: "By law you cannot be suspended or terminated from your employment with this district for unprofessional conduct for at least 45 days from the issuance of this letter. At the conclusion of that 45-day period, you can expect disciplinary action to be imposed which will consist of at least your suspension from employment with this district, if not your termination.... At the end of the 45-day period, appropriate disciplinary action will be recommended to the school board." (Emphasis added.)

On January 14, 1987, Crowl was served with a Notice of Intention to Suspend, listing the three charges mentioned in the previous notice as grounds for the disciplinary action. ⁵

Crowl requested a hearing before the Commission. The District filed an accusation with the Commission in response.

Before the hearing began Crowl moved to dismiss the accusation on the grounds that the District had failed to comply with During the hearing, counsel for the parties stipulated that Crowl had totally remedied his conduct after receiving the original notice from the District and had committed no acts since then similar to those which prompted the notice.

section 44938. The Commission denied the motion.

After the hearing, the Commission issued a decision in favor of the District.

Crowl filed a petition for writ of mandate in superior court. He later filed a "First Amended and Supplemental Petition for Writ of Mandate," which became the basis of the proceedings in the trial court.

The District filed an unverified answer to the amended petition.

After briefing was completed, the trial court held a hearing and took the matter under submission.

The trial court subsequently issued a tentative decision upholding the action of the Commission. The court held that the notice requirement of section 44938 was inapplicable to suspensions and that its independent review of the record showed the Commission's findings were supported by the weight of the evidence.

The trial court thereafter filed its statement of decision, which did not differ materially from the tentative decision. The trial court subsequently entered judgment for the District. This appeal followed.

Crowl contends principally: (1) the District's "Notice of Deficiencies/Unprofessional Conduct" was fatally defective for failure to comply with section 44938 because it made no reference to a remediation period in which Crowl could correct his...