Frates v. Burnett
| Decision Date | 24 June 1970 |
| Citation | 87 Cal.Rptr. 731,9 Cal.App.3d 63 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Frederick FRATES, Petitioner and Respondent, v. David W. BURNETT, Folsom-Cordova Joint Unified School Dist., et al., Defendants and Appellants. Civ. 12236. |
John B. Heinrich, County Counsel, Sacramento, for defendants and appellants.
Kronick, Moskovitz & Vanderlaan, Sacramento, for petitioner and respondent.
Defendants appeal from a judgment granting a peremptory writ of mandate compelling the Board of Education of Folsom-Cordova Joint Unified School District (hereinafter 'District') to reinstate petitioner in his job of maintenance mechanic.
1. The District's disciplinary proceedings rules do not comply with section 13583 Education Code.
2. Petitioner was denied the benefit of District's rule 4219.6.
3. The denial of procedural due process was prejudicial.
Petitioner, 61 years old, has served the District as a maintenance mechanic for some 12 years. As will hereinafter appear, certain disciplinary proceedings were taken against him by District resulting in his dismissal. He petitioned the Sacramento County Superior Court to set aside the dismissal and to reinstate him in his former position. After a hearing the court found that the District's disciplinary rules did not comply with the requirements of section 13583 of the Education Code; that the District did not comply with its own rule 4219.6; and that petitioner was improperly discharged. Thereupon, a peremptory writ was issued commanding petitioner to be restored to his former position.
There is no dispute as to the facts of the proceedings taken. About June 7, 1967, District's administrative staff received information that petitioner, who had never theretofore suffered disciplinary proceedings, had been frequenting the Aero Club, a bar and restaurant in Sacramento, during working hours of the months of April, May and June. On June 14 a meeting was held between petitioner and District personnel, at which facts of his behavior were discussed. On June 20 at an executive meeting of the District's Board of Education the superintendent conveyed to it his information and belief that petitioner had been frequenting a bar. The board then dismissed petitioner, effective the following day. On June 21 petitioner was handed a handwritten letter informing him of his dismissal and of his right to present his case in person within five days to the superintendent, and if the case were not adjusted to his satisfaction, he could appeal to the District's board whose decision would be final. Petitioner met with the superintendent who advised him that he could do nothing to change the board's decision as he had no authority to do so. Petitioner then appealed to the board.
On August 15 the hearing of petitioner's appeal was heard. Petitioner raised the contention that the board's dismissal of him had deprived him of the right to present his case to the superintendent for independent adjustment and that the proceedings were invalid. The board denied his contention and proceeded with the hearing.
A brother of the superintendent, who works near the Aero Club, testified that during a two-month period he had noticed petitioner parking the District pickup truck in the vicinity of the club for one to two hours at a time approximately three times a week. Although he saw petitioner enter the bar occasionally, he assumed that petitioner was in the bar on all occasions when the pickup was parked nearby. On one occasion petitioner's immediate superior observed petitioner come out of the club at 10:55 a.m., go back inside, come out again, get into the District's pickup and drive off. Petitioner was an 'expediter' whose duties basically were to ascertain and procure materials needed by the District mechanics.
Petitioner testified that the club was owned by his sister whose husband had died some four or five months previously. The club is closely located to many of the suppliers whom petitioner was required to contact and from whom he picked up parts. Two of them were located a block or less away. On occasions petitioner would park the pickup in a yellow loading zone across the street from the club and walk to these two firms. He would frequently take his coffee break at the club, drinking only coffee (because of a physical condition he did not drink alcoholic drinks), and then return for lunch. There was no evidence that he consumed alcoholic liquor at the club, nor was there any testimony that his spending his coffee break and lunch time at the club violated any District policy. When a supplier could not deliver to him a required part or equipment immediately, he would call into the District office and was instructed to stay in Sacramento until the item could be picked up. On these occasions he waited at the club. His superior testified that while he could not recall any specific occasion when he instructed petitioner to remain in Sacramento, he would not deny that such an instruction might have been given.
Petitioner testified that on one occasion when he was at the club for coffee he was approached by a realtor concerning the sale of the bar. Petitioner's sister had asked him to help her dispose of the bar. On that occasion he remained there for approximately an hour and 15 minutes. Petitioner's superior testified that in his opinion petitioner had never taken any unusual amount of time in completing the work assigned to him; that petitioner was entitled to a coffee break and had never appeared at work after consuming alcohol. On this evidence the board ordered his dismissal, informing him that the dismissal was due to (1) excessive absence from work, (2) incompetence, and (3) conduct prejudicial to the relationship of the District with the public.
Surprisingly the court on the mandate hearing, although it held that the board's proceedings violated section 13583 of the Education Code and its own rule 4219.6 and ordered petitioner restored to his position, found that the record supported a finding that petitioner was guilty of the three derelictions above mentioned.
That section reads in pertinent part:
'* * *f w
'This section shall apply only to districts not incorporating the merit system as outlined in Article 5 (commencing with Section 13701) of this chapter.' (Emphasis added.)
Appellant District has not incorporated the merit system.
Pursuant to this statute District enacted the following personnel rules set forth here in part:
'Termination of Employment
'* * *ati
'B. Dismissal for Cause. Dismissal for cause may be made without the usual two weeks notice. It is understood that the District has the right to discharge a permanent employee at any time for just and sufficient cause, and that the employee shall have the right (as herein provided) to a hearing in the event of such discharge. Just and sufficient causes for immediate discharge include, but are not limited to, the following:
'1. Excessive absence from work.
'2. Incompetence.
'* * *com
'11. Conduct prejudicial to the relations of the district with the public. (Rule 4219.5)
'Appeal Against Dismissal
'Any classified employee dismissed for cause, who believes that he has been unjustly dealt with or that any regulation has not been properly applied or interpreted, shall be entitled to present his case in person to the superintendent within 5 days.
(Emphasis added.) (Rule 4219.6)
It will be noted that the District rules clearly do not comply with section 13583. That section requires a provision in the rules that the employee to be disciplined be given a hearing prior to discipline, preceded by a notice in writing of the specific charges against him.
Rule 4219.5 adopted by the District provides in effect that the employee may be dismissed without notice and a hearing, but after dismissal he may 'present his case' to the superintendent. Such presentation is referred to as a 'conference.' If the case is not 'adjusted' to his satisfaction, he may appeal to the board which has already dismissed him.
It has been held that 'Rules and regulations adopted by a Board of Education are, in effect, a part of a teacher's employment contract and the teacher is entitled to their enforcement.' (American Federation of Teachers v. Oakland Unified School Dist. (1967) 251 Cal.App.2d 91, 97, 59 Cal.Rptr. 85, 89; Heckley v. Board of Education (1959) 53 Cal.2d 218, 220--221, 1 Cal.Rptr. 4, 347 P.2d 4.) Although this rule has been made on behalf of teachers, no distinction is seen between a teacher and a classified employee of the District.
An employment contract between a school district and an employee is in essence a contract of adhesion and...
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