Gilbaugh v. Bautzer

• Decision Date: 22 January 1970
• Citation: 83 Cal.Rptr. 806,3 Cal.App.3d 793
• Parties: John W. GILBAUGH, Plaintiff and Appellant, v. Gregson E. BAUTZER et al., Defendants and Respondents. Civ. 26315.
• Court: California Court of Appeals Court of Appeals

Page 806

83 Cal.Rptr. 806

3 Cal.App.3d 793

John W. GILBAUGH, Plaintiff and Appellant, v. Gregson E. BAUTZER et al., Defendants and Respondents.

Civ. 26315.

Court of Appeal, First District, Division 3, California.

Jan. 22, 1970.

Thomas C. Lynch, Atty. Gen., Jan S. Stevens, Deputy Atty. Gen., Sacramento, for defendants and respondents.

DRAPER, Presiding Justice.

Appellant Gilbaugh became an associate professor of education at San Jose State College in 1956. In 1959, the year in which he attained tenure as a teacher, he was appointed dean and academic vice president of the college. He held that position until September 1, 1966, when he was reassigned by the president to the position of professor of education. This, of course, transferred him from the administrative to the academic field, and resulted also in a reduction of salary from $21,960 to $16,212 per year. He requested a hearing (Ed.Code, §§ 22607, 24308, 24309, and Cal.Admin.Code, Title 5, § 43501) on the sole question whether his new position was commensurate with his qualifications. The Trustees of the California State Colleges appointed a review board, which held full hearings and recommended affirmance of the reassignment. The trustees then heard appellant, and adopted the recommendation of the review board. Appellant brought this proceeding in mandamus against the college president and the trustees. After full hearing, the trial court denied relief. This appeal followed.

Appellant first argues that the trustees are without power to reassign him. He concedes that tenure gives him no right to a particular compensation. The concession is compelled (see, e.g. Butterworth v. Boyd, 12 Cal.2d 140, 150, 152, 82 P.2d 434, 126 A.L.R. 838; Taylor v. Board of Education, 31 Cal.App.2d 734, 742--743, 89 P.2d 148 (hearing den.)). Nor does he deny that the statute (Ed.Code, § 22607) authorized reassignment. That section requires the trustees to 'provide * * * academic and administrative * * * personnel with personnel rights and benefits at least equal to those accumulated by them as employees of the state colleges, Except that any administrative employee may be reassigned to an academic or other position commensurate with his qualification at the salary fixed for that position * * *' (Emphasis added.) He argues, however, that this section ceased to have any effect as of July 1, 1962. If he is correct, the section could not support his 1966 reassignment.

It is quite true that the Donohoe Higher Education Act (Stats.1960, 1st Ex.Sess., ch. 49) established the Trustees of the California State Colleges and provided for transfer of the state colleges to that board from the State Board of Education on and after July 1, 1961. This act provided a substantial framework for the transfer, but left much detail to be fleshed out. These additional elements were provided at the 1961 session by extensive amendments. Many of these provisions were but interim regulations, designed to cover only the period ending July 1, 1962, allowed for transfer of control of the colleges. We note, however, that the Legislature when it desired to give a provision only interim application, specifically so provided. For example, sections 24320--25324 of the Education Code (Part 4, Div. 18, Art. 3) froze tenure rights for one year, but specifically stated that 'This Article shall remain in effect until July 1, 1962, and thereafter shall have no force or effect.' Section 22607, although reenacted with amendments not relevant to the issue here, continues to the present time to provide specifically for the reassignment of administrative personnel.

We cannot accept appellant's argument that section 22607 expired July 1, 1962. The legislative care in expressly limiting the operative period of some sections necessarily implies an intent to give continuing effect to sections not so limited. Appellant quite correctly points out that Chapter 3 of Division 16.5 of the Education Code (§§ 22600--22607) is designed to effectuate the transfer of employees from the old system to the new. It does not follow, however, that all sections of that chapter operate only to July 1, 1962. On the contrary, the provisions for composition of the board (§ 22601.5), terms of trustees (§ 22604), independence from political and sectarian influence (§ 22605), among others, clearly are designed to operate permanently rather than for a limited time. Section 22607...