Governing Board v. Felt

• Decision Date: 10 February 1976
• Citation: 127 Cal.Rptr. 381,55 Cal.App.3d 156
• Court: California Court of Appeals Court of Appeals
• Parties: GOVERNING BOARD OF the PALOS VERDES PENINSULA UNIFIED SCHOOL DISTRICT OF LOS ANGELES COUNTY, Plaintiff and Respondent, v. Faith M. FELT, a Certificated Employee of Plaintiff, Defendant and Appellant. Civ. 45437.

Page 381

127 Cal.Rptr. 381

55 Cal.App.3d 156

GOVERNING BOARD OF the PALOS VERDES PENINSULA UNIFIED SCHOOL DISTRICT OF LOS ANGELES COUNTY, Plaintiff and Respondent, v. Faith M. FELT, a Certificated Employee of Plaintiff, Defendant and Appellant.

Civ. 45437.

Court of Appeal, Second District, Division 1, California.

Feb. 10, 1976.

Hearing Denied April 8, 1976.

Trygstad & Odell and Lawrence B. Trygstad, Los Angeles, for defendant-appellant.

John H. Larson, County Counsel, and Audrey Oliver, Deputy County Counsel, Los Angeles, for plaintiff-respondent.

THOMPSON, Associate Justice.

Education Code section 13413 provides that if administrative proceedings are commenced to dismiss a premanently tenured teacher and a hearing is demanded, the hearing 'shall be commenced within 60 days from the date of the . . . demand for a hearing.' Government Code section 11509, applicable to administrative proceedings involving tenured teachers, states: 'The agency shall deliver or mail a notice of hearing to all parties at least 10 days prior to the hearing.'

In this appeal from a judgment granting a writ of mandate pursuant to Code of Civil Procedure section 1085, we conclude that Education Code section 13413 means what it says but that commencement of hearing within the statutory period was excused because the Commission on Professional Competence erroneously determined that the 10-day notice had not been given. Accordingly, we affirm a judgment ordering the commission to continue with a hearing demanded by a teacher threatened with dismissal.

The Statutory Scheme

Education Code section 13403 establishes the grounds of dismissal of a tenured school district employee. Those grounds include 'unprofessional conduct,' 'evident unfitness for service,' and 'persistent . . . refusal to obey the school laws . . . or reasonable regulations . . ..' Section 13407 of that code precludes a school district from acting upon a charge of unprofessional conduct or incompetence unless it has given the employee an opportunity to correct his faults by notice of the charges during the preceding term at least 90 days prior to the school district's proceeding further with action to dismiss. If the school district deems that the employee has not corrected his unprofessional conduct or incompetency or if it determines to dismiss him on other grounds, section 13404 of the Education Code requires that the governing board of the school district give notice to the employee of its intention to dismiss him at the expiration of 30 days unless the employee demands a hearing. Section 13405 requires that the notice be given at a time other than between May 15 and September 15, that it be in writing, and that it be served upon the employee personally or by registered mail.

Education Code section 13412 provides that if the tenured employee demands a hearing, the governing board shall have the option of rescinding its action or of scheduling a hearing. Section 13413 states: 'In the event a hearing is requested by the employee, the hearing shall be commenced within 60 days from the date of the employee's demand for a hearing. The hearing shall be conducted and a decision made in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the Commission on Professional Competence shall have all the power granted to an agency therein . . .. ( ) . . . No testimony shall be given or evidence introduced relating to matters which occurred more than four years prior to the date of the filing of the notice.'

Government Code sections 11505, 11506, and 11509 are included within Chapter 5 of Part 1 of Division 3 of Title 2 of that code. Section 11505 requires the service of an accusation upon the employee personally or by registered mail. Section 11506 permits the employee to file a notice of defense within 15 days after service upon him of the accusation. Section 11509 states: 'The agency shall deliver or mail a notice of hearing to all parties at least 10 days prior to the hearing. The hearing shall not be prior to the expiration of the time within which the (employee) is entitled to file a notice of defense.'

Facts

Faith M. Felt is a tenured teacher of the Palos Verdes Peninsula Unified School District. On April 25, 1973, she was given the notice of unprofessional conduct and incompetence required by Education Code section 13407. The district served a notice of intention to dismiss upon Mrs. Felt on January 8, 1974. On January 25, 1974, Mrs. Felt served her demand for a hearing. On February 20, the district served its notice of accusation upon her. On February 25, Mrs. Felt filed her notice of defense. On Thursday, March 7, 1974, the district mailed to Mrs. Felt a notice of hearing set for March 19 before the Commission on Professional Competence. While Mrs. Felt had given her address to the district as Suite 312, 1730 West Olympic Boulevard, the notice was addressed to Suite 304, 19730 West Olympic Boulevard. Insufficient postage was attached to the envelope containing the notice of hearing. On Monday, March 11, eight days before the date of the hearing, the notice was actually received by Mrs. Felt's agent who paid 20 cents postage due.

On March 19, Mrs. Felt appeared with counsel before the commission. Her counsel announced to the commission that he was specially appearing to object to the notice and accompanied that statement with a written 'special appearance,' motion to dismiss, and points and authorities. The hearing officer noted that the document had been filed 'prior to the commencement of the hearing' and heard argument on the issues raised by it. Over the objection of counsel for the district that Mrs. Felt had known of the date of the hearing for some time prior to the notice being sent, the commission determined that the date of the hearing should be continued. The commission refused to dismiss the proceeding as requested by Mrs. Felt.

At the request of counsel for the district, the commission again heard the matter on March 26. At that proceeding, the district sought a factual finding that the hearing had actually commenced on March 19. The commission determined that the hearing had not commenced on that date.

On March 27, 1974, the district filed the petition for writ of mandate which began the case at bench. The petition, filed pursuant to Code of Civil Procedure section 1085, sought an order of the superior court directing the commission to proceed with the hearing on the charges against Mrs. Felt. Concluding that the notice had been received in the ordinary course of mail and that it was hence legally adequate and that the 60-day period for commencing the hearing was not mandatory or jurisdictional, the superior court issued its peremptory writ of mandate requiring the commission 'to forthwith commence the hearing in the matter of Faith Felt.'

Contentions

In this appeal from that judgment, Mrs. Felt contends: (1) the commission correctly determined that by reason of inadequate notice to Mrs. Felt the hearing could not commence on the date scheduled; (2) since the hearing did not commence within the 60-day period required by Education Code section 13413, the commission lacked power to proceed further on the accusation; (3) findings of fact of the trial court are not supported by substantial evidence; (4) the district's exclusive remedy is a petition in administrative mandate pursuant to Code of Civil Procedure section 1094.5 so that the proceeding pursuant to section 1085 of that code is improper; and (5) the district possesses an adequate remedy at law so that the trial court improperly proceeded by prerogative writ.

Mandatory Time Limits

The commission did not abuse its discretion and cannot be ordered to proceed on the accusation against Mrs. Felt if: (1) the requirement of Education Code section 13413 that a hearing on the accusation 'shall commence' within 60 days from the date of the tenured employee's demand for a hearing is a mandatory limitation on commission action; (2) notice was not 'mailed' 10 days before the hearing; and (3) the 10-day notice requirement of Government Code section 11509 is also a limitation on the power of the commission to commence a hearing.

Education Code section 36 and Government Code section 14 both state that: "Shall' is mandatory and 'may' is permissive.' Ordinary deference to the Legislature entails that when in a statute it uses a term which it has defined as a word of art the term be given its legislatively defined meaning by the courts. Such, however, is not always the case in the use of the word 'shall.'

In Cake v. City of Los Angeles, 164 Cal. 705, 709--710, 130 P. 723, 725, our Supreme Court said: '. . . It is a general rule of construction that the word 'shall' when found in a statute is not to be construed to be mandatory, unless the intent of the Legislature that it shall be so construed is unequivocally evidenced. This evidence, found in the statute itself, may be of different kinds. It may be found in a declaration that the word is of mandatory import . . .. It may be evidence by negative words forbidding the doing of the act after the time fixed. Or it may be evidenced by words withdrawing the power to do the act after the time fixed. Or, finally, it may be evidenced by a showing that a right dependent upon the doing of the act within the time fixed is lost or impaired by the nonperformance of that act.'

Later, the test was expressed by our high court as: 'It is true that 'shall,' used in a statute, does not always import that its provisions are mandatory, although in most cases it does . . ..' (Francis v. Superior Court, 3 Cal.2d 19, 29, 43 P.2d 300, 305.) "It is of course difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory, and when mandatory or imperative, but of all the rules mentioned, the test most satisfactory and conclusive is whether the prescribed...