Greer v. Board of Education

• Decision Date: 11 April 1975
• Citation: 121 Cal.Rptr. 542,47 Cal.App.3d 98
• Court: California Court of Appeals Court of Appeals
• Parties: William T. GREER, Plaintiff and Appellant, v. BOARD OF EDUCATION OF SANTA ROSA CITY SCHOOL DISTRICT et al., Defendants and Respondents. Civ. 32952.

Page 542

121 Cal.Rptr. 542

47 Cal.App.3d 98

William T. GREER, Plaintiff and Appellant, v. BOARD OF EDUCATION OF SANTA ROSA CITY SCHOOL DISTRICT et al., Defendants and Respondents.

Civ. 32952.

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

April 11, 1975.

Hearing Denied June 4, 1975.

Bell & Hill, Santa Rosa, for petitioner.

James P. Botz, County Counsel, Thomas B. Sawyer, Deputy County Counsel, Santa Rosa, for respondents.

SIMS, Associate Justice.

Appellant a probationary school teacher who was given notice pursuant to the provisions of section 13443 of the Education Code ¹ that his services would not be required for the school year 1971--1972, has appealed from a judgment denying his petition for mandamus in which he sought review of proceedings taken under that section that had culminated in the board's determination not to employ him for the ensuing school year. The principal thrust of his complaint is that he was denied a fair hearing on the issue of his continued employment. More specifically he asserts that he was denied a hearing before the governing board when it made a determination of the sufficiency of the cause for not requiring his services, as provided by subdivision (d) of section 13443; that he was deprived of his right to a hearing on that issue as was provided in subdivisions (a) and (c) of section 11517 of the Government Code; and that his right to due process of law and equal protection of the law were violated by the procedures followed by the board in connection with the termination of his services. He further attacks the proceedings because a representative of the county counsel who conducted the proceedings before the hearing officer on behalf of the governing board participated in the decision making processes of that board, and because the board acted in executive session despite the fact that the petitioner requested a public hearing, as is provided in section 54957 of the Government Code. He also asserts that the board erred in failing to provide him with a transcript of the proceedings before the hearing officer, in failing to make a determination that he was terminated for a cause other than one authorized by law, and that the findings of the hearing officer fail to support the decision of the governing board.

On review it is concluded that the proceedings taken in connection with the determination not to reemploy petitioner complied with law, except insofar as he was denied a right to a hearing before the governing board on specific issues exclusively reserved to the board for decision under the statutes then in effect. The record, however, indicates that there was no prejudice from that error sufficient to invalidate the action of the board. Petitioner's remaining contentions are examined and found to be without merit. The judgment must be affirmed.

The facts found by the hearing officer and the trial court reflect that petitioner was employed by the school district as a probationary teacher for the school year commencing in September 1968; that in March 1971, pursuant to the provisions of section 13443, the superintendent of the district gave petitioner and the governing board written notice recommending that petitioner be given notice that his services would not be required for the ensuing school year. (See § 13443, subd. (a), fn. 1 above.) Thereafter, pursuant to the provisions of subdivision (b) of section 13443, petitioner requested a hearing as provided in the statute. ² Hearings were held on an accusation filed against petitioner and his notice of defense. (See Gov.Code, §§ 11503--11506.) Following hearings on April 19, 20, 23 and 30, May 28 and June 2 and 3, 1971, the matter was submitted for decision, and on June 21, 1971, the hearing officer rendered a 'Proposed Decision' containing the matters prescribed by subdivision (c) of section 13443. The board, after considering the hearing officer's sealed report in executive sessions on June 22 and 23, 1971, on June 25, 1971, in a public meeting unanimously determined not to employ the petitioner for the ensuing school year. ³

Other pertinent facts and findings are referred to below where appropriate.

I

At the request of the petitioner, and in accordance with facts in the record, the trial court found: '( ) VI Petitioner requested the Respondent Board: ( ) 1. to furnish him a copy of the proposed decision prior to decision thereon by the Board. ( ) 2. to prepare a transcript of the proceedings before the hearing officer and to consider the same before taking action on the proposed decision of the hearing officer. ( ) 3. to grant a continuance of ten days before considering the proposed decision of the hearing officer. ( ) 4. to permit petition to make a presentation orally or in writing in behalf of his client before the Respondent Board. ( ) All of these requests were denied by Respondent Board.' ⁴ The trial court concluded, 'That all proceedings by respondents were in accordance with law.'

'It is well established that a civil service employee is entitled to have the statutory procedures for dismissal strictly followed (citations), and fairly construed (citation).' (California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 145, 89 Cal.Rptr. 620, 624, 474 P.2d 436, 440. See also Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 831, 114 Cal.Rptr. 589, 523 P.2d 629; Shaughnessy v. Wilsona School Dist. (1972) 29 Cal.App.3d 742, 750, 105 Cal.Rptr. 707; Comment, Probationary Teacher Dismissal (1974) 21 U.C.L.A.L.Rev. 1257, 1260--1264; The Supreme Court of California 1972--1973 (1974) 62 Cal.L.Rev. 408, 576--604; and The Supreme Court of California 1971--1972 (1973) 61 Cal.L.Rev. 289, 302--322.)

--A--

Petitioner's claims that he was deprived of a hearing under the provisions of section 13443 of the Education Code and under the provisions of section 11517 stem from the bifurcated procedure found in the provisions of law in effect in 1971.

In 1931 the Legislature adopted a provision under which notice in writing that his services would not be required in the ensuing school year could be given to a probationary employee on or before May 15. (School Code, § 5.681; Stats.1931, ch. 657, § 8, p. 1398.) In 1935 the Legislature provided that in larger school districts refusal to rehire could be for cause only. (School Code, § 5.682; Stats.1935, ch. 697, § 1, p. 1895. ⁵) It was established under the foregoing provisions, as reenacted into Education Code section 13583 (Stats.1943, ch. 71, § 13583, p. 573), that since the governing board's determination not to reemploy a probationary employee for the ensuing year could be for cause only, such an employee was entitled to notice and hearing. (Keenan v. S. F. Unified School Dist. (1950) 34 Cal.2d 708, 714--715, 214 P.2d 382; and Tucker v. S. F. Unified School Dist. (1952) 111 Cal.App.2d 875, 880--882, 245 P.2d 597. See also Balen v. Peralta Junior College Dist., supra, 11 Cal.3d 821, 826, 114 Cal.Rptr. 589, 523 P.2d 629.) In recognition of the earlier decisions, in 1953 (Stats.1953, ch. 1040, § 1, p. 2509) the Legislature amended section 13583 to expressly provide for hearings under the California Administrative Procedure Act. (Gov.Code, § 11500 et seq.) ⁶ These provisions were carried forward into section 13444 of the Education Code adopted in 1959. (Stats.1959, ch. 2, § 3, p. 949.) In 1961 the provisions requiring cause and for hearing were extended to all school districts, but the requirement of a hearing before a hearing officer was made optional with smaller districts. (See Ed.Code, §§ 13443 and 13444, as recast by Stats.1961, ch. 2063, § 1, p. 4290, and ch. 2114, § 1, p. 4374.) At the same time Government Code section 11501 was amended to note a reference to section 13444 of the Education Code. (Stats.1961, ch. 104, § 1, p. 1113, and ch. 2071, § 88, p. 4328.)

In 1965 the provisions formerly found in Education Code sections 13443 and 13444 were recast in section 13443. (Stats.1965, ch. 1110, §§ 1, 2 and 3, pp. 2755--2756.) Subdivision (d) carried forward language substantially the same as that added in 1953 (see fn. 6, supra) with the addition of specified deadlines for holding the hearing and for preparation and submission of the hearing officer's proposed decision. It expressly provided, '. . . in the event the hearing is conducted by a hearing officer alone, he shall prepare the proposed decision and submit it to the governing board . . ..' In all of these earlier provisions the only exception to the procedure specified in the Government Code was the shortening of the time for filing the teacher's notice of defense to five rather than 15 days. (Cf. Gov.Code, § 11506.) In 1969, however, the Legislature carved out the following additional exceptions: '. . . (2) the discovery authorized by Section 11507.6 of the Government Code shall be available only if request is made therefor within 15 days after service of the accusation, and the notice required by section 11505 of the Government Code shall so indicate; and (3) the hearing shall be conducted by a hearing officer who shall prepare a proposed decision, Containing findings of fact and a determination as to whether the charges sustained by the evidence are related to the welfare of the schools and the pupils thereof, but the proposed decision shall not contain a determination as to the sufficiency of the cause or a recommendation as to disposition which sufficiency and disposition shall be determined by the governing board.' (Emphasis added.) This language was continued in the section as amended in 1970 (Stats.1970 ch. 273, § 1, p. 544, and ch. 1565, § 2, p. 3204, fn. 2 above) and as applicable to these proceedings. ⁷

A reading of the section reveals that there are several issues to be determined. In Lindros v. Governing Bd. of the Torrance Unified School Dist. (1973) 9 Cal.3d 524, 534, 108 Cal.Rptr. 185, 191, 510 P.2d 361, 367 (cert. den. 414 U.S. 1112, 94 S.Ct. 842, 38...