Hankla v. Governing Bd.

• Court: California Court of Appeals
• Writing for the Court: SCOTT
• Citation: Hankla v. Governing Bd., 120 Cal.Rptr. 827, 46 Cal.App.3d 644 (Cal. App. 1975)
• Decision Date: 31 March 1975
• Parties: Randolph A. HANKLA, Plaintiff and Appellant, v. GOVERNING BOARD OF the ROSELAND SCHOOL DISTRICT, SONOMA COUNTY, California, Defendant and Respondent. Civ. 34502.

Page 827

120 Cal.Rptr. 827

46 Cal.App.3d 644

Randolph A. HANKLA, Plaintiff and Appellant, v. GOVERNING BOARD OF the ROSELAND SCHOOL DISTRICT, SONOMA COUNTY, California, Defendant and Respondent.

Civ. 34502.

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

March 31, 1975.

As Modified on Denial of Rehearing April 30, 1975.

Hearing Denied June 4, 1975.

A. Leonard Bjorklund, Jr., Sausalito, for plaintiff-appellant.

James P. Botz, County Counsel, John C. Gaffney, Asst. County Counsel, County of Sonoma, Santa Rosa, for defendant-respondent.

SCOTT, Associate Justice.

Randolph Hankla appeals from denial of his petition for writ of mandate or prohibition seeking reinstatement as a certified permanent employee of the Roseland School District.

On April 1, 1971, while Hankla was the principal of the Shepard Elementary School in the Roseland School District, he was charged with violations of Penal Code section 272 (contributing to the delinquency of a minor by causing the minor to place his hand on Hankla's penis) and Penal Code section 314 (indecent exposure). Upon being informed of the charges, respondent immediately placed Hankla upon compulsory leave of absence pursuant to Education Code section 13409 (compulsory leave upon charge of commission of sex offense). Hankla's motion to sever the counts was granted on or about May 27, 1971. On or about July 6, 1971, the jury acquitted Hankla of the section 314 charge.

Jury trial of the section 272 charge commenced on or about October 13, 1971. On October 22, 1971, the jury was unable to agree to a verdict and mistrial was declared. Thereafter, on October 29, 1971, the district attorney filed an amended complaint in three counts essentially fractionalizing the section 272 charge.

On November 18, 1971, the court set the trial date for December 21, 1971. Hankla objected to the trial date for, among other reasons, denial of speedy trial. The objections were overruled. On December 15, Hankla sought a writ of prohibition/mandate in the superior court. On January 17, 1972, the writ was denied. Hankla filed a petition for writ of mandamus and/or prohibition in the Court of Appeal on February 15, 1972. Stay of the trial set for March 7, 1972, was ordered by the Court of Appeal. On June 26, 1972, the Court of Appeal filed its opinion ordering the municipal court to dismiss the charge for failure to give Hankla a speedy trial. ¹

On May 11, 1972, prior to determination of the section 272 charge, respondent adopted a resolution authorizing notice of intention to dismiss Hankla. In a letter mailed to Hankla (see discussion in Part II, Infra), the resolution was recited, the charges were enumerated, a form for demand for hearing of charges was enclosed, and notice was given that it was the intention of the board to dismiss Hankla unless before the expiration of 30 days from the date of service of the notice upon him, he demanded a hearing as provided by law. ² The charges are conceded by respondent to be 'largely based on the events which gave rise to the criminal complaint.'

The notice was attempted to be served upon Hankla by Certified mail. James Luney, a superintendent at the Santa Rosa main office of the post office, described the post office procedure for certified mail. Certified mail must be signed for by the addressee. If no one were at the address, then a notice would be left in the mailbox that the certified mail could be obtained either by going to the post office or by requesting another attempt at delivery. After five days, if the addressee does not pick up the mail or request another attempt at delivery, the post office sends a duplicate original of the notice to the addressee. After a total of 15 days, if the mail remains unclaimed, it is returned to the sender.

The notice was postmarked May 12, 1972. Thereafter delivery was attempted at the Hankla home. No one was there to receive the mail and a notice was left on May 13, 1972. No one claimed the mail. The duplicate notice was left at the Hankla home on May 19, 1972. The mail remained unclaimed and on May 28, 1972, it was returned to the sender, respondent.

Hankla denied receiving the two notices. He testified that he and his wife worked during the day; that the mailbox was on his front porch; that he had been bothered by children coming onto the premises, and that he had lost mail before. Mrs. Hankla testified that she had not seen either notice.

A secretary in the legal department of the superintendent of schools testified that she mailed a courtesy copy of the notice of intention to dismiss on May 12, 1972, to Hankla's attorney. Both Hankla's attorney and his associate denied ever receiving the courtesy copy. Hankla, his attorney and the associate each testified that his first knowledge of respondent's intention to dismiss Hankla came on or about June 21, 1972, after the 30 day period during which Hankla was to request a hearing, but before the June 26, 1972, Court of Appeal decision concerning the dismissal of the Penal Code section 272 charge was filed.

Hankla's attorney thereafter wrote to respondent requesting that the dismissal be set aside because of lack of notice to Hankla and that a hearing be granted. Subsequently, Hankla's attorney telephoned respondent's attorney and advised him that Hankla had refused to accept service of the letter of dismissal. The attorney denied such was the substance of his telephone conversation.

I. Hankla contends that once criminal charges are made and an employee is placed upon compulsory leave of absence, the school district should be required to await the outcome of the criminal process before pursuing dismissal of the employee. It is conceded by respondent that the facts upon which the notice of dismissal was predicated are substantially the same as those alleged in the criminal charges against Hankla, that is, the violations of Penal Code section 314 and Penal Code section 272.

We begin with the consideration that these statutes (Ed.Code, § 13403 et seq.) have as their object the termination of a valuable right of a permanent employee, that of continued employment. They are to be strictly construed. (Karbach v. Board of Education (1974) 39 Cal.App.3d 355, 363, 114 Cal.Rptr. 84; Fresno City H.S. Dist. v. De Caristo (1939) 33 Cal.App.2d 666, 672, 92 P.2d 668; cf. Board of Trustees v. Porini (1968) 263 Cal.App.2d 784, 789, 70 Cal.Rptr. 73.)

The provisions of Education Code section 13409 ³ require compulsory leave of absence upon an employee's being charged with violation of Penal Code section 314 (indecent exposure) or Penal Code section 272 (contributing to the delinquency of a minor). (Ed.Code, § 12912, subds. (c), (e). ⁴

Upon conviction of such an offense it is purely a ministerial duty of the school board to discharge the employee. (Di Genova v. State Board of Education (1955) 45 Cal.2d 255, 260, 288 P.2d 862; Ed.Code, § 13586.) The mere fact of his conviction disables him from further employment. It is not necessary that there be a hearing on the grounds for dismissal.

In the event the person so charged is acquitted, or the charges are otherwise dismissed, section 13409 provides for a hearing upon notice, to determine whether the employee should be dismissed pursuant to the causes set forth in section 13403. ⁵ The school board has the right to extend the compulsory leave of absence pending that determination. Section 13409 provides that notice of that extension shall be given 'within 10 days after the entry of judgment in the proceedings.' The language must be interpreted as meaning 10 days after entry of judgment of acquittal or dismissal in the criminal proceedings, because, as previously noted, no hearing is necessary if the employee is convicted.

It is clear that acquittal of an employee in a criminal proceeding does not bar subsequent dismissal proceedings under the causes set forth in section 13403. (Board of Education v. Calderon (1973) 35 Cal.App.3d 490, 110 Cal.Rptr. 916.) The procedure for dismissing an employee is set forth in section 13404 et seq. of the Education Code. (Cf. 43 Cal.Jur.2d, Schools, §§ 483--493; Coan, Dismissal of California Probationary Teachers (1964) 15 Hast.L.J. 284, 294--296.) Respondent here would not have been prohibited from pursuing dismissal proceedings on the basis of the facts concerning the Penal Code section 314 charge, inasmuch as that proceeding had concluded prior to the giving of notice to Hankla.

Education Code section 13409 addresses itself primarily to 1) immediate removal of a certified employee if charged with certain crimes, and 2) the payment of salary during suspension. Other sections, such as 13408 providing for suspension of a permanent employee without salary for other reasons, and 13411 providing for suspension of a permanent employee for mental disability, like section 13409, concern themselves principally with subjects other than hearing process to determine the validity of the charges. Although each of these sections provides for a hearing and notice procedure, those provisions can only be reasonably interpreted to reassert the right of hearing, as articulated in section 13404, for any of the causes of dismissal as set forth in sections 13403 and 13403.5.

It appears that the sole purpose of including the notice of hearing language in section 13409 is to give the school district the opportunity to continue an employee on compulsory leave of absence in the event it chooses not to bring dismissal proceedings until after the conclusion of the criminal charges. Thus, even though the statutes are to be strictly construed in an employee's favor, the school district need not await the outcome of the criminal proceedings before instituting its dismissal proceedings.

Hankla contends: 1) How can an employee make an intelligent decision as to whether to testify at the dismissal proceedings with criminal charges pending? As a practical matter, an employee is required to testify at a...