Main v. Claremont Unified School Dist.

• Citation: 161 Cal.App.2d 189,326 P.2d 573
• Court: California Court of Appeals Court of Appeals
• Decision Date: 09 June 1958
• Parties: Arthur M. MAIN, also known as Arthur Mahlon Main, Petitioner and Respondent, v. CLAREMONT UNIFIED SCHOOL DISTRICT, a body politic, and Leila S. Pitzer, William F. Montgomery, Jeannette S. Griggs, Albert E. Norton, and Gilbert S. Coltrin, individually and as members of the governing board thereof, Defendants and Appellants. Civ. 22748.

Page 573

326 P.2d 573

161 Cal.App.2d 189

Arthur M. MAIN, also known as Arthur Mahlon Main, Petitioner and Respondent, v. CLAREMONT UNIFIED SCHOOL DISTRICT, a body politic, and Leila S. Pitzer, William F. Montgomery, Jeannette S. Griggs, Albert E. Norton, and Gilbert S. Coltrin, individually and as members of the governing board thereof, Defendants and Appellants.

Civ. 22748.

District Court of Appeal, Second District, Division 2, California.

June 9, 1958.

Rehearing Denied July 3, 1958.

Hearing Denied Aug. 6, 1958.

Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel, James W. Briggs, Deputy County Counsel, Los Angeles, for appellants.

Beardsley, Hufstedler & Kemble, Los Angeles, for respondent.

ASHBURN, Justice.

Appeal by Claremont Unified School District and members of its governing board from judgment in mandamus ordering restoration of respondent Main to his position as superintendent of said school district and directing payment of his salary at the rate of $750 a month from February 29, 1956, so long as he shall lawfully remain such superintendent.

Respondent was employed as superintendent for said district for a four-year term beginning July 1, 1955 and ending on June 30, 1959. This was done by motion duly adopted on December 14, 1954, 'by the terms of which it [the board] approved an offer to petitioner of a four year contract as superintendent and business manager of said school district, said contract to become effective on July 1, 1955; that petitioner thereupon accepted said offer and that said offer and such acceptance thereof were recorded in the official minutes of said meeting.' (Finding IV.) This was followed by written contract dated June 13, 1955. Petitioner performed the duties of superintendent from July 1, 1955 until February 29, 1956, when he was discharged as superintendent by action of the board. Since that time he has been prevented from further performing his contract. He petitioned for mandamus, the writ was granted and the district and its board members appeal.

Respondent's brief says '* * * that the large majority of evidence introduced by him in the trial court was devoted to the proof of his full and proper performance of the terms of his contract.' The trial judge ruled that a school superintendent is a public officer, can be removed only in a manner prescribed for public officers and '[i]n view of the court's foregoing findings it is unnecessary to pass or make any finding on the issue of whether or not petitioner performed any or all of the provisions of said contract of June 13, 1955.'

The instant case closely parallels Titus v. Lawndale School Dist., 157 Cal.App.2d 822, 322 P.2d 56, in which this court held that there is no method provided by the Education Code for unilateral termination by the school board of the contract or services of a superintendent who has a four-year contract; like any other agreement it may be terminated for substantial nonperformance; the question of breach of contract by the superintendent it to be determined in an appropriate court action; a district which has discharged its superintendent and prevented him from further performing has the burden of proving good cause for a dismissal; mandamus is an appropriate remedy for the superintendent to pursue and the issue of breach of contract is properly tried therein. The Titus case was reversed because the trial judge had refused to pass upon the issue of good cause for discharge of the superintendent, the court having the evidence upon the subject before it, the court saying, 157 Cal.App.2d at page 838, 322 P.2d at page 66: 'Upon a retrial the court should determine whether good cause existed for discharge of appellant from his position as superintendent of schools.'

The instant case is so closely similar to Titus that it must result in like disposition unless there is merit in the contention now earnestly advanced by respondent that a city school superintendent is a public officer and cannot be discharged or removed except upon accusation of the grand jury under Government Code, § 3060 or some other procedure prescribed for removal of a public officer. That question, though presented, was deemed unnecessary to the decision in Titus, supra (see 157 Cal.App.2d at page 837, 322 P.2d at page 65). Upon principle and authority we conclude that a school superintendent is not a public officer but is an employee of the district. To said matter we now address ourselves.

Preliminarily it should be noted that the Claremont Unified School District is a unified district falling within § 4629, Education Code, which declares, 'for all purposes the district shall be deemed a city school district governed by a city board of education and the governing board thereof shall be deemed a city board of education.' There seems to be no dispute about the fact that appellant district has the status of a city school district. Section 4629 ¹ thus makes applicable the chapter on superintendents (§§ 1301-1308). Section 1301 says: 'The governing board of any school district may employ a district superintendent for one or more schools employing eight teachers or more.' ² Section 1301.1 provides that the board of any district 'employing a district superintendent of schools' and having average daily attendance of 1500 or more 'may employ such deputy and assistant district superintendents of schools as the board deems necessary.' Section 1302 provides that in each city school district the board may employ a superintendent and such associate and deputy or assistant superintendents as it deems necessary, 'and may fix and order paid their compensation, unless otherwise prescribed by law.' Section 1303, differentiating between city districts and others, says: 'a, city superintendent of schools elected by a board of education shall be elected for a term of four years. Any district superintendent of schools, associate superintendent of schools, or deputy city or district superintendent of schools, or assistant city or district superintendent of schools may be elected for a term of four years.' The city superintendent must be elected for four years; other district superintendents may be elected for four years or less. In this section the verb shifts from 'employ' to 'elect.' Section 1303.1 reverts to the idea of employment by contract. It authorizes termination 'with the consent of the employee' of 'the term of employment of, and any contract of employment with, the superintendent of schools' and says that the board may 're-elect or re-employ the employee, on such terms and conditions as may be mutually agreed upon by the board and the employee, * * *' Likewise, § 1303.2 says that in case the board decides that the superintendent 'is not to be re-elected or re-employed' upon the expiration of his term, he shall be given six months written notice in advance; if the notice is not given the superintendent, even though the board 'fails to re-elect or re-employ' him, 'shall be deemed re-elected' for a like term and upon like terms, conditions and compensation. ³

The word 'elect' as used in § 1303 is stressed by respondent as indicative of public office. But §§ 1303.1 and 1303.2 use it as synonymous with 'employ.' In its strict sense 'elect' means selection by the appropriate body of qualified voters; when used with reference to selection by a subordinate body, such as a city council or a school board, it connotes appointment or employment. 'The words 'elected' and 'appointed' ordinarily are not synonymous. In its limited sense, the word 'elected' is usually employed to denote the selection of a public officer by the qualified voters of a community. On the other hand the word 'appointed' is generally understood to mean the selection of a public officer by one person who is empowered by law to make the appointment. In its broadest sense, however, the word 'elected' means merely 'selected.' When used in the sense the word 'elected' is synonymous with the word 'appointed'; and where, as in the case at bar, a public officer has been selected by the votes of several members of a city council, it may be truly said, in the broadest sense of the term, that he was elected.' Odell v. Rihn, 19 Cal.App. 713, 719, 127 P. 802, 805. 'There is a clear and well-understood disstinction between appointment and election. In Wickersham v. Brittan, 93 Cal. 34, 28 P. 792, 29 P. 51, 15 L.R.A. 106, this court said: 'The term 'election' carries with it the idea of a choice, in which all who are to be affected with the choice participate; whereas from the word 'appointment' we understand that the duties of the appointee are for others than those by whom he is appointed. As distinguished from an election, an appointment is generally made by one person, or by a limited number, acting with delegated powers, while an election is the direct choice of all the members of the body from whom the choice can be made.'' Mono County v. Industrial Acc. Com., 175 Cal. 752, 754, 167 P. 377, 378. To the same effect are Carter v. Commission of Qualifications, Etc., 14 Cal.2d 179, 186, 93 P.2d 140; 40 Cal.Jur.2d § 41, p. 676.

The term 'employ' implies the making of a contract. Malloy v. Board of Education, 102 Cal. 642, 36 P. 948, makes this clear. In that instance, 'the members present regularly proceeded to ballot for the election of a teacher to fill the vacancy' (102 Cal. at page 644, 36 P. at page 948), and thus chose plaintiff. Before he had accepted the board in effect rescinded the resolution. At page 646 of 102 Cal., at page 949 of 36 P. the court said: 'The board, as we have seen, was authorized to employ teachers, but in what way the employment might be effected was not prescribed. * * * Employment implies a contract on the part of the employer to hire, and on the part of the employee to perform services; and until such a contract is mutually entered into, it can have no binding obligation upon either party. The words 'to employ' teachers...