Mass v. Board of Ed. of San Francisco Unified School Dist.

• Decision Date: 11 August 1964
• Citation: 61 Cal.2d 612,394 P.2d 579,39 Cal.Rptr. 739
• Court: California Supreme Court
• Parties: , 394 P.2d 579 John W. MASS, Plaintiff and Appellant, v. The BOARD OF EDUCATION OF the SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants. S. F. 21690.

Page 739

39 Cal.Rptr. 739

61 Cal.2d 612, 394 P.2d 579

John W. MASS, Plaintiff and Appellant, v. The BOARD OF EDUCATION OF the SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Defendants and Appellants.

S. F. 21690.

Supreme Court of California, In Bank.

Aug. 11, 1964.

As Modified on Denial of Rehearing Sept. 10, 1964.

Marshall W. Krause, San Francisco, and Albert M. Bendich, Berkeley, for plaintiff and appellant.

Joseph Genser, as amicus curiae on behalf of plaintiff and appellant.

Thomas M. O'Connor, City Atty., George E. Baglin, Deputy City Atty., and Irving

G. Breyer, San Francisco, for defendants and appellants.

TOBRINER, Justice

In a case in which a local board of education suspends a teacher upon charges which the board fails to establish as proper, pursuant to statutory requirements, the teacher is entitled to reinstatement, to full salary from the date of suspension, including retirement benefits, and to interest from the dates upon which such salary payments were due. The board fails in its attempt to defeat such recovery upon the ground of an alleged automatic termination of employment rights because of a lapse of the teacher's credential during a part of the period of the suspension. It fails, too, in its effort to mitigate damages since it waived this affirmative defense by neither pleading nor proving such mitigation.

This litigation now presents its third appeal. Over ten years ago, on December 8, 1953, when the Board of Education of the San Francisco Unified School District (hereinafter called board) suspended plaintiff for failure to answer questions propounded by a congressional subcommittee (Ed.Code, § 12955), this case started upon its long course. At that time, in accordance with the statute, plaintiff demanded a hearing; the board thereupon filed an action incorporating the requisite charges. (Ed.Code, § 13412; at that date, § 13529.) The trial court upheld the charges and found that they constituted grounds for dismissal.

Plaintiff appealed the judgment to this court; we reversed it and remanded it for a new trial; we held that plaintiff had been deprived of a proper hearing under Education Code section 12955 because of the failure to inquire into plaintiff's reasons for invoking the privilege against self-incrimination (Board of Education of San Francisco Unified School District v. Mass (1956) 47 Cal.2d 494, 304 P.2d 1015). We filed our remittitur on January 27, 1957.

On May 29, 1957, plaintiff moved to remand the proceeding to the board for full hearing in accordance with the remittitur but the court denied the motion without prejudice. Thereafter the board did not initiate retrial but permitted plaintiff's status to remain in this uncertain and suspended condition. ¹

Despite its role as plaintiff in the action which we had remanded, the board failed to bring it to trial; the present plaintiff, after the elapse of three years from the date of the remittitur, moved for dismissal pursuant to section 583 of the Code of Civil Procedure. Although the trial court denied the motion, the District Court of Appeal issued its writ of mandate ordering that the action be dismissed (Mass v. Superior Court (1961) 197 Cal.App.2d 430, 17 Cal.Rptr. 549). Accordingly, on January 30, 1962, the trial court entered a dismissal of the board's suit to remove plaintiff from his position.

On January 31, 1962, plaintiff notified the board of the dismissal, demanding, pursuant to Education Code sections 13436 and 13439, reinstatement to his former position within five days as well as payment of full salary from December 8, 1953, plus all allowable costs and damages. On February 6, 1962, the board rejected these demands. Plaintiff then brought the present proceeding in mandamus.

The undisputed facts as to plaintiff's teaching credentials are that plaintiff renewed his general secondary credential, under which he taught, on September 13, 1951; that over five years later, on November 30, 1956, it expired; that on May 30, 1960, plaintiff applied for a reissuance of the credential, but, because of a change in the requirements, the State Board of Education issued to him a junior college credential retroactive to that date. The local board did not learn of the lapse of the credential until almost four years after the date of its expiration, but on September 6, 1960, adopted a resolution that plaintiff's 'services as a certificated employee be terminated as of December 1, 1956. * * *'

The trial court denied plaintiff's claim for reinstatement; it awarded him back salary from December 8, 1953, only to November 30, 1956; it denied retirement benefits for that period; it struck the claim for general damages.

1. The right to reinstatement.

We shall point out that since plaintiff admittedly possessed tenure, the board could dismiss him only if it complied with statutory procedures which it confessedly did not pursue. We also explain our rejection of the board's contention that, irrspective of the statutory procedures, its refusal to reinstate could properly rest upon automatic termination of plaintiff's employment rights as a consequence of the lapse of his credential.

The strict statutory procedures for dismissal of a teacher are set forth in sections 13401-13452 of the Education Code; section 13403 provides that the board can dismiss a 'permanent employee' only for the causes there specified. The board does not question the fact that plaintiff was a 'permanent employee.' The section does not list a lack of credential as one of such bases. Section 13412 provides that if a teacher, having 'been served with notice of the governing board's intention to dismiss him,' demands a hearing, the board must either 'rescind its action' or, upon the filing of a complaint in the superior court, prove the asserted charges. Section 13436 declares that '(i)f the judgment determines that the employee may be dismissed, the governing board may dismiss him * * *. Otherwise the employee may not be dismissed. * * *' Indeed, if he has been suspended pending the court action, the teacher 'shall be reinstated within five days after the entry of judgment in his favor, and shall be paid full salary by the governing board for the period of his suspension.' (§ 13439.)

The board has not obtained, and, indeed, cannot now obtain, a judgment determining 'that the employee plaintiff may be dismissed.' The only action which the board instituted, pursuant to statute (Ed.Code, § 13412 et seq.), for the determination of that issue, has been dismissed; the judgment of dismissal is final. Under the applicable statutes of limitation, no new statutory proceeding can now be filed (Ed.Code, § 13413) or tried (Ed.Code, § 13433). The board cannot found the dismissal upon its own failure properly to pursue the provisions of the statute.

The board, however, seeks to defeat the statutory command by the contention that plaintiff's failure to renew his credential in 1956 automatically forfeited his status as a permanent employee and absolved the board of any further obligation. This hypothesis, however, rests upon sections of the Education Code and upon decisions that do not support it.

The board's cited sections 13251, 13252, and 13274, which restrict employment by local boards to teachers holding credentials from the State Board of Education, and section 1351, which confines payment to such teachers, do not automatically deprive teachers of tenure or of status as permanent employees. These statutes implement a statewide system of certification by the requirement that only teachers so qualified shall be eligible for employment by the local boards. These provisions do not condition tenure rights or status upon certification; such rights are separately defined in other sections of the code.

Indeed, the Legislature has provided employment protection for eligible teachers who have inadvertently allowed their credentials to lapse; none of the statutes remotely suggest that tenure rights terminate with the expiration of a credential. ² To the contrary, section 13253, operative from the date when plaintiff failed to renew his credential to the date when he obtained a new credential, authorized 'the governing boards of school districts' to employ a person without a credential if he applied for 'such certification document' before '* * * the actual service' of such person commenced. If, pursuant to section 13439, the board had 'reinstated' plaintiff, no question as to his credential would have arisen; plaintiff could have applied for his credential, and it would have been automatically furnished.

As the board points out, 'had petitioner applied for renewal he would have been absolutely entitled thereto. (Hall v. Scudder, (74) 73 Cal.App.2d 433, 436 (168 P.2d 990); Payne v. Real Estate Comr., 93 Cal.App.2d 532, 535-536 (209 P.2d 419); Matteson v. State Board of Education, 57 Cal.App.2d 991 (136 P.2d 120).)' The board further explains that the Legislature did not give the State Board of Education or the commission of credentials 'power to deny an application for renewal of a credential because a local board of education has brought charges of violation of the Dilworth Act, insubordination, or unprofessional conduct.' Consequently, the renewal of plaintiff's certificate entailed nothing more than the technicality of application.

We cannot find any basis in the Education Code for predicating the loss of a teacher's tenure rights upon his filure to perform a purely perfunctory act of application that would have automatically renewed his credential. We cannot ignore the sections, and the legislative history, to tie an automatic termination of plaintiff's rights to the distorted ballooning of a formality.

The board's citations emphasize the incongruity of equating a lapse of a certificate with an automatic termination of the tenure rights of a permanent employee. The cases illustrate the difference between the mere lapse of a credential, such as occurred...