Palo Verde etc. Sch. Dist. v. Hensey

• Decision Date: 24 July 1970
• Citation: 88 Cal.Rptr. 570,9 Cal.App.3d 967
• Parties: PALO VERDE UNIFIED SCHOOL DISTRICT OF RIVERSIDE COUNTY, Plaintiff and Respondent, v. William HENSEY, Defendant and Appellant. Civ. 9452.
• Court: California Court of Appeals Court of Appeals

Page 570

88 Cal.Rptr. 570

9 Cal.App.3d 967

PALO VERDE UNIFIED SCHOOL DISTRICT OF RIVERSIDE COUNTY, Plaintiff and Respondent, v. William HENSEY, Defendant and Appellant.

Civ. 9452.

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

July 24, 1970.

Hearing Denied Oct. 15, 1970.

Ronald G. Skipper, San Bernardino, for defendant and appellant.

Ray T. Sullivan, Jr., County Counsel, James H. Angell, Asst. County Counsel, and W. W. Miller, Deputy County Counsel, for plaintiff and respondent.

OPINION

GARDNER, Presiding Justice.

This is an appeal from a judgment permitting plaintiff to dismiss defendant and to terminate his employment as a permanent teacher in the Palo Verde Unified School District where he taught on a junior college level. The action was brought pursuant to sections 13412 and 13403 of the Education Code charging evident unfitness for service and immoral conduct.

Under well established rules of appellate review, there was substantial evidence to sustain the following findings by the trial court:

(1) That during a class session in the presence of students, defendant removed from its fixture a loud speaker which was an integral part of the fire alarm and bell system and stated to the president of the college that he would remove it again if it were replaced as well as stating to him that he had removed a similar facility from another of the classrooms.

(2) That the defendant stated the bell system of the college 'sounded like a worn out phonograph in a whorehouse' and made numerous references during the semester to 'whore' and 'whorehouses' and, following a reprimand for this conduct, submitted to the president of the college a thesis on the justification of his use of these terms in his class.

(3) That he directed himself to several Mexican-American students seated in the rear of the classroom and stated, 'I understand you have been to San Luis; I understand they have super-syphilis there, and you know that they don't have drugs to cure that. Be careful when you're there.' This statement was made in a tone loud enough to be heard by all of the students in the class, both male and female.

(4) That the defendant advised his philosophy class that the district superintendent could be a good superintendent 'but he spends too much time * * * (at this point in the statement he stepped over to the wall and simulated licking the wall with his tongue in an up and down manner and then continued speaking) * * * licking up the Board.'

(5) That the defendant derogatorily referred to the walls of the high school and on one occasion he referred to them as looking as though 'someone had peed on them and then smeared them with baby crap.'

(6) The trial court further found that the sounds emanating from the fire alarm and bell system were annoying to some of the students and some of the teachers during the period of time the system was being adjusted and utilized as signifying commencement and termination of classes throughout the junior college classroom building which was new. However, the trial court found that it was not true that said sounds emanating from the fire alarm and bell system were such as to justify the defendant's actions in tearing the loud speaker out.

From these facts the trial court determined that the charges of evident unfitness for service and immoral conduct were true and constituted sufficient grounds for dismissal.

As there is substantial evidence to support the trial court's findings of these facts, we are bound to accept them in this review. (Board of Trustees v. Porini, 263 Cal.App.2d 784, 70 Cal.Rptr. 73.)

However, the defendant contends that, conceding the validity of the finding of the trial court as to the above probative facts, nevertheless, its finding that the charges of evident unfitness for service and immoral conduct were true is erroneous as a matter of law.

As a general background, we recognize the guidelines as to the role of the teacher as established by the Supreme Court in the case of Board of Education of City of Los Angeles v. Swan, 41 Cal.2d 546, 261 P.2d 261, cert. den. 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087, wherein at pp. 552--554, 261 P.2d at p. 265, the court stated:

'A teacher * * * in the public school system is regarded by the public and pupils in the light of an exemplar, whose words and actions are likely to be followed by the children coming under her care and protection. (Citation.) In this connection the following language used in Johnson v. Taft School Dist., 19 Cal.App.2d 405, at page 408, 65 P.2d 912, is pertinent: 'A board of education is entrusted with the conduct of the schools under its jurisdiction, their standards of education, and the moral, mental, and physical welfare of the pupils during school hours. An important part of the education of any child is the instilling of a proper respect for authority and obedience to necessary discipline. Lessons are learned from example as well as from precept. The example of a teacher who is continually insubordinate and who refuses to recognize constituted authority may seriously affect the discipline in a school, impair its efficiency, and teach children lessons they should not learn. Such conduct may unfit a teacher for service in a school even though her other qualifications may be sufficient. 'Book learning' is only a phase of the important lessons a child should learn in a school.'

* * * * * *

'In Goldsmith v. Board of Education, Supra, 66 Cal.App. 157, 225 P. 783, it was held that a teacher advocating before his class the election of a particular candidate for the office of county superintendent of schools was guilty of 'unprofessional conduct.' The fact that the term 'unprofessional conduct' is not defined by statute authorizing the dismissal of a teacher (Ed.Code, § 13521) does not render it void for uncertainty. As was said in the Goldsmith case at page 168, 225 P. 783: '* * * the calling (of a teacher) is so intimate, its duties so delicate, the things in which a teacher might prove unworthy or would fail are so numerous that they are incapable of enumeration in any legislative enactment * * * the teacher is entrusted with the custody of children and their high preparation for useful life. His habits, his speech, his good name, his cleanliness, the wisdom and propriety of his unofficial utterances, his associations, all are involved. His ability to inspire children and to govern them, his power as a teacher, and the character for which he stands are matters of major concern in a teacher's selection and retention. How can all of these things be provided for and offenses against them be particularly specified in a single statute?''

Turning to the phrases 'immoral conduct' and 'evident unfitness for service,' these terms as used in the Education Code are to be construed according to their common and approved usage having regard for the context in which the Legislature used them. (Education Code, § 10; 23 Cal.Jur., § 122, p. 745; see Board of Education of City of Los Angeles v. Swan, Supra, 41 Cal.2d 546, 553, 261 P.2d 261.)

Of assistance in the interpretation of the phrase 'immoral conduct' is the case of Board of Education of San Francisco Unified School District v. Weiland, 179 Cal.App.2d 808, at p. 811, 4 Cal.Rptr. 286, which cited with approval Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, at p. 740, 227 P.2d 449, at p. 453, wherein the Supreme Court quoted with approval the following from Words and Phrases, permanent edition, vol. 20, pps. 159--160:

'The term 'immoral' has been defined generally as that which is hostile to the welfare of the general public and contrary to good morals. Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as wilful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare. " (Board of Education of San Francisco Unified School District v. Weiland, Supra, p. 811, 227 P.2d p. 453.)

In Morrison v. State Board of Education, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d

375, the Supreme Court adopted the Orloff standard of immorality for a teacher and held that immoral conduct cannot be the basis for removal of a teacher unless that conduct indicates the teacher is unfit to teach.

Insofar as the phrase 'evident unfitness' is concerned, the parties refer us to dictionary definitions in which 'evident' is defined in Webster's Collegiate Dictionary as 'Clear to the vision and understanding,' (Webster's Collegiate Dictionary, Seventh Ed. p. 288), and 'unfit' as defined in the same tome at p. 968, as 'not fit; not adapted to a purpose, unsuitable; incapable; incompetent; and physically or mentally unsound.' The parties further refer us to a definition of the word 'unfit' in California Words, Phrases and Maxims, p. 440, as in general 'unfit' means 'unsuitable, incompetent and not adapted for a particular use or service.'

Applying the above rules, we proceed to a discussion of the various charges.

I.

THE TEARING OUT OF THE LOUD SPEAKER.

The public address system served three purposes, (1) as the announcement system for the college, (2) as a fire alarm, and (3) as a method of signalling the commencement and cessation of each class period by broadcasting an electrical tone.

The system was defective, troublesome and was eventually removed.

Whatever might be said of the defendant's conduct in this incident, we do not find it to be immoral.

The incident does, however, have a direct bearing on the issue of 'evident unfitness.'

While most business and professional men have had the frustrating experience of breaking in a new building or facility, and some sympathy may be engendered for the defendant's annoyance with the faulty system, this cannot excuse his removal...