Powers v. Commission On Professional Competence

• Court: California Court of Appeals
• Writing for the Court: ZENOVICH
• Citation: Powers v. Commission On Professional Competence, 204 Cal.Rptr. 185, 157 Cal.App.3d 560 (Cal. App. 1984)
• Decision Date: 07 June 1984
• Parties: , 18 Ed. Law Rep. 360 William Henry POWERS, Jr., Plaintiff and Appellant, v. BAKERSFIELD CITY SCHOOL DISTRICT, Defendant and Appellant. Civ. 7433 (F001529).

Page 185

204 Cal.Rptr. 185

157 Cal.App.3d 560, 18 Ed. Law Rep. 360

William Henry POWERS, Jr., Plaintiff and Appellant, v. BAKERSFIELD CITY SCHOOL DISTRICT, Defendant and Appellant.

Civ. 7433 (F001529).

Court of Appeal, Fifth District, California.

June 7, 1984.

As Modified on Denial of Rehearings July 6, and July 31, 1984.

Hearing Denied Oct. 18, 1984.

[157 Cal.App.3d 562] Brenda McKinsey, Redondo Beach, for plaintiff and appellant.

Frank J. Fekete, Peter C. Carton, Joanne A. Velman, Roger Wilner and Don G. Royal, Bakersfield, for defendant and appellant.

OPINION

ZENOVICH, Acting Presiding Justice.

The instant case involves the efforts of the Bakersfield City School District (District) to dismiss a tenured permanent teacher, William Henry Powers, Jr. (teacher). Both parties concede if District is successful in its appeal the cause will have to be remanded to the superior court for decision on the merits. For reasons hereinafter stated, we conclude the trial court erred in its ruling on the jurisdictional issues before us and remand the case for further proceedings. For guidance on remand, we conclude: (1) It was not necessary for the commission to make a specific finding of "unfitness to teach" when dismissing the teacher for unprofessional conduct related to classroom activities; (2) the District's action in transferring teacher out of the classroom pending his hearing did not invalidate the dismissal action; (3) District's failure to serve its original petition was not grounds for dismissal of its petition; (4) the commission did not fail to make sufficient findings on the issue of limiting teacher's constitutional rights; and (5) the commission at the time it acted did not have the power to stay the dismissal.

THE CASE

Pursuant to Government Code section 11503, on January 6, 1977, charges for dismissal were served upon teacher, alleging violations of Education Code section 44932, subdivisions (a), (d), (e) and (g), and section 44933. ¹ An amended accusation was filed on March 1, 1977. Thereafter, teacher filed with District a notice of defense and request for hearing pursuant to Government Code section 11506.

By letter dated January 24, 1977, counsel for District advised teacher that the date of March 7, 1977, had been set with the Office of Administrative Hearings (OAH) after a previous date of February 1, 1977, which had been agreed to by the parties, was subsequently rejected by counsel for teacher. This letter stated that March 7 had been set for the hearing to commence and that the calendar clerk for the OAH had also confirmed the dates of June 13-17, 1977, for the hearing. By letters dated February 24 and 25, 1977, respectively, teacher and District designated their appointees to the commission.

On March 7, 1977, in compliance with then section 13413 (now § 44944), within 60 days of teacher's request for a hearing, the Commission on Professional Competence began hearing the matter. After the appearances of counsel were taken, District called its first witness, Dorothy Kachigian. Mrs. Kachigian was asked six foundational questions. At this point, the administrative law judge interrupted and explained to the parties that the normal procedure of the OAH was to convene hearings within 60 days of teachers' demands for hearings, but only for the purpose of swearing in a witness and entertaining a request for continuance. No party would request a continuance. Teacher objected to a continuance on the ground that delay would severely prejudice him, since students and teachers who could testify in his behalf would leave for the summer holiday and the hearing could not finish in time for teacher to either resume teaching for the District in the fall or get another teaching job. Counsel for District did not so clearly object to a continuance, but stated, "the district is here and prepared to proceed on the merits, and a continuance was not requested by the district."

The administrative law judge, who was also the chairman of the commission, ordered a continuance on his own motion. The chairman also told the parties that the week of June 13, 1977, had been reserved to complete the hearing.

The hearing reconvened on June 13, 1977. At the March 7 session, District's appointee had been Edward Dow. During the intervening period, Dow wrote to the administrative law judge that he had heard statements from students of his who were former students of Mr. Powers and which "may have prejudiced me towards Mr. Powers." He was unsure that he could be unbiased. "The students have had mostly praise for Mr. Powers. I know there must be much more to this case, and I would hate for these two students, being in my room, to possibly cause some unforeseen problems, or in any way influence my decision." The administrative law judge advised Dow to resign and asked the District to appoint another member.

At the hearing reconvened on June 13, the District's appointed panel member was Gene Snyder. Mr. Snyder had not been present at the March 7 hearing. Teacher made a timely objection to the change in membership of the commission and his objection was overruled.

The District presented its case during the entire week of June 13, 1977, and during five additional days of hearing interrupted by further continuances primarily caused by OAH's calendar congestion. At the end of November 1977, the District completed its case-in-chief.

Teacher presented his case over the next eight months at interrupted hearings. The hearings ended in April 1978, over a year after they began. On July 12, 1978, the commission issued its decision.

A brief summary of the factual findings indicates that teacher was first employed by the District in 1967. Except for a brief stint teaching fifth grade, teacher taught in a sixth-grade classroom. Most of the charges against teacher involved teacher's creative writing program. In short, it was alleged that pupils were encouraged to write on any subject they chose without restriction. Frequently, the pupils' stories tended to focus on several class members and contained derogatory, insulting and abusive remarks about fellow pupils. Often the stories were read out loud in class, but offensive words were "bleeped" out. The students could withdraw from the writing activity by having his or his name placed on the blackboard. In 1973, school administrators had conferences with teacher concerning his writing program. In 1976, it was discovered that teacher was teaching creative writing in a manner which resulted in stories from the sixth graders which were similar in nature to those produced by the students in 1973. Teacher defended his program and indicated he did not wish to stifle his pupils' creativity by limiting them to more traditional writing assignments. He stated that he had tried to discourage stories containing questionable content. He denied any intent to encourage his pupils to write offensive stories.

The commission noted that teacher had been active in union affairs for a number of years and had been an officer of his local teachers' union. He had edited a newspaper and written articles and editorials critical of the District and some of its policies. During a recent Department of Health, Education and Welfare (HEW) investigation of the District, teacher assisted HEW attorneys by giving them information about possible violations by the District concerning use of bilingual aides. ² Nonetheless, the commission found that the reasons for filing the dismissal charges against teacher were the causes stated in the statement of charges and "not official dissatisfaction with his exercise of his constitutional rights."

The commission ruled that teacher's persistence in continuing his creating writing program showed a remarkable lack of judgment, especially "in view of the directions given him at the conferences in January, 1973." The commission also noted that it was "noteworthy" that the district administrators, although concerned about teacher's creative writing program since January 1973, "never had any formal classroom observation of this part of Mr. Powers' teaching." As to the charges relating to teacher's creative writing program, the commission ruled that although these charges did not support immoral conduct, incompetency, or evident unfitness for service, the charges nonetheless supported dismissal because the conduct constituted unprofessional conduct and insubordination.

In addition, the commission ruled that separate cause for dismissal was established by the findings in paragraphs XIV (leaving his duty assignment on the playground without permission), XV (failing to attend a required in- service training) and XVI (leaving class unattended to assist a friend who had borrowed his car). The commission ruled that these acts constituted unprofessional conduct and insubordination.

The commission also ruled that there was no cause for dismissal established by virtue of the findings in paragraphs XII (relations with a female employee of the District), XIII (leaving his classroom briefly to go to the bathroom) and XVII (failing to seek permission for a classroom lunch).

The commission also made special findings as follows:

"Respondent appears to have a sincere interest in his pupils' education and welfare. His failure to perceive the harmful effects of his creative writing program is remarkable. His persistence in pursuing his program despite the repeated warnings amounts to insubordinate conduct.

"Mr. Powers was a popular teacher with his pupils and liked by many parents, although it should be noted that parents were not aware of the substance of his creative writing materials until after initiation of the charges against him. He was an effective teacher with some pupils. His evaluations by principals were almost without exception above average or outstanding."

The commission ruled that teacher should be dismissed from his employment as a permanent certificated employee of the District,...