Zumwalt v. Trustees of Cal. State Colleges

• Citation: 33 Cal.App.3d 665,109 Cal.Rptr. 344
• Court: California Court of Appeals
• Decision Date: 25 July 1973
• Parties: Eugene ZUMWALT, Plaintiff and Respondent, v. TRUSTEES OF the CALIFORNIA STATE COLLEGES et al., Defendants and Appellants. Civ. 13565.

Page 344

109 Cal.Rptr. 344

33 Cal.App.3d 665

Eugene ZUMWALT, Plaintiff and Respondent, v. TRUSTEES OF the CALIFORNIA STATE COLLEGES et al., Defendants and Appellants.

Civ. 13565.

Court of Appeal, Third District, California.

July 25, 1973.

Hearing Denied Sept. 19, 1973.

[33 Cal.App.3d 669] Penrod, Himelstein, Savinar & Sims, by Tim M. Saviner and Richard M. Sims, III, San Francisco, for plaintiff-respondent.

Evelle J. Younger, Atty. Gen., by Edmund E. White and James Clator, Deputy Attys. Gen., Sacramento, for defendants-appellants.

DECISION ON REHEARING

FRIEDMAN, Associate Justice.

Plaintiff Eugene Zumwalt is a professor of English at California State University, Fresno, formerly known as Fresno State College. (See Educ.Code, §§ 23600, 23601.) The trial court granted his petition for a writ of mandate directing the defendants (primarily the state college trustees and the president of the college) either to reinstate him as chairman of the English department or to give him a statement of cause for removal and an opportunity for hearing before the State Personnel Board. Defendants appeal.

According to the trial court's findings of fact, Dr. Zumwalt was nominated as chairman of the English department by a vote of his departmental colleagues and appointed to that position by the then academic vice president of the college effective September 1, 1969. He commenced serving as chairman in September 1969. In December 1970 he was removed from the chairmanship on orders of the college president, Norman Baxter. No reason for the removal was given. The action was accomplished by Acting Dean Rea, who handed Dr. Zumwalt a letter relieving him of his duties, and by campus policemen who changed the lock on the office doors and sealed the filing cabinets. The letter was signed by President Baxter. It gave no ground for the action. It declared that Dr. Zumwalt's appointment as professor of English was unaffected. This suit was filed a few days thereafter.

The trial court accepted Dr. Zumwalt's thesis that his enforced return to simple professorial status was a 'demotion' which required compliance with the notice and hearing provisions of the Education Code. Section 24306 of that code lists the grounds for which a permanent or probationary employee of the state college system may be dismissed, demoted or suspended. ¹ Section 24308 calls for a written notice of dismissal, demotion or suspension and a statement of cause. Section 24309 provides for hearing and review by the State Personnel Board at the request of the affected employee.

Another statute of interest is Education Code section 22607, which permits any administrative employee to be reassigned to an academic or other position commensurate with his qualifications at the salary fixed for that position. Although section 22607 was primarily aimed to achieve flexibility in shifting personnel when the state college system received autonomy in 1961, the reassignment provision represents an expression of ongoing authority. (Gilbaugh v. Bautzer, 3 Cal.App.3d 793, 83 Cal.Rptr. 806.)

The statutes in question prevent arbitrary deprivations of employment by limiting the causes, by demanding a written statement of cause and supplying an opportunity for hearing before a disinterested tribunal. Generally speaking, a demotion is a reduction to a lower employment, rank or grade. (United Aircraft Corp. v. Lodge 971 of Interna'l Ass'n of Mach., 5 Cir., 360 F.2d 150, 151; Reed v. City Council of City of Roseville, 60 Cal.App.2d 628, 635, 141 P.2d 459.) The following is a summation of defendants' contentions: The chairmanship of an academic department is not a rank, position or employment separate from the professorial position of its holder; rather, it is a title or status signifying its holder's temporary assignment to administrative duties; that the concept of tenure characterizes the individual's position in the teaching hierarchy, but not his temporary assignment to duty as departmental chairman; at his own pleasure the college president who initially assigned the professor to administrative duties as chairman may reassign him to purely teaching duties and confer the title and duties of chairman on another; Dr. Zumwalt's reassignment to teaching duty was not a movement from one rank, position or employment to another, hence not a demotion within the meaning of Education Code section 24306. ²

In matters of academic rank and tenure, amorphous attitudes slowly evolve into oral traditions and unofficial statements of policy, eventually crystallizing in official rules and statutes. Relatively unofficial practices and expectations may congeal in an unwritten 'common law' at a particular university, creating a de facto status similar to tenure. (Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561; Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570, 580.)

The record before us presents a melange of all these elements. By stipulation a number of affidavits were placed before the trial court. Plaintiff is supported by the affidavits of faculty members of a number of colleges and universities, all expressing the view that status as chairman of an academic department is an honor, an exercise of increased responsibility and a career asset; that removal 'before the end of his term' is damaging to the individual's professional reputation. Defendants, on the other hand, supplied affidavits of several persons experienced in personnel administration within the California state college system. Academic personnel are employed at the four levels customary among colleges--instructor, assistant professor, associate professor and professor. In summary, the affidavits declare the existence of a consistent policy of the trustees of the California state colleges that the assignment of an academic employee as department head is temporary and at the pleasure of the college president; that according to the practice at Fresno State College, department heads serve from three to five years, subject to reassignment at any time at the pleasure of the college president; that department heads are continually reassigned 'without notice of cause or a hearing;' that the American Association of University Professors has taken the position that assignment as chairman confers no tenure. ³

By implication these affidavits reveal an ongoing tension between college administration and faculty, each wary of expansions of competing power. The affidavits express primarily the policy predilections of the affiants. Prevailing rules sometimes bulwark one center of power, rejecting the policy claims of another. The bare rules of law, moreover, often ignore such intangibles as well-developed campus communications. ⁴ The courts interpret and administer the law, refraining from policy choices. We examine the prevailing rules and compare their sources:

The trustees of the California State Colleges (now called the California State University and Colleges) became the governing body of the system on July 1, 1961. Section 24201, Education Code, directs the trustees to 'provide by rule' for the government of their appointees and employees, including appointment, terms, tenure, dismissal and demotion. The rules of the trustees are codified as part V of title 5, California Administrative Code. The basic rule (5 Cal.Adm.Code, § 42700) describes several kinds of employees, including academic and administrative employees, and defines such terms as tenure, probationary period, and academic-administrative assignment. ⁵ The rules provide for the gain of tenure on the part of academic employees (§ 43560 et seq.) and administrative employees (§ 43580 et seq.) and for the acquisition of permanent status by non-academic, e.g., clerical, employees (§ 43688.1 et seq.) They distinctly bar tenure in academic-administrative assignments. ⁶ Except for separate channels of authority they draw no distinction between disciplinary actions (defined as dismissal, demotion or suspension) against tenured and nontenured academic employees. (§§ 43520--43526.) At no point do the rules refer expressly to the title, status or position of chairman of an academic department.

Express references do exist in less official form. A faculty handbook at Fresno State College contained a declaration or rule, referring to department chairmen and school deans as 'administrative appointments.' It called for presidential appointment of each department chairman on nomination of the faculty within the department and declared a 'term of the office' which would 'normally' extend for a period recommended by the department, but not less than three years and not more than five years. ⁷ The record does not reveal the origin or auspices of this declaration. There is no claim that it emanated from the trustees of the state college system. It finds no expression in the codified rules adopted by the trustees.

Of similarly uncertain origin is a provision in a document described as the faculty constitution at Fresno State College. The document states: 'A Departmental chairmanship carries with it no tenure as such, though service in this capacity shall contribute to the requirement for academic tenure.' This provision was inferably adopted by a faculty organization; there is no claim that it received recognition by the trustees of the colleges system.

Finally, the record incorporates a copy of a resolution adopted by the trustees of the college system on November 24, 1970, 'reaffirming' that department chairmen serve at the pleasure of the college president. ⁸ Although the resolution ostensibly reaffirms an earlier expression, the record is silent as to the nature, form and existence of the earlier expression.

Because the trustees' codified rules do not mention departmental chairmen, it is necessary to draw implications from the various sources. These range from the trustees' 'pleasure' resolution to the declaration in the...