Opinion
11-21-1952
BOARD OF EDUCATION OF CITY OF LOS ANGELES v. SWAN. * Civ. 19102.
Owen J. Brady, Los Angeles, for appellant. Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Deputy County Counsel, and Clarence H. Langstaff, Deputy County Counsel, Los Angeles, for respondent.
BOARD OF EDUCATION OF CITY OF LOS ANGELES
v.
SWAN. *
Nov. 21, 1952.
Rehearing Denied Dec. 16, 1952.
Hearing Granted Jan. 19, 1953.
Owen J. Brady, Los Angeles, for appellant.
Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Deputy County Counsel, and Clarence H. Langstaff, Deputy County Counsel, Los Angeles, for respondent.
VALLEE, Justice.
Appeal by defendant from a judgment determining that plaintiff may dismiss her as a permanent teacher of the Los Angeles City School District.
Defendant has been employed by the district as a teacher and as a principal for more than 29 years. During the period involved in the charges, she was principal of the Wilshire Crest school in Los Angeles. On April 26, 1951, a written statement of charges was formulated by plaintiff charging there existed causes for her dismissal. On April 27, 1951, a written notice was given defendant of plaintiff's intention to dismiss her, together with a copy of the charges. Defendant demanded a hearing of the charges in accordance with section 13529 of the Education Code. On receipt of the demand, plaintiff elected to file this action alleging there existed as causes for dismissal the charges theretofore formulated and served upon her. The judgment was that plaintiff may dismiss defendant. Defendant appeals.
The court found that the following charges are true: 1. '[A]bout March 13, 1951, before a regularly scheduled meeting of the Wilshire Crest Parent Teachers Association, the defendant made derogatory statements concerning the Superintendent of Schools and criticized the Board of Education for bringing him to Los Angeles.' 2. '[A]bout March 13, 1951, before a regularly scheduled meeting of the Wilshire Crest Parent Teachers Association, the defendant stated that she had been called before the Los Angeles City Board of Education and had 'spit in their faces." 3. '[D]efendant failed and refused to report for teaching assignments beginning April 9, 1951, and April 23, 1951, when instructed to do so by the Superintendent of Schools, acting under instructions of the Board of Education.' 4. '[D]uring the school year 1949-50 the defendant requested Esther Pauline Ash, a teacher in the Wilshire Crest School, of which the defendant was then principal, to join a teachers' union as a favor to the defendant in violation of Rule 16.291 of the Administrative Guide of the Los Angeles City School District.' 5. '[D]efendant caused to be paid to the Wilshire Crest Parent Teachers Association the total proceeds received from a joint Parent Teachers Association and student body carnival contrary to the permit issued, authorizing the holding of said carnival, which provided that said proceeds be divided equally between the Parent Teachers Association and the student body. That it is true that defendant accepted for the Wilshire Crest School nine phonographs, purchased by the Wilshire Crest Parent Teachers Association from the proceeds of said carnival without obtaining the approval of the student body finance section of the administrative office of the plaintiff contrary to the established rules and policies relating to student body finance adopted by the plaintiff.' 6. '[D]uring the three years last past the defendant has persistently failed to attend meetings called by the Superintendent of Schools and his deputies and assistants to assist school principals in their work. That it is true that Rule 16.271 of the Administrative Guide of the Los Angeles City Schools, 1940 edition, requires principals to attend such meetings.' 7. '[D]uring the 1950-51 school year the defendant excused approximately fifty children of the first and second grades a few minutes before two o'clock in the afternoon. That it is true that the defendant continued to permit the dismissal of said children before two o'clock after the Assistant Superintendent of schools, Mrs. Mannatt, had informed defendant of her disapproval of said practice. That it is true that rule 1104 of the Rules and Regulations of Los Angeles City School District, 1950 edition, and Rule 3 of Division 5 of the Administrative Code of the State of California, provide that the afternoon closing hour for first and second grades is 2:00 p. m.' 8. '[I]n February, 1950, the defendant issued a written bulletin to the teachers of the Wilshire Crest School of which the defendant was principal, suggesting that said teachers have duplicate classroom keys made to take home with them. That it is true that Rule 15.11, Administrative Guide of Los Angeles City School District, 1940 edition, provides that keys to classrooms shall be left in the office of the principal of the school.' 9. '[A]bout March 13, 1951, at a Parent Teachers Association meeting in the Wilshire Crest School of which the defendant was principal, the defendant called the Superintendent of Schools and other school administrators 'henchmen,' and the Board of Education Office 'The Little Kremlin.' That it is true that the defendant after said Parent Teachers Association meeting had adjourned, permitted the persons present to hold a citizens meeting in the Wilshire Crest School. That it is true that no permit had been issued for the holding of said citizens meeting. That it is true that Civic Center Permit No. 15847, dated February 20, 1951, issued for the holding of said Parent Teachers Association meeting did not include therein permission to hold said citizens meeting. That it is true that the rules of the plaintiff regulating the holding of public meetings in school buildings require a permit for all such meetings.'
The court concluded that sufficient grounds exist to constitute: 1) unprofessional conduct; 2) evident unfitness for service; and 3) persistent violation of or refusal to obey the school laws of the state and reasonable regulations prescribed for the government of the public schools by the State Board of Education and by the Board of Education of Los Angeles--as causes for her dismissal. The court also concluded that the charges found to be true constitute sufficient grounds for the dismissal of defendant.
Section 13521 of the Education Code in relevant part provides: 'No permanent employee shall be dismissed except for one or more of the following causes:
'(a) Immoral or unprofessional conduct. * * *
'(e) Evident unfitness for service. * * *
'(g) Persistent violation of or refusal to obey the school laws of the State or reasonable regulations prescribed for the government of the public schools by the State Board of Education or by the governing board of the school district employing him.'
Plaintiff included the same charge under one or more causes for dismissal. For example, the charge that the superintendent of schools, acting under instructions of plaintiff, notified defendant in writing that she was to report for a teaching assignment beginning April 9, 1951, but that she failed and refused, and still refuses, to report for such assignment, was included under the causes unprofessional conduct, evident unfitness for service, and persistent violation of or refusal to obey school laws and regulations. Defendant first contends it was error to include the same charge under more than one cause of dismissal.
Assuming the point is properly before us, since defendant did not demur to the complaint which includes the charges, as she could have done, Ed.Code, section 13531, the contention is without merit. There is nothing in the sections of the Education Code providing for this proceeding which prohibits the practice. Obviously, a particular act or omission of a teacher may constitute unprofessional conduct, evident unfitness for service, and a persistent violation of or refusal to obey pertinent laws and regulations.
Fresno City High School Dist. v. De Caristo, 33 CalApp.2d 666, 92 P.2d 668, 671, relied on by defendant is not analogous. In that case the court merely stated that each of the causes for removal listed in the code refers to 'act or omission not necessarily included in any of the others.' This is not a statement that the acts or omissions charged cannot be included in one or more causes for removal.
Defendant concedes the findings are supported by substantial evidence. She contends the facts found do not sustain the judgment; that they do not constitute cause for her dismissal.
Defendant, at a meeting of the Parent Teachers Association of the school of which she was principal, said she had been called before plaintiff and had 'spit in their faces,' made derogatory statements concerning the superintendent of schools and criticized plaintiff for bringing him to Los Angeles, called the superintendent of schools and other school administrators 'henchmen' and plaintiff's office 'The Little Kremlin.' Defendant has persistently failed to attend meetings called to assist principals in their work, in violation of the rule requiring such attendance. She persistently violated a rule which requires that keys to classrooms be left in the office of the principal. She refused to accept teaching assignments.
A teacher, and more particularly a principal, in the public school system is regarded by the public and pupils in the light of an exemplar, whose words and conduct are likely to be followed by the children taught. '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.' Johnson v. Taft School Dist., 19 Cal.App.2d 405, 408, 65 P.2d 912, 913; Voorhees, Law of Public Schools, p. 136.
A teacher's refusal to accept an assignment which the board of education has the power to make constitutes a violation of school laws for which she may be dismissed. Appeal of Ganaposki, 332 Pa. 550, 2 A.2d 742, 119 A.L.R. 815; Commonwealth ex rel. Wesenberg v. School Dist. of City of Bethlehem, 148 Pa.Super. 250, 24 A.2d 673, 676; Consolidated School Dist. No. 4, Bryan County v. Millis, 192 Okl. 687, 139 P.2d 183; Hamberlin v. Tangipahoa Parish School Board, 210 La. 483, 27 So.2d 307, 310-12. The wilful refusal of a teacher to obey reasonable rules and regulations of the employing board of education is insubordination. State ex rel. Steele v. Board of Education of Fairfield, 252 Ala. 254, 40 So.2d 689, 695.
A proceeding of this character is limited to a determination of whether the charges are true, and if so found, whether they justify dismissal. Board of Education v. Jewett, 21 Cal.App.2d 64, 72, 68 P.2d 404. We cannot say as a matter of law that the charges found to be true do not justify dismissal. We hold therefore that the findings support the judgment.
Plaintiff did not produce any evidence at the trial that the charges constitute unprofessional conduct. Defendant contends the court erred in concluding that the charges found to be true constitute unprofessional conduct 'where there is no evidence introduced as to what constitutes professional or unprofessional conduct.' The argument is that there is no basis in case law for a conclusion of unprofessional conduct; that the cases holding that a teacher was guilty of unprofessional conduct 1 had to do with acts of a teacher in the presence of his pupils; that what constitutes unprofessional conduct is not a matter of common knowledge; and that the matter is not one of which the court may take judicial knowledge.
The term 'unprofessional conduct' as used in the Education Code is to be construed according to its common and approved usage, having regard to the context in which the legislature used it. Ed.Code, § 10. The word 'unprofessional' is defined in Websters' New International Dictionary, 2d Ed., as 'Not professional; esp., designating language, action, or method, not befitting one's profession; as, unprofessional language.' It is a relative term without technical meaning. 'Unprofessional conduct' is defined in 66 C.J. 55 as 'that which violates the rules or ethical code of a profession or such conduct which is unbecoming a member of a profession in good standing.'
The Education Code, section 13529, expressly empowers the court to determine whether the acts and omissions charged, if found to be true, constitute unprofessional conduct. It says that the court shall 'inquire into the charges and determine whether or not the charges are true, and if true, whether or not they constitute sufficient grounds for the dismissal of the employee, under the provisions of this code, and for judgment pursuant to its findings.'
In Board of Education v. Ballou, 21 Cal.App.2d 52, at page 55, 68 P.2d 389, 391, it was said: 'The Legislature has placed upon the judges the duty of determining whether a teacher should be dismissed when charges such as incompetency are filed.' In Midway School Dist. v. Griffeath, 29 Cal.2d 13, at page 17, 172 P.2d 857, 859, the court declared: 'Where an accused teacher demands a hearing, the duty of determining the issues as to the truth of the charges and their sufficiency to support a dismissal is placed by the statute on the superior court, whose judgment, appropriate to the evidence and the findins, terminates the matter.' A reading of the entire opinion in the Griffeath case clearly demonstrates that the question whether acts and omissions charged and found to be true constitute unprofessional conduct is a judicial question, and that the responsibility for determining the question is on the trial court. In Board of Education v. Jewett, 21 Cal.App.2d 64, 68 P.2d 404, it was held as a matter of law that violation of the oath required of a teacher constituted unprofessional conduct. Conduct which produced serious friction in the school and showed insubordination and a refusal to conform to the instructions and requirements of a teacher's superior has been held to constitute unprofessional conduct. Johnson v. Taft School Dist., 19 Cal.App.2d 405, 65 P.2d 912. A teacher who takes a leave of absence without consent of the school board in violation of a rule is guilty of 'unprofessional conduct'. Evard v. Board of Education, 64 Cal.App.2d 745, 149 P.2d 413.
In Goldsmith v. Board of Education, 66 Cal.App. 157, 225 P. 783, a high school teacher in the city schools of Sacramento, before his class in session, advocated the election of a particular candidate for the office of county superintendent of schools. It was charged that such conduct was unprofessional. After a hearing, the Board of Education 2 found that the teacher was guilty 'of unprofessional conduct.' On appeal from a judgment denying reinstatement after suspension, the court stated in 66 Cal.App. at page 162, 225 P. at page 785: '[W]e agree with the trial judge that the charges against the appellant are clearly embraced within the contemplation of subdivision (j) of section 1609 as expressed in the general language 'unprofessional conduct.' * * * [I]t is claimed that the term 'unprofessional conduct' is so general, so undefined, so vague, that there is no way by which what is meant by it can be determined, that any act might be claimed to constitute it, and that to make it a ground upon which a teacher might be removed would be to make his employment dependent upon the whim and caprice of changing official authority. As a consequence it is claimed that the cause 'unprofessional conduct' as a ground of removal is meaningless and illegal and that no charge can be said to legally come within it, and that the charges here attempted, having no foundation, are void. If this be true it leaves California with a very large number of teachers to whom she has given permanent employment with no power reserved in her boards of education or other governing authority to prohibit the grossest misuse of their privileges. If 'unprofessional conduct' as a ground of dismissal is void because it leaves too much to the judgment or discretion of the board of education in determining what constitutes it, then 'immoral' conduct, 'incompetence,' and 'evident unfitness for teaching' must likewise be held void for the same reason, and practically all of the vitally necessary power of the boards will be stripped from them. A decision which involved such radical consequences should be reluctantly arrived at and reached only for reasons which are unanswerable. * * * In this state the court sustained a charge alleging 'evident unfitness to teach,' 'insubordination,' and 'unprofessional conduct' against a teacher. McKenzie v. Board of Education, 1 Cal.App. 406, 82 P. 392. * * * As has been stated, if plaintiff is correct here in claiming that the school board has no power to proceed against a teacher for any breach of what the statute designates as 'unprofessional conduct' because the term is too general, and leaves too much to the discretion and judgment of the board, then other statutory grounds of removal are equally invalid, and the school boards of this state are almost totally without authority over the teachers they employ. This is not only so of California, but is equally true of every other state in the Union so far as a thorough search has enabled me to discover. The statutes of the several states provide for removal of teachers or the revocation of their certificates generally for such causes as 'general neglect of the business of the school,' 'general neglect,' 'lack of patriotism or refinement,' that the teacher lacked the qualities of success, that the teacher has 'become unworthy,' for 'other demoralizing vice,' 'neglect of duty,' 'willful neglect of duty,' or 'when he has become unworthy to remain a teacher.' * * * [T]he calling [of 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. * * * [T]he teacher is intrusted 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? * * *.
'In the case of attorneys they may be disbarred for 'any act involving moral turpitude.' Section 287, Code Civ.Proc. In the army a commission can be revoked for 'conduct unbecoming an officer and a gentleman.' Articles of War, subd. 95. In the church, where the highest degree of personal propriety is demanded, governing bodies are almost unrestricted in their discretionary power to deal with offenses against a discipline that is itself unwritten.' See also: Alexander v. Manton J. U. School Dist., 82 Cal.App. 330, 255 P. 516.
We hold that the court did not err in concluding that the charges found to be true constitute unprofessional conduct without evidence 'as to what constitutes professional or unprofessional conduct.'
The answer of defendant sets up three separate defenses: 1) the instructions to defendant to report for teaching assignments were not made in good faith; 2) she was not dismissed for any of the causes specified in the Education Code but because she had appeared before the grand jury of Los Angeles county and had testified to conditions in connection with plaintiff, its members and employees, and had addressed the press, private groups, friends, and other interested individuals relative to the matters about which she had testified; 3) her dismissal was part of plaintiff's calculated plan to remove her from her means of livelihood and deprive her of her right of free speech. On motion these defenses were stricken from the answer. Defendant assigns error. There was no error.
The special defenses are all an attack on the motives of the board. They are not defenses which tend to excuse, explain, or deny the acts or omissions charged. It is settled that where there is a legal right to do an act, the motive which induces the act is of no importance. Neuwald v. Brock, 12 Cal.2d 662, 675-6, 86 P.2d 1047; Monahan v. Dept. of Water and Power, 48 Cal.App.2d 746, 754, 120 P.2d 730. The deletion of the special defenses did not bar defendant from introducing 'elements of justification, provocation, excuse, motive, circumstances surrounding the act, and the like.' Evidence as to those elements was admissible on the issue of whether the charges, if true, constitute sufficient grounds for dismissal. Ed.Code, sec. 13529.
The judgment which determines that the board may dismiss defendant is not a direction to the board to dismiss her, nor is it compulsory; it is permissive only. Ed.Code, sec. 13552; Midway School Dist. v. Griffeath, 29 Cal.2d 13, 17 172 P.2d 857. The present board may or may not dismiss defendant at its pleasure.
Affirmed.
SHINN, P. J., concurs.
WOOD, J., did not participate. --------------- * Subsequent opinion 261 P.2d 261. 1 Alexander v. Manton J. U. School Dist., 82 Cal.App. 330, 255 P. 516; Board of Education v. Jewett, 21 Cal.App.2d 64, 68 P.2d 404; Gaderer v. Grossmont Union H. S. Dist., 124 Cal.App. 686, 13 P.2d 401; Goldsmith v. Board of Education, 66 Cal.App. 157, 225 P. 783. 2 At that time (1924) the Board of Education was empowered to hear charges.