Opinion
Rehearing Denied July 19, 1977.
Opinions on pages 885-913 omitted.
HEARINGS GRANTED
For Opinion on Hearing see 142 Cal.Rptr. 439, 572 P.2d 53.
[139 Cal.Rptr. 237]John H. Larson, County Counsel, and Donovan M. Main, Deputy County Counsel, Los Angeles, for petitioner and appellant.
Schwartz, Steinsapir, Dohrmann & Krepack and Richard D. Sommers, Los Angeles, for real party in interest and respondent.
STEPHENS, Associate Justice.
The Pasadena Unified School District appeals from an order of the Los Angeles Superior Court denying its Petition for Writ of Mandate which the school district filed pursuant to Code of Civil Procedure section 1094.5 under the statutory authority of Education Code section 13414 and Government Code section 11500. By its petition, it sought to require the Commission on Professional Competence to set aside its administrative determination that cause did not exist to dismiss the real party in interest, Sulochna Bedi, from a probationary teaching position that she held with the school district.
Facts
Respondent, Sulochna Bedi, was hired as a certified probationary employee by the Pasadena Unified School District in 1972 to teach educationally handicapped children at the Roosevelt School. During that school year, her relationship with the principal of the Roosevelt School deteriorated, and on February 11, 1974, she requested a transfer from that school. Thereafter, between May 1974 and July 1974, informal discussions respecting a transfer to the Noyes Primary School were held by her and the assistant director of school personnel. Respondent felt that her qualifications and the requirements of the Noyes assignment matched perfectly. However, on September 10, 1974, respondent was officially advised by the superintendent of the school district that he was assigning her to teach an educationally handicapped class at the McKinley Junior High School. Respondent alleges that at this time she was told that this new assignment included daily evaluations and a classroom isolated from all other classrooms. [139 Cal.Rptr. 238] She reacted to the superintendent's order by giving written notice to the Pasadena School Board that the involuntary transfer was unacceptable to her. She also engaged an attorney to request said school board to disapprove of the superintendent's transfer order. Her claim was that the transfer order was arbitrary and discriminatory, and, as such, invalid under section 5224(B) of the school district's Policy Relating to Employment Practices.
Even before this, in April of 1974, Mrs. Bedi filed a charge of discrimination with the California Fair Employment Practice Commission pertaining to the conduct of certain administrative individuals employed by the school district.
The pertinent parts of section 5224(B) of the school district's Policy Relating to Employment Practices reads as follows: 'Subsection (1). Certificated employees shall not be transferred arbitrarily, capriciously, or without basis in fact. . . . Subsection (4). Every effort to give notice of involuntary transfer shall be given to employees as soon as possible and except in cases of emergency, not later than May 15. . . . Subsection (6). An administration initiated transfer shall take place only after a meeting between the certificated employee involved and the administrator. Both parties shall be notified of the reasons for the transfer. A good faith effort to find alternate solutions to the problem will be made by the administration if the certificated employee objects to the proposed transfer.'
Between September 16, 1974, and October 11, 1974, respondent did not report for her teaching assignment at the McKinley Junior High School. She alleges that she was unable to work by reason of nervousness and anxiety over her transfer, and the circumstances under which it was made.
On October 10, 1974, the superintendent again advised the respondent to report to her assignment at the McKinley School. The respondent did not attempt to make a formal reply to the superintendent or the school board. She claims that none was necessary since her attorney was negotiating the matter with the school board, and was in constant communication with them.
The following November 26, the school board, by resolution, gave notice to the respondent that cause existed for her immediate dismissal pursuant to sections 13403(e), 13403(g) and 13442 of the Education Code. Said notice and statement of charges were served on respondent on December 23, 1974. On that same day, the respondent gave the Board of Education notice of her demand for hearing before the Commission on Professional Competence pursuant to Education Code sections 13412 and 13413.
The board formulated the following written statement of charges against respondent: '1. Persistent and willful refusal to perform regular assignments without reasonable cause [§ 13403(g)], 2. Willful and persistent refusal to obey the school laws of the State and reasonable regulations prescribed for the government of the public schools by the governing board of the school district employing her [§ 13403(g)], and 3. Evident unfitness for service [§ 13403(e)].'
In February of 1975, a hearing was held before the respondent Commission on Professional Competence, and subsequently on March 13, 1975, a decision was rendered in favor of Mrs. Bedi, with one of the members of the hearings board filing a dissenting opinion. Thereafter, the appellant school district filed for and received a writ of mandate from the superior court directing the commission to set aside its decision and make further findings of fact and/or take further evidence. Pursuant to the [139 Cal.Rptr. 239] writ of mandate, the commission conducted a further hearing on the matter on November 10, 1975. It received new evidence and heard new argument but still rendered a decision in favor of respondent Bedi, with the same member of the commission dissenting.
The majority of the commission made the following determination:
In addition to making the same conclusion of law as described in footnote 4 of this opinion, this second time around the commission made the following findings of fact:
The following March 4, 1976, once again before the superior court, the school district sought a writ of mandate to have the commission set aside its decision and to order Mrs. Bedi dismissed from her employment with the school district. This time, however, the court, over the objections of appellant, accepted the findings of fact and conclusions of law made by the commission, and denied the petition for writ of mandate. It specifically found that the second decision of the Commission on Professional Competence did not amount to an abuse of discretion in excess of jurisdiction; that the weight of the evidence supported the findings and decision of the commission; that the action of the school board in involuntarily transferring Mrs. Bedi was arbitrary by reason of its failure to grant Mrs. Bedi the rights and benefits provided under section 5224(B) of its Policy Relating to Employment Practices; and that Mrs. Bedi, through her attorney, was in fact negotiating the propriety of her involuntary transfer in good faith and had reasonable cause to believe that her assignment was still being negotiated with the school board when she was dismissed. The court also accepted the commission's finding that Mrs. Bedi was unable to work from September 16, 1974 through October 11, 1974 by reason of illness.
On this appeal, appellant submits that the determinations of both the commission and the superior court are not supported by the weight of the evidence; that the weight of the evidence clearly shows that Mrs. Bedi's refusal to perform her assignment was willful and persistent; that such conduct by a school teacher in California cannot be reasonably excused; and that this conduct rendered respondent unfit for service as a teacher in the Pasadena Unified School District. It also contends that the findings of both the commission and the superior court that the transfer of Mrs. Bedi was not made in compliance with section 5224(B) of the board's employment policy are not supported by the evidence.
Discussion
I
Education Code sections 13412-13414 do not expressly authorize the commission to hear cases other than those that concern tenured employees. Under the Education Code, teachers are classified as either permanent or probationary employees. 'In general, a teacher employed by a school district for three consecutive school years, . . . becomes a permanent employee at the commencement of the fourth school year. (§ 13304.) During the three-year period, a teacher employed for a school year is a probationary teacher. (§ 13334.)' (Turner v. Board of Trustees, 16 Cal.3d 818, 822, 129 Cal.Rptr. 443, 445, 548 P.2d 1115, 1117.) The code recognizes two kinds of dismissals of probationary teachers. First, the school district may at the end of the school year simply decide not to rehire a probationary employee for the following school year. (§ 13443.) Or, second, the school district may make a discretionary dismissal, for cause, during the school year, which becomes effective immediately once notice has been given. (§ 13442.) However, if the dismissal of the probationary employee is made during the school year, the dismissal must also be for cause. [139 Cal.Rptr. 240] (§ 13442.) 'For cause only' has been interpreted to mean one of the specific statutory causes described under Education Code sections 13403 and 13403.5, relating to the dismissal of permanent employees of a school district. (Lunderville v. Emery Unified Sch. Dist., 262 Cal.App.2d 459, 463, 68 Cal.Rptr. 768; Titus v. Lawndale School Dist., 157 Cal.App.2d 822, 827, 322 P.2d 56.)
In the case where a probationary employee is timely notified at the end of the school year that his services for the coming school year will not be needed, that empolyee can rightfully demand a hearing before the board of education, but they alone have the duty to decide whether cause exists to dismiss that employee. (Ed.Code, § 13443.) On the other hand, if a tenured teacher is dismissed for cause, he or she is entitled to a hearing before the Commission on Professional Competence. (See Ed.Code, §§ 13412, 13413 and 13414.) However, since the re-enactment of sections 13413 and 13414 of the Code which became operative on March 7, 1973, the exact procedure to be followed in the cases where the probationary employee is dismissed during the school year has not been expressly delineated in either the Code or the cases interpreting that Code. The issue is whether the probationary employee dismissed during the school year is entitled to an administrative hearing before the Commission on Professional Competence, or before the school board.
In Horner v. Board of Trustees, 61 Cal.2d 79, 83, 37 Cal.Rptr. 185, 188, 389 P.2d 713, 716, the Supreme Court held that the same procedural protections applicable to the dismissal of a permanent employee are available to a probationary employee dismissed pursuant to section 13442. There, the court said: '[The probationary employee] is entitled to a court proceeding like the one available to a permanent employee [Citations].'
II
Section 13414 of the Education Code provides that the superior court, on review, 'shall exercise its independent judgment on the evidence.' This means that the superior court under section 1094.5 of the Code of Civil Procedure must review the evidence and determine whether the findings and judgment of the administrative ageney are supported by the weight of the evidence; it did. (Strumsky v. San Diego County Employees Retirement Assn., 11 Cal.3d 28, 44, 112 Cal.Rptr. 805, 520 P.2d 29.)
III
Neither party disputes the proposition that if the school district failed to comply with its own policies respecting involuntary transfers, then the instant transfer would be invalid and respondent's failure to report for her new assignment could not be a ground for dismissal. The discretion of a school superintendent to assign teachers within the school system can be exercised in any manner best calculated to further the interests of the school system. (See Ed.Code, § 939, subd. (c); Centinela Valley Secondary Teachers Assn. v. Centinela Valley Union High Sch. Dist., 37 Cal.App.3d 35, 40, 112 Cal.Rptr. 27; see also Paulus v. Board of Trustees, 64 Cal.App.3d 59, 63, 134 Cal.Rptr. 220.) But that discretion, particularly as it regards involuntary transfers, must be exercised in accordance with applicable school district regulations. (See Frates v. Burnett, 9 Cal.App.3d 63, 71, 87 Cal.Rptr. 731.) In the case at bench, appellant's own regulations respecting involuntary transfers circumscribes such transfers in a manner to ensure that the rights of the transferee are not ignored. In particular, section 5224(B) of appellant's employment practices policy provides that administration-initiated transfers may not be made 'arbitrarily, capriciously, or without basis in fact,' that except in cases of emergency, notice of transfer shall be given not later than May 15, and that if the transfer is objectionable, a good faith effort 'to find alternate solutions to the problem' be made by the administration. The crux of this controversy is whether respondent was in fact accorded the foregoing rights, and whether her failure to report for her new assignment while insisting upon these rights was a basis for dismissal under Education [139 Cal.Rptr. 241] Code section 13403(g). Viewing the evidence most favorably to respondent, we find that the commission and the court erred in concluding in the negative on both points.
Compliance with Section 5224(B)
The Commission on Professional Competence concluded that respondent's transfer was arbitrary insofar as it was made without basis in fact, contrary to the requirements of subdivision 2 of section 5224(B). This finding, confirmed by the lower court, is manifestly erroneous as there was substantial uncontradicted evidence that respondent's existing assignment at Roosevelt School was untenable--by virtue of respondent's expressed dissatisfaction with her position, and by virtue of 'extreme parent and staff pressure' for her removal. It is evident from the record that Mrs. Bedi had come into direct conflict with her superiors, was having difficulty in fulfilling her assigned duties, and was herself pressing for reassignment to another primary school. Far from being capricious or arbitrary, respondent's reassignment was made in direct response to a troubling situation which was working to the detriment of both teacher and school.
Some of the foregoing facts also establish that there was an 'emergency' under section 5224(B) justifying a transfer after May 15. Respondent contends, however, that the school district failed to demonstrate precisely what emergency, if any, existed which justified the shift of assignment as late as September 10. The 'emergency clause' of section 5224(B) was apparently designed to accord a teacher adequate time to prepare for a new but involuntary assignment by requiring that last minute shifts of assignment be made only in exigent or emergency circumstances. When friction between a teacher and staff has reached a level where the teacher's ability to fulfill her assignment has become seriously impaired, then surely an emergency exists within the meaning of this provision. Regardless of whether appellant 'labeled' this emergency, the record at bench unmistakably reveals such a scenario. (If this was not an 'emergency' transfer, it would strongly suggest a voluntary transfer, though not to the school chosen by respondent; she requested a transfer at all times.)
When respondent's case first came to the superintendent's attention in July, there were some 'serious concerns' which caused him to consider her reassignment. There was evidence of respondent's deteriorating relations with both her principal and with the administrator for educationally handicapped programs. In April, respondent had filed a discrimination complaint with the Fair Employment Practices Commission against both parties. In late June, the principal filed an unsatisfactory annual evaluation of respondent's performance with the school, and then had respondent demoted to the position of a teacher's aide. Moreover, at the time the matter was referred to the superintendent, there was both staff and parental pressure for respondent's removal. While it is true that respondent had requested voluntary reassignment as early as February, it does not appear that the situation had reached crisis proportions until at least mid-year. Then it was only because respondent was on vacation that the transfer was not effected until early September. Thus, we can only conclude that the court was in error in determining that there was no emergency necessitating respondent's transfer.
Lastly, there is uncontradicted evidence that a good faith effort was made to find an alternate solution to respondent's problem, contrary to the court's finding. From our reading of section 5224(B) we see no requirement that an alternate assignment be dictated by the teacher's choice; rather, the provision is more broadly worded to require a good faith effort to solve 'the problem'--which would encompass efforts made to render the proposed assignment more palatable to the transferee. At any rate, efforts were made on both levels. Respondent requested that she be assigned instead to Noyes Primary School according to a school official's promise, or that she be assigned to any of the special or alternative [139 Cal.Rptr. 242] schools in the district. Superintendent Cortines attempted to locate a position for respondent at Noyes School, but discovered that not only were there no positions available in her specialty, but that there had even been recent cutbacks in the faculty. As to the other schools, the superintendent knew of no vacancies and immediately so informed respondent. The superintendent also dealt with respondent's immediate concerns with her proposed assignment--concerns of harassment and isolation. He spoke to individuals named by respondent, then assured her that the harassment would not continue in her new position. He also spoke with the principal and assistant principal at respondent's new post to ensure that her class of educationally handicapped children would receive adequate staff support and would be involved in general school activities. All told, respondent's transfer, rather than being unreasonable, vindictive, or arbitrary, was made following a bona fide effort to accommodate her desires with respect to a transfer to a new assignment.
Accordingly, we conclude that respondent's assignment to McKinley Junior High School was made in compliance with the enumerated policies embodied in section 5224(B).
Cause for Dismissal under Education Code section 13403(g)
Section 13403(g) of the Education Code allows a permanent employee to be dismissed for '[p]ersistent violation of or refusal to obey . . . reasonable regulations [of] . . . the governing board of the school district employing him.' Respondent's dismissal on this ground was overturned essentially because respondent's conduct was seen as the product of the misguided assumption that the assignment was still being negotiated with the board of education, and thus was not persistent and wilful conduct. This conclusion evidences a misunderstanding of the law.
Section 13403(g) has been construed to circumscribe both wilful and innocent violations of school regulations so long as the violations are 'persistent.' (Board of Education v. Mathews, 149 Cal.App.2d 265, 272, 308 P.2d 449; see also Governing Board of Oakdale Union Sch. Dist. v. Seaman, 28 Cal.App.3d 77, 84, n. 5, 104 Cal.Rptr. 64, 527.) Nothing could be plainer than that respondent has persisted in her refusal to perform her assignment and that she intended to persist. On October 9, her attorney addressed a letter to the superintendent which reads, in part, as follows: 'Under the circumstances, Mrs. Bedi must inform you that she requests another assignment and that she cannot accept the assignment to McKinley School. Will you please inform the principal at McKinley School that Mrs. Bedi is awaiting another assignment and will not meet the class purportedly assigned to her at the beginning of the school semester.' (Emphasis added.)
The superior court excused this flagrant repudiation of the superintendent's assignment by finding that respondent 'was negotiating the propriety of her involuntary transfer in good faith and had reasonable cause to believe that her assignment was still being negotiated with the Board of Education.' Assuming the facts found to be correct, they simply do not constitute a defense. The superintendent had made a valid assignment, as was his power under section 939(d) of the Education Code. The assignment was in effect. True, the record shows that the Board of Education had met with respondent's attorney in an executive session on October 1. No action of any kind, however, was taken. The superintendent's assignment was not suspended or stayed. On October 10, the superintendent sent respondent a letter which should have clarified any lingering doubts.
The full text of the letter is as follows:
[139 Cal.Rptr. 243]Respondent seems to derive some comfort from the fact that this letter was sent by Mr. Cortines as superintendent, rather than on behalf of the Board of Education. This is curious: if the letter means anything, it is that Mr. Cortines, as superintendent, confirmed a valid assignment which he had made as superintendent. Respondent may well have been hoping that the Board would grant her temporary or permanent relief from that assignment, but until the Board acted in some fashion, her duty was to perform pursuant to the assignment. There was nothing to 'negotiate' with the Board.
The trial court's factual findings do not permit us to question respondent's good faith, but that is simply not enough. If a teacher's duty to obey a legal assignment were contingent on the teacher's belief in its legality, the professional staff's widely held but incorrect view on any question of law could bring public education to a standstill.
This case does not involve insubordination based on a refusal to obey an unconstitutional or otherwise illegal order. (Cf. Parrish v. Civil Service Commission, 66 Cal.2d 260, 264, 57 Cal.Rptr. 623, 425 P.2d 223.) Respondent simply pitted her judgment with respect to the legality and propriety of her assignment against that of the superintendent. She could have attempted to vindicate her views by resorting to a grievance procedure which, the record shows, was available to her. Instead, she unilaterally decided to withhold her services. In so doing, she took a chance that if she were ultimately held to be in the wrong, her refusal to work would amount to insubordination justifying her discharge. (Board of Education v. Swan, 41 Cal.2d 546, 551-552, 261 P.2d 261; Board of Education v. Mathews, 149 Cal.App.2d 265, 271-272, 308 P.2d 449; cf. Morrison v. State Board of Education, 1 Cal.3d 214, 233, fn. 37, 82 Cal.Rptr. 175, 461 P.2d 375.) Her belief that she was right and that she might be able to make the Board of Education see the wrong of the superintendent's ways did not justify taking the law into her own hands.
We conclude that the lower court erred in confirming the finding by the Commission on Professional Competence that no cause existed for respondent's dismissal under Education Code section 13403(g). In view of this conclusion, we need not reach appellant's remaining contentions.
The order is reversed and the cause is remanded to the superior court with directions to enter an order in conformance with the views hereinabove set forth.
KAUS, P. J., and ASHBY, J., concur.
'I. The action of the Board of Education of the Pasadena Unified School District was arbitrary by reason of its failure to grant to respondent the rights and benefits provided under Sections 5224(B) and (C) of its policy relating to employment practices.
'II. Respondent through her attorney was negotiating the propriety of her involuntary transfer and had reasonable cause to believe the matter was still under consideration by the Board of Education. Respondent's refusal to perform her assignment with the District, though misguided, was not tantamount to persistent and willful conduct.
'III. Cause does not exist to dismiss respondent pursuant to Sections 13403(e) or 13403(g) of the Education Code.
'IV. The Commission interprets the limitations of its powers under Section 13413 of the Education Code as to either sustain or dismiss charges brought. If legally authorized to do so the Commission would impose and appropriate period of suspension in this matter.' (Emphasis added.)
'1. That the School Board failed to honor the terms of Section 5224(B) of the Employment policies of the District, in that it made an arbitrary and involuntary transfer of respondent where there was no basis of fact for the transfer, where there was no emergency, and where there was no attempt to find alternate solutions.' It further found that respondent's absence from her school activities and duties during the period from September 16, 1974 to October 11, 1974 were 'due to nervousness and anxiety over her assignment to McKinley Junior High School.'
'Dear Mrs. Bedi:
'It has been brought to my attention that you are still unclear of your assignment for the school year 1974-75.
'Your assignment is teacher for the educationally handicapped at McKinley Junior High School.
'The district is ready and willing to assist you in any way possible to have a successful experience.
'Sincerely,
'[Signed] Ramon C. Cortines,
'Superintendent of Schools.'