Opinion
1-31-1958
James Alexander TRINGHAM, Respondent, v. STATE BOARD OF EDUCATION of The State of California, etc., Appellant. * Civ. 5736.
Edmund G. Brown, Atty. Gen., and Edward M. Belasco, Deputy Atty. Gen., for appellants. Joseph Scott, A. H. Risse, and G. L. McFarland, Los Angeles, for respondent.
James Alexander TRINGHAM, Respondent,
v.
STATE BOARD OF EDUCATION of The State of California, etc., Appellant. *
Edmund G. Brown, Atty. Gen., and Edward M. Belasco, Deputy Atty. Gen., for appellants.
Joseph Scott, A. H. Risse, and G. L. McFarland, Los Angeles, for respondent.
WAITE, Justice pro tem.
In an amended accusation filed by appellant State Board of Education, respondent was charged with certain acts alleged to constitute immoral conduct. After hearing, his credentials, consisting of a General Elementary Credential, an Elementary School Administration Credential, and a General Secondary School Credential, were revoked. Thereafter, respondent filed this action in mandamus to compel appellants to cancel and set aside the order revoking said credentials. A demurrer to the petition was sustained without leave to amend, judgment was entered, and upon appeal was reversed by this court. Tringham v. State Board of Education, 137 Cal.App.2d 733, 290 P.2d 890. Respondent then filed an amended petition for writ of mandate, appellants filed their answer thereto, and the trial court entered judgment annulling the order revoking respondent's credentials. Said judgment also commanded the State Board of Education to vacate its order of revocation and to reinstate forthwith all of respondent's credentials. This appeal is taken from the judgment, the State Board of Education contending (1st) That the trial judge erred in finding that appellants did not produce substantial evidence; and (2nd) That good cause existed for the revocation of respondent's credentials.
The amended accusation filed with the State Board charged immoral and unprofessional conduct and evident unfitness for service in the public schools as grounds for revocation under section 12752 of the Education Code. Paragraph III of said amended accusation sets forth 16 separate instances of alleged immoral and unprofessional conduct on the part of respondent. A hearing was held before a Hearing Officer, Division of Administrative Procedure, State of California, and after taking testimony for two days said officer, having taken the matter under submission, found a substantial number of charges to be true and rendered a proposed decision that respondent's credentials be suspended for a period of one year. Thereafter, the State Board of Education took the matter under submission on the record, including the transcript of testimony taken before the Hearing Officer, and found the following to be the true facts: (1) 'That on two occasions in October and December, 1952, respectively, petitioner, in an indecent manner, placed his hand on the private sexual parts of a male teacher in said school, through the latter's trousers.' (2) 'That in or about the month of February 1953, in a class in said school then and there being taught by said male teacher in said school, the petitioner, as he passed by and behind a female pupil in said class and who was bending over a table with her arms resting thereon, did wilfully, and in an indecent manner, make a patting gesture toward said pupil's posterior and grin at said male tacher.' (3) 'That on two separate occasions in November 1952, on the school premises, petitioner told a vulgar joke to a male teacher in said school during school hours and while pupils were in the vicinity.' (4) 'That in or about the month of March 1953 the petitioner and a male teacher in said school were talking in the hallway of said school and two female pupils were walking toward them; that the petitioner then and there did motion toward one of said female pupils and state to said male teacher: 'How would you like to have a little of that?' or words of similar import.' (5) 'That on one occasion petitioner stated to a female teacher in a joking manner, 'Let's neck.' And on another occasion, upon observing said female teacher carrying a new handbag, stated to said female teacher that a school teacher could not afford a purse like that and that she must be shacking up with somebody. Said statements were made in a joking manner, but were embarrassing to said female teacher.' (6) 'That on or about November 19, 1952, petitioner called two male pupils, aged thirteen and fourteen, from their class and asked them if they had been masturbating and if they had been having sexual intercourse with girls, and asked one of the boys if he was having intercourse with a specified girl pupil in the school, using the term 'screwing her'. That toward the latter part of said school year petitioner again asked the same boy if he was having intercourse with a named girl pupil, using the same term as above set forth. Said questioning was done in a vulgar and indecent manner.' (7) 'That in or about the month of May, 1953, in the presence of a male teacher in said school, the petitioner was discussing with several male pupils in said school their absence from physical education classes; that petitioner asked one of said pupils whether he would like another year in the eighth grade, and said pupil replied that he would just quit school and go to Tia Juana; and that the petitioner then inquired of said pupil: 'What will you do down there; open a whore house?' or words of similar import.' (8) 'That in or about the month of February 1953 the petitioner did, in an indecent manner, place his arms around the chest of a male pupil in said school, rub the chest of said pupil through the latter's clothing, and inquire of him: 'Is that the way you do it to the girls?' or words of similar import.' (9) 'That in or about March 1953 petitioner inquired of a male pupil in said school if he was going steady with a named girl and when was he going to have intercourse with her, using the term 'Screw her'.' (10) 'That sometime between January and April 1953, petitioner observed one of the male pupils, during play, jump on the back of another, and asked said boys if that was the way they did to the girls, or words of similar import.'
Based on these facts, the board found that respondent, while acting as principal, had committed acts constituting immoral and unprofessional conduct and had demonstrated evident unfitness for service in the public school system, and respondent's credentials were revoked.
The amended petition for writ of mandate alleged that petitioner was possessed of additional relevant and material evidence by way of defense to the amended accusation which, in the exercise of reasonable diligence, could not have been discovered or introduced at the hearing before the Board or the Hearing Officer. However, in the trial court no additional evidence was offered or considered, and the judge made his findings solely on the administrative record, including the transcript of testimony taken before the Hearing Officer. The trial court made a separate finding as to each of the incidents hereinbefore set forth, as found to be true by the State Board, and the finding of the court as to each of said incidents uniformly states: '* * * that there is no substantial evidence to support such finding of the respondent, State Board of Education, State of California * * *' (Emphasis ours.) The court even found in connection with incident No. (3), that respondent did not tell vulgar jokes to a male teacher as alleged and found by the Board, or at any other time or at all, whereas respondent admitted telling the jokes, maintaining only that no pupils were in the vicinity at the time. (Emphasis ours.)
An inspection of the transcript reveals an abundance of substantial evidence to support the findings of the Board, which leads us to a discussion of appellants' first contention, that the trial court erred in finding that appellants did not produce substantial evidence. This necessitates a consideration of the proper scope of a court's review of administrative orders and decisions under the provisions of section 1094.5 of the Code of Civil Procedure. That section, enacted in 1945, codifies the procedure previously followed for reviewing the decisions of state-wide administrative agencies. Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90, 105, 280 P.2d 1. Under the prior procedure it was held that such a review required a trial de novo in the Superior Court (Laisne v. California State Board of Optometry, 19 Cal.2d 831, 123 P.2d 457), and cases subsequent to 1945 have held to the same effect. Moran v. Board of Medical Examiners, 32 Cal.2d 301, 196 P.2d 20.
Section 1094.5 of the Code of Civil Procedure provides, among other things, that: '(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. '(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence; and in all other cases abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.'
In this case the trial court apparently did not weigh all of the evidence before it and pass upon the weight of that evidence as it was required to do in its capacity as a trier of fact. Instead, it merely found that there was no substantial evidence to support the findings of the State Board, thereby necessarily rejecting in toto all of the testimony given under oath by the three teachers and five pupils who had testified to the acts which the Board found to have been committed. In so doing, the court acted in an appellate rather than a trial capacity. Moran v. Board of Medical Examiners, supra, 32 Cal.2d 301, 308, 196 P.2d 20.
In view of the conclusion we have reached as to appellants' first point, it is perhaps unnecessary to dwell at length upon the second point, namely, that good cause existed for the revocation of respondent's credentials. Section 12752 of the Education Code provides: 'The State Board of Education shall revoke or suspend for immoral or unprofessional conduct, or for persistent defiance of, and refusal to obey, the laws regulating the duties of persons serving in the public school system, or for any cause which would have warranted the denial of an application for a certification document or the renewal thereof, or for evident unfitness for service, life diplomas, documents, or credentials issued pursuant to this code.'
Under this statute, the State Board of Education is the constitutional agency charged with the duty of passing upon the fitness and eligibility of those persons seeking to become and remain teachers and administrators in the public school system, and certain powers of decision, within the necessary limits fixed by law, must be given to such Board. Otherwise, the effectiveness of many administrative agencies upon which we rely for the expert conduct of the complex affairs of state government will be vitally impaired.
In the case of Board of Education of City of Los Angeles v. Swan, 41 Cal.2d 546, 552, 261 P.2d 261, 265, the Supreme Court observes that 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 actions are likely to be followed by the children coming under the teacher's care and protection. The case then proceeds to quote with approval the following language used by this court in Johnson v. Taft School District, 19 Cal.App.2d 405, 408, 65 P.2d 912: "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, 66 Cal.App. 157, 225 P. 783, 787, also quoted with approval in the Swan case, the court points out that: "* * * 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."
As said in the Johnson case, supra, 19 Cal.App.2d 405, 408, 65 P.2d 912, 913: 'Primarily it should be the function of the board of education to determine the effect on a school of unprofessional conduct on the part of a teacher. It should hear evidence, make its findings and draw its conclusions from them. If its findings and conclusions are supported by substantial evidence it it would be a poor policy for a court to disturb them.'
Mindful of these guiding rules, it is apparent that the people of California demand that only those persons whose moral integrity and whose discretion in handling children are of the highest degree should be permitted to function in the public school system. As pointed out by the attorney general, the language attributed to respondent and found by appellants to have been employed by him, as principal, in speaking to 13, 14 and 15-year-old pupils at the school, was deplorable, and assuredly is good cause for revocation of respondent's credentials if found to be true when weighed with all of the evidence in a trial properly conducted for that purpose.
The judgment is reversed and the cause remanded with directions to the trial court to consider and weigh all of the evidence to be submitted in the new trial.
BARNARD, P. J., and MUSSELL, J., concur. --------------- * Opinion vacated 326 P.2d 850.