Rehearing Denied April 1, 1976.
Opinions on pages 151-177 omitted.
[547 P.2d 275] [128 Cal.Rptr. 275] A. Leonard Bjorklund, Jr., Christopher R. Savage, Sausalito, for Gassman, Podell & Francisco, plaintiffs, respondents and appellants.
Bell & Hill by Robert Y. Bell, Santa Rosa, for Richard Travis, plaintiff and respondent.
James P. Botz, County Counsel, John C. Gaffney, Asst. County Counsel, County of Sonoma, Santa Rosa, for Governing Bd., etc., defendants, appellants and respondents.
Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
Appellants, the Governing Board of the Rincon Valley Union School District and certain district officials (hereafter collectively referred to as 'the board' or 'the district'), appeal from a judgment rendered in a consolidated writ of mandate proceeding ordering the board to set aside its decision not to reemploy respondents Frederika Gassman, Jackie Podell, Renee Francisco, and Richard Travis (hereafter 'the teachers') as probationary teachers for the 1974-1975 school year. In addition, Gassman, Podell, and Francisco appeal from that portion of the judgment which denies their claim for attorneys' fees under Government Code section 800.
Section 13443(d) of the Education Code provides that the determination of the governing board of a school district not to employ a probationary employee for the ensuing school year shall be for cause only. The section states that the cause for the determination shall relate solely to the welfare of the schools and the pupils thereof, but contains the provision that cause shall include termination of services for the reasons specified in section 13447. The latter section sets forth two additional causes for termination of employment, which may be effected '[w]henever in any school year the average daily attendance in all of the schools of a district for the first six months in which school is in session shall have declined below the corresponding period of either of the previous two school years, or whenever a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year, . . .'
Unless otherwise stated, all code references herein are to the Education Code.
Section 13443 reads, as pertinent, as follows: '(a) No later than March 15 and before an employee is given notice by the governing board that his services will not be required for the ensuing year, the governing board and the employee shall be given written notice by the superintendent of the district of his designee, or in the case of a district which has no superintendent by the clerk or secretary of the governing board, that it has been recommended that such notice be given to the employee, and stating the reasons therefor. [p](d) The governing board's determination not to reemploy a probationary employee for the ensuing school year shall be for cause only. The determination of the governing board as to the sufficiency of the cause pursuant to this section shall be conclusive, but the cause shall relate solely to the welfare of the schools and the pupils thereof and provided that cause shall include termination of services for the reasons specified in Section 13447. The decision made after the hearing shall be effective on May 15 of the year the proceeding is commenced.'
Section 13447, as herein pertinent, reads as follows: 'Whenever in any school year the average daily attendance in all of the schools of a district for the first six months in which school is in session shall have declined below the corresponding period of either of the previous two school years, or whenever a particular kind of service is to be reduced or discontinued not later than the beginning of the following school year, and when in the opinion of the governing board of said district it shall have become necessary by reason of either of such conditions to decrease the number of permanent employees in said district, the said governing board may terminate the services of not more than a corresponding percentage of the certificated employees of said district, permanent as well as probationary, at the close of the school year; provided, that the services of no permanent employee may be terminated under the provisions of this section while any probationary employee, or any other employee with less seniority, is retained to render a service which said permanent employee is certificated and competent to render.'
[547 P.2d 276] [128 Cal.Rptr. 276] The particular context of the instant case has been framed by a stipulation between the parties to the effect that the termination of employment here to be considered was sought to be effected as one for cause under section 13443, and not under the authority of or for the reasons set forth in section 13447. Thus, the question presented is: Do the factors of estimated reduction in revenue, increasing costs of operation, declining enrollment and financial limits imposed by the Constitution constitute cause for termination of employment within the meaning of section 13443(d)?
FACTS AND PROCEDURAL HISTORY
Prior to the commencement of this controversy, the respondents were employed by the district as probationary teachers. On March 15, 1974, the teachers received notices informing them that the district superintendent had recommended to the board that they not be reemployed for the 1974-1975 school year. The notices stated that the teachers' terminations were made necessary by a past decline in average daily attendance and an anticipated future decline, by an expected insufficiency of revenues, and by the return from leaves of absence of a number of permanent staff members. It was further stated that the termination would be effected pursuant to Education Code section 13443.
The teachers requested a hearing as authorized by the statute. The district superintendent accordingly filed an 'accusation,' the appropriate administrative pleading, setting forth the reasons for the recommendation of termination. The pleading stated in part, '[t]herefore, if the district is to stay within the limits of the income and revenue which the district will receive in 1974-1975, as required by Article XIII, Section 40 of the State Constitution, it has been recommended and is in the best interest of the school district to reduce its staff of certificated personnel. . . .' It was further alleged that '. . . in summary, in view of current estimates of revenues, increasing costs of operation, declining enrollment, and financial limits imposed by the Constitution, it is in the best interest of the schools of the district and the pupils that . . . respondents not be re-employed for 1974-1975.'
The hearing was held on April 24, 1974, after the teachers filed notices of defense. The attorney for the district stated that the recommendation for termination had been made not because of any deficiency in the teachers' performance, but solely for financial reasons. All of the teachers except Travis stipulated as to the correctness of the allegations of fact set forth in the accusation. The district's superintendent and business manager also gave testimony supporting those allegations.
On May 1, 1974, the hearing officer issued his proposed decision. It was found, inter alia, that the total enrollment in the district's schools during the 1973-1974 school year was less than it had been at the close of the previous year, that an additional decline in enrollment was projected for the year 1974-1975, and that the district's tentative budget calculations for 1974-1975, which calculations presumed a reduction in the district's teaching staff of three positions, predicted a revenue surplus of some $350,000 over minimum costs, while potential costs not included in those calculations might exceed $657,000. However, the hearing officer concluded that these facts did not give rise to cause for termination within the meaning of section 13443. He therefore recommended that the accusation against the teachers be dismissed.
[547 P.2d 277] [128 Cal.Rptr. 277] On May 8, 1974, the board met to consider the hearing officer's proposed decision. The board voted to adopt the hearing officer's findings of fact. However, after listening to argument from the teachers' counsel and from its own attorney, the board rejected the hearing officer's recommendation and voted not to reemploy the teachers. The board stated in its written decision that '[s]ufficient cause for termination of each of said Respondents was established pursuant to section 13443 of the Education Code,' and that '[i]t was established that cause for termination of each of said Respondents is related to the welfare of the schools and the pupils thereof pursuant to section 13443. . . .'
On May 17, 1974, teachers Gassman, Podell, and Francisco filed a petition for a writ of mandate commanding the district to set aside its decision terminating their employment and to reemploy them for the 1974-1975 school year. Teacher Travis filed a separate but parallel petition on June 5, 1974. Both petitions prayed for an award of attorneys' fees pursuant to Government Code section 800. The actions were consolidated for trial.
The trial court concluded that 'the unfortunate circumstance of anticipated financial problems' does not amount to 'cause' for non-reemployment within the meaning of section 13443. Therefore, on December 10, 1974, the court gave judgment ordering the issuance of a peremptory writ of mandate as requested by the teachers. However, the teachers' prayer for an award of attorneys' fees was denied.
The district appeals. Teachers Gassman, Podel, and Francisco cross-appeal on the issue of attorneys' fees.
THE QUESTION OF MOOTNESS
The district alleged in its separate answers to the petitions for writs of mandate that attrition among its teaching staff had enabled it to offer contracts for the 1974-1975 school year to teachers Gassman, Podell, and Travis after the board voted not to reemploy them. These offers were accepted by Gassman and Podell, but not by Travis. It appears that a similar offer of employment was later extended to and accepted by the other teacher, Renee Francisco. This gives rise to an obvious suggestion of mootness.
The trial court stated in its notice of intended decision that the question raised by the teachers concerning the legitimacy of their termination was of 'sufficient practical interest and concern that it [should] be decided in this proceeding.' The district does not claim on appeal that this was error. This court, nevertheless, were it to decide on its own motion that the action was moot when the judgment was entered, could reverse the judgment and direct the trial court to dismiss the action. (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 453, pp. 4412-4413; § 471, p. 4428.)
A strong argument can be made that the action became moot at least as to the three teachers who accepted positions for the 1974-1975 school year. There is no indication in the record that those positions were in any respect inferior to the ones previously held by the teachers. However, it appears that the action remained alive as to Travis, since he did not compromise his claim against the district. (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 464, pp. 4419-4420.) Moreover, his action and the action brought by the other teachers might be permitted to escape the mootness doctrine under the exception for cases involving questions of broad public interest which are likely to recur. (See In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737; 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 470, pp. 4426-4428.) The trial court appears to have relied on this latter rule in refusing to hold the case moot.
Apart from the question whether the case was wholly or partially moot when judgment was rendered, it might be thought that the appeal itself has become [547 P.2d 278] [128 Cal.Rptr. 278] moot. (See 2 Witkin, Cal.Procedure (2d ed. 1970) Actions, § 45, pp. 920-921.) The judgment required the teachers to be reinstated only during the 1974-1975 school year, which has ended. However, to hold the appeal moot might make it extremely difficult if not impossible to effectively appeal from judgments such as that here at issue. It has been stated that the mootness doctrine should not be invoked in cases which involve important public questions and which arise from situations capable of repetition while evading review. (See In re William M., supra, 3 Cal.3d 16, 23, fn. 14, 89 Cal.Rptr. 33, 473 P.2d 737.) We conclude that this rule is applicable to the instant case and that the issues should be decided in this proceeding.
WAS THE BOARD'S DECISION NOT TO REEMPLOY THE TEACHERS AUTHORIZED BY SECTION 13443(d)?
Section 13443(d) provides that a governing board's determination not to reemploy a probationary teacher for the ensuing school year shall be for cause only. It is also provided that the board's determination as to the sufficiency of cause shall be conclusive, but that the cause must relate 'solely to the welfare of the schools and the pupils thereof . . ..' The board determined that the facts as found by the hearing officer satisfied this standard. Appellant contends that the board's decision in this respect should not have been overturned by the trial court in the absence of a showing that it was unreasonable.
This contention fails. Whether a matter constitutes cause for non-reemployment within the meaning of section 13443(d) is purely a question of law for the trial court. (Lindros v. Governing Bd. of the Torrance Unified School Dist. (1973) 9 Cal.3d 524, 533-534, 108 Cal.Rptr. 185, 510 P.2d 361, cert. den. in 414 U.S. 1112, 94 S.Ct. 842, 38 L.Ed.2d 739; Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 589-590, 100 Cal.Rptr. 16, 493 P.2d 480.) If a governing board erroneously concludes that cause exists in a particular case, its decision not to reemploy a teacher may be challenged by means of a petition for a writ of mandate. (Code Civ.Proc., § 1094.5(b); Bekiaris v. Board of Education, supra, 6 Cal.3d 575, 587; Blodgett v. Board of Trustees (1971) 20 Cal.App.3d 183, 190.)
The term 'cause' is not defined in section 13443(d) except in the general sense that cause must relate solely to the welfare of the schools and their pupils. This standard does not expressly limit cause for non-reemployment to those various causes for the dismissal of permanent teachers specified in Education Code section 13403. Nevertheless, it appears that section 13443(d) has so far been applied only in cases involving some kind of alleged misconduct or deficiency on the part of the nonrenewed teachers. No cases have been cited and none have been found in which the section was relied upon in order to effect a reduction in staff due to financial necessity. Indeed, it has been stated that the provisions of section 13443, other than those governing procedure, 'are not applicable to termination incident to a reduction in the number of employees.' (Karbach v. Board of Education (1974) 39 Cal.App.3d 355, 361, 114 Cal.Rptr. 84, 88.)
Section 13443(d) further provides that 'cause shall include termination of services for the reasons specified in Section 13447.' The latter statute authorizes termination of services due to a decline in average daily attendance or a reduction or discontinuation of a particular kind of service. (See fn. 3, supra.) However, though the notices originally given to the teachers stated that their termination was made necessary by a decline in average daily attendance, the district appears to have made no claim in the administrative proceedings or in the trial court that the termination was sought to be effected for either of the reasons specified in section 13447. The district offers only its claim of financial necessity as caused for the non-reemployment.
Section 13447, as applicable to this case, authorizes the termination of teachers' services only when there is a decline in [547 P.2d 279] [128 Cal.Rptr. 279] average daily attendance or a reduction or discontinuation of a particular kind of service. To permit systematic staff reduction because of general economic considerations would make section 13447 a mere redundancy as to probationary teachers. Further, a teacher whose services are terminated pursuant to or for the reasons specified in section 13447 is entitled to certain substantive and procedural rights not necessarily available under section 13443. (See §§ 13448.5, 13449; Karbach v. Board of Education, supra, 39 Cal.App.3d 355, 361, 114 Cal.Rptr. 84.) The use of section 13443 as a substitute for section 13447 would curtail these rights.
It might be thought that section 13447, by its terms, applies only where the governing board decides to reduce the number of permanent teachers on its staff. However, it has been indicated that the statute is also applicable to a staff reduction confined strictly to the ranks of probationary teachers. (Krausen v. Solano County Junior College Dist. (1974) 42 Cal.App.3d 394, 405, 116 Cal.Rptr. 833; Karbach v. Board of Education, supra, 39 Cal.App.3d 355, 361, 114 Cal.Rptr. 84.)
If the limitations of section 13447 create hardship for financially straitened school districts, that is a matter of legislative rather than judicial concern. (See Burgess v. Board of Education (1974) 41 Cal.App.3d 571, 581, 116 Cal.Rptr. 183.) 'Economic foreboding' does not amount to cause for dismissal within the meaning of section 13443(d).
WAS THE BOARD'S DECISION NOT TO REEMPLOY THE TEACHERS AUTHORIZED BY ARTICLE XVI, SECTION 18 OF THE CALIFORNIA CONSTITUTION?
The district contends that an independent source of authority for the decision not to reemploy the teachers exists in article XVI, section 18 of the California Constitution. That provision states, insofar as it is pertinent, that a school district shall not in any year incur indebtedness or liability in excess of its income without the consent of two-thirds of the voters. The trial court, in its notice of intended decision and findings of fact and conclusions of law, did not consider the effect of this constitutional provision in the case at bench.
The district relies upon Martin v. Fisher (1930), 108 Cal.App. 34, 291 P. 276, and Briney v. Santa Ana High School Dist. (1933) 131 Cal.App. 357, 21 P.2d 610. Those cases contain statements to the effect that a predecessor of article XVI, section 18 added to the various grounds for dismissal provided by statute that of lack of available revenue to pay a teacher's salary. (Martin v. Fisher, supra, 108 Cal.App. 34, 41-42, 291 P. 276; Briney v. Santa Ana High School Dist., supra, 131 Cal.App. 357, 363-364, 21 P.2d 610.) However, a close reading of the cited cases shows that they provide no authority for the board action under review in this case.
In Martin v. Fisher, supra, 108 Cal.App. 34, 291 P. 276, a teacher who had been wrongfully terminated and later reinstated sued for back pay for the two years intervening between her discharge and reinstatement. The appellate court reversed a judgment establishing unconditional liability. However, it was not held that the school district was altogether free of the obligation to repay. It was merely stated that the constitutional provision at issue required that the teacher's salary for the two years in question be paid out of the district's remaining unspent revenues from those years. (Id. at pp. 40-41, 42-43, 291 P. 276.) This lends no support to the action of dismissal at issue in the case at bench.
A more factually apposite case is Briney v. Santa Ana High School Dist., supra, 131 Cal.App. 357, 21 P.2d 610. There the school district appealed from a judgment requiring the reinstatement of a teacher at a stated salary. The reviewing court quoted language from Martin v. Fisher, supra, [547 P.2d 280] [128 Cal.Rptr. 280] to the effect that the constitutional debt limitation added to the statutory grounds for dismissal of a teacher the ground of lack of available revenue during the fiscal year. However, the court affirmed, with a modification, the judgment requiring reinstatement. A provision in the judgment instructing the district to pay the teacher's salary out of its funds for the year in question was stricken and replaced with the simple statement that the teacher's employment was to be compensated at the specified salary rate. (Id. at p. 364, 21 P.2d 610.) The implication of this holding is that the district could have refused to pay the teacher's salary only if it actually exhausted its surplus for the year in question.
There has been no showing in the case at bench that the district is actually without funds to pay the teachers' salaries. The facts as determined at the administrative level are merely that the district anticipated that it would not have enough available funds during the 1974-1975 school year to make all of the expenditures it considered necessary or desirable. In the absence of an actual as opposed to an anticipated shortage, the cases reviewed above provide no authority for the dismissal of a teacher on the suggested constitutional ground.
THE RIGHT TO ATTORNEYS' FEES
Teachers Gassman, Podell, and Francisco cross-appeal from that portion of the judgment which denies their claim for attorneys' fees under Government Code section 800. It is contended that the district's counsel acted arbitrarily and capriciously as an officer of the board when he advised the board that the conclusion of the hearing officer that section 13443 was inapplicable in this case was erroneous. Arguments that the board's decision resulted from other forms of arbitrary and capricious conduct have been abandoned.
Government Code section 800 provides in part: 'In any civil action to appeal or review the award, finding, or other determination of any administrative proceeding under this code or under any other provision of state law, except actions resulting from actions of the State Board of Control, where it is shown that the award, finding, or other determination of such proceeding was the result of arbitrary or capricious action or conduct by a public entity or an officer thereof in his official capacity, the complainant if he prevails in the civil action may collect reasonable attorney's fees, but not to exceed one thousand five hundred dollars ($1,500), where he is personally obligated to pay such fees, from such public entity, in addition to any other relief granted or other costs awarded. [p] This section is ancillary only, and shall not be construed to create a new cause of action.'
The question whether governmental action is arbitrary and capricious within the meaning of section 800 is one of fact. (Madonna v. County of San Luis Obispo (1974) 39 Cal.App.3d 57, 62, 113 Cal.Rptr. 916.) The trial court found that the board did not act arbitrarily or capriciously with respect to its conduct or decision.' However, the court made no express finding concerning the conduct of the district's counsel in advising the board. It was argued below as it is on appeal that his conduct in itself provides a basis for an award of fees under section 800. This argument is given at least some support by the recognized possibility that '[h]owever well intended, a stubborn insistence on following an unauthorized course of action could well be found to be arbitrary and capricious.' (Midstate Theatres, Inc. v. Board of Supervisors (1975) 46 Cal.App.3d 204, 211, 119 Cal.Rptr. 894, 899.) Thus, it might be thought necessary to remand the case for more complete findings.
However, the finding that the board's action was not arbitrary and capricious should be interpreted as meaning that the advice upon which it was based was also not arbitrary and capricious. (See 4 Witkin, Cal.Procedure (2d ed. 1971) Trial, § 325, pp. 3128-3129.) The record discloses no ground upon which that advice can be criticized, except that it was erroneous. This hardly means that the advice was arbitrarily[547 P.2d 281] [128 Cal.Rptr. 281] and capriciously given. The teachers' contention that the meaning of section 13443 is so clear that there can have been no reasonable dispute as to its meaning is obviously unfounded.
The judgment is affirmed. Plaintiffs to recover costs on appeal.
RATTIGAN, Acting P. J., and CHRISTIAN, J., concur.