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District Court of Appeal, Second District, Division 1, California.



Civ. 12262, 12263

Decided: January 30, 1941

Tanner, Odell & Taft, of Los Angeles, for appellants. J.H. O'Connor, Co. Counsel, and W.B. McKesson, Deputy Co. Counsel, both of Los Angeles, for respondents.

Each appellant herein, a teacher in the South Whittier Elementary School District, sought a writ of mandate in the superior court to require the respondents to fix her salary for the school year 1938–39 at the sum of $1,600 and accordingly to draw a warrant upon the county treasurer of Los Angeles county therefor. Appellant Eleanor Roehr Kacsur also sought the recovery of certain traveling expenses incurred by her in connection with her assignment as a home teacher. The cases were tried together under a stipulation that all the evidence introduced should be considered in both cases. From a judgment denying the relief prayed for these appeals are prosecuted, and by stipulation are presented upon a single set of briefs.

In general, the question before this court is the correctness of the trial court's conclusion that the board of trustees, in tendering to each appellant a contract for the year 1938–39 at a reduction in salary from $1,600 to $1,325, acted within the bounds of its legal discretion and did not unlawfully discriminate against the appellants.

From the record, it appears that appellants are the only permanent teachers among 25 employed by the respondent district, they having attained such status prior to August 14, 1931, the effective date of the amendment to section 5.501 of the School Code, by which it was made optional with boards in school districts, such as the one here in question, which have under 850 pupils average daily attendance, to classify certificated employees as “permanent”. Respondent district availed itself of such option and decided not to classify any teachers as “permanent”.

Appellant Thelma Weagley Hill has been employed by the district since 1927, and appellant Eleanor Roehr Kacsur since 1928. Their salaries for the years 1933–34, 1934–35, 1935–36, and 1936–37, had been $1,570. For the year 1937–38, pursuant to a salary schedule adopted by the board which provided for annual increments if certain requirements of special study were met, their salaries were fixed at $1,600. A new contract of employment was made each year. For three years prior to the occasion of the present dispute appellant Hill had taught the eighth grade and petitioner Kacsur had taught first grade, fourth and fifth grade, as well as domestic science.

It is first contended by appellants that the decision is against law in that there was a failure to make findings upon material issues. In this connection it is asserted that there was contained in the answers a denial of the allegations contained in the complaint that the reduction in petitioners' salaries was discriminatory, unreasonable and without any just cause or legal ground. In this claim appellants cannot be upheld, because the court specifically found “that the salary for petitioner(s) for the services as a certificated employee in aforesaid school district for the school year 1938–39 was fixed by the respondents at the sum of $1,325 upon the recommendation of the superintendent of said school district; that in fixing said salary the governing board of the district did not act arbitrarily or fix an unreasonable salary for said petitioner(s), but said salary was fixed by said board in good faith and not from any improper or illegal motive.” Even though we regard the decreased salary fixed for the year 1938–39 as a “reduction”, rather than a “fixing” of salary under a new yearly contract, the finding nevertheless declares the grounds which prompted the board to determine the salary at a lesser figure than was paid for the preceding year and finds that such grounds absolve the board of any arbitrary or discriminatory motive or purpose. This finding was so framed that the defeated parties could intelligently specify the particulars in which it was not supported by the evidence as to the presence or absence of discrimination or unreasonableness in the action of the board with reference to the change made in petitioners' salaries. This is all that is required. The finding clearly discloses the theory upon which it is grounded as to the controverted issue above referred to. Neither did the failure of the court to find upon the issue of the existence or non-existence of a salary schedule for the years preceding 1938–39 constitute a material omission, because the court was concerned only with the question of a salary schedule for the year 1938–39, and an express finding was made that for such year there was no salary schedule.

Because petitioners sought only a mandate compelling the board of trustees to fix their salaries for the year 1938–39 at $1,600 and to draw a warrant upon the county treasury for such sum, and were not seeking reinstatement to their previous particular grades and classroom teaching positions, it was not error for the court to fail to make a finding upon the action of the board in transferring petitioners from performing the kind of services rendered by them prior to 1938–39 to a different type of service during the last-mentioned year, or as to whether such action was taken in good faith. When the court found that the action of the board of trustees in fixing the salaries for the year 1938–39 was not arbitrary or unreasonable, it became unnecessary to make a finding upon whether their assignment to other duties was made in good faith. The board was empowered to transfer teachers to other duties when in so doing it did not impair their status in violation of the School Code. Therefore, so far as the findings are concerned, the judgment rendered is amply supported thereby.

We come now to a consideration of appellants' claim that the action of the board of trustees in fixing the salaries of petitioners at a figure less than that received by them for the school year immediately preceding 1938–39 was without authority in law. Appellants concede that the law does not require that all certificated employees of a school district must be paid the same salary, but base their claim of illegality herein upon the ground that the right of such school district governing boards to fix the salary of a permanent employee must be reasonably exercised, and may not be exercised in a discriminatory or arbitrary manner. This uniformly has been held to be the law. The board may not substitute its arbitrary determination in opposition to rights guaranteed teachers by law that they shall not be dealt with in an arbitrary or discriminatory manner. Section 5.731 of the School Code is as follows: “Boards of school trustees, and city, and city and county boards of education shall have power and it shall be their duty to fix and order paid the compensation of persons in public school service requiring certification qualifications, employed by such boards, unless the same be otherwise prescribed by law.”. We hold, upon the authority of Fidler v. Board of Trustees, 112 Cal.App. 296, 301, 296 P. 912, and cases therein cited, that the California School Code, which empowers school boards to fix the compensation of permanent teachers, confers upon such boards discretionary power to regulate such compensation and in the exercise of such power to decrease as well as increase such salaries; provided, of course, that when reductions in salary are made such decreases are not unjust, but made in good faith and without any purpose to discriminate against an employee. It is also the established law of this state that a school board, despite the permanency of a teacher's tenure, is clothed with authority to change such teacher's assignment and to prescribe his or her duties from time to time, when such power is exercised reasonably and the duties prescribed are in line with the teacher's profession, and such teacher is not required to teach outside the district. Abraham v. Sims, 2 Cal.2d 698, 711, 42 P.2d 1029. The legislative enactments which give to teachers under certain conditions a tenure permanency carry with them no assurance against change in salary. Abraham v. Sims, supra, 2 Cal.2d at page 711, 42 P.2d 1029. The last-cited case, as well as Martin v. Fisher, 108 Cal.App. 34, 39, 291 P. 276, 278, is authority for the statement that “the position of a teacher in the public schools of California is not an office”. It is strictly and essentially an employment, and such employment is initiated by a contract. Appellants herein had the unquestioned right to continue as permanent teachers, but the school board had the right, if it acted in good faith, as well as reasonably and without discrimination, to reclassify the duties to be performed by appellants and to fix the latter's compensation under the new contract entered into with them for the school year 1938–39. This power is expressly conferred upon respondent board of trustees.

Therefore we must now examine the record in this case to determine whether the evidence supports the findings and judgment of the trial court that the action of the board in fixing appellants' salaries at a lower figure than they received for the year immediately preceding and in reclassifying their duties, was just, reasonable and not discriminatory. In their attack upon the sufficiency of the evidence to show that the action of the board was taken in good faith, appellants assert:

(1) “* that appellants are the only permanent teachers in the district.” This may be true, but standing by itself does not establish that fact as the motive behind the board's action.

(2) “* that no charges have ever been made against them and it is not alleged or contended that they are incompetent.” The board was vested with a discretion in fixing appellants' salaries and reclassifying their duties. It was not necessary to prefer charges against the teachers as a prerequisite to the exercise of such discretion. True, before teachers who have attained permanent tenure may be discharged, the law requires that they shall be apprised of charges against them and afforded an opportunity to meet such accusations, but the question of dismissal is not here involved. As was said in Fidler v. Board of Trustees, supra [112 Cal.App. 296, 296 P. 915]: “A distinction must be kept in mind at all times in consideration of the instant case between the right to permanent tenure of the office and the right to compensation during each year. * It is an important distinction, for his status as a permanent teacher is conferred upon him by the statute, and is not dependent upon contract; while his right to compensation is a proper subject of contract.” Other than the restriction as to the minimum salary to be paid teachers, School Code, sec. 5.751, the board is free to contract with the teacher as to the salary to be paid. When, therefore, appellants' contracts as to salaries for year 1937–38 expired as they did, the board was authorized in the exercise of its discretion to offer either a higher or lower salary in the contracts for the ensuing year. Except for a clear abuse of this discretion the amount of salary allowed by the board may not be interfered with by the courts. Chambers v. Davis, 131 Cal.App. 500, 22 P.2d 27.

(3) “That the board of trustees is opposed to the tenure of law.” Conceding that to be true, nevertheless we cannot see that such opposition to teachers' tenure impairs the exercise of reasonable discretion by the board in fixing the salary, if under all the circumstances such action is not motivated by injustice or discrimination.

(4) “That the appellants were each requested to resign near the end of the third year of employment for the purpose of ‘breaking’ their tenure and then re-employed, their teaching service being continuous to the present time,” and (5) “that appellants and the only other permanent teacher in the district at that time were requested in April, 1932, to resign when the board was advised by the county superintendent of schools that they were permanent teachers and could not be dismissed on account of marriage.” We fail to perceive the relevancy of this argument, because the personnel of the board at the time of the request for such resignations was entirely changed when the salary decrease with which we are here concerned was made in 1938. There is no showing that the attitude of the board members in 1932 had anything to do with influencing the changed personnel of the board six years later.

The remaining grounds upon which appellants rest their contention of injustice, unreasonableness and discrimination on the part of the board are:

“(6) That the salary of Miss Harrington, a probationary teacher, was maintained at $1,600.00 while appellants were reduced to $1,325.00.

“(7) The fixing of higher salaries for the school year 1938–39 at much higher rates for many other teachers.

“(8) The payment to substitutes of practically the same salary as those paid to appellants.

“(9) The employment of new teachers at higher salaries than those of appellants.

“(10) Increasing the salaries of re-employed teachers while reducing appellants.

“(11) Transferring appellant Hill to the third grade.

“(12) Transferring appellant Kacsur to so-called ‘home teaching’ and clerical work in the superintendent's office.”

As we view the record in this case, none of these reasons are determinative of the good or bad faith of the board in its reduction of appellants' salaries and the transferring of them to other duties during the school year 1938–39. When we consider the broad discretionary power vested in the board to fix teachers' salaries, there must be clear and convincing evidence of abuse of such discretion before a court will vitiate the action of the board. Appellants introduced considerable evidence to establish the fact of their competency and willingness to cooperate and work with the school superintendent, yet the action of the board in decreasing appellants' salaries was prompted by the recommendations of such superintendent. While testifying as a witness, and in explanation of his recommendations to the board, the superintendent read excerpts from the “Intermediate Guide, Teachers' Guide, Intermediate Unit, Los Angeles County Schools”, after which he testified as follows:

“A. (After reading) * Now, I have repeated these excerpts to bear out the idea of what is expected of a teacher in a room. They must have definite ideas, definite requirements and very definite suggestions, and the amount of interest that a teacher will create will depend entirely on the individual teacher. And under these captions here everything was given to bear that out. Now, in my observation of the classrooms of these teachers—do you want both of the teachers or just one, shall we consider them together?

“Q. We are considering them together, yes. A. In my observation of these classrooms of these two teachers and in conference with the teachers, I couldn't find that they had the philosophy expressed in these paragraphs. I tried to search the school philosophy rather than the subject matter, in other words, what is behind their teaching of the subject matter, and it appeared to me that both Mrs. Hill and Mrs. Kacsur failed to get the underlying philosophy of these paragraphs.

“Q. Did you observe anything in Mrs. Hill's teaching that would lead you to believe that she would be more adaptable for activities of a manual character than those that were employed in the eighth grade? A. You mean in regard to my recommendation that she be assigned to the third grade?

“Q. That is what I mean. A. My opinion in regard to her was that she was trained as a formal classroom teacher, but if she remained there it might be very hard, if not impossible, for her to become a good informal teacher, and I thought if she would be put in a different grade, say the third grade, for example, that it would be entirely foreign to her and that she would have to realign her work and her method of teaching, and there would perhaps be a better chance to adapt her to the methods which I would like to see her employ and possibly remove her present theories from her mind.

“Q. Did you think it would be helpful to Mrs. Hill, or did you think it might be difficult for her to enjoy the third grade? A. I thought she would enjoy her work. I didn't think she was going to be antagonistic to the work. I didn't think she was going to be a success as a third grade teacher, but I thought she might be a greater success as a third grade teacher than an eighth grade teacher.”

In the final analysis, therefore, we find that the superintendent was dissatisfied with the mode and method of appellants' system of teaching, and it was his claim that they did not adjust themselves to the philosophy of teaching which he had. He so reported to the respondent board and recommended a change. There is substantial evidence in the record that, based upon such recommendation of the superintendent, respondent board determined to reclassify appellants' duties, and further concluded that the services of appellants in the discharge of their duties under the reclassification for the term covered by the contracts proffered them, if they chose to continue teaching in the district for the school year 1938–39, was $1,325. After all, the right and power to fix salaries rests with the board of trustees, and we cannot conclude in the face of the record before us that in adopting the views and recommendations of the district superintendent, employed as he was to advise and counsel with the board on such matters, that the latter abused the discretion vested in it to determine and fix appellants' salaries.

While we conclude that the board was authorized to reassign and transfer appellant Eleanor Roehr Kacsur to what is referred to as “home teaching”, we nevertheless are in accord with her contention that when such transfer was made and she was required to go into the homes of pupils throughout the district for the purpose of teaching them, the respondent board was obligated to pay her reasonable traveling expenses necessarily incurred in such travels throughout the district. The allegations in the complaint of appellant Kacsur that she incurred necessary traveling expenses of $20.50 while acting in the capacity of a “home teacher” during the school year 1937–38 were not denied and were found by the court to be true. Section 5.532 of the School Code provides as follows: “The governing board of any school district shall have the power and the duty to provide for the payment of the actual and necessary traveling expenses of any employee of the district when performing services for the district under the direction of the governing board thereof. *” By reason of the foregoing provision, appellant Kacsur was entitled to payment of her claim.

The trial court did not err in its ruling admitting into evidence testimony designed to show that appellants were inefficient. Appellants base their claim in this regard upon the fact that by the pleadings it was admitted that no charges had ever been preferred against them. However, the answer of respondents did deny appellants' allegations that the fixing of their salaries at $1,325 for 1938–39 was unfair, discriminatory and unreasonable or was prompted by any improper motive. Just as appellants were permitted to introduce evidence to show their competency and right to a continuance of the salary paid them during the preceding year, respondent board was also entitled to present testimony to show the reason why appellants were offered a decreased salary in the contracts proffered them for the school year 1938–39. Such evidence was competent, relevant and material to meet the issue of unfairness and bad faith charged against the board.

In the appeal taken by Thelma Weagley Hill the judgment is affirmed; and in the matter of the appeal taken by Eleanor Roehr Kacsur the judgment is modified to provide that appellant is entitled to the sum of $20.50 expended by her as necessary traveling expenses incurred by her in performing services directed by said defendants for the school year 1937–38, and is further entitled to be paid her necessary traveling expenses incurred in performing like services under the direction of respondent board during the school year 1938–39. In all other respects such judgment is affirmed. All parties will bear their respective costs on appeal.

WHITE, Justice.

We concur: YORK, P.J.; DORAN, J.