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District Court of Appeal, First District, Division 2, California.


Civ. 13886.

Decided: March 30, 1949

Alexander S. Keenan, Jr. and Albert A. Spiegel, both of San Francisco, for appellant. John J. O'Toole, City Atty., Walter A. Dold, Chief Dep. Atty., and Irving G. Breyer, all of San Francisco, for respondents.

In her petition for a writ of mandate petitioner sought reemployment and certification as a permanent elementary school teacher. The cause was tried on the theory that petitioner had been dismissed from her probationary status on the ground that she was physically unfit and that she should have been given a trial before the governing board on the question of her physical fitness. A greater portion of the trial was directed to the reasonableness of the board's finding on that question and the court found that petitioner was suffering from an incurable disease and was physically unfit to continue her teaching. Petitioner had been employed by respondents for three consecutive school years in a position requiring certification qualifications. On March 28, 1947, she was notified by letter that her physical condition would not permit her employment after June 30th of that year.

If this action was within the statutory powers of the school board it is obvious that no court has power to mandate the board to do otherwise. A brief summary of the applicable statutes will suffice.

Section 13002 of the Education Code reads: “Persons in positions requiring certification qualifications may be elected for the next ensuing school year on or after the first day of May, and each person so elected shall be deemed reelected from year to year except as provided in this chapter.” (Emphasis ours.)

Section 13081 reads in part: “Every employee of a school district * who, after having been employed by the district for three complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall, at the commencement of the succeeding school year be classified as and become a permanent employee of the district.” (Emphasis ours.)

Section 13581 reads: “Governing boards of school districts shall dismiss probationary employees during the school year for cause only, as in the case of permanent employees.”

Section 13582 reads in part: “On or before the fifteenth day of May in any year the governing board may give notice in writing to a probationary employee that his services will not be required for the ensuing year.”

Section 13583 reads: “Anything in Section 13582 to the contrary notwithstanding, governing boards of school districts having an average daily attendance of 60,000 or more pupils shall dismiss probationary employees for cause only. The determination of the board as to the sufficiency of the cause for dismissal shall be conclusive, but the cause shall relate solely to the welfare of the schools and the pupils thereof.” (Emphasis ours.)

Reverting to the conceded facts we find that petitioner was a probationary teacher having served for three consecutive school years. She was not reelected for the ensuing school year and therefore could not become a permanent employee under the terms of section 13081. On March 28, 1947, she was notified by letter that her services would not be required for the succeeding or fourth year because of her physical condition.

On May 6, 1947, the board adopted the following resolution:

“Whereas: Keenan, Mrs. Grace B., a probationary teacher in the elementary division of the San Francisco Unified School District (Parkside School) has not been approved by the physician employed by the Board of Education for permanency on the basis of her physical condition; and

“Whereas based on such physical condition her dismissal is deemed necessary as being for the welfare of the schools and the pupils thereof;

“Now, Therefore, Be It Resolved: That Keenan, Mrs. Grace B., be and she is notified that her services as an employee of the San Francisco Unified School District will no longer be required after June 30, 1947; that said dismissal is based solely upon the welfare of the schools and the pupils thereof.”

The general provisions of the Education Code for employment and the rights and duties of employees are found in chapters 8 and 9 of this division. Thus section 13002 provides for the election for one school year of a probationary employee and section 13081 provides for the classification as permanent employees of those who have been “reelected” after service of three years as probationers.

In article 2 of chapter 11 of division 7 we find an involved plan for the removal and trial of permanent employees in proceedings in the superior court. The article is headed “Dismissal of Permanent Employees.” Article 3 is headed “Dismissal of Probationary Employees.” Two articles follow headed “Dismissal” of substitute and temporary employees. It is in article 3 that the three sections with which we are now concerned appear. The first authorizes dismissals “during the school year” for cause but incorporates the complicated procedure of charges and trial before a superior court “as in the case of permanent employees.” The second specifies the time of notice to a probationer that his services will not be required for the ensuing year. The third provides that in certain school districts the governing board “shall dismiss probationary employees * for cause only.” While the language of the section is complicated and confusing it is susceptible of two conflicting interpretations—either that the dismissal means a failure to reelect at the end of the school year, or it means that the legislature intended to provide that in the large school districts with many probationary employees the governing board could dismiss “for cause” during the school year without the necessity of the complicated procedure of trial in the superior court.

The whole scheme of civil service would be defeated if the appointing power were not given some opportunity of selection of an employee on the basis of efficiency and competence. Naturally this cannot obtain if a probationary employee takes permanent status automatically at a fixed period without the approval of the appointing power. If section 13583 takes from the appointing power all right to choose not to make a probationary appointment permanent except upon charges and trial then the theory of probation is elminated because the section is not confined to the third year of probation, but applies from the beginning of the employment. Thus, as to teachers in the large school districts there is no probation at all.

But there is no conflict in our decisions (though this state follows the minority rule) that when the statute permits a removal “for cause” it implies that there shall be notice and a hearing. Bannerman v. Boyle, 160 Cal. 197, 116 P. 732; Steen v. Board, etc., 26 Cal.2d 716, 723, 160 P.2d 816, and cases there cited. We, of course, are not concerned with the wisdom of the legislation. We must take the statute as written. Though it would seem incredible that the legislature could have foreseen the disastrous result of thus destroying the whole scheme of probation in the large school districts, nevertheless we must follow the rules of law laid down in the decision cited.

Granting therefore that before a probationary teacher in these districts can be “dismissed” he is entitled to notice and hearing the law is in further confusion because the statute does not prescribe any form of procedure, and none of the cases cited prescribe what is necessary to meet the demand of “notice and hearing.” Because of this uncertainty the question is open in each individual case whether the particular reviewing court thinks that sufficient notice and hearing was accorded. The failure of the legislature and the reviewing courts to cure this uncertainty has caused needless confusion and consequent litigation.

All the decisions voiding an act of an administrative agency under the “for cause” statutes merely declare that the agency did wrong. No one tells the agency how it could do right. Where no statutory procedure is prescribed the agency is in doubt as to what is necessary to constitute the “fair hearing” which the courts have said must be given. Whether it is necessary that the agency have express power to summon witnesses, to administer oaths, to consider affidavits, to take hearsay testimony, to appoint a referee, or to make findings of fact has been a matter of conjecture since the Bannerman case was decided in 1911. This uncertainty was cleared in respect to many state agencies in the Administrative Procedure Act of 1947, Government Code, section 11370 et seq. But that act does not include a local board of education.

It should be noted that some of the cases following the Bannerman case contain a qualification of the flat statement that a trial is necessary, as in the Steen case, 26 Cal.2d at page 723, 160 P.2d at page 820, “unless the statute expressly negatives the necessity of a hearing.” This tenders the question when the statute discloses that the legislature intentionally refrained from giving the particular agency power to hold a hearing does that negative the necessity of a hearing under the “for cause” section? Under former section 1609 of the Political Code boards of education were given express power to dismiss permanent teachers after trial and to adopt rules for the conduct of such trials. These powers were taken away when the plan of trial in the superior courts was adopted. School Code, section 5.650 et seq. followed by sections 13521 et seq. of the Education Code. Hence, when the “for cause” provision was inserted in section 13583 of the Education Code the legislature had before it the set plan that the board was denied the power to try permanent teachers and had been given no power to conduct a “trial” for any purpose. It would seem to be a logical conclusion from these circumstances that the legislature did not contemplate a trial when it authorized a dismissal “for cause”, or that, if such a trial were necessary, the same prcedure as that applicable to permanent teachers was contemplated—thus a trial before the superior court when, and only when, the teacher demanded it.

However, since the later decisions all follow the Bannerman case, and this defect as to procedure has not been discussed, we are bound to conclude, subject to that rule, that petitioner was entitled to some form of trial or investigation if she asked for it.

But, though appellant be entitled to a “hearing” there are substantial reasons why the mandate should not issue under the facts of this case.

The San Francisco School District is a separate state agency controlled by general laws. Skelly v. School District, 103 Cal. 652, 658, 37 P. 643; Ridge v. Boulder Creek etc. School District, 60 Cal.App.2d 453, 462, 140 P.2d 990. As such it cannot be invested with judicial powers. Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557, 59 P.2d 119. Hence, whatever hearing is accorded an employee of the district dismissed “for cause” is not a judicial hearing, but an administrative one. This follows from the rule first announced in the Standard Oil case that such proceedings before a state agency are not reviewable in certiorari which is confined to the review of judicial proceedings. The right of a school employee to a hearing is not constitutional, but is one that may be denied by statute and thus one that might be waived by the party in interest. The manner of the employee's appointment, his tenure, salary, duties and the manner of his discharge are all subject to legislative control. It is therefore competent for the legislature to provide that he may be removed at the pleasure of the oppointing power without any charges or hearing. The right to a hearing under the “for cause” theory is therefore a personal right which may be waived by the employee, Reardon v. City of Daly City, 71 Cal.App.2d 759, 766, 163 P.2d 462, and since no request for a hearing was made by the petitioner herein, she must be deemed to have waived it. This is the rule of Goldsmith v. United States Board, etc., 270 U.S. 117, 118, 46 S.Ct. 215, 217, 70 L.Ed. 494, page 497, where the court said:

“The petitioner as an applicant for admission to practise was, therefore, entitled to demand from the board the right to be heard on the charges against him upon which the board has denied him admission. But he made no demand of this kind. Instead of doing so, he filed this petition in mandamus in which he asked for a writ to compel the board summarily to enroll him in the list of practitioners, and to enjoin it from interfering with his representing clients before it. He was not entitled to this on his petition. Until he had sought a hearing from the board, and been denied it, he could not appeal to the courts for any remedy and certainly not for mandamus to compel enrollment.”

In such a case as this the question of time is of the utmost importance. If the probationer is to be relieved of duty the governing board must know prior to May 15th whether he is to be dropped from the list of probationers or whether he is to be employed for the ensuing school year. Bearing in mind that under section 13583 of the Education Code it is within the discretion of the governing board to determine “the sufficiency of the cause for dismissal” if the employee questions the board's action he should demand a hearing on that issue. Section 13524 of the Education Code, referring to dismissal of permanent teachers, provides, “If the employee does not demand a hearing, he may be dismissed at the expiration of the 30–day period” after notice of “intention” to dismiss. There is no sound reason why a different rule should obtain as to a temporary teacher. When, following notice of the grounds for dismissal he makes no request to be heard he must be presumed to have waived a hearing.

This situation brings into operation another rule—that before a party seeks judicial relief he must exhaust his administrative remedies. Alexander v. State Personnel Board, 22 Cal.2d 198, 137 P.2d 433; Reardon v. Daly City, supra, 71 Cal.App.2d at page 766, 163 P.2d 462; 1 Cal.Jur. 10 yr. Supp.1947 secondary Pocket Part, Admin.Law, sec. 17; 42 Am.Jur. 580. The complaint herein is silent on this feature. It is not alleged that plaintiff requested a hearing before the board, that such a request if made would have been futile, or that the charges of physical inability were not true, or that they were not made in good faith and in relation to “the welfare of the schools and the pupils thereof.” The rule of exhaustion of administrative remedies is allied with that requiring a demand because it can not be assumed that if a demand for a hearing had been made such a hearing would not have been granted.

Since the appellant tendered the issue of her physical condition in the trial in the superior court, and since the court found on conclusive and convincing evidence that she was physically incapacitated the court fairly and properly exercised its discretion in denying the writ applied for. Since the issuance of a writ of mandate is a matter of discretion rather than one of right, Sipper v. Urban, 22 Cal.2d 138, 141, 137 P.2d 425; 16 Cal.Jur. p. 768, the trial court was confronted with these admitted facts in the exercise of that discretion—the written notice or charge was served on appellant on March 28, 1947; the last day upon which the board could decide whether she would be employed for the ensuing school year was May 15, 1947. If during that period appellant had indicated that she desired a hearing before the board on the charges such hearing could have been held prior to the date of May 15th. Having failed to request such a hearing the board was justified in assuming that she waived it—and this assumption would have been fortified by the indisputable evidence that the charges were sound.

The judgment is affirmed.

I concur in the order affirming the judgment. I place my concurrence solely on the ground that appellant is estopped by her conduct to raise the question of the failure of respondent board to give her a formal hearing.

As early as January 1947 appellant was orally informed that she would not be reemployed for the ensuing school year because of her physical condition. Appellant's husband acting as her attorney on January 21 wrote a letter to respondent board asking it to “reconsider her case”. Appellant sought out, and had conferences with, a member of the board, the board's attorney and a responsible employee of the board in which she sought a reconsideration. As a result of these informal protests the question of her physical fitness for permanent tenure was in fact reexamined. On or about March 26 appellant received written notice that because of her physical condition she would not be passed for classification as a permanent teacher and would be dropped from the list of probationary teachers at the end of the school year, and on or about May 6 the formal written notice was given her by the board that she would not be reemployed after June 30.

By proceeding in this fashion and at the same time making no suggestion that she desired or expected a formal hearing appellant chose her own ground of battle and under the circumstances the board was justified in assuming that she acquiesced in the manner in which the procedure was being carried out on her own initiative.

I am not satisfied that appellant's mere nonaction or failure to demand a formal hearing would amount to a waiver. The implication of the “for cause” cases in this state is that the burden is on the agency to take affirmative action to give “notice and a hearing” although the courts have never expressly laid down a method of procedure. But in this case appellant was active not passive. She voluntarily elected to proceed without a formal hearing to present her protest to the board's contemplated action and secured the reexamination of the question which she requested. Having so proceeded it would be manifestly unfair to permit her, after the May 15 deadline fixed by section 13582 of the Education Code had expired and a formal hearing was no longer legally possible, to complain that no such hearing had been accorded to her.

I dissent.

When section 13583 says that probationary employees shall be dismissed “for cause only” it means, according to the California cases, that there must be a trial or hearing of some kind. The prevailing opinion concedes this and cites the cases which so hold.

Counsel for the Board admitted by stipulation that there was no hearing in this case.

That, in my opinion, was the end of the case, and called for the issuance of the writ. It is the basis of this dissent.

Section 13583 says nothing about a demand for a trial, and neither the rule respecting the exhaustion of administrative remedies nor any other rule seems to justify reading that into the section. If the section gives the teacher the right to a trial that seems to be an end of the matter. More will be said about the section later.

It is said that as early as January, 1947, petitioner had reason to know the intention of the Board with respect to her case. The implication is that between that time and the May 15 dead-line she could have asked for a trial. The Board, however, during the same interval knew full well that she was strenuously resisting the proposed dismissal. But, more than that, how about a case where the teacher knows nothing of the Board's intention, until say, May 10, when the time would be too short to have a hearing—demand or no demand?

When the trial judge said: “* I am not at all determining * whether or not the School Board didn't exercise a proper discretion and whether or not this particular disease isn't sufficient to eliminate a teacher. That all may be very true *” he correctly stated the law, for that question was one solely within the Board's discretion, not the court's.

The court is dealing with section 13583 as it now reads. In my opinion—whatever may be thought of the section as a piece of legislation—the courts are bound to follow it.

The section is utterly unworkable and impractical. It is found in the article on “Dismissal of Probationary Employees” but it is destructive of “probation” to which it gives lip-service. It gives tenure from the first day a teacher enters the department whether it be called limited tenure, probationary tenure, or what not. The very fact that, having a “probationary” foothold for one school year, the teacher cannot be dismissed at the end of that year without a trial, proves that the teacher has tenure, rather than a simple probationary status. This section casts the burden on the Department of showing cause why the teacher should not be continued on into the next ensuing year of “probation”, and so on.

A probationary teacher in a 60,000–plus district gets this limited tenure while one in a minus–60,000 district gets no tenure at all. In the smaller district if the Board at the end of the school year does not see fit to keep the probationary teacher, all it has to do is to give the notice in writing on or before May 15 as prescribed by section 13582 and that ends the probation. The dismissed teacher can in no way make the Board show cause, or even compel it to give its reason.

As a matter of abstract right, surely if any probationer is entitled to a trial, one in a small district is as much entitled to it as one in a large district. Likewise a School Board in a large district is as much entitled, in the exercise of its discretion, to dismiss a probationer at the end of a school year without a trial as one in a small district. The discrimination is without rhyme or reason.

If any line is to be drawn there is every reason why it should be the other way around. Section 13583 in requiring trials in 60,000–plus districts places a burden on the Boards therein which they are far less able to bear than Boards in minus–60,000 districts, by reason of the very size of their departments, with an immense corps of teachers and a much more complicated organization in the larger centers of population. The Board in a city like San Francisco or Los Angeles would have to sit perhaps for days before May 15 each year hearing cases where the issue for the most part would be whether the teacher on trial gave promise of making good as a permanent teacher. Teachers, principals, supervisors and deputy superintendents would have to leave their regular duties and come in to testify respecting the fitness or unfitness of the teacher. A School Board in a large city has many and varied duties to perform—duties of the highest public importance—and if its time is to be consumed in trying such cases, some of which would be bitterly contested, it would have little time for anything else during the months preceding May 15. One of the consequences would be, naturally, that qualified citizens would be slow to accept positions on the Board, which would be definitely contrary to the public interest.

There is no way of justifying, in my opinion, the unusual provisions of section 13583, and as long as it remains on the statute books it is bound to produce nothing but controversy and litigation.

A probationary teacher is fully protected against dismissal during a school year by the provisions of 13581. That and section 13582 insure a full and unbroken year of probation. But there is no reason under the sun why the burden should be laid on the Department of showing cause why the teacher should not be kept on as a probationer for another year. The section in practice although not in theory puts the Board on trial, not the teacher. Still, in a minus–60,000 district there is no such rule.

While the prevailing opinion holds that this particular petitioner is not entitled to the writ, it also holds, as said at the outset, that “for cause only” means a trial. It will be cited as a precedent for the latter holding just as if it had held that the writ should issue. There will be set in motion a procedure hitherto unknown in the 60,000–plus districts of a series of trials each spring, of teachers who are considered as doubtful material for permanent status. It is because this case is bound to become a precedent that I have ventured this criticism of the draftsmanship of this section.

If section 13583 remains the law in its present form it will seriously interfere with the operations of School Boards in large districts and will give probationary teachers in those districts rights and advantages which those similarly situated in small districts do not have, without any conceivable reason for the discrimination. It should be amended in the interest of parity and uniformity, and of efficiency of school administration.

GOODELL, J., dissenting.

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