LOS ANGELES TEACHERS UNION LOCAL 1021 AMERICAN FEDERATION OF TEACHERS v. LOS ANGELES CITY BOARD OF EDUCATION

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

LOS ANGELES TEACHERS UNION, LOCAL 1021, AMERICAN FEDERATION OF TEACHERS et al., Petitioners and Appellants, v. The LOS ANGELES CITY BOARD OF EDUCATION et al., Defendants and Respondents.

Civ. 32496.

Decided: January 30, 1969

Levy, DeRoy, Gefner & Van Bourg and Leo Gefner, Los Angeles, for petitioners and appellants. John D. Maharg, County Counsel, Alfred Charles DeFlon, Deputy County Counsel, and Jerry F. Halverson, Legal Advisor, Los Angeles, for defendants and respondents.

The Los Angeles Teachers Union, Local 1021, American Federation of Teachers, and certain of its officers, on behalf of all its other officers and members, appeal from the order of the trial court denying their petition for writ of mandate directed against Los Angeles Unified School District's governing board and its members. Appellant Union is a voluntary unincorporated trade union association which represents about 3,000 of the approximately 30,000 employees of the school district with respect to their employment relationship.

On or about January 30, 1967, appellant Union distributed to its representatives for circulation in the approximately 600 elementary and secondary public schools within the school district a petition directed to the Governor of the State of California, the State Superintendent of Public Instruction, and the Los Angeles City Board of Education.1 On February 1, 1967, the personnel division of the school district issued a memo to the administrators of each of its schools instructing them that ‘The circulation of this petition is in conflict with Board Rule 12762 and the petition should not be circulated on the school premises, unless provisions of the Civic Center Act [Ed.Code, § 16551 et seq.] are met.’

Thereafter, appellants appeared before respondent Board of Education and requested permission to circulate the petition. Permission was denied. Apparently in an effort to strengthen its position on the issue, a day or two later a representative of appellant Union called the school district's director of administrative services, whose duties included the issuance of Civic Center permits, and ‘stated that said Union wished to obtain a ‘blanket’ Civic Center permit authorizing the use of all Los Angeles City Schools under the Civic Center Act for the purpose of holding meetings by the said Union to obtain signatures on petitions dealing with the topic of public school finance. He stated that he was contemplating open public meetings to be held shortly after the close of the school day.'

Despite the rather peremptory and far reaching nature of this request for a ‘blanket’ permit, any gain appellant Union may have anticipated therefrom was lost when the directory advised that such a permit would be granted. Later when the director spoke with one of the appellant officers in the instant action, he was advised that the ‘Union was no longer interested in a ‘blanket’ Civic Center permit as they would achieve their objective in some other way.' On February 7, 1967, appellants filed the instant proceeding wherein they prayed:

‘That a Writ of Mandate issue directing, requiring and compelling Respondents, and each of them, to cease and desist from implementing Board Rule 1276, and any policy rule or regulation designed to, or which will, prohibit or restrict the right of employees of the Los Angeles City School Districts and the Los Angeles City Board of education from circulating or distributing and requesting signatures on the petition identified as Exhibit ‘A’[see footnote 1], or any other petition that relates to the employees petitioning any government official of the State of California, County of Los Angeles, City of Los Angeles, United States Government or the Los Angeles City Board of Education concerning any matters, issues or problems within the scope of such governmental bodies as long as such petitions are circulated on non-instructional time, and do not in any way interfere with the instructional duties of such employees; and that no employee shall be in any way disciplined, suspended or discharged or discriminated against in their employment on account of such petition being circulated or signed by any such employee.'

The actual issue presented by the present appeal is extremely narrow. The parties are in almost complete agreement as to the applicable law that has developed in recent years regarding public employees and their exercise of basic constitutional rights. For example, respondents concede the correctness of the following propositions asserted by appellants:

‘[T]he restrictions imposed upon public employees by their employer governments may not be broader than are required to preserve the efficiency and integrity of the public service (Fort v. Civil Service Commission, 61 Cal.2d 331, [38 Cal.Rptr. 625, 392 P.2d 385] (1964); Kinnear v. City [and County] of San Francisco, 61 Cal.2d 341, [38 Cal.Rptr. 631, 392 P.2d 391] (1964)); that the burden is upon the restricting government to show that political restraints upon public employees ‘rationally relate to the enhancement of the public service’ (Bagley v. Washington Township Hospital District, 65 Cal.2d 499, [55 Cal.Rptr. 401, 421 P.2d 409] (1966); Rosenfield v. Malcolm, 65 Cal. 2d 559, [55 Cal.Rptr. 505, 421 P.2d 697] (1967)); that the right to circulate petitions protesting actions of government is a basic First Amendment right (Thomas v. Collins, 323 U.S. 516, [65 S.Ct. 315] 89 L.Ed. 430 (1945); Murdock v. [Commonwealth of] Pennsylvania, 319 U.S. 105, [63 S.Ct. 870,] 87 L.Ed. 1292 (1943)); and, that the exercise of First Amendment rights cannot be restricted simply because it occurs on publicly owned property (Brown v. Louisiana, 383 U.S. 131, [86 S.Ct. 719,] 15 L.Ed.2d 637 (1966); Cox v. Louisiana, 379 U.S. 536, [85 S.Ct.453,] 13 L.Ed.2d 471 (1965)).'

Similarly, appellants concede that a governmental employer, like any employer, may to a certain reasonable extent restrict an employee's exercise of his constitutional rights during working hours and while on its premises where such exercise would be detrimental to the interests of the public service in which both employer and employee are engaged. As stated in Bagley v. Washington Township Hospital Dist., 65 Cal.2d 499, 506, 55 Cal.Rptr. 401, 406, 421 P.2d 409, 414:

‘[W]e cannot accept the apparent suggestion of some few cases that government may never condition the receipt of benefits or privileges upon the non-assertion of constitutional rights. (See, e. g., Frost & Frost Trucking Co. v. Railroad Com. (1926) 271 U.S. 583, 593–594, 46 S.Ct. 605, 70 L.Ed. 1101, [47 A.L.R.457]; Terral v. Burke Constr. Co. (1922) 257 U.S. 529, 532–533, 42 S.Ct. 188, 66 L.Ed. 352, [21 A.L.R. 186.]) The government employee should no more enjoy the right to wrap himself in the flag of constitutional protection against every condition of employment imposed by the government than the government should enjoy an absolute right to strip him of every constitutional protection. Just as we have rejected the fallacious argument that the power of government to impose such conditions knows no limits, so must we acknowledge that government may, when circumstances inexorably so require, impose conditions upon the enjoyment of publicly-conferred benefits despite a resulting qualification of constitutional rights.’

In sum, both appellants and respondents acknowledge that the propriety of the school district's rules here in issue and the manner of their application in the instant case are to be determined in accordance with the three tests spelled out by the court in Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d at pages 501–502, 55 Cal. Rptr. at page 403, 421 P.2d at page 411:

‘[W]e hold that a governmental agency which would require a waiver of constitutional rights as a condition of public employment must demonstrate: (1) that the political restraints rationally relate to the enhancement of the public service, (2) that the benefits which the public gains by the restraints outweigh the resulting impairment of constitutional rights, and (3) that no alternatives less subversive of constitutional rights are available.’

Before turning to a review of the evidence offered by respondents to meet their burden of demonstration, we may note certain additional concessions made by appellants that tend further to narrow the field of inquiry confronting us. Although appellants initially contended that their petition met the requirement of the exception in rule 1276 ‘concerning employer-employee relations among employees of the school’ (see footnote 1), they appear to have abandoned this position on appeal.

Similarly, although the prayer of appellants' petition for writ of mandate sought an order restraining respondents from any interference with their membership's right to circulate petitions ‘as long as such petitions are circulated on non-instructional time,’ their actual demands were clarified and limited during the trial herein. That is to say, although the wording of their prayer might have indicated that appellants considered only the ‘non-instructional time’ of the distributors to be a relevant consideration, in their presentation to the trial court they acknowledged their recognition that the petition should not be presented to other teachers unless they, too, were on their ‘non-instructional time.’

In addition, as will appear more fully hereafter, appellants conceded that a distinction exists between a teacher's ‘non-instructional time’ and his ‘non-duty’ or ‘duty-free’ lunch period and limited their demand to this latter period. Appellants, however, refused to concede that any significant difference exists between a teacher's ‘off-duty hours' away from the school grounds and his ‘duty-free’ lunch period during which he must remain upon the premises.

Finally, although appellants introduced no evidence herein, the statements of their counsel during their presentation make clear that they were not seeking merely the right to affix a petition to a bulletin board or to place it upon a designated table where it might reside, passively convenient for those who voluntarily choose to sign it. Both explicitly and tacitly they conceded that they were asserting their right to present their petitions to other teachers by means of individual confrontations in which the distributor might engage in persuasion so that the person solicited would be forced to take a public stand on the issue presented.3

In view of the foregoing areas of agreement, the determinative issue presented by this appeal is narrowed to the question whether or not the following finding of fact made by the trial court is supported by substantial evidence:

‘There was offered and admitted in evidence in these proceedings substantial evidence, consisting of the opinions of administrators of the Los Angeles Unified School District, to the effect that the circulation upon school premises of the subject petition among school-teacher employees during the school day (i. e., other than as allowed by the Civic Center Act) would tend to interrupt teachers in the discharge of their employment duties, would tend to divert and distract the attention of teachers from their task of teaching pupils, in general would impede and interfere with optional performance by teachers during the school day of the educational functions assigned them by the school district, and would therefore lower the educational efficiency of the schools.’

We hold that the foregoing finding is well supported by substantial evidence. Typical of the evidence presented by respondents are the declarations of Robert J. Purdy, Associate Superintendent of Schools of the City of Los Angeles, and Louise Seyler, Deputy Superintendent, which are set forth in full in the appendix to this opinion. These witnesses, whose qualifications are unchallenged, testified to opinions which the trial court found reasonable and convincing. The detailed reasons which these school administrators assigned as the basis for their opinions are so consistent with the dictates of common sense and of common experience that we would have no inclination to contradict them even if it were within our province to reweigh and re-evaluate the evidence.

Appellants argue, however, that the testimony of these experts is without value because they ‘are basing their opinions on their expert knowledge, but nevertheless on a priori judgment only’ Appellants' argument in this respect runs counter to controlling authority. In Rosenfield v. Malcolm, 65 Cal.2d 559, at pages 562–563, 55 Cal.Rptr. 505, at page 507, 421 P.2d 697, at page 699, the Supreme Court of California reaffirmed the proposition that the judgments of administrative agencies and officials are entitled to judicial respect and, absent the existence of overriding considerations sufficiently important to necessitate judicial intercession, the courts should not undertake to overturn the determinations of other responsible agencies of government. We refer to the following language of the court which succinctly states the rule and the reasons of policy which counsel the courts to refrain from unnecessary and unwise intervention:

‘Unquestionably, a broad discretion reposes in governmental agencies to determine which provisional employees they will retain. Considerations of comity and administrative efficiency counsel the courts to refrain from any attempt to substitute their own judgment for that of the responsible officials.’

In upholding a school board rule subjecting to suspension or expulsion pupils belonging to certain social clubs, the Court of Appeal used the following language in Robinson v. Sacramento City Etc. Sch. Dist., 245 Cal.App.2d 278, at pages 290–291, 53 Cal.Rptr. 781, at page 789:

‘High school fraternities, sororities and clubs undoubtedly accomplish good, mostly to those who belong to them, giving them a sense of security, a feeling of being wanted. But the school board has said the harm these societies do outweighs the good, that they are ‘inimical’ to the ‘government, discipline and morale of the pupils.’ School boards are professionals in this field, the courts are laymen; the boards are close to the day-to-day affairs of the pupils of secondary schools and the problems which arise in a school community, courts are removed therefrcm. Under the circumstance, we cannot superimpose our judgment over theirs and should not attempt to do so.'

In Warner v. City of Los Angeles, 231 Cal.App.2d 904, 42 Cal.Rptr. 502, the appellant urged the court to hold invalid certain rules of the city's Board of Fire Commissioners which required all firemen while on 24-hour duty to consume their meals together. The Court of Appeal observed that the express purpose of the rules in question was to further a policy ‘against all discrimination on the basis of race, color, national origin or religious belief.’ In sustaining the validity of the rule, the court said (p. 905, 42 Cal.Rptr. p. 503): ‘Whether or not the regulations are the best way to achieve the objective sought by respondents is not for us to say. The courts cannot run fire departments and the determination of respondents should not be disturbed unless it can plainly be seen that their regulations have no relation to a legitimate purpose or are a clear invasion of personal or property rights.’

It bears emphasis that not infrequently the courts have relied upon their own a priori judgments in recognizing that labor union solicitation upon the employer's premises during the noon hour may have an adverse effect upon the operation and functioning of the employer's business. For example, in Midland Steel Products Co. v. National Labor R. Bd., 6 Cir., 113 F.2d 800, at pages 805–806, the United States Court of Appeals stated as follows:

‘We think the rule [prohibiting all solicitation of all kinds at all times upon company property] is clearly reasonable. The employer has the right on his premises to demand the single-minded attention of the employee to his work. In modern industry the performance of work with efficiency and without physical danger depends not only upon the devotion of the employees to their work, but also upon the amity with which they cooperate.

‘The right of the employer to make reasonable rules for the safety and efficiency of the work includes his right to make such rules for the entire time that the working force is on the employer's premises. Solicitation, argument, the hurling of epithets in tense discussion before work has been commenced or in the noon hour, may reasonably be expected to carry a certain animus over into work hours. * * *’

The National Labor Relations Board recognized the same principle in the following language: ‘[I]f employer interests alone were controlling, oral solicitation on plant premises could be denied altogether for no one would deny that the strong feelings frequently engendered by union solicitation inevitably carry over to some extent from non-working to working time.’ (Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 619.)

We perceive no justifiable reason to question the credibility of testimony to the effect that political activities on the part of teachers in circulating petitions dealing with controversial political issues on school campuses and during school hours would tend to generate dispute and discord among the teachers and lead to the development of political factions, all to the detriment of the cooperative efforts of the members of the faculty essential to the proper functioning of an educational institution.

In the testimony of the school administrators, which is exemplified by the portions thereof set forth at length in the appendix hereto, the factual life setting in which the challenged rule operates is described in such full detail that it could easily be visualized by the trier of the fact. Viewed in that setting we can readily understand the trial court's acceptance of the determination of the school administrators in the promulgation and enforcement of the rule. The following brief excerpt from the testimony of the witness Purdy, the Associate Superintendent of Schools, is representative:

‘There is a great deal of difference between political discussion or debate which takes place, from time to time, among teachers in faculty rooms and lunchrooms, and the kind of political activity which requires a person to take a political position either by signing the petition or by not signing it. A teacher can choose not to enter into a political discussion and thereby avoid being classified politically one way or another. However, when the teacher refuses to sign a petition presented by a fellow teacher, it is difficult for him to avoid being classified as negative on the proposition presented by the petition. If teachers are by force of circumstance brought together in faculty rooms, or lunchrooms, and then asked by fellow employees to make a definite, written, public political commitment on this or other controversial matters, the result will likely be dispute and discord among some of the teachers and the creation of opposing political factions which will diminish the cooperation and coordination required for the proper operation of the elementary school.’

Appellants' reliance on the decision in Finot v. Pasadena City Bd. of Education, 250 Cal.App.2d 189, 58 Cal.Rptr. 520, is misplaced. Contrary to their interpretation of this decision, the court in Finot expressly held that the so-called ‘a priori judgments' presented therein could have provided sufficient evidentiary bases to meet the tests set forth in Bagley v. Washington Township Hospital Dist., supra, 65 Cal.2d 499, 505, 55 Cal.Rptr. 401, 421 P.2d 409; Finot, page 201, 58 Cal.Rptr. page 528, held only that the particular judgments there considered failed to meet two of Bagley's three tests because ‘there are clearly other alternatives open to respondents in the way of deterrents, sanctions and penalties against male students themselves which are less subversive of appellant's constitutional right than is the administrative policy in question. This is particularly true in view of the fact that a beard cannot be donned and doffed for work and play as wearing apparel generally can [citation], and therefore the effect of a prohibition against [a teacher] wearing one extends beyond [his] working hours.’ (Emphasis added.)

The importance of the last quoted observation of the court in Finot in distinguishing that case from the case at bench is apparent. Here, appellants necessarily concede that the board's rules in no way impair their right to circulate their petitions off school premises during school hours or upon school premises after school hours under the terms of the Civic Center Act. (Ed.Code, § 16551 et seq.) These considerations bear upon appellants' subsidiary contention that respondents' rules relating to the circulation of petitions are in conflict with Education Code section 13004 which provides:

‘Neither any local legislative body nor any school district governing board shall enact or enforce any ordinance or promulgate or enforce any rule or regulation which limits, during their off-duty hours, the participation of school employees in political activities not prohibited by this code.’

It appears self-evident that the Legislature in enacting section 13004 was concerned solely with prohibiting improper restrictions upon a teacher's activities conducted outside the school day and away from the school premises. Education Code sections 13561 and 13561.1,4 and the factual application of the Los Angeles Board Rule as set forth in the declaration of Louise Seyler, post, make manifest the distinction between ‘off duty hours' and the ‘dutyfree’ lunch period during which the employee must remain on the school premises and be available for duty, albeit of a most limited variety.

Further, even if some rational argument could be advanced in support of the contention that the provisions of section 13004 do apply to a teacher's lunch period, it still would not follow that during such period a teacher should have the right to devote the school premises to activities which would interfere with the regular conduct of school work. Education Code section 16551 provides:

‘The governing board of any school district may grant the use of school buildings or grounds for * * * public agency meetings * * * upon such terms and conditions as the board deems proper, and subject to the limitations, requirements, and restrictions set forth in this chapter.’ (Emphasis added.) Section 16552 of the Education Code provides such a limitation: ‘No use shall be inconsistent with the use of the buildings or grounds for school purposes, or interfere with the regular conduct of school work.’

Substantial evidence supports the trial court's finding which upholds respondents' determination that appellants' proposed activities would lower the educational efficiency of the schools. The petition for the writ of mandate was properly denied.

The judgment is affirmed.

APPENDIX

DECLARATION OF ROBERT J. PURDY

‘I, Robert J. Purdy, state that:

‘I am employed by the respondent Los Angeles City Board of Education as Associate Superintendent of Schools in charge of all elementary schools governed by respondent Board of Education. Included in my duties is a requirement that I have knowledge of the 430 elementary schools governed by respondent Board of Education and of the programs and activities which take place within them. I have served the respondent Board of Education as a teacher in various schools from 1939 to 1944, as a supervisor dealing with curriculum from 1944 to 1946, as vice-principal from 1946 to 1948, as principal from 1948 to 1959 and as Associate Superintendent in charge of the Division of Elementary Education from 1959 to the present.

‘Most elementary school teachers are required to work a six-hour day at their assigned schools. In addition, teachers perform services both on school premises and away from school, as the educational program may require.

‘Four to five hours of the six-hour day are normally devoted to teaching the pupils, and the remaining time is designated as a ‘planning period’ which must be used by the teacher to organize and plan his lessons or perhaps to render services specified by the principal of the school, depending upon the needs of the school. The ‘planning period’ is not off-duty time, but is instead a period of time during which the teacher is required to render services, or to prepare to render services, to his school.

‘In approximately 127 of our 430 elementary schools there is a room, sometimes two rooms, set aside as a ‘faculty room’ where teachers may go during off-duty periods to eat lunch and relax, and also where they may perform work during their planning period. In addition, each of the 430 schools have some kind of a lunch room or dining room set aside for purposes of meals and relaxation.

‘It is generally necessary for teachers to utilize these faculty rooms for class preparation work and for other work related to the educational program, concurrently with the use of the faculty rooms by other teachers for relaxation purposes. Frequently the motion picture projectors, films, slide and overhead projectors, sound equipment, and other teaching equipment is stored in the faculty rooms. Pupils are appointed as ‘monitors' to assist teachers, and in performing this function the monitors go in and out of these rooms at the request of teachers in order to obtain and return said equipment. Furthermore, traveling counselors are, from time to time, depending upon the availability of the classrooms, required to use a portion of the faculty rooms to administer tests of various kinds to pupils.

‘In the 303 elementary schools without faculty rooms it is frequently necessary for teachers to utilize the lunchrooms, in place of the absent faculty rooms, for the same kind of class preparation work and other work related to the educational program concurrently with the use of the lunchrooms by other teachers for relaxation purposes. In many of our lunchrooms or dining rooms, and in practically every case where the school has a cafeteria, pupils are employed to serve food, clean up dishes, clean tables, and generally pick up the dining area. These pupils are present during the teachers' lunch periods and are, of course, able to hear and observe what takes place in the lunchroom. Experience has shown that the pupils are interested in and listen to the adult conversation. As a matter of fact, teachers are admonished, from time to time, not to discuss matters such as the progress of identifiable pupils, because the pupils working in the lunchrooms hear the conversations.

‘As of February 27, 1967, approximately 1,040 school classes in schools governed by the respondent Board of Education were on half-day or double-session on the elementary level. Such classes involved approximately 30,000 pupils. These half-day or double-sessions are caused by the lack of classroom space. In schools where such classes are maintained there is ordinarily no place where a teacher may go during his planning period other than the lunchroom to work. Almost always, when schools are on half-day or double-sessions there are fewer classrooms than needed, and the faculty rooms are converted into classrooms.

‘At any given time, therefore, under either set of circumstances described above, the faculty rooms and many of the lunchrooms are likely to be used, to a greater or lesser degree, by teachers who are carrying out their employment responsibilities during their planning period as well as by teachers who are not on-duty or who are eating lunch.

‘Therefore, the circulation of the petition attached as Exhibit ‘A’ to plaintiffs' Petition for Writ of Mandate would interfere with and disrupt the proper operation of an elementary school because:

‘(1) It will not always be possible for the person circulating the petition to determine which of the teachers solicited in the faculty room or lunchroom are off-duty or on-duty, and therefore persons who are on-duty will likely be approached and requested to read and sign the petition. Even in cases where the on-duty person whose signature is solicited immediately understands the nature and purpose of the petition and agrees therewith and signs his name thereto, some time during which the employee is required to render services to the respondent will therefore be devoted to private, political business.

‘There is a more substantial loss of time from employment, however, as to those persons who are on-duty and who are solicited, and who either do not understand the nature and purpose of the petition and therefore require explanation, or who disagree with the political purpose of the petition. In the case of the teacher who is solicited and who disagrees with the political purpose of the petition, there will be substantial conversation on the matter. For social reasons in the school, the teacher who disagrees will many times feel compelled to state his counter-position and to defend his decision not to sign. In doing this, his attention will be diverted from his work, time will be lost from work, and he will take further time to convince the solicitor and surrounding persons that the purpose of the petition is in error.

‘(2) In cases where the circulator of the petition solicits teachers who are actually off-duty at noon, similar disruption will take place. There will be vocal and sometimes noisy disagreements which will be disturbing to the nearby teachers who are attempting to get some work done in preparation for later classes, and if they occur in the lunchrooms they will very likely be heard by the pupils. The teacher who is solicited while he is off-duty will feel free to debate at length the merits of the political position, pro or con, and the result will be distracting and bothersome to those working nearby.

‘In any case, whether or not the teachers solicited are on-duty or off-duty, the solicitation of his signature for political purposes will likely create discord and lack of harmony within the faculty. Teachers must cooperate and coordinate their efforts.

‘There is a great deal of difference between political discussion or debate which takes place, from time to time, among teachers in faculty rooms and lunchrooms, and the kind of political activity which requires a person to take a political position either by signing the petition or by not signing it. A teacher can choose not to enter into a political discussion and thereby avoid being classified politically one way or another. However, when the teacher refuses to sign a petition presented by a fellow teacher, it is difficult for him to avoid being classified as negative on the proposition presented by the petition. If teachers are by force of circumstance brought together in faculty rooms, or lunchrooms, and then asked by fellow employees to make a definite, written, public political commitment on this or other controversial matters, the result will likely be dispute and discord among some of the teachers and the creation of opposing political factions which will diminish the cooperation and coordination required for the proper operation of the elementary school.’

DECLARATION OF LOUISE WOOD SEYLER

‘I, Louise Wood Seyler, state that:

‘I am employed by the respondent Los Angeles City Board of Education as Deputy Superintendent in charge of Instructional Services. Included in my duties is the responsibility, under the Superintendent of Schools, for the educational program at all of the schools operated and maintained by the respondent Board of Education, which schools number in excess of 600. I have been employed in this position since November, 1956. Prior to taking the position of Deputy Superintendent in charge of Instructional Services, I have served respondent Board of Education as a teacher at a number of Los Angeles elementary and secondary schools from 1928 to 1938. I served as a principal at three elementary schools from 1938 to 1945. I served as Assistant Superintendent in charge of the Elementary Division, Central Los Angeles District, from 1946 to 1955. I served as Associate Superintendent in charge of the Instructional Services Division (responsible for development of curriculum and related instructional materials including textbooks) from 1955 to 1956, and have served as Deputy Superintendent, Instructional Services to the present time.

‘In many of our schools the student population exceeds 2,000 young people. These pupils are generally on school premises for six ‘periods' each day, or from 5 1/2 to 6 hours, excluding after-school recreation. The pupils are outside of the classrooms between each class, and are on the recreational areas during recesses on the elementary level, and during noon periods at all grade levels. With the exception of those pupils who bring notes from home authorizing them to go home or to a specified place, pupils are generally required to remain on school premises at noon and at other times, and therefore do not ordinarily go home or off-campus for lunch.

‘Because emergencies occur, although infrequently, it is necessary that the administrator responsible for a school know that each pupil in the school can look to a specific teacher for assistance at a time of emergency. One cannot minimize the possibility of a disaster or a serious emergency occurring at any time on the basis that such has not occurred frequently. Nor can one minimize the importance or having trained and professional teaching staff immediately available for supervision in the event of any disaster or serious emergency. The schools operated by respondent Board of Education have in recent years experienced emergencies ranging from airplane crashes in school yards to minor student riots. Parents are entitled to be assured that the school can provide adequate supervision during both normal and emergency situations.

‘The schools operated by respondent Board of Education have a plan for emergencies which, among other things, requires that the administrator of the school know how many teachers are off-campus at any time, and who these teachers are. Annually, each principal must file with the appropriate office under my supervision a Disaster and Emergency Plan. Each plan is dependent on the necessary presence of a certain number of personnel to carry out their assignments.

‘No principal or vice-principal may leave his school without notifying the appropriate office of his departure and return time and destination, and without making specific arrangements for his substitute to cover his responsibilities in case of emergency. Teachers, also, are required to follow a similar procedure. While ordinarily any teacher who wishes may leave campus, after making appropriate arrangements as determined by the principal, the schools cannot allow all off-duty teachers to leave campus when student bodies sometimes number in excess of 3,000 pupils, even though some teachers remain on duty for general supervision purposes.

‘It is also frequently necessary for the school to operate staggered noon periods. In some cases one-half of the student body and staff is released for lunch at a set time, then returned to class. Thereupon, the other half of the pupils and teachers are released for lunch. There are variations of this scheduling depending on the needs of the school. In order to schedule properly teaching staff, it is sometimes necessary that the principal have control in advance over the particular hour at which the teacher leaves for lunch.

‘The foregoing circumstances give rise to the last paragraph of Board Rule 12.94. Board Rule 12.94 reads as follows:

“12.94 Hours of Service for Junior and Senior High School Teachers.

“All junior and senior high school teachers shall be in their respective buildings at least ten minutes prior to the beginning of their scheduled school day and shall remain at least ten minutes after the close of their scheduled school day.

“During rain storms and other bad weather teachers shall be present at their respective school rooms at least thirty minutes before the opening of school.

“No teacher may leave the school premises during the teacher day except by special arrangement with the principal. This restriction is applicable to the luncheon period as well as to any other time of the day. Principals are authorized to permit teachers to be absent from the school premises because of personal reasons other than provided for elsewhere in the Administrative Guide, on exceptional occasions, for not to exceed one hour during any one day without loss of salary.'

‘With some exceptions that are possible over the years in a school system maintaining in excess of 600 schools, the foregoing constitutes the way in which Rule 12.94 is interpreted and implemented within the schools operated by respondent Board of Education.’

FOOTNOTES

1.  PETITION FOR BETTER CALIFORNIA EDUCATIONTo: Governor Ronald Reagan; Max Rafferty, State Superintendent ofPublic Instruction; and the Los Angeles City Board of Education We, the undersigned certificated employees of the Los Angeles City School Districts, do hereby protest the threatened cutback in funds for higher education and imposition of tuition at college and university campuses. We further petition you to increase, not cut, the revenues for public education at all levels to meet our soaring enrollments and big city problems—by overhauling our tax structure now, not by violating California's proud claim to free public education for all.NAMEADDRESS_ __ __ _This petition sponsored by the American Federation of Teachers, Local 1021, and by the AFT College Guild, Local 1521.Instructions to School Reps: Please circulate this petition only on non-instructional time and return to the office in the enclosed envelope not later than February 6th.

2.  Los Angeles City Board of Education Rules Nos. 1267 and 1276 provide in full as follows:‘1267. Political Activities. No political activities shall be engaged in on school premises or on property owned by or in the possession or control of the Los Angeles City School Districts, except as provided under the Civic Center Act. (See Rules 1301 et seq.) Employees shall not engage in such activities during working hours; provided, however, that nothing herein shall be construed to abridge the rights of such employees, at other times, to engage in such activities. (Ed.Code, Sec. 13004).’‘1276. Circulation of Petitions. The circulation of Petitions on school premises by persons other than employees of the Los Angeles City School Districts is prohibited, except that petitions may be circulated by any person during meetings conducted under the Civic Center Act. Employees may circulate petitions on school premises not obtained under the Civic Center Act only as provided below:‘a. Employees may circulate petitions concerning employer-employee relations among employees of the school or office building to which the employee or employees circulating the petition are assigned, when such petitions are directed to the Board of Education, the Superintendent, or his staff. Such petitions may be circulated in schools and office buildings other than those to which the employees circulating the petitions are assigned, only with the consent of the principals or administrators of such other schools or office buildings. The circulation of any petition shall not interfere with the performance of any employee's duties or with the conduct of school activities or office business.’

3.  By way of presenting an example to the trial court, counsel for appellants stated:‘I think the practical and realistic approach is if you have a duty-free lunch hour you sit around a cafeteria talking to other teachers. You are going to talk about politics, unions; you are going to talk about the issues of the day; yon are going to talk about what Governor Reagan did or didn't do; you are going to talk about the President and Viet Nam; yon are going to talk about things that adults talk about when they sit together during lunch periods and have free time.‘Now, there is no basis to restrict a teacher from saying, ‘Look, I am protesting to Governor Reagan or Superintendent Rafferty of certain actions taken in cutting the budgets. I would like your support. Would you sign this petition?’'

4.  Section 13561 of the Education Code provides:‘The governing board of every school district shall allow each teacher employed for full time in any regular day school in which two or more teachers are employed, one duty-free lunch period each day in the manner and at the time prescribed by regulation of the State Board of Education.‘The State Board of Education shall adopt rules and regulations fixing the duration of the duty-free lunch period of certificated employees of school districts, the time of day when the lunch period shall be granted, and prescribing the conditions under which the duty-free lunch period shall be allowed.’Section 13561.1 of the Education Code provides:‘Recognizing that an adequate lunch period free from duty is essential to the health, morale and efficiency of teachers employed full time in any regular day school, the Legislature declares that it is the policy of the State to encourage school districts to provide for an adequate duty-free lunch period for teachers.‘In order to provide for such duty-free lunch periods, the governing board of any school district may utilize recreation personnel or other suitable persons to supervise the pupils of the district during the school lunch period.‘The provisions of this section shall prevail over any provision of Section 13561 which conflicts herewith.’

HERNDON, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.