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Court of Appeal, Second District, Division 3, California.

Stanley M. LINDROS, Plaintiff and Appellant, v. GOVERNING BOARD OF the TORRANCE UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

Civ. 38143.

Decided: June 14, 1972

Arthur J. Grebow and Stephen E. Kalish, Los Angeles, for plaintiff-appellant. John D. Maharg, County Counsel, and Kenneth E. Reynolds, Jone J. Wagner and Howard R. Gilstrap, Deputy County Counsel, for defendant-respondent.

This is an appeal by the plaintiff from a judgment denying his application for a writ of mandate to compel the defendant Governing Board of the Torrance Unified School District to set aside its decision not to rehire the plaintiff, a probationary teacher, for the ensuing school year.

On or about March 13, 1970, the board served the plaintiff, Mr. Lindros, with written notice, pursuant to section 13443 of the Education Code, that it was recommended that he not be reemployed for the 1970–1971 school year. Thereafter the plaintiff made a timely request for a hearing. A hearing was held before a hearing officer of the Office of Administrative Procedure on May 4, 5, 6 and 7, 1970. The hearing officer submitted his proposed decision, dated May 22, 1970, to the board.1

In his proposed decision the gearing officer made findings of fact and a determination that the three charges which were sustained by the evidence were related to the welfare of the school and the pupils thereof. The court in the mandamus proceeding found that there was no substantial evidence to support the findings as to one of the three charges. Consequently, in this opinion reference will be made primarily to the two charges to which the denial of the petition for a writ of mandate related.

The principal charge is set forth in the hearing officer's proposed decision as follows: ‘A. Respondent's assignment within Torrance Unified School District was as an English teacher in the tenth grade at South High School. As part of the class work respondent assigned to his pupils the task of preparing a short story in which they related a personal emotional experience. In response to the requests of several of his students that he present to them an example of his own work, respondent read the following short story aloud to each of his five tenth grade English classes. In one or more of the classes respondent fully articulated all of the words appearing in the text of the story. In other classes respondent used only the initial letters for the expression ‘White-motherfuckin Pig’ appearing at the end of the story.

‘The Funeral

‘I was mad, disgusted . . . tense. If Agnes hadn't reminded me I'd still be watching, Shoes of a Fisherman at the film director's studio. But whether it was guilt or concern, I knew I should be at Ed's funeral at 2:00 p.m.

‘The highway provided me with nothing but a blanket of mist and melancholy. Splashing past 110-th and Compton Ave. I caught sight of Greater Antioch Baptist Church just as four of my students were carrying Ed's body into the dismal looking building.

‘Water dripped from the ceiling as the small choir intoned, Come Sweet Jesus . . .. Only the appearance of plump Rev. Black, Bible in hand, saved us from their uncoordinated efforts.

‘I couldn't catch what Black was reading but it was unimportant. I was here, somber, moody, thoughtful; and all to the testimony that I as a white man did care for a young black hipe who died too young . . . too soon.

‘Lloyd made it . . . Larry, Fred, Benard, Fuzzy-they were all there. Seemed like every addict in the community was on the scene with his leather jacket and shades, as if to collect . . . or to pay off to Ed. What a lineup! Sargent (sic) Masterson from Precinct 77 would have raised a brow or two at this gathering.

‘Kelly had tears streaming down his face; perpetually high . . . who could blame him; deserted father, bitch mother; in and out of jail since thirteen. He shot with Ed for the last time that Saturday night.

‘The wailing, so characteristic at a Black funeral did not begin until the second stanza of, I Believe, delivered by Hessie Jones. The little Black kid next to me stared at the solitary tear that rolled down my cheek.

‘Why are women so goddam (sic) hysterical? Did they really know Ed? Did they care? Were they using Ed's ‘time’ from their own shackels of welfare and project living? I do not know. I do not live in Watts; but I feel for them now, in their strange melodramatic way.

‘Only the obituary read by Sister Maebelle shook me out of my depression. ‘Ed Leavy Pollard, Born in Greenwood, Miss., 1952; Died Jan. 11, 1969 . . .’ She droned on in a pitifully low, uneducated tone.

‘Curley, a steady shooter with Ed was moved to bellow out, ‘Louder Lady, I can't hear ya.’ Choresetta in the fourth pew from the front responded to this abrupt remark with a deep shaking sob. The storm grew louder. I noticed at least three leaks from the roof now. God, what a depressing hole; wet, dam (sic), pictureless, peeling paint, worn, dam (sic) pews; only the cossack of Ed and us. ‘Only us O Lord,’ I thought ‘but what the hell are we here for?’

‘I sit here white, middleclass, secure, while the goddam (sic) system rapes these poor people of every vestage [sic] of dignity.

‘Rev. Galine, a slick looking ‘Tom’ began the eulogy; Jeremiah was the scapegoat. First there was the woman in the back row. She was joined by three others; then another . . . and another; soon everyone in the drama had his chance to chant a response back to the Baptist Preacher; ‘Oh Lord’ . . .. ‘That's right’ . . . ‘I'm listnin’ . . . ‘Speak God’ . . .. Only periodic gasping sighs (sobs) interrupted the Rev's show.

‘Ed would have rolled over and grimaced if he would have heard the hysterics when David, his classmate, opened his cossack for the finale. The weeping and gnashing lasted long enough for all of us to troop past Ed and glance at his ashen, black face.

‘I felt whipped out; this was a strange two hours; strange to a white who had no blackness in him; strange to a white who knew no such poverty and desperation; even stranger outside when I greeted a young Black in a Pantherlike outfit: ‘White-mother-fuckin Pig’ . . ..”

The second charge pertinent on this papeal was set forth in the hearing officer's proposed decision as follows: ‘F. On approximately February 6, 1970 at the close of a class session the students in the class then being instructed by respondent departed from the room with few exceptions and without being dismissed by respondent and prior to the sounding of the bell signalling the close of the class session. It was established that on this date respondent had instructed those of his students who were in possession of a book entitled ‘Zorba the Greek’ to depart from class early, secure the book from their lockers, and return the book to the library so that it could be redistributed on the morning of February 19th when it was needed by the students of another English instructor. It was not established that all of those students who departed were leaving to complete this errand. It is contrary to school policy to permit students to be out of class during the class time without a proper pass, with the limited exception that five students at a time may be permitted to be in the hallway for the purpose of obtaining or returning books at the bookroom in the library.'

A further portion of the hearing officer's proposed decision was as follows: ‘E. It is a policy at South High School that all instructional material used by the teachers at the high school be approved prior to its use. It is, however, the established practice at the school that various instructors are permitted to make use of instructional material brought to the school from outside sources and which has not been approved. This practice is known to and tolerated by the administration of the school.’

The hearing officer also stated as established facts that the school ‘has in its school library various books and current publications which are shelved in the open shelving area and available to all students, which contain words which are either the same as or closely similar to the words which appear in the two writings [‘The Funeral’ and another writing not involved in this appeal] . . .' and that the school ‘has also permitted instructors to take students from the high school, as part of the school curriculum, to the presentation of stage plays in which the lines spoken by the actors contained the same or similar words.’

Pursuant to his findings of fact, the hearing officer made ‘determination of issues.’ As to the charge relating to permitting students to be out of class during the class time without a proper pass, he determined that, as established, it did constitute a violation if school policy which related to the welfare of the school and the students thereof and, therefore, did constitute ‘cause within the meaning of Section 13443, Education Code.’

With respect to the reading in classes by Mr. Lindros of his story ‘The Funeral,’ the hearing officer stated that final determination of the issue involved required ‘a resolution of the question of the accepted standards relating to the use of outside material by teachers.’ The hearing officer further stated: ‘Although there is an articulated policy that all classroom material be approved in some manner prior to its use in the classroom, there has been a widespread use of outside instructional material selected by the instructors and not submitted for approval. This practice is so commonly accepted that it has become the actual policy of the school. [¶] The school does sanction the use of literary works and current periodical material in which socially unacceptable words and phrases appear. There has been no clear statement of the criteria or standard applied in selecting this material but a fair review of the practices followed would support the understanding that writings appearing in accepted literary works and appearing in generally accepted periodicals such as the metropolitan daily newspapers and well known national magazines are appropriate for classroom use. . . . [¶] Respondent's original story ‘The Funeral’ is not within the generally accepted standard and its use would violate the policy of the school in regard to the introduction of objectionable language into the classroom. It is not a generally accepted literary work and does not appear within a generally accepted periodical. Respondent's lapse of judgment and violation of standards is a factor relating to the welfare of the students and the school. [¶] In considering the seriousness of the use of the offending material, some mention should be made of the fact that these words were presented either fully or by their initial letters to five classes of a total of approximately 150 students. No complaint arose from the students and none arose from the parents of these students. This will not establish that the material was appropriate for classroom use but does tend to establish that the context and manner of presentation was not nearly so startling to the students who heard it in its classroom use as the disembodied restatement of the offending words makes it appear. [¶] Another relevant consideration is the problem of judgment and professionalism. It should require no argument to support the proposition that the District's Governing Board, as the ultimate employer of the teacher on behalf of the citizens of the District, has the right to control the teacher by promulgating the standards of conduct which it deems appropriate. These standard[s] may allow broad discretion or may be explicit. Here, as is true of much in the field of education, a latitude has been allowed for the exercise of the professional judgment of the educational administrators and the teachers. Whenever latitude for judgment is granted there will be inevitable [sic] variances in its exercise by the individuals involved. The superior may reasonably anticipate that the subordinate's exercise of judgment will vary from his own and, particularly in the case of a beginning employee, that it will be at times erronious [sic]. In such instances the employer must finally decide whether the mistaken judgment is such that the employee should be corrected or whether it is so erronious [sic] that the employee must be dismissed.'

The governing board of the school district adopted the proposed decision of the hearing officer as its decision in the matter. In the governing board's decision to was further stated: ‘Sufficient cause exists pursuant to Section 13443 of the Education Code not to reemploy respondent for the 1970–71 school year in that each of the charges found by the hearing officer to be sustained by the evidence and related to the welfare of the schools and the pupils thereof . . . are hereby determined as separately and collectively constituting such sufficient cause not to reemploy respondent for the ensuing 1970–71 school year.’

In the mandamus proceeding the superior court found that, with respect to the charge involving the reading of the story entitled ‘The Funeral,’ there was substantial evidence to support the hearing officer's findings of fact. As to the story entitled ‘The Funeral,’ a portion of the court's findings of fact were: ‘On or about October 17, 1969, Petitioner read to five of his classes of Tenth Grade students a short story of his own composition entitled ‘The Funeral.’ When the Petitioner read this story out loud to some of these classes, he did not omit the expression, ‘white mother-fucking pig,’ which language is manifestly coarse and vulgar. Petitioner should have known that such language by a teacher was totally unacceptable in a Tenth Grade English class. [¶] A teacher in a public school district is regarded by the public school district is regarded by the public and pupils in the light of an exemplar whose words and actions are likely to be followed by the children coming under his care and protection. The use of the coarse and vulgar expression by the Petitioner was the exercise of extreme bad judgment.'

A portion of the conclusions of law of the superior court was that the paragraphs of the hearing officer's findings of fact specifically relating to the two charges involved on this appeal were supported by substantial evidence and that the charges so established ‘were found to be related to the welfare of the school and the pupils thereof, and the Governing Board's determination of sufficiency is conclusive.’

The basic contention presented by the plaintiff is that the refusal to rehire him because of his reading of ‘The Funeral’ to his tenth grade English classes constituted a violation of academic freedom protected by the First Amendment of the United States Constitution. Reliance is placed upon the reasoning of Parducci v. Rutland (D.C.M.D.Ala., N.D.1970) 316 F.Supp. 352 and Keefe v. Geanakos (1st Cir. 1969) 418 F.2d 359. It is argued as follows: ‘Particular attention should be paid to the facts that ‘The Funeral’ could not be deemed obscene, the slang words are common, the words have a definite literary purpose in the story (e. g., ironic differences in outlook), no students, nor even their parents, complained, works with similar words could be found elsewhere in the school, students were required to attend plays with similar words and there was no showing of material disruption in the class. [¶] To allow a teacher not to be rehired for such teaching would chill free speech and stifle creative teaching innovation.'

It is manifest that the applicability of the concept of academic freedom must be determined in the light of the circumstances of the particular case. Academic freedom does not signify the absence of all restraint. Apropos is the following statement of the court in Mailloux v. Kiley (1st Cir. 1971) 436 F.2d 565, at page 556: ‘The court in no way regrets its decision in Keefe v. Geanakos, 1 Cir., 1969, 418 F.2d 359, but it did not intend thereby to do away with what, to use an old-fashioned term, are considered the proprieties, or to give carte blanche in the name of academic freedom to conduct which can reasonably be deemed both offensive and unnecessary to the accomplishment of educational objectives. [Citation.] Here, particularly, such questions are matters of degree involving judgment on such factors as the age and sophistication of students, relevance of the educational purpose, and context and manner of presentation.’ The court further stated at the page cited: ‘Finally, we say that the court does not intend to referee every debatable dispute between school teachers and their employers simply because academic freedom may arguably be involved. We will not superimpose our judgment on the school authorities unless, in a constitutional area, we consider their decision plainly wrong.’

As aptly stated by Judge Wyzanski in Mailloux v. Kiley (D.C.D.Mass., 1971) 323 F.Supp. 1387, at page 1392: ‘The secondary school more clearly than the college or university acts in loco parentis with respect to minors. It is closely governed by a school board selected by a local community. The faculty does not have the independent traditions, the broad discretion as to teaching methods, nor usually the intellectual qualifications, of university professors. Among secondary school teachers there are often many persons with little experience. Some teachers and most students have limited intellectual and emotional maturity. Most parents, students, school boards, and members of the community usually expect the secondary school to concentrate on transmitting basic information, teaching ‘the best that is known and thought in the world,’ training by established techniques, and, to some extent at least, indoctrinating in the mores of the surrounding society. While secondary schools are not rigid disciplinary institutions, neither are they open forums in which mature adults, already habituated to social restraints, exchange ideas on a level of parity. Moreover, it cannot be accepted as a premise that the student is voluntarily in the classroom and willing to be exposed to a teaching method which, though reasonable, is not approved by the school authorities or by the weight of professional opinion. A secondary school student, unlike most college students, is usually required to attend school classes, and may have no choice as to his teacher.'

In Keefe v. Geanakos, supra, 418 F.2d 359, the action had been brought by a tenured high school teacher to enjoin the school committee from voting on the matter of the teacher's discharge. The teacher had given each member of his senior English class a copy of the September, 1969, ‘educational number’ of the Atlantic Monthly, 75 copies of which had been supplied by the school department. The reading assignment was the first article in the magazine. The teacher discussed the article and a particular word used therein, explaining the word's origin and context and the reasons the author had included it. The word, admittedly highly offensive, was a vulgar term for an incestuous son. The teacher stated that any student who felt the assignment to be personally distasteful could have an alternative assignment. After reading the article, which had been described as a valuable discussion of ‘dissent, protest, radicalism and revolt,’ the court conclude that it was ‘in no sense pornographic,’ but was ‘scholarly, thoughtful and thought provoking’ and that the particular word was not ‘artificially introduced,’ but, on the contrary, was ‘important to the development of the thesis and the conclusions of the author.’ The court further stated that it would be ‘difficult to disagree with plaintiff's assertion that no proper study of the article could avoid consideration of this word’ and that if ‘it raised the concept of incest, it was not to suggest it, but to condemn it,’ the word being used, by the persons described, ‘as a superlative of approbrium.’ (418 F.2d at page 361.) Thereafter the court noted (page 362): ‘Furthermore, as in all other instances, the offensiveness of language and the particular propriety or impropriety is dependent on the circumstances of the utterance.’ In Keefe the discussion of the word was directly related to the serious consideration of a subject which could reasonably be found to be proper in the case of students who had reached the maturity of high school seniors.

Keefe is distinguishable from the case presently before this court. In Keefe the students were in the twelfth grade and, as has been noted, the use of vulgar language could reasonably be said to be justified in that it served a legitimate professional purpose. In the case presently before this court the students were in the tenth grade and were assigned the task of preparing a short story in which the writer related a personal emotional experience. In response to requests of students the plaintiff read to his classes ‘The Funeral’ as an example of his own work embodying such an experience. But it was not unreasonable to conclude that the embodiment of vulgarity in a model of a story of the genre which the teacher sought to have his students write substantially transcended any legitimate professional purpose and was without the pale of academic freedom. Manifestly, such conduct related to the welfare of the school and the pupils thereof. Section 13443 of the Education Code placed in the governing board the duty of determining the sufficiency of such conduct as cause for declining to rehire the probationary teacher. Since the determination of the board had a reasonable and substantial basis in the record, not involving a violation of academic freedom under the First Amendment, a reviewing court is not free to interfere therewith (see Bekiaris v. Board of Education, 6 Cal.3d 575, 589, 100 Cal.Rptr. 16, 493 P.2d 480), unless there is merit in the contentions remaining for consideration.

The plaintiff contends that his reading of ‘The Funeral’ could not be a basis for refusing to rehire him because he was not given adequate notice that conduct of that nature would subject him to disciplinary action. In support of his position the plaintiff makes reference to portions of the hearing officer's proposed decision, which have been noted hereinabove, as to the use of instructional material obtained from other than school sources, the presence of periodicals and books in the school library containing words falling within the classification of vulgarity, and the attendance of pupils at plays in which similar language was used.

There is no iron-clad rule of law that regulations or rules be promulgated which specify in minute detail the various kinds of misconduct which will subject a teacher to disciplinary action. It is not unreasonable to assume that a person engaged in the profession of teaching will have a reasonable concept of generally accepted standards relating to propriety of conduct, including the avoidance of vulgarity, and will adhere to such standards in his relationship with his pupils. This does not mean, of course, that when relevant to the serious pursuit of a proper academic subject or inquiry words may not be used which under other circumstances should be avoided as inappropriate. As stated in Keefe (418 F.2d at page 362): ‘Furthermore, as in all other instances, the offen-siveness of language and the particular propriety or impropriety is dependent on the circumstances of the utterance.’ Moreover, at the page cited, it was also stated: ‘It does not follow that a teacher may not be on notice of impropriety from the circumstances of a case without the necessity of a regulation.’ The same court subsequently stated in Mailloux v. Kiley, supra, 436 F.2d 565, at page 566: ‘We do suggest that the fact that there was no regulation proscribing the use of particular language does not alone compel a conclusion that due process was violated.’

Adhering to an objective standard, in the present case it was not unreasonable to determine that the plaintiff was on notice that in teaching his tenth grade English classes the art of writing a short story and in affording his students aid by using as a model a short story written by him, resort to a particular story embodying vulgarity would not serve a substantial educational purpose but would constitute a serious impropriety because of the extraneous matter of an unexemplary nature. Since manifestly inherent in such conduct was the probability of an effect adverse to the welfare of students, it was reasonable to assume that the teacher was aware that he was thereby subjecting himself to the hazard of disciplinary measures. Consequently, his contention as to the lack of adequate notice to satisfy the concept of due process is untenable.

The plaintiff contends that the board's decision is void because the members thereof determined that there was sufficient cause not to rehire the plaintiff without reading the transcript of the proceedings before the hearing officer. Section 13443 of the Education Code provides in part as follows: ‘(c) In the event a hearing is requested by the employee, the proceedings shall be conducted and a decision made in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code and the governing board shall have all the power granted to an agency therein, except that: . . . (3) the hearing shall be conducted by a hearing officer who shall prepare a proposed decision, containing findings of fact and a determination as to whether the charges sustained by the evidence are related to the welfare of the schools and the pupils thereof, but the proposed decision shall not contain a determination as to the sufficiency of the cause or a recommendation as to disposition, which sufficiency and disposition shall be determined by the governing board. . . . [¶] (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 . . ..’

The chapter of the Government Code to which reference is made in section 13443 of the Education Code is entitled ‘Administrative Adjudication.’ The plaintiff's argument that in the present case the board's decision was invalid because its members did not read the transcript of the proceedings conducted by the hearing officer arises from the fact that section 13443 of the Education Code provides that the proposed decision of the hearing officer ‘shall not contain a determination as to the sufficiency of the cause or a recommendation as to disposition.’ Reliance is placed on the Morgan cases—Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 and 304 U.S. 1, 58 S.Ct. 999, 82 L.Ed. 1129. (See Hohreiter v. Garrison, 81 Cal.App.2d 384, 393–401, 184 P.2d 323.) In essence the argument made is that the members of the governing board were required to read the transcript of the proceedings before the hearing officer because that officer was not empowered to recommend an ultimate disposition and did not do so.

A portion of the argument is as follows: ‘Thus, in circumstances in which the matter is to be heard by a hearing officer alone, the determination of whether a probationary teacher is to be rehired for the ensuing year is a bifurcated matter. The hearing officer must determine the facts and must decide if they constitute cause related to the welfare of the schools and the pupils. He may make no finding with respect to the sufficiency of these causes not to rehire the probationary teacher. This determination rests, ab initio, with the governing board. . . . Appellant contends that because of this bifurcation, the governing board may not follow the procedure outlined in Government Code § 11517(b).2 . . . The Government Code § 11517(b) proposed decision must be in a form that may be adopted as the ‘decision in the case’; and a ‘decision in the case’ must include a recommended disposition. . . . If there were no recommendation as to disposition in the proposed decision, there would be no way to reduce the penalty. . . . Therefore, the governing board must proceed pursuant to Government Code § 11517(c),3 and its members must read the administrative transcript before rendering its own decision. To do otherwise would mean that the decision maker had merely ‘dipped’ into the proceedings. See, Morgan v. United States, 304 U.S. 1, 58 S.Ct. 999, 82 L.Ed. 1129 (1937).'

In support of his position the plaintiff discusses that portion of the hearing officer's proposed decision which was a finding of fact as to one accusation and was expressed as follows: ‘G. On October 2, 1969, respondent left his classroom at a time when a class was in session. It is contrary to school policy, except in the case of extreme emergency, for a teacher to leave a classroom at a time when students will be unsupervised. It was not established that any supervision was being afforded the students during the respondent's absence.’ It is true that the trial court, after reading the transcript of the proceedings before the hearing officer, found as follows: ‘There is no substantial evidence to support the findings in Paragraph VII G involving Petitioner [plaintiff] leaving his classroom unsupervised.’ But, aside from the issue of the existence of substantial evidence, it is manifest that as to that accusation the hearing officer failed in his duty to make plenary findings of fact of such a nature that the board could reasonably and intelligently determine therefrom whether the facts as established by the evidence presented to the hearing officer constituted the requisite cause for declining to rehire the probationary teacher for the ensuing school year.

In contrast, the findings of fact as to the plaintiff's reading of ‘The Funeral’ to his tenth grade classes were plenary in nature and furnished to the board a proper and adequate basis upon which to exercise reasonable judgment as to whether the established facts constituted cause for not rehiring the probationary teacher. Indeed, the facts as to the conduct of the plaintiff in this instance do not appear to be in substantial dispute.

Guidance leading to the conclusion that there is no violation of due process in assigning to the hearing officer the duty of hearing the evidence and making plenary findings of fact as to an accusation and in assigning to the governing board the duty of exercising judgment as to whether such facts as so established constitute cause for not rehiring a probationary teacher is found in the reasoning of Bertch v. Social Welfare Dept., 45 Cal.2d 524, 289 P.2d 485. In Bertch the basic question was whether or not the petitioners were ‘needy’ persons within the provisions of the Old Age Security Act. Each petitioner, upon denial of aid, filed an appeal with the Social Welfare Board. The board appointed a referee to hear the appeals. A hearing was had at which petitioners were represented by counsel. The referee submitted his findings to the board; the board denied the appeals. The petitioners then filed a petition for a writ of mandate in the superior court, seeking a review of the matter both as to the law and the facts.

On appeal in Bertch the Supreme Court noted (45 Cal.2d at page 527, 289 P.2d 485) that the petitioners had pointed to no specific finding of fact of the hearing officer which was changed by the board. The petitioners contended that the procedure outlined in section 11517, subdivisions (b) and (c), of the Government Code should have been followed. It was the board's position that the procedure set forth in sections 104.1, 104.2, 104.3 and 104.5 of the Welfare and Institutions Code constituted the proper method.

The Supreme Court stated (45 Cal.2d at page 527, 289 P.2d at page 487): ‘Preliminarily, it should be noted that section 11501 of the Government Code provides: ‘Extent to which procedure conducted pursuant to chapter: Agencies included. (a) The procedure of any agency shall be conducted pursuant to the provisions of this chapter only as to those functions to which this chapter is made applicable by the statutes relating to the particular agency.’ (Emphasis in body of statute added.) . . . It is our opinion that the board's contention that the section means it is to apply only when made applicable by the statutes relating to the particular agency involved is meritorious. . . . It appears then that the board is correct in its contention that sections 104.1 et seq. of the Welfare and Institutions Code contain the controlling procedure.'

Section 104.5, subdivision (c), of the Welfare and Institutions Code provided as follows: ‘If an appeal, hearing, or rehearing is not heard by the board, a report of the proceedings shall be prepared by the referee conducting it and the report, together with any data the party appealing may desire, shall be presented to the board for final decision. Only the board may make such final decision.’ The Supreme Court stated (45 Cal.2d at page 529, 289 P.2d at page 488): ‘It would appear that under the situation here present where petitioners were given a full opportunity to be heard before the hearing officer whose report was then reviewed by the board, there was no denial of procedural due process of law.’

The plaintiff contends that the board violated the Brown Act (Gov.Code, §§ 54950–54960). The plaintiff had requested in writing that the hearing before the board be held in an open session. (See Gov.Code, § 54957.) The meeting of the board was held on June 5, 1970, at which time arguments were presented. The board then went into executive session during which the board considered the arguments, the findings of the hearing officer, and the objections presented on behalf of Mr. Lindros.4 Thereafter the board reconvened in public session; in that open session the board by vote adopted the findings of the hearing officer and determined that there was sufficient cause not to reemploy Mr. Lindros.

The findings of fact of the superior court were in part as follows: ‘No evidence or formal arguments were heard, or formal action was taken by the Governing Board of Respondent District while in executive session considering this matter. Petitioner, on or about May 12, 1970, demanded, by registered mail, that the hearing of Respondent he held in open session. At the hearing on June 5, 1970, Respondent went into executive session over Petitioner's objections. After returning from executive session, Respondent members formally voted to adopt the proposed decision of the hearing officer; the members also formally voted that there was sufficient cause not to re-employ Petitioner.’

The court's conclusion of law with respect to the matter was as follows: ‘There was no violation of the Brown Act, and if the alleged violation occurred, it was but a technical violation which would not invalidate the action subsequently taken by the Governing Board.’

The formal action of the board affecting the status of the plaintiff occurred in open session. It is not reasonable to conclude that because of the executive session there was a violation of due process or that otherwise the plaintiff's rights were prejudiced or that he was subjected to a miscarriage of justice. Guidance is found in the reasoning of the court in Huntington Beach Union High School Dist. v. Collins, 202 Cal.App.2d 677, at page 682, 21 Cal.Rptr. 56, at page 59: ‘The record does not show that the board took any action toward appellant's dismissal or heard any additional evidence pertaining thereto at the executive session. The only decision reached during the executive session was to allow appellant another opportunity to answer the question which he had failed to answer at the first meeting. Then, during the second public hearing, appellant again refused to answer the questions. After this second refusal, the board approved a motion stating that appellant's answers were evasive and that he should be suspended. If there was a technical violation of the Brown Act (Govt.Code, secs. 54950–54960), it in no way prejudiced appellant's rights and did not invalidate the action of the board.’

The plaintiff asserts that the charge of unauthorized departure of students from his class ‘was just a makeweight’ and, consequently, if the accusation based on his reading of ‘The Funeral’ to his classes is found to be an insufficient basis for refusing to rehire him, the governing board's decision should be set aside. But, for the reasons hereinabove set forth, the accusation with respect to ‘The Funeral’ was supported by substantial evidence which justified the board's decision. The plaintiff also states that his further contention as to the unauthorized departure accusation ‘does not rest on the inadequacy of the evidence’; he asserts that there was a failure to follow ‘the proper procedural method of making the determination and the proper allocation of proof burden.’ But no purpose would be served by a plenary discussion of the plaintiff's argument with respect to the accusation as to the unauthorized departure of students from the plaintiff's classroom since it was stated in the board's decision that the charges found by the hearing officer to be sustained by the evidence were determined by the board to be ‘separately and collectively’ sufficient cause for not rehiring Mr. Lindros. By that determination the board made manifest its conclusion that each of the charges found by the hearing officer to be sustained by the evidence, considered by itself, constituted sufficient cause not to reemploy the plaintiff for the ensuing school year. Consequently, the plaintiff's conduct in reading ‘The Funeral’ to his classes, standing alone and apart from any other accusation, was sufficient to sustain the board's decision not to rehire Mr. Lindros. (See Mast v. State Board of Optometry, 139 Cal.App.2d 78, 92–93, 293 P.2d 148; Genser v. State Personnel Board, 112 Cal.App.2d 77, 88–89, 245 P.2d 1090, 1097.)5

The judgment is affirmed.


1.  Section 13443, subdivision (c), is in part as follows: ‘(3) the hearing shall be conducted by a hearing officer who shall prepare a proposed decision, containing findings of fact and a determination as to whether the charges sustained by the evidence are related to the welfare of the schools and the pupils thereof, but the proposed decision shall not contain a determination as to the sufficiency of the cause or a recommendation as to disposition, which sufficiency and disposition shall be determined by the governing board.’

2.  Section 11517, subdivision (b), of the Government Code is in pertinent part as follows: ‘If a contested case is heard by a hearing officer alone, he shall prepare a proposed decision in such form that it may be adopted as the decision in the case. . . . The agency itself may adopt the proposed decision in its entirety, or may reduce the proposed penalty and adopt the balance of the proposed decision.’

3.  Section 11517, subdivision (c), of the Government Code is in pertinent part as follows: ‘If the proposed decision is not adopted as provided in subdivision (b), the agency itself may decide the case upon the record, including the transcript, with or without taking additional evidence, . . .’

4.  Petitioner cites Sacramento Newspaper Guild etc. v. Sactamento County Bd. of Suprs., 263 Cal.App.2d 41, 69 Cal.Rptr. 480. Therein the court stated at pages 47–48, 69 Cal.Rptr. at p. 485: ‘There is nothing in the Brown Act to demarcate a narrower application than the range of governmental functions performed by the agency. . . . Section 54950 is a deliberate and palpable expression of the act's intended impact. It declares the law's intent that deliberation as well as action occur openly and publicly. Recognition of deliberation and action as dual components of the collective decisionmaking process brings awareness that the meeting concept cannot be split off and confined to one component only, but rather comprehends both and either. To ‘deliberate’ is to examine, weigh and reflect upon the reasons for or against the choice. . . . Deliberation thus connotes not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision.'

5.  In Genser at the pages cited, the court stated: ‘The decision of the Personnel Board was as follows: [¶] ‘That for the acts as found to be true as set forth hereinabove, and for each of said acts separately and severally, the respondent is hereby suspended from the date of his suspension to March 1, 1949, and from his position as Motor Vehicle Investigator, Grade Two, of the Department of Motor Vehicles of the State of California.’ [¶] It is clear that the Board intended to exact the penalty imposed on each count of the charges, and in view of the fact that we have reached the conclusion that the findings as to the first two charges are supported by substantial evidence, it is unnecessary to discuss at any length the remaining charges and findings.'

FORD, Presiding Justice.


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