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

JEFFERSON ELEMENTARY SCHOOL DISTRICT, an elementary school district of the County of San Mateo, State of California, Plaintiff and Respondent, v. Joan BENT, a certificated employee, et al., Defendants and Appellants.

Civ. 31745.

Decided: September 24, 1974

Peter T. Galiano, Burlingame, for defendants-appellants. Keith C. Sorenson, Dist. Atty., Keith v. Breon, Deputy Dist. Atty., Redwood City, for plaintiff-respondent.

Defendants appeal from a judgment declaring invalid a memorandum of agreement signed by plaintiff school district and defendant Certificated Employees Council (hereafter ‘Council’).

Plaintiff is an elementary school district of the County of San Mateo, State of California. Defendants are certificated employees of plaintiff school district, members of the Council of the district, and the Council. The Council is the representative of certificated employee organizations of plaintiff district. Prior to November 23, 1970, the Council was known as the Negotiating Council.

On September 10, 1970, in the County of San Mateo, designated representatives of the plaintiff school district and defendant Council were signatories to a memorandum of agreement between the Board of Trustees of the Jefferson Elementary School (hereafter ‘Board’) and the Council. Later that same day, at a regularly scheduled board meeting, the Board ‘ratified’ the memorandum of agreement and thereby effectively adopted it as part of its rules and regulations governing the school district. Upon ratification,1 the terms of the memorandum of agreement became an integrated part of every individual teacher's employment contract with plaintiff district.

Pursuant to article V, section 9 of the memorandum, defendant Joan Bent, a certificated employee of plaintiff district, requested submission of a wage dispute to an arbitrator for resolution. On January 20, 1971, the plaintiff filed a complaint for declaratory relief to determine the legal rights and duties of the respective parties with reference to the memorandum of agreement. Plaintiff contended, in the court below, that the parties purported to enter into a binding bilateral contract and that their efforts on that behalf were void and ineffectual for all purposes. Defendants contended that the memorandum of agreement was not a contract, but rather a proposal of provisions adopted by the Board as part of its rules and regulations, and thereby became incorporated into the individual contracts of employment with each certificated employee of plaintiff district.2

At the same time the complaint for declaratory relief was filed, the trial court issued an order requiring defendants to appear and show cause why they should not be enjoined and restrained during the pendency of the action from performing any act to enforce the provisions of the memorandum of agreement. The hearing on the order to show cause was held on February 11, 1971, and on February 22, 1971, the trial court filed an initial memorandum decision, which was silent as to the issue of the temporary restraining order. This initial decision by the trial court upheld the validity of the agreement between the parties with the provision for binding arbitration struck therefrom. This initial decision by the trial court, which preceded the filing of defendants' answer to the complaint, was superseded by a subsequent decision on November 15, 1971.

On March 18, 1971, defendants' answer was filed. On March 31, 1971, defendants' demurrer to the complaint and motion to strike were overruled and denied respectively. On May 3, 1971, an order denying plaintiff's application for preliminary injunction was filed. On May 7, 1971, the date on which a trial on the merits was to be held, the trial court (with a visiting judge presiding) denied the parties further access to the court and declared the judgment final and appealable. On August 4, 1971, the parties appeared again before the trial court, which vacated the action of May 7 and declared that its initial memorandum decision was not intended to be final. The trial was held on September 3, 1971, and the court filed its final memorandum decision on November 15, 1971.

The trial court adjudged that the agreement was void and not binding upon plaintiff school district. The trial court further adjudged that since the memorandum of agreement, in total, was not binding upon plaintiff, the provision contained in said agreement providing for binding arbitration of grievances was not obligatory upon plaintiff. Since the total agreement was declared void, it could not be considered as incorporated into the individual contracts of employment and the request for arbitration by employee Bent was therefore left with no legal or contractual foundation.

Defendants filed a timely notice of appeal in this court on March 7, 1972.3

The issues on appeal are:

1. Whether or not the provisions of the memorandum of agreement became incorporated into the individual contracts of employment between plaintiff and its certificated employees (i. e., teachers);

2. Whether or not the entire memorandum of agreement is void or only certain of its provisions;

3. Whether or not the trial court erred in refusing to consider the validity of article V of the memorandum of agreement which provides for binding arbitration of grievances;

4. Whether or not defendants are denied First Amendment rights of association if the agreement is declared invalid.

We have concluded that the memorandum of agreement is invalid and its individual provisions thereby inoperative, and that such invalidation does not deny defendants any constitutional right of association.

Defendants' first contention is that the provisions of the memorandum of agreement became incorporated into and integral parts of the individual contracts of employment of the certificated employees when the memorandum of agreement was adopted on September 10, 1970. Essentially, defendants contend that the agreement was not a binding contract between the Council and the Board, but rather was a list of proposals unilaterally and independently adopted by the Board, pursuant to the Education Code, as part of the rules and regulations of plaintiff school district.

The relationship between a teacher and a school district is a contractual one. (Holbrook v. Board of Education (1951) 37 Cal.2d 316, 331, 231 P.2d 853; Ross v. Board of Education (1912) 18 Cal.App. 222, 224, 122 P. 967.) However, California has adopted special legislation which regulates employer-employee relations in the public school system. (Winton Act, Ed.Code §§ 13080–13090.) ‘The Winton Act does not embody the concept of collective bargaining.’ (Westminster Sch. Dist. v. Superior Court (1972) 28 Cal.App.3d 120, 128, 104 Cal.Rptr. 388, 393.) Grasko v. Los Angeles City Board of Education (1973) 31 Cal.App.3d 290, 107 Cal.Rptr. 334, seems to be particularly apposite to the dispute in this case. In Grasko, after a lengthy teachers' strike, the school board and the certificated employees signed a similar memorandum of agreement or contract, as is at issue here. The court not only ruled that the strike itself was illegal, but held that California school districts and their governing boards are not authorized to enter into binding agreements with representatives of their employees regarding matters of employment conditions or educational policy. (P. 300, 107 Cal.Rptr. 334.) ‘The powers, duties and obligations of a school district must be found within the limits of the statutory provisions governing school districts. In this connection it has been affirmed that school districts are quasi-municipal corporations of the most limited power known to the law. Their trustees have special powers and cannot exceed the limit of such powers. [Citations.]’ (Hutton v. Pasadena City Schools (1968) 261 Cal.App.2d 586, 592, 68 Cal.Rptr. 103, 107.)

Section 13085 of the Education Code encourages school boards and representatives of certificated employees to meet and confer with respect to traditional matters of employment conditions as well as educational policy. However, ‘under the Winton Act any agreements reached as a result of the meet and confer sessions must be implemented in the form of resolutions, regulations or policies of the governing board of the public school employer which, except as otherwise provided by law, must be subject to change at the board's pleasure.’ (Grasko v. Los Angeles City Board of Education, supra, 31 Cal.App.3d p. 303, 107 Cal.Rptr. p. 343; emphasis added.) The provisions of the Winton Act ‘make clear that the right conferred upon certificated public school employees is to voice their views and ideas through recognized representatives and to have these views and ideas considered by the public school employer but that all final decisions are left to the public school employer. (§§ 13085, 13088.)’ (Westminster Sch. Dist. v. Superior Court, supra, 28 Cal.App.3d p. 128, 104 Cal.Rptr. p. 393.) The agreement in the instant case prohibits the school board from changing any provisions without the written consent of the Negotiating Council (now known as the Certificated Employees Council). As such, the school board has acted beyond its statutory scope of authority, as manifested by the explicit terms of the Winton Act and the implicit purpose thereto.4

Despite the defendants' contentions to the contrary, the pure import of the memorandum of agreement under scrutiny herein appears to be a contractual one. The defendants claim the label attached to the document is irrelevant because it was a condition precedent that the Board ratify the agreement or adopt it as part of its governing regulations before it had any operative effect. However, section 15961 of the Education Code requires all contracts executed by representatives of a school district to be ratified by the governing board of the district. Thus the fact that the memorandum of agreement and the law required the Board to ratify the document before it became effective has little relevance to the issue as to whether or not it was a contract. Contrary to the defendants' claims, the Board does not retain the final right of action under the terms of the agreement, as it must under the Winton Act. (See, Ed.Code §§ 13080–13088.) Instead, the Board has surrendered this authority by entering into the agreement and subsequently adopting it as part of its rules and regulations.5

Public school employers can enter into binding contracts, but under the Winton Act cannot do so with bargaining representatives of certificated employees. Despite defendants' contentions that this agreement was not intended to be a contract, it appears on the face of the instrument that it was. ‘A written agreement, unless it is ambiguous, must be construed by a consideration of its own terms.’ (Kerr v. Brede (1960) 180 Cal.App.2d 149, 151, 4 Cal.Rptr. 443, 445.) ‘A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates.’ (Civ.Code § 1647.) The instrument, the circumstances surrounding its development, and the record before this court all disclose an intention on the part of both parties that the memorandum of agreement have binding force upon the plaintiff school district. As stated by the court in Grasko v. Los Angeles City Board of Education, supra, 31 Cal.App.3d at page 304, 107 Cal.Rptr. at page 344, ‘the Legislature has determined that binding written contracts or agreements have no place in the field of labor relations between a public school employer and its employees.’ Various provisions of the Education Code mandate that the governing board of a school district establish and administer rules and regulations with regard to the duties of teachers, the organization of the schools, and the administration of educational policy. (See, e. g., Ed.Code §§ 931, 939, 1001, 1051, 1052, 9316, 13502 and 15801.) The agreement in the instant case prohibits the Board from unilaterally exercising its judgment and discretion in just such matters, e. g., teaching hours, class size, teacher evaluation, promotions, transfers, in-service education, textbooks, salaries, fringe benefits, discipline, and improvement of curriculum and instruction. In this context, it makes no difference whether the agreement was a binding contract or merely proposals for adoption by the Board. The Board exceeded its authority by either ratifying a contract or adopting resolutions which required it to get prior written approval from the Council before making changes in the terms of the contract, agreement or regulations. (See, e. g., Westminster Sch. Dist. v. Superior Court, supra, 28 Cal.App.3d p. 128, 104 Cal.Rptr. 388.)

Defendants have cited several out-of-state cases throughout their briefs to support various contentions therein. However, since ‘the Winton Act represents a statutory plan that is clearly unique, and the question is satisfactorily resolvable without resort to the persuasive value of foreign opinions, we do not regard it as proper to discuss the several out-of-state opinions referred to in appellants' brief.’ (Grasko v. Los Angeles City Board of Education, supra, 31 Cal.App.3d pp. 306–307, 107 Cal.Rptr. pp. 344, 345.)

This court's conclusions in regard to defendants' first contention can be summarized as follows: ‘School district boards have power to contract only as provided by statute. [Citation.]’ (California Sch. Employees Assn. v. Willits Unified Sch. Dist. (1966) 243 Cal.App.2d 776, 781, 52 Cal.Rptr. 765, 767.) There is no statutory authority which empowers school boards to enter into binding contracts with representatives of certificated employees, but rather clear statutory and case law which prohibits such action. School boards have no authority to enact rules or regulations that alter or enlarge the terms of a legislative enactment. (California Sch. Employees Assn. v. Personnel Commission (1970) 3 Cal.3d 139, 144, 89 Cal.Rptr. 620, 474 P.2d 436; Ellis v. Board of Education (1945) 27 Cal.2d 322, 325, 164 P.2d 1; Berkeley Teachers Assn. v. Board of Education (1967) 254 Cal.App.2d 660, 672–673, 62 Cal.Rptr. 515; Renken v. Compton City School Dist. (1962) 207 ‘interviewed’ by airlines personnel. If he ratifying the contract or adopting the proposed regulations, the Board in the instant he is designated a ‘selectee’ and is denied in various provisions of the memorandum of agreement, most notably article II, section 1, which prohibits any further unilateral action by the Board in relation to the provisions of the agreement.

Finally, we note that the Legislature has enacted a procedure to give legal effect to the results of the ‘meet and confer’ process as outlined by sections 13081, subdivision (d), and 13085 of the Education Code. The most that can come out of this procedure are recommendations which may be adopted by the Board as part of the governing rules, regulations and policies of the district. (Ed.Code § 13081, subd. (d).) Thus, whether viewed as a contract, an agreement with a condition precedent, or proposals or recommendations for the Board's approval and adoption, the memorandum of agreement and the Board's subsequent conduct in relation thereto are invalid and therefore have no operative effect upon either plaintiff or defendants.

Defendants' second contention is that even if one or more provisions of the memorandum of agreement are invalid, the remaining portions remain in force and effect by virtue of the savings or severability clause included in article II. The defendants point out that there are numerous provisions of the agreement which incorporate Education Code provisions or are within the Board's power to adopt. The defendants thus contend that the court decree invalidating the entire agreement clearly ignores the effect of the severability provisions and section 1608 of the Civil Code.6

If the memorandum of agreement actually was adopted by the Board, the entirety would still be invalid because, taken as a whole, it was an illegal delegation of legislative authority. The Board neither acted unilaterally nor retained the authority to do so, as required by the Education Code. Therefore, the Board's action of ratification or adoption can have no legal operative effect since the Board acted beyond the scope of its statutory prerogative. (See, e. g., Hutton v. Pasadena City Schools, supra, 261 Cal.App.2d p. 592, 68 Cal.Rptr. 103, and cases cited therein.)

Finally, it can be argued that the very terms of the severability provision itself require invalidation of it and the remainder of the agreement. Article II, section 3, the severability clause, states that severance should be applied ‘unless the illegality of the article, section or clause defeats the entire purpose of the agreement.’ If the entire purpose of the agreement was to enter into a fixed term bilateral agreement to replace the unilateral power of the Board to establish rules, regulations, and policies, then the purpose of the entire agreement is defeated by invalidating article II, section 1, which calls for mutual action by the parties in regards to any proposed alterations. As such, the agreement provides for total invalidity by its own terms.

No matter which of the above routes is traveled to invalidate the entire agreement, the conclusion is inescapable that, taken as a whole, it has no legal effect. If the total memorandum of agreement is void, then the individual provisions are necessarily inoperative. Therefore, defendants' contention that the trial court committed prejudicial error by refusing to pass on the merits of a material point (the effect of the severability clause) is inapposite to the facts and law of this case. Gosnell v. Webb administrative searches, however, ‘there cited by defendants for the contention that an appellate court will not affirm where it appears the trial courts has declined to pass the search entails.’ (Camara v. Municipal of its validity under the administrative search doctrine announced by Hyde.applicable to this case. The trial court clearly did not abuse its discretion by refusing to consider the independent validity of the severability clause when it voided the entire agreement. Such was the only logical course open to it at that point.

Defendants contend that the trial court erred in refusing to determine the validity of provisions of article V of the memorandum of agreement, which provides for an alternate mode of binding arbitration of grievances in questions involving interpretation of salary or other terms and conditions of employment.

Not all grievances are subject to arbitration under article V, section 9(b), but certainly ‘terms and conditions' of employment encompasses a wide range of potential disputes. Resort to arbitration by parties to a dispute is favored by the law. (See e. g., Firestone Tire & Rubber Co. v. United Rubber Workers (1959) 168 Cal.App.2d 444, 451, 335 P.2d 990.) Section 13087.1 of the Education Code,8 added by a 1970 amendment, authorizes school employers and employees or their representatives to meet and confer regarding the resolution of persistent disagreements. It also authorizes the parties to agree as to some procedure to effectuate the meet and confer process (i. e., to resolve the persistent problems). Arbitration appears to be an acceptable mode of procedure to give effect to the statutory scheme encouraging the efficient resolution of problems. Thus, it appears that article V, section 9(b), of the memorandum of agreement complies with the subsequently adopted provisions of section 13087.1 of the Education Code.

However, the issue is not the validity of article V, section 9(b) in isolation, but its effect when considered in light of the entire agreement of the parties and the Board's subsequent action in relation thereto. For the same reasons that the severability clause is inoperative, the provision for arbitration can be given no legal effect. Section 1281 of the Code of Civil Procedure provides that agreements or contracts to arbitrate are valid, enforceable, and irrevocable unless grounds exist for the revocation of the contract. As shown beforehand, whether considered a contract or merely proposals, the Board exceeded its authority by entering the agreement. (See, e. g., Westminster Sch. Dist. v. Superior Court, supra, 28 Cal.App.3d p. 128, 104 Cal.Rptr. 388.) Therefore, the independent validity of the arbitration clause is irrelevant and it has no legal effect because of its relation to and integration into the entire invalid memorandum of agreement.

Defendants' final contention is that the provisions of the memorandum of agreement cannot be declared invalid merely because the agreement was negotiated between the Council, collectively on behalf of its members, and the school district, since this would constitute an unconstitutional denial of the right of association.

Section 13082 of the Education Code gives public school employees the right of association for purposes of representation on all matters of employer-employee relations. Sections 13080 and 13086 of the Education Code further protect these associational rights. In response to a claim by minority unions of deprivation of associational rights, the court, in California Federation of Teachers v. Oxnard Elementary Sch. (1969) 272 Cal.App.2d 514, 538, 77 Cal.Rptr. 497, 515, stated that ‘the creation and use of the negotiating council does not, either in principle or under the regulations adopted by the . . . district, violate any constitutionally protected interests of appellants.’ ‘Public school teachers have, of course, no fundamental right under either the federal or state Constitution to bargain collectively.’ (Grasko v. Los Angeles City Board of Education, supra, p. 306, 107 Cal.Rptr. p. 345.) Nonetheless, their organizational and associational rights are more than adequately protected under the Winton Act. The only significant limitation upon certificated employees' rights under the Act is the prohibition against executing a binding contract with the school employer. However, the association of teachers can mode recommendations and proposals for the Board's consideration and adoption, and in fact, the Winton Act encourages them to do so. Finally, the defendants were not denied any freedom of association or action to which they would have been entitled if they had acted individually. The agreement is invalid not only because of the Board's lack of capacity to enter into binding agreements with representatives of certificated employees, but also because the Board is not empowered to delegate a portion of its statutory authority to the employees or their representatives. The Board would have encountered the same disability had it attempted to execute such an agreement with individual teachers rather than their representatives. The defendants therefore cannot legitimately complain of any denial of a constitutional right of association because of the invalidation of the memorandum of agreement.

The judgment is affirmed.


1.  One of the basic questions at issue in this appeal is the operative nature and effect of the Board's action at its meeting on September 10, 1970: Was it a ratification of a contract or adoption of new rules, regulations and policies?

2.  ‘Rules and regulations adopted by a board of Education are, in effect, a part of a teacher's employment contract . . .. [Citations.]’ (American Federation of Teachers v. Oakland Unified Sch. Dist. (1967) 251 Cal.App.2d 91, 97, 59 Cal.Rptr. 85, 89.)

3.  Judgment had been entered by the trial court on January 19, 1972.

4.  The courts, in California Federation of Teachers v. Oxnard Elementary Sch. (1969) 272 Cal.App.2d 514, 77 Cal.Rptr. 497, and in Grasko v. Los Angeles City Board of Education, supra, extensively reviewed the legislative history of the Winton Act.

5.  Article II, section 1, of the memorandum of agreement requires that both signatories to the agreement approve any changes, modifications, revisions, etc.

6.  Section 1608 provides for the invalidation of an entire contract if ‘any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful . . ..’ These cases recognize that ‘searches conducted severability clause and the cases cited in support thereof are clearly inapposite to the facts and law of the instant case. All the cases cited by defendants premise the operability of severance provisions upon the existence of a valid underlying contract or agreement. Such is not the case particular place or person to be searched.’ then the Board lacked the legal capacity to enter into it. If the instrument was merely a set of proposals for the Board's adoption, then the Board exceeded the scope of its authority by adopting regulations which delegate a significant portion of its authority to the Council,7 and which significantly alter the terms of controlling statutory law. In addition, there has been no showing made that the Board actually did unilaterally adopt the alleged proposals as regulations other than defendants' contention that when the Board ‘ratified’ the agreement on September 10, 1970, it really ‘adopted’ it as part of its governing regulations. It would not be unreasonable to conclude, in the context of the Education Code specifications and the circumstances of the case, that two distinct legal actions were intended by the Board: the first a ratification of the agreement which took place on September 10, 1970, and the second an adoption of the ratified agreement as part of the district's rules and regulations, which never did take place.

8.  Section 13087.1 was not adopted by the Legislature until September 18, 1970, after the memorandum of agreement in the instant case was signed. It became effective on November 23, 1970.

ROUSE, Associate Justice.