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Court of Appeal, Third District, California.

Hal R. MILLER, Jr., Plaintiff and Appellant, v. CHICO UNIFIED SCHOOL DISTRICT and Board of Education, Defendants and Respondents.

Civ. 16983.

Decided: August 18, 1978

Marsh, Mastagni & Marsh, Harry M. Marsh, Chico, James G. Seely and Maureen C. Whelan, for plaintiff and appellant. Biddle, Walters & Bukey, Robert G. Walters, Sacramento, Daniel V. Blackstock, County Counsel, Marianne Heenan, Deputy County Counsel, Oroville, for defendants and respondents.

Plaintiff Hal R. Miller, Jr. appeals from a judgment denying his petition for writ of mandate, wherein he sought reinstatement as principal of Bidwell Junior High School in Chico.

On February 27, 1976, Miller was notified by letter that he would be reassigned to a teaching position effective July 1, 1976. The decision to reassign had been made by the Chico Unified School District Board of Education on February 25, 1976. Attached to the letter was a “Statement as to Reasons for Reassignment, . . .” enunciating a total of 15 specific reasons involving categories such as “Proper Student Control,” “Providing a Suitable Learning Environment for Students,” “Standards of Pupil Progress” etc. Also attached to the letter was a copy of a memorandum dated December 23, 1975 from Don A. Cloud, the Associate Superintendent to Robert J. Jeffries, Superintendent, recommending the reassignment and documenting the recommendation with a number of attachments occupying some 80 pages. These attachments include copies of earlier annual evaluation reports of Miller back to 1973, interoffice memoranda both to and from Miller regarding his work, a “staff evaluation committee report,” and a number of memoranda of Cloud (hereinafter the Cloud memos) regarding incidents of unsatisfactory actions of Miller.

The Cloud memos, which are dated between March 7, 1975 and December 3, 1975, had not been and were not placed in Miller's personnel file, and he was not given an opportunity to review or comment upon them prior to the Board's decision.1

Recognizing that “a school district possesses the discretion to reassign any administrator to a teaching position without notice and an opportunity to be heard (Hentschke v. Sink (1973) 34 Cal.App.3d 19 (109 Cal.Rptr. 549)),” Miller contends that his reassignment was unlawful due to (1) a violation of Education Code section 13001.5 (now s 44031), and (2) a failure to comply with Education Code section 13489 (now s 44664).


Miller asserts that compliance with section 44031 is a condition precedent to the reassignment of an administrator to a teaching position. That section provides:

“Materials In personnel files of employees which may serve as a basis for affecting the status of their employment are to be made available for the inspection of the person involved.

“Such material is not to include ratings, reports, or records which (1) were obtained prior to the employment of the person involved,

“(2) were prepared by identifiable examination committee members, or (3) were obtained in connection with a promotional examination.

“Every employee shall have the right to inspect such materials upon request, provided that the request is made at a time when such person is not actually required to render services to the employing district.

“Information of a derogatory nature, except material mentioned in the second paragraph of this section, shall not be entered or filed unless and until the employee is given notice and an opportunity to review and comment thereon. An employee shall have the right to enter, and have attached to any such derogatory statement, his own comments thereon. Such review shall take place during normal business hours, and the employee shall be released from duty for this purpose without salary reduction.” (Emphasis added.)

Section 44031 does not apply to this case at all. Its opening words “Materials in personnel files” make it clear that it covers only material which is physically placed into such files, and that it is only with reference to such material that there is a right of inspection, notice, comment, etc. The Cloud memos were never in Miller's personnel file and hence never came within the statute's ambit. The code section's meaning is plain, and it is not to be tampered with. (45 Cal.Jur.2d, Statutes, ss 127, 128, pp. 635-636.)

The legislative objective in enacting section 44031 is readily deducible. A public employee's personnel file is a permanent record of his work activity. It would be most unfair to permit written matter derogatory of an employee or of his performance to become a part of such a file, to be used against him by his supervisors or other supervisors long after its composer becomes unavailable without providing the employee the concurrent right to place rebuttal matter in the same file. It is the unilateral, permanent, and unfair contamination of one's work record at which section 44031 is directed, not at the time honored practice of independent investigation, study, evaluation, and recommendation regarding employment status, using generally acceptable oral and written information.

Miller maintains that the use of derogatory information for the purpose of altering his work status otherwise than pursuant to section 13001.5 is an invasion of his right to privacy. Reduced to its essentials, the argument is that even though section 13001.5 does not require the placement of such matter into personnel files, such placement is constitutionally compelled. Relying upon White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222, Miller argues that information collected by his employer must be disclosed to him so as to provide “a reasonable check on the accuracy of existing record.” (13 Cal.3d at p. 775, 120 Cal.Rptr. at p. 106, 533 P.2d at p. 234.) He then reasons that “(i)f the . . . right of privacy is to have any meaning, the . . . District must be required to comply with . . . Education Code section 13001.5 prior to any reassignment.”

Such reasoning is unsound. Neither White v. Davis, supra, nor the 1972 amendment to article I, section 1 of the California Constitution suggests that a public agency may not investigate and record in good faith the work related activities of its employees for purposes of future placement. On the contrary, the “right to be left alone” in personal associations, ideas, pursuits and interests is wholly inappropriate to an employer's interest in work-related conduct.

Miller further argues that his reassignment violated his common-law right to fair procedure, citing Ezekial v. Winkley (1977) 20 Cal.3d 267, 142 Cal.Rptr. 418, 572 P.2d 32. The “fair procedure” doctrine was formulated to fill a void where the due process clause was inapplicable for lack of “state action.” In the present case, despite undeniable state action, defendant does not argue that his due process rights have been violated, for it is too well settled that no such rights attach to the reassignment of an administrator. (Barthuli v. Board of Trustees (1977) 19 Cal.3d 717, 722, 139 Cal.Rptr. 627, 566 P.2d 261; Grant v. Adams (1977) 69 Cal.App.3d 127, 135-136, 137 Cal.Rptr. 834, Anaclerio v. Skinner (1976) 64 Cal.App.3d 194, 197, 134 Cal.Rptr. 303. See Miller, Due Process for Public School Administrators (1978) 9 Pacific L.J. 921, 932-939.) The short answer to the argument is that “fair procedure” cannot have a wider scope than due process.


Miller contends that compliance with the Stull Act (specifically Ed.Code, s 44664) is a condition precedent to the reassignment of an administrator. This same contention was made and resolved adversely to Miller in Anaclerio v. Skinner, supra, 64 Cal.App.3d 194, 134 Cal.Rptr. 303 (see also Vick v. Board of Education (1976) 61 Cal.App.3d 657, 132 Cal.Rptr. 506; Grant v. Adams, supra, 69 Cal.App.3d 127, 137 Cal.Rptr. 834). We have no quarrel with those authorities and therefore reject the contention.

The judgment is affirmed.


1.  However, the February 27 letter of reassignment informed Miller that he would be afforded a hearing. At such a hearing before the Board on April 27, 1976, Miller and his counsel were given an opportunity to comment upon the Cloud memos. The Board did not thereafter alter its decision, and this proceeding was then instituted.

PARAS, Acting Presiding Justice.

EVANS, J., concurs.