LOS ANGELES COMMUNITY COLLEGE GUILD AMERICAN FEDERATION OF TEACHERS LOCAL NUMBER 1521 AFL CIO v. LOS ANGELES COMMUNITY COLLEGE DISTRICT

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

LOS ANGELES COMMUNITY COLLEGE GUILD, AMERICAN FEDERATION OF TEACHERS, LOCAL NUMBER 1521, AFL–CIO;  George Goff, Petitioners, Respondents, and Cross-Appellants, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Board of Trustees of the Los Angeles Community College District;  Dr. Leslie Kiltai, Chancellor of the Los Angeles Community College District;  Los Angeles Valley College;  Dr. Mary Lee, President of Los Angeles Valley College, Respondents, Appellants, and Cross-Respondents.

Civ. 69409.

Decided: December 23, 1983

Lawrence Rosenzweig, Los Angeles, for petitioners, respondents and cross-appellants. Robert J. Henry, Los Angeles, for respondents, appellants and cross-respondents.

In March 1980, petitioner George Goff, a certificated physical education instructor at Los Angeles Valley College (College), was removed as Athletic Director by the college administration.   Although he was reappointed some fourteen months later, petitioner sought a writ of mandate directing the Los Angeles Community College District (District) and its Board of Trustees to compensate him for the period during which he alleges he was wrongfully removed from office.

After finding that his removal from office was arbitrary and capricious and in violation of established college policy, the superior court awarded petitioner some, but not all of the back salary he claimed to be due.   Pursuant to Government Code section 800 and Code of Civil Procedure section 1021.5, the court further ordered the District to pay petitioner approximately $5,200 in attorneys fees and costs.   Both sides have appealed from the judgment as entered.1

 Applying the familiar rule that on appeal the evidence must be viewed in the light most favorable to the judgment (see Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193;  Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.), we set forth the facts giving rise to the underlying litigation.

For almost twenty years, petitioner has been employed as an instructor in the men's physical education department at Los Angeles Valley College.2  In December 1971, members of that department elected him to the post of Athletic Director.   Pursuant to a job description contained in the “Athletic Policy Handbook,” a manual promulgated by the physical education department in 1974, the Director is charged with the responsibility for planning, organizing, and supervising the college's entire athletic program.   Election to the position constitutes a supplemental assignment entitling the Director to additional compensation.   The District's personnel rules establish, however, that the duties performed in conjunction with the job complement but do not replace the instructor's usual teaching responsibilities.

In accordance with the terms of the policy handbook, the men's Athletic Director is elected by other members of the physical education department for a term of three years.   The name of the successful candidate is then submitted to the college president for approval.   Although the record is somewhat ambiguous in this regard, it appears that petitioner was reelected at the conclusion of each term and continued to serve as director until the date of his removal from office in 1980.   During this same period, he also continued as a physical education instructor, although his teaching load was somewhat reduced.

Petitioner was last elected Athletic Director in 1978 for a three year term extending from July of that year to June 1981.   The President of the College, Dr. Alice Thurston, interpreted his selection, however, as a temporary assignment subject to termination at any time.   Accordingly, she retained the discretion to appoint him on a yearly basis.   For the 1979–1980 academic year, President Thurston memoralized petitioner's elevation to the directorship in a memorandum which stated:  “You have been recommended for a supplemental coaching assignment as men's Athletic Director for the year 1979–80 beginning August 23, 1979 and ending June 30, 1980.   This assignment is for the year as stated and reassignment will be subject to review at the conclusion of the regular season for each sport.”   The record establishes that both President Thurston and petitioner signed and initialed the document.

In late 1979, both the college administration and the Board of Trustees became aware of the possibility that some students in the physical education department had received unearned credits for classes supposedly taken during the preceding summer.   Public disclosures by former students eventually led to a college-directed investigation.   In March 1980, several faculty members of the physical education department, including petitioner, informed President Thurston by letter that credits had been given in the summer of 1979 for two classes taught at the same time under a practice known as “double class enrollment.”   The teachers involved apologized for any impropriety or error in judgment on their part.3

In a letter dated March 12, 1980, Dr. Thurston notified petitioner that he was being removed from the position of Athletic Director, effective March 26, 1980, because “[r]ecent events involving the men's coaching staff at Los Angeles Valley College had made it clear that a change of leadership would be in the best interest of the Men's Athletic Program and the College as a whole.”   At no time, however, was petitioner charged with any wrongdoing or subject to any disciplinary proceeding.

Shortly after he was reassigned to a full-time teaching position, petitioner filed a grievance with the college, contending that President Thurston had ignored established procedures in removing him from the directorship.   Pursuant to the terms of a collective bargaining agreement between the District and The American Federation of Teachers Local 1521, of which petitioner was a member, the grievance proceeded to advisory arbitration.4  After lengthy hearings and deliberations, a three person panel found, by vote of two to one, that petitioner's removal had been accomplished in violation of the collective bargaining agreement.5  Following the panel's recommendation that petitioner be immediately reinstated, the college administration appealed the decision to the Board of Trustees of the District which, after appropriate review in accordance with grievance procedures, rejected the findings of the panel and upheld President Thurston's decision.6

Petitioner subsequently filed his request for extraordinary relief in the superior court, contending that he had been denied due process and was thus entitled to be compensated for the fourteen-month period he was prevented from serving as Athletic Director.

Although concluding that petitioner held a property interest in the directorship, the trial court rejected the argument that he was entitled to a full year's salary and ordered the District to make restitution for only a three month period.   This period constituted the unexpired portion of petitioner's 1979–1980 term.   Based upon its finding that petitioner was arbitrarily discharged and that the issues involved in the case were of societal importance, the court also awarded attorney's fees.

On appeal the threshold question to be resolved is whether petitioner possesses a constitutionally protected property interest in the position of Athletic Director at Valley College.   We have concluded that no such interest exists and that the judgment must be reversed and the petition for writ of mandate denied.

 The principles which must be applied here were articulated over a decade ago by the United States Supreme Court.   In two cases decided the same day, Board of Regents v. Roth (1971) 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 and Perry v. Sindermann (1971) 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, the Court held that the requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.   When these protected interests are implicated, “the right to some kind of prior hearing is paramount.”  (Board of Regents v. Roth, supra, 408 U.S. at pp. 569–570, 92 S.Ct. at 2705.)   Although property interests protected by procedural due process extend beyond the ownership of tangibles, and include some specific benefits (e.g. welfare benefits, see Goldberg v. Kelly (1969) 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.), there must be a legitimate claim of entitlement to the benefit, not merely an abstract need for it or a unilateral expectation of it.  (Board of Regents v. Roth, supra 408 U.S. at p. 577, 92 S.Ct. at 2709.)

 It is well settled therefore that a public employee is constitutionally entitled to protection against arbitrary changes in job status and constitutionally entitled to notice and hearing only where a legitimate property interest is involved.  (See Wieman v. Updegraff (1952) 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216;  Slochower v. Board of Education (1955) 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692;  Wilson v. City of Los Angeles (1960) 54 Cal.2d 61, 4 Cal.Rptr. 489, 351 P.2d 761;  Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 100 Cal.Rptr. 16, 493 P.2d 480.)   Generally speaking, such property interests have not been found to exist where employment is held at the pleasure of the appointing power.  (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 782–783, 97 Cal.Rptr. 657, 489 P.2d 537;  Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 345, 159 Cal.Rptr. 440;  Zumwalt v. Trustees of Cal. State Colleges (1973) 33 Cal.App.3d 665, 674, 109 Cal.Rptr. 344.)   Probationary or nontenured employees may then, in most instances, be dismissed without a hearing or judicially cognizable good cause.   Such dismissals do not deprive the employees affected of a vested or protected property right.  (Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d at p. 345, 159 Cal.Rptr. 440.)

 A public agency may constitutionally employ persons subject to removal at its pleasure.  (Bogacki v. Board of Supervisors, supra, 5 Cal.3d at p. 783, 97 Cal.Rptr. 657, 489 P.2d 537), for “ ‘[u]nquestionably, a broad discretion reposes in governmental agencies to determine which [probationary or untenured] employees they will retain.’ ”  (Rosenfield v. Malcolm (1967) 65 Cal.2d 559, 562, 563, 55 Cal.Rptr. 505, 421 P.2d 697.)   Tenure, on the other hand, denotes relinquishment of the employer's unfettered power to terminate the employee's services.  (Zumwalt v. Trustees of Cal. State Colleges, supra, 33 Cal.App.3d at p. 674, 109 Cal.Rptr. 344.)

 In the case at bench, petitioner argues that the Athletic Policy Handbook, the collective bargaining agreement, and the manner in which he was appointed to the directorship by the college administration created an expectation that he would remain Athletic Director through June 1981.   In particular, he points out that by the terms of the handbook, he was elected for a fixed three year term and could not be removed from office without a recall vote from two-thirds of the men's physical education faculty.   Based upon these factors, petitioner urges this court to find that he held a protected property right in the position of director and that the college lacked the authority to discharge him without first conducting a full blown evidentiary hearing.   We decline to do so.

Pursuant to District guidelines, the position of Athletic Director is an additional or supplemental assignment which may be terminated at any time.   This is in accord with those provisions of the Education Code empowering the governing board of each district to promulgate rules and regulations pertaining to the operation and administration of the community colleges within its jurisdiction.  (see Ed.Code, §§ 72282, 87664.)   The enactment of personnel rules that permit the termination of temporary employees and positions at will are clearly within the Board's power (Ed.Code, §§ 87665, 87742.)   Under the circumstances, we can only conclude that President Thurston's decision to relieve petitioner of his duties as Athletic Director was consistent with District policy and well within her delegated authority.

Petitioner's reliance on the procedural rules and regulations articulated in the Athletic Policy Handbook is missplaced.   We think it obvious that petitioner accepted the directorship under a set of governing rules which made the position terminable at any time, even though the handbook attempted to confer the expectation of a fixed term.  (cf. Zumwalt v. Trustees of Cal. State Colleges, supra, at p. 676, 109 Cal.Rptr. 344.)   As Zumwalt makes clear, the codified rules of a college board of trustees, enacted pursuant to state statute, must prevail over practices and policies emanating from the administration or faculty of an individual institution.  (Id., at p. 675, 109 Cal.Rptr. at 344.)   Valley College's Athletic Policy Handbook cannot create a legitimate and constitutionally protected property interest in the position of director when official District policy provides that such a position is terminable at will.

Petitioner's subjective expectancy that he could not be removed from office until June 1981, cannot evoke the procedural protections afforded the due process clause.  (See Perry v. Sindermann, supra, 408 U.S. at p. 603, 92 S.Ct. at p. 2700.)   The argument that both the handbook and other unofficial policy statements by the administration bound the College and the District and prevented petitioner's termination is simply not supported by either the record or the law.

Petitioner also attempts to bring himself within the rule that constitutional due process may require notice and a hearing if action taken against a public employee involves charges which might seriously damage the individual's reputation or career.  (Board of Regents v. Roth, supra, 408 U.S. at pp. 573–574, 92 S.Ct. at 2707;  Lubey v. City and County of San Francisco, supra, 98 Cal.App.3d at p. 346, 159 Cal.Rptr. 440.)   We find nothing in the record before us, however, that gives credence to this contention.   No charges of wrongdoing or dishonesty were leveled against petitioner.   We find it unreasonable to equate the loss of this position with an act which directly and uncontrovertibly affects one's good name, reputation, honor, or integrity.   The fact that the college president believed a change of leadership was necessary in the wake of a controversy involving several members of the physical education department is not something which can be said seriously damaged petitioner's reputation or career.   Indeed, following his discharge as Athletic Director he maintained a full-time teaching position at the college and was reappointed to the directorship slightly more than one year after the events giving rise to this litigation.

 We also note that a “liberty” hearing does not provide an employee with review of the issue of whether he may be removed from a nontenured or temporary position.  (Shimoyama v. Board of Education (1981) 120 Cal.App.3d 517, 528, 174 Cal.Rptr. 748.)   There is nothing in the record to indicate that petitioner has ever sought a hearing for the sole purpose of clearing his name.

Having concluded that petitioner was not denied due process and has no right to be compensated for the period during which he was relieved of his duties as director, we must find that the trial court's award of attorneys fees was improper.

The judgment and award of fees and costs are reversed and the matter remanded to the trial court with directions to enter a new and different judgment denying the petition for mandate.   Petitioner to bear the costs on appeal.

FOOTNOTES

1.   Also named as petitioners in this mandamus action were the Los Angeles Community College Guild and the American Federation of Teachers, Local Number 1521, AFL–CIO.   The named respondents included the Los Angeles Community College District, its Board of Trustees and Chancellor, and the President of Los Angeles Valley College.All of the above are parties to the instant appeal.

2.   At this juncture, we note that Valley College is one of ten colleges in the Los Angeles Community College District.   Each school is managed by a college president, while the District as a whole is supervised by a chancellor.   The college presidents report to and are administratively responsible to the chancellor.   Similarly, the chancellor reports to and is responsible to the Board of Trustees, a seven person board elected by the voters of the District.

3.   By January 1981, the College's investigation into the matter had been completed.   Seven faculty members, not including petitioner, were subject to disciplinary action for their participation in the double enrollment scheme.

4.   The Los Angeles Community College Guild, the exclusive representative of certificated instructors in the District had negotiated a collective bargaining agreement which established the wages, hours, and working conditions for all certificated employees.

5.   The violation of the collective bargaining agreement apparently involved the administration's failure to consult with the union and provide petitioner with a hearing before his discharge became effective.

6.   Slightly more than one year after being removed as Athletic Director, petitioner was reappointed to that position by President Thurston.   Her reasons for doing so were set forth in a declaration submitted in opposition to petitioner's mandamus action.   That document states in pertinent part:  “I came to the conclusion that the 14-month suspension of his [petitioner's] services was commensurate with the level of responsibility an Athletic Director should be held to when these kinds of inappropriate practices are found to exist within the program.”

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.

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