BOARD OF EDUCATION OF THE CITY OF LOS ANGELES v. MOCHSON

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

BOARD OF EDUCATION OF THE CITY OF LOS ANGELES and Los Angeles Unified School District, Petitioners, Respondents and Cross-Appellants, v. COMMISSION ON PROFESSIONAL COMPETENCE, Respondent and Respondent, Eileen Sonia MOCHSON, Real Party in Interest and Appellant.

Civ. 62857.

Decided: January 07, 1982

Ron Apperson and Ada R. Treiger, Los Angeles, for petitioners, respondents and cross-appellants. George Deukmejian, Atty. Gen., and Thomas Scheerer, Deputy Atty. Gen., for respondent and respondent. Lawrence B. Trygstad, Los Angeles, for real party in interest and appellant.

This is an appeal by a school teacher and a cross appeal by a school district.   The Commission on Professional Competence is a nominal party in the proceedings and has taken the same position as the school teacher.   Because of the three parties and the two appeals, the use of the term appellant and respondent would be confusing, and the actual names of the parties will be used throughout this opinion.

Eileen Mochson (hereinafter Ms. Mochson) is a permanent certificated employee of the Los Angeles Unified School District (hereinafter School District).   During a period from the summer of 1976 until early 1979, her teaching competency and professional conduct were questioned and became a matter of concern to the School District.   Four separate notices of unsatisfactory service were issued to her by the School District, relating to various specified periods of time.   According to the School District, she did not show any improvement and a final notice of unsatisfactory service was issued on January 24, 1979.   Thereafter the School District voted unanimously to dismiss Ms. Mochson and in March 1979 she was served by the School District with an Accusation and Statement of Charges which was the subject of a hearing by a Commission on Professional Conduct (hereinafter the Commission).   Said hearing was convened and conducted pursuant to the provisions of Education Code section 44944.

The Commission conducted hearings, took evidence and issued its decision.   Of the 72 individual charges of incompetency or unprofessional conduct, the Commission found that 14 had been proven.   The Commission also set forth in its decision three excusing justifications for Ms. Mochson's conduct.   It declined to order her dismissal.

The School District filed a Petition for Writ of Mandamus in the Superior Court to review the decision of the Commission pursuant to Education Code section 44945.   Pursuant to this section, the court, on review, “shall exercise its independent judgment on the evidence.”  (Ed.Code § 44945.)

After appropriate proceedings the trial court rendered its decision.   It found that 58 of the 72 charges against Ms. Mochson had been proved.   It further found no support for the three excusing justifications and ordered them stricken.

The School District had also asked the trial court to order the dismissal of Ms. Mochson.   The trial court refused to order dismissal and instead set aside the decision of the Commission and directed it to reconsider its action in the light of the court's decision and to take any “further action specially enjoined upon it by law.”   Following the announcement of its intended decision, and a contested hearing concerning findings of fact and conclusions of law, the trial court entered findings of fact, conclusions of law and judgment.

Ms. Mochson appeals from the portion of the judgment setting aside the Commission decision.   The School District appeals from the portion of the judgment returning the matter to the Commission for further action.

The scope of appellate review is set forth in Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, at 313–314, 142 Cal.Rptr. 439, 572 P.2d 53 as follows:

“The decision of a Commission on Professional Competence may be challenged in superior court by means of a petition for a writ of mandate․  In reviewing a commission's decision, the superior court ‘shall exercise its independent judgment on the evidence.’  ․   Where a superior court is required to make such an independent judgment upon the record of an administrative proceeding, the scope of review on appeal is limited.   An appellate court must sustain the superior court's findings if substantial evidence supports them.  [Citations.]  In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment.   When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.”

The same limited appellate review was clearly stated in Board of Education v. Jack M. (1977) 19 Cal.3d 691, 139 Cal.Rptr. 700, 566 P.2d 602.   In that case the Supreme Court, in reviewing trial court findings made by the same judge who made the findings in the instant case, found that they were supported by substantial evidence and would not be overturned on appeal.   After discussing the test to be applied on appellate review, Justice Tobriner summarized as follows:

“We reiterate:  the task of this court is to determine only whether the findings and conclusions of the trial court, as a matter of law, lack support in the record.   Since testimonial evidence, including probative expert testimony (see Pettit v. State Board of Education, supra, 10 Cal.3d 29, 35 [109 Cal.Rptr. 665, 513 P.2d 889]), and reasonable inferences drawn from that evidence, support the findings of the trial court, we must affirm the judgment below.”  (19 Cal.3d at p. 700, 139 Cal.Rptr. 700, 566 P.2d 602.)

 Ms. Mochson contends that the trial court committed error in substituting its findings as to conflicting evidence over “the expertise of the Commission.”   The argument totally ignores the “independent judgment” test which the trial court was compelled to use.   She further argues that the findings of fact as to individual charges are not supported by substantial evidence.   Her brief is filled with conclusionary comments based on selected portions of a 1,292 page testimonial record of the Commission hearings reviewed by the trial court.   She attempts to relitigate the weight of the evidence and the credibility of witnesses.   She even challenges charges that were sustained against her by the Commission and by the trial court.   She purports to review the record as to each of the 58 charges found against her by the trial court to support the claim that “the quality of evidence and not its mere quantity does not rise to the level of substantial evidence required to affirm ․”  The conclusionary and unsupported argument reaches a zenith at page 43 of her opening brief where it is stated:

“Finding of Fact No. 59—The students were in the process of writing a story.   MRS. MOCHSON remarked to the students that Principal Sharpe did not think they knew what they were doing.   She stated to Principal Sharpe ‘Write all you want to.   It will be a year before anything can be done’.

“MRS. MOCHSON noted Principal Sharpe did speak to the students.   She told them to tell him what they were doing when he asked.   The class became noisier when Principal Sharpe came in.   She denied making the alleged statement.   (Volume 9, page 21, lines 8–15;  page 22, lines 6–10;  lines 25–28;  page 24, lines 1–8).

“Polito Avila, a student in MRS. MOCHSON'S class, recalled the time Principal Sharpe visited the class.   He did not recall MRS. MOCHSON making the statements in question.  (Volume 7, page 122, lines 16–21;  page 123, lines 11–18).   This Charge was sustained by the COMMISSION.”

Suffice it to say that we have reviewed the record, consisting of 1,292 pages of conflicting testimony taken over a ten day period and approximately 600 pages of exhibits, as did the trial judge, and find that the findings of fact are amply supported by substantial evidence.   To review seriatim Ms. Mochson's arguments, sampled above, would be an utter waste of judicial effort.

 Education Code section 44944(c) provides as follows:

“The decision of the Commission on Professional Competence shall be made by a majority vote and the commission shall prepare a written decision containing findings of fact, determinations of issues and a disposition which shall be, solely, either:

(1) That the employee should be dismissed.

(2) That the employee should not be dismissed.

The commission shall not have the power to dispose of the charge of dismissal by imposing probation, suspension of a dismissal or a nondismissal, or other alternative sanctions.”

The trial court, in setting aside the decision of the Commission, returned the matter to the Commission with directions to reconsider its action in the light of the court's decision and to take such “further action specially enjoined upon them.”

In view of our conclusion that the finding as true of the 58 charges by the trial court is supported by substantial evidence, we must consider the contention of the School District that the dismissal of Ms. Mochson should be ordered.

Under Education Code section 44944(c) the Commission has no power to dispose of the charge by imposing probation, suspension of a dismissal or nondismissal or other alternative sanctions.   The alternatives are that the employee be dismissed or not dismissed.

The question therefore is whether or not the sustaining of the 58 charges by the trial court require, as a matter of law, the dismissal of Ms. Mochson?   Put another way:  If the matter was returned to the Commission with the findings of fact entered by the trial court, would it be an abuse of power or discretion for the Commission to determine that the employee should not be dismissed?

It should be noted that in the present posture of this case there is no further fact finding to be done.   Some legal entity must make a decision as to whether or not Ms. Mochson should be dismissed based solely on the facts as found in the 58 charges against her established by the trial court.   Those 58 charges are set forth in an appendix because it would be inappropriate to summarize them.

As stated in Oakland Unified Sch. Dist. v. Olicker (1972) 25 Cal.App.3d 1098, 1109, 102 Cal.Rptr. 421:

“Adverting to the facts of the instant case we first observe that they are undisputed.   Accordingly, the ultimate conclusion to be drawn from such facts is a question of law.  (Morrison v. State Board of Education, supra, 1 Cal.3d 214, 238 [82 Cal.Rptr. 175, 461 P.2d 375];  Yakov v. Board of Medical Examiners, supra, 68 Cal.2d 67, 74, fn. 7 [64 Cal.Rptr. 785, 435 P.2d 553.])  The determination, therefore, of whether or not defendant's conduct demonstrates ‘evident unfitness for service’ is a question of law in the sense that it should be decided by an appellate court․”

We are not unmindful of the phrase from Morrison v. State Board of Education (1969) 1 Cal.3d 214, 233, 82 Cal.Rptr. 175, 461 P.2d 375, to the effect that “Teachers, particularly in the light of their professional expertise, will normally be able to determine what kind of conduct indicates unfitness to teach.”   We are cautious in substituting our judgment for that of the Commission.   However, the Commission in this case is composed of two third grade teachers and an administrative law judge.   They would be bound by the same 58 charges established as fact by the trial court.   The law permits them, and this court, to consider only two alternatives.

It is significant to note here that the charges against Ms. Mochson do not involve a morals charge as in Morrison v. State Board of Education, supra, nor a false bomb threat as in Board of Education v. Commission on Professional Competence (1980) 102 Cal.App.3d 555, 162 Cal.Rptr. 590, nor an alleged homosexual solicitation by a teacher in a public restroom as in Board of Education v. Jack M., supra, 19 Cal.3d 691, 139 Cal.Rptr. 700, 566 P.2d 602, nor letters critical of the education process written by a teacher to a local newspaper, as in Board of Trustees v. Owens (1962) 206 Cal.App.2d 147, 23 Cal.Rptr. 710, nor the involvement of a junior college teacher with a student off campus as in Board of Trustees v. Stubblefield (1971) 16 Cal.App.3d 820, 94 Cal.Rptr. 318.   In all of the foregoing cases the evidence against the teacher did not go to fitness to teach nor to professional competence.

In stark comparison we have in this case significant evidence of incompetency, professional unfitness and persistent violation of appropriate educational standards.   The charges indicate Ms. Mochson's failure, over a 21/212 year period, to supervise students assigned to her, a failure to organize and implement a balanced program of instruction and a failure to maintain classroom control.   They further establish a continuing failure to follow appropriate administrative directives and to plan instruction.

The Los Angeles Unified School District is the second largest school district in the United States.   Students represent a broad spectrum of economic status, cultural heritage, intellectual ability and motivation.   They are entitled to an adequate and meaningful educational opportunity.   The School District must do its best to provide this opportunity.   Ms. Mochson was assigned to teach seven- and eight-year old children.   The established charges disclose a pattern of failure to perform her professional responsibilities, and an inability or refusal to give her pupils legitimate and responsible instruction.   Admittedly, each charge by itself is not significant.   None are heinous crimes nor immoral acts.   The School District describes this as a “waterwheel case of an accumulation of multiple instances of carelessness, inattention and neglect.”   Ms. Mochson responds by characterizing the charges as “cumulative, duplicative and redundant․”  Both characterizations are correct, but the very characterization of these charges by Ms. Mochson as “cumulative, duplicative and redundant,” when it is recalled that the charges are established as proven, serves to emphasize and support the position of the School District.   At some point the School District should be able to require more of its teachers and we believe that point has been reached in this case.

We hold as a matter of law that the 58 charges established against Ms. Mochson justify and require that she be dismissed.   If we were to agree with the remand to the Commission ordered by the trial court, the result would most certainly be further delay in carrying out the School District's decision, and the great likelihood of a further delaying proceeding in the trial court and an appeal to this court.   We should avoid an “unnecessary, inappropriate and ․ palpable waste of judicial resources.”  (Cf. People v. Davis (1981) 29 Cal.3d 814, 831, 835, 176 Cal.Rptr. 521, 633 P.2d 186.)

 The School District urges that Ms. Mochson has taken a frivolous appeal for purposes of delay and requests that sanctions be imposed.

It is true that Ms. Mochson has argued the weight of evidence and the credibility of witnesses.   She has suggested no recognizable legal error committed by the trial court.   In fact, the continued assertion by Ms. Mochson that the trial court was bound by a presumption in favor of the findings of the Commission, without any credible legal support for such contention, and in direct opposition to square holdings to the contrary, raises grave doubt as to the sincerity of her appeal.

Sanctions have been imposed in cases where the appellant ignored the well established rule that findings based upon substantial evidence cannot be disturbed on appeal.  (Ross v. Ross (1962) 200 Cal.App.2d 229, 233, 19 Cal.Rptr. 271;  Carazo v. Lopez (1980) 112 Cal.App.3d 319, 322, 169 Cal.Rptr. 182.)

However, in this case the School District also appealed.   The notice of appeal was filed by Ms. Mochson on November 12, 1980 and the School District on December 18, 1980.   Particularly in view of our conclusion that the position of the School District on appeal is correct, we cannot be certain that there would have been no appeal in this case but for the appeal by Ms. Mochson.   A but for test is appropriate here.   If an appeal by the School District was inevitable, then the imposition on the over-burdened judicial system is less serious.   This is not to say that appeals such as Ms. Mochson's are to be encouraged.   We deplore such delaying tactics.   However, we must balance her right to take all appropriate legal steps to protect her job with the legitimate interests of an efficient system of justice.   Thus balanced, the strong possibility of an appeal by the School District in any event causes us to refrain from the imposition of sanctions.

 In both her opening and closing briefs, Ms. Mochson refers to the performance of her teaching duties after termination of the Commission hearings in a manner which meets or exceeds the standards of performance required of a teacher in the School District.   These matters are outside of the record on appeal.   The argument violates California Rules of Court, rule 13.   Such conduct borders on being contumacious in that counsel offered into evidence a “letter of commendation” relating to her work after the period of time reviewed by the Commission.   The trial court properly sustained an objection thereto as irrelevant.   The School District complained of such conduct by Ms. Mochson in its reply brief.   Undaunted by such reminder of required appropriate and ethical conduct on appeal, Ms. Mochson repeated the reference to matters not in the record in her closing brief.   Such conduct is reprehensible.

For the reasons discussed above, we are compelled to the conclusion that the judgment of the trial court should be modified to direct dismissal of Ms. Mochson based on the 58 charges found against her.   However, the frivolous nature of her appeal and the inappropriate manner in which it has been argued in this court is another reason why this litigation should be put to rest without further delay if legally possible.

Accordingly, we affirm the judgment of the trial court insofar as it found that the 58 charges against Ms. Mochson were true.   We modify the portion of the judgment remanding the proceedings to the Commission, and in lieu thereof we order that judgment be entered confirming the dismissal of Ms. Mochson.

The trial court judgment awarding costs in favor of petitioners Los Angeles City Board of Education and Los Angeles Unified School District is affirmed.   Costs on appeal are allowed in favor of appellants Los Angeles City Board of Education and Los Angeles Unified School District and against appellant and Real Party in Interest Eileen Sonia Mochson.   Respondent Commission on Professional Competence shall bear its own costs, if any, on appeal.

APPENDIX

The following facts are taken verbatim from the findings of fact by the trial court (preliminary and concluding paragraphs identifying parties and relating to other matters not constituting the actual charges have been deleted):

6. On or about September 17, 1976, Mr. Douglas G. Andress, Principal of Marvin Avenue School, observed at or about 2:05 p. m., that Ms. Mochson, in violation of prescribed time allotments, had physical education class for a period of fifty (50) minutes.   Subsequent to being advised of the time limits by the principal, Ms. Mochson was observed by Mr. Andress taking her class back to the school yard at or about 2:15 on said date.

7. On or about September 21, 1976, Mr. Beverly J. Martin, Assistant Principal of Marvin Avenue School found two pupils assigned to Ms. Mochson's room in the gas meter enclosure, a prohibited area.   Ms. Mochson had failed to report the boys missing from her classroom.

8. On or about October 18, 1976, Ms. Mochson failed to follow school policy when she sent two girls to the office without a referral note.   When Mr. Andress called Ms. Mochson on the intercom to request a note, she failed to do so.

9. On or about October 20, 1976, Mr. Martin observed Ms. Mochson having physical education from approximately 1:20 p. m. to 2:05 p. m., a time period in excess of the stated school physical education time allotment policy.

10. On or about October 27, 1976, Mr. Martin observed Ms. Mochson in her physical education class from approximately 1:20 p. m. to 2:05 p. m., a time period in excess of the school physical education time allotment policy.

11. On or about November 3, 1976, Mr. Martin observed Ms. Mochson in her physical education class from 1:35 p. m. to 2:20 p. m., a time period in excess of the school physical education time allotment policy.

12. On or about December 3, 1976, during the school day, Mr. Andress found four pupils assigned to Ms. Mochson unsupervised on the school yard.

13. On or about December 3, 1976, Ms. Mochson failed to turn in her lesson plans as directed.

14. On or about December 8, 1976, Mr. Martin observed Ms. Mochson at physical education for fifty (50) minutes, in violation of a directive to her to observe a 20 to 25 minute period for physical education.

15. On or about December 9, 1976, Ms. Mochson failed to account for the whereabouts of two pupils assigned to her class.

16. On or about January 7, 1977, Mr. Andress found two students assigned to Ms. Mochson wandering on the yard unsupervised.   When Mr. Andress returned them to the room, Ms. Mochson reported that Martin had not returned to the room.   Ms. Mochson had not notified the office.

17. On or about January 24, 1977, Ms. Mochson failed to turn in a resume of her projected plan for working with pupil behavior problems.   Ms. Mochson had previously agreed to submit such a plan in lieu of lesson plans for the week of January 24–28.

18. On or about January 28, 1977, Ms. Mochson failed to turn in lesson plans for the week of January 31 to February 4.

19. On or about February 3, 1977, Mr. Andress found Ms. Mochson's class out of control.

20. On or about February 8, 1977, Mr. Andress observed Ms. Mochson taking physical education from 1:30 p. m. to 2:20 p. m., in violation of a directive to limit physical education to the school policy time of 20 to 25 minutes.

21. On or about February 8, 1977, Mr. Andress found five pupils assigned to Ms. Mochson wandering around the building unsupervised.   Ms. Mochson had not reported the pupils as absent.

22. On or about February 14, 1977, Mrs. Pauline Stovall, Acting Assistant Principal, found 12 students from Ms. Mochson's class on the yard unsupervised.   Ms. Mochson had not reported these students missing.

23. On or about February 22, 1977, Ms. Stovall found Ms. Mochson's class out of control.

24. On or about February 15, 1977, Ms. Mochson failed to supervise pupils assigned to her.   On that day, Ms. Pauline Stovall found three pupils assigned to Ms. Mochson walking in the patio during the time they should have been in the classroom.   Ms. Stovall sent them to the classroom.

25. On or about February 16, 1977, Ms. Mochson failed to properly supervise pupils assigned to her.   On that day, Ms. Mochson took her class to the school yard for a physical education program at 1:30 p. m.   Mr. Andress observed the class at 1:40 p. m.   No organized lesson was presented.   At 2:00 p. m., Ms. Mochson left the yard with one pupil, leaving the remaining pupils without supervision.   The 30-minute physical education period is in excess of school policy time allowance for physical education.   Later that same day, Mr. Andress observed several pupils assigned to Ms. Mochson in the hall outside the classroom with no adult supervision.

26. On or about February 24, 1977, Ms. Stovall counseled two pupils sent to the school office by Ms. Mochson.   When Ms. Stovall returned the two pupils to the classroom, Ms. Mochson refused to listen to Ms. Stovall's account of the incident.   She screamed at Ms. Stovall that she wanted the pupils out of the room.   In addition, she ordered Ms. Stovall to get out of the room.

27. On or about February 24, 1977, Ms. Mochson made thirty-three (33) referrals to the school office for disciplinary purposes between the hours of 10:00 a. m. and 1:10 p. m.   Eighteen (18) pupils were referred:  two (2), four times;  three (3), three times;  three (3), two times;  and the remainder once.   Ms. Stovall counseled the pupils.   On three occasions, Ms. Stovall accompanied the pupils to Ms. Mochson's class and talked to the class about acceptable classroom behavior.

28. On or about March 7, 1977, Ms. Mochson left her pupils unsupervised on the yard and went into the office.

29. On or about March 21, 1977, Ms. Mochson refused the assistance of the reading coordinator.   When the coordinator came into the room, Ms. Mochson walked out.

30. On or about March 21, 1977, Ms. Mochson made thirty-four (34) referrals to the school office for disciplinary purposes.   Twenty-one (21) of the pupils had been locked out of the classroom by Ms. Mochson.

31. On or about March 22, 1977, Ms. Mochson refused to keep an appointment with the mathematics coordinator.   Ms. Mochson advised the coordinator that she (the coordinator) could not enter her classroom without a written directive from the principal.

32. On or about March 22, 1977, Ms. Mochson made thirteen (13) referrals to the office for disciplinary purposes.   Ms. Stovall made two visits to Ms. Mochson's classroom on that day and observed some pupils playing checkers and other pupils sitting at their desks with nothing to do.

33. On or about March 25, 1977, Ms. Mochson failed to follow rainy day procedures.   Pupils were left in the classroom with an education aide and no certificated supervision.   Ms. Mochson failed to return from her break at the required time and had to be paged.

34. On or about March 30, 1977, Ms. Stovall observed Ms. Mochson's class.   She observed only nine or ten pupils in the classroom.   Upon leaving the classroom, Ms. Stovall also found nine pupils assigned to Ms. Mochson's class unsupervised in the inner courtyard.   Ms. Stovall also found five pupils assigned to Ms. Mochson's class across the street, completely off the school grounds.

35. On or about April 11, 1977, Ms. Mochson submitted inadequate lesson plans to the principal.

36. On or about April 18, 1977, Ms. Mochson refused to follow the principal's directive to submit lesson plans for that week.

37. On or about April 25, 1977, Ms. Mochson refused to follow the principal's directive to submit lesson plans for that week.

38. On or about April 27, 1977, during a conference with Mr. Andress, Ms. Mochson refused to discuss the lack of discipline in her classroom.

39. On or about May 9, 1977, Ms. Mochson's classroom exhibited a lack of organization and the room was in a filthy condition as witnessed by “rainy day” teaching partner, Mrs. Joyce Edelson.

40. On or about May 18, 1977, Ms. Stovall, while in Ms. Mochson's class, observed noisy classroom conditions, repetitious instruction, lack of reinforcement centers, and lack of individualized instruction.

41. On or about May 19, 1977, Ms. Stovall, while in Ms. Mochson's class, observed noisy class conditions, repetitious instruction, lack of reinforcement centers, and lack of individualized instruction.

42. On or about September, 1977, Mochson was transferred to Braddock Drive School and assigned to teach third grade.   She was a third grade teacher at Braddock for the school year 1977–78.   On or about September, 1978, she was assigned to teach a second grade class at Braddock.

43. On or about January 27, 1978, Mr. Stanley Sharpe, Principal, Braddock Drive School, observed Ms. Mochson's classroom.   During the visit, Mr. Sharpe observed that Ms. Mochson failed to follow her lesson plan and had not kept her plan book up to date.   Mr. Sharpe observed a lack of follow-up by Ms. Mochson and failure to use workbooks with the children.

44. On or about January 30, 1978, Mr. Sharpe visited Ms. Mochson's classroom at her request at approximately 9:05 a. m.   When Mr. Sharpe entered the room, Ms. Mochson told the pupils that Mr. Sharpe did not think the pupils knew what to do in the classroom and that the classroom was unorganized.   Ms. Mochson directed the pupils to get settled and then told Mr. Sharpe to go around and ask the children if they knew what they were doing.   She repeated this several times in a loud voice.   Ms. Mochson demonstrated poor judgment and a lack of restraint in the manner in which she repeatedly urged the principal to check the children's work.

45. On or about February 9, 1978, Mr. Sharpe visited Ms. Mochson's classroom at the request of Ms. Gay Okuyama Mori, a room partner.   Ms. Mochson was on a break.   Mr. Sharpe observed that Ms. Mochson had failed to provide an activity for the pupils.   There were checkerboards but no checkers.   Crayons were not provided, as they were locked up.

46. On or about February 10, 1978, Ms. Marian K. Kubota, Braddock Drive ECE Coordinator, asked Ms. Mochson to permit her to review Ms. Mochson's plan book in order to provide assistance and guidance in implementing plans.   Ms. Mochson stated she would submit the plans on Tuesday, February 14.   Ms. Mochson failed to submit any plans on Tuesday, February 14, 1978, or on any date thereafter.

47. On or about March 2, 1978, Ms. Arlene J. Morris, Administrative Area D (now Administrative Area 4) ECE Coordinator, observed Ms. Mochson's classroom on a routine visit to the school.   Ms. Morris reported, in writing, that the door was locked, the learning centers untouched, and that the language work was below grade level.   In addition, Ms. Morris stated that Ms. Mochson interrupted the lesson to excuse the children to go elsewhere when she (Ms. Morris) arrived.

48. On or about March 6, 1978, Mr. Sharpe observed Ms. Mochson's class at approximately 9:45 a. m.   Mr. Sharpe observed a lack of classroom organization and control.   Pupils were inattentive.

49. On or about March 6, 1978, Mr. Sharpe observed Ms. Mochson's class on the playground at approximately 10:05 a. m.   Mr. Sharpe observed a lack of organization in the games.   Some of the boys were out of their designated area and the girls were assigned to jump rope in an area reserved for first grade students.

50. On or about March 6, 1978, Ms. Mochson referred a student to the office.   Mr. Sharpe counseled the student and took him back to class.   When Mr. Sharpe and the student entered the classroom, Ms. Mochson berated the child in a loud voice in front of the class.   Mr. Sharpe remained in the classroom to observe a mathematics lesson.   All the students in the class were given a ditto sheet to work on.   Mr. Sharpe observed that the assignment was different from the stated lesson plan.

51. On or about March 31, 1978, Ms. Mochson referred a student to the office.   Mr. Sharpe counseled the student and returned him to the classroom.   When the student entered the room, Ms. Mochson chastised him loudly in front of the class and in the presence of Mr. Sharpe and Ms. Kubota who were observing the class.

52. On or about March 31, 1978, Ms. Kubota visited Ms. Mochson's reading class.   During the visit, Ms. Kubota observed the lack of any directed lesson.   Reading and language centers were not used.   No audio visual equipment or center was evident.   No art center was evident.

53. On or about April 5, 1978, at approximately 1:00 p. m., Mr. Sharpe heard loud screams coming from Ms. Mochson's classroom, Room 7.   Upon investigation, Mr. Sharpe found that several children had been screaming.   Ms. Mochson requested that one child, Lucy, be suspended from school.   Mr. Sharpe removed the child from the classroom.   When Mr. Sharpe returned to Ms. Mochson's classroom with a copy of the suspension notice, he found several girls outside the room unsupervised.   The girls stated that Ms. Mochson was on the school yard.   Mr. Sharpe escorted the girls to Ms. Mochson on the yard.

54. On or about April 17, 1978, Ms. Arlene Morris visited Ms. Mochson's class.   During her visit, Ms. Morris observed a few activity centers in the classroom.   These were not being used.   During the reading lesson the children were given directions to copy a story from the reader and to draw a picture.   Ms. Morris did not see any child following the direction.   Ms. Morris observed little interaction between teacher and pupils.   Ms. Morris observed no relationship between the reader and the workbook in use.

55. On or about June 6, 1978, Mr. Sharpe visited Ms. Mochson's classroom at approximately 11:10 a. m.   When Mr. Sharpe entered the room, he observed that all the lights were out and the children were being told to put their heads on their desks.   Ms. Mochson stated that a small group of children had been noisy in mathematics class so she had required the entire class to write standards and put their heads down.

56. On or about October 25, 1978, Mr. Stanley Sharpe observed a language lesson in Ms. Mochson's classroom.   Ms. Mochson read a story to the students.   During the story reading, Ms. Mochson interrupted the story several times to state that Mr. Sharpe would discipline students if they did not pay attention, or that they would be sent to see Mr. Sharpe if they did not pay attention.

57. On or about October 25, 1978, Ms. Mochson sent two students to the office to be disciplined.   The students were counseled and returned to class.   Ms. Mochson sent them back to the office.   When asked why she did not keep the students in class, Ms. Mochson stated that she didn't think the principal had kept them long enough.

58. On or about Wednesday, November 1, 1978, Ms. Mochson submitted weekly lesson plans for November 1–3.   The plans were inadequate in that they failed to individualize components of each daily lesson.   Only one spelling lesson was included for the three- (3) day period.

59. On or about November 2, 1978, Mr. Sharpe observed Ms. Mochson's class.   All students except two were beginning, or in the process of, writing a story on the subject, “It is a sunny day.”   No provision was made for the individual differences or ability levels of the various reading groups.   Some students seemed to be confused as to the assignment.   Ms. Mochson remarked aloud, “Mr. Sharpe doesn't think you know what you are doing.”   Such a reference about Mr. Sharpe was contrary to his prior instructions to Ms. Mochson to avoid involving him in her lessons.   The classroom became quite noisy.   Ms. Mochson stated aloud, “Mr. Sharpe has made the room noisy.”   At one point she stated aloud to Mr. Sharpe, “Write all you want to.   It will be a year before anything can be done.”

60. On or about November 9, 1978, Lois Williams, parent of a child assigned to Ms. Mochson, volunteered as an aide in Ms. Mochson's classroom.   She observed that Ms. Mochson yelled at the children, switched lights off and on, failed to provide follow-up material for students, and failed to control the class.

61. On or about November 13, 1978, Ms. Mochson submitted her Initial Planning Sheet to be used in her 1978–79 evaluation.   The planning sheet was inadequate in that the objectives were sketchy, assessment plans and methods were incomplete.

62. On or about January 8, 1979, Mr. Sharpe observed Ms. Mochson's reading class.   During the visit Mr. Sharpe observed three sentences on the board.   When he asked Ms. Mochson if it was an assignment to be copied by all the students, she declined to respond.   During the observation, Mr. Sharpe saw many children drawing pictures of planes and racing cars.   When Ms. Mochson was asked what relevance the pictures had to the reading lesson, she replied only that she had told the students to make a picture of something they did at school.   Ms. Mochson did nothing about the students who failed to follow directions.   Mr. Sharpe also observed a lack of any provision for independent work.   Learning centers were not utilized.   When Mr. Sharpe entered the room and sat in the rear, Ms. Mochson stated aloud in the presence and hearing of the students that he was harassing her;  that her 90-day probation period was up;  that he should call Mr. Trygstad.   Ms. Mochson also remarked aloud to the aide:  “Look at him there.”

63. On or about January 19, 1979, Mr. Sharpe requested in writing that Ms. Mochson send to him the reading test booklets and student workbooks from her class.   Ms. Mochson responded that the test booklets were at her home and the student workbooks were unavailable.   In a subsequent conversation with Ms. Mochson, Mr. Sharpe inquired about her reading record cards for the students.   Ms. Mochson stated that she did not have any.   Mr. Sharpe told Ms. Mochson to bring the test booklets to school on the following Monday.

64. On or about Monday, January 22, 1979, Ms. Mochson failed to bring the students' reading test booklets to school as requested by Mr. Sharpe.   When asked about them by Mr. Sharpe, she replied that she might not be able to find them.

65. On or about February 25, 1977, Mochson received a Notice of Unsatisfactory Service (hereinafter referred to as “Unsat”) for the period from August 26, 1976 through February 22, 1977;  during the time she was a third grade teacher at Marvin Avenue School.

66. On or about June 16, 1977, Mochson received an Unsat for the period from February 15, 1977 to June 16, 1977;  during the period she was a third grade teacher at Marvin Avenue School.

67. On or about June 23, 1978, Mochson received an Unsat for the period from September 19, 1977 to June 23, 1978, during which period she was a third grade teacher at Braddock Drive School.

68. On or about January 25, 1979, Mochson received an Unsat for the period from September 11, 1978 to January 24, 1979.   During the time she was a second grade teacher at Braddock Drive School.

FOOTNOTES

FOOTNOTE.  

OLSON,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

ROTH, P. J., and COMPTON, J., concur.