STEELE v. BOARD OF EDUCATION

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Court of Appeal, Second District, Division 5, California.

Joe W. STEELE, Plaintiff and Respondent, v. BOARD OF EDUCATION of Inglewood Unified School District, et al., Defendants and Appellants.

Civ. No. B025451.

Decided: September 13, 1988

Grant & Duncan and Artis C. Grant, Jr., Jane Clay Davis and Donna L. Lopez, Los Angeles, for defendants and appellants. No appearance for plaintiff and respondent.

Respondent Dr. Joe W. Steele (respondent) was employed as director of personnel for the Inglewood Unified School District.   In August 1986 appellant Governing Board of the Inglewood Unified School District (Board) removed respondent from that administrative position and transferred him to other duties.   The trial court granted respondent a peremptory writ of mandate (Code Civ.Proc. § 1085) commanding appellant Board and appellant Rex Fortune, superintendent of schools, to reinstate respondent as director of personnel and not to remove him until affording him a “due process hearing.”   We reverse.   Although the trial court properly concluded that respondent was entitled to due process prior to his removal, the trial court's remedy of reinstatement and a new due process hearing is unnecessary, because the evidence shows that respondent received due process prior to his removal and that appellants did not abuse their discretion.

Respondent was transferred from his position as director of personnel on August 15, 1986 because on August 8, 1986, respondent engaged in a violent argument with Board president Dr. Ernest Shaw.   Superintendent Fortune entered the room from the office next door and observed the incident.   Respondent shouted at Dr. Shaw and blocked the doorway to prevent Dr. Shaw from leaving the office, and according to both Dr. Shaw and Dr. Fortune, respondent shoved Dr. Shaw in the chest.

Since the precipitating incident arose on August 8, it was impossible to comply with Education Code section 44951, which requires that administrative employees be notified by March 15 that they may be released from their position for the following school year.

 We first discuss the effect of this statute on respondent's due process rights.   The general rule is that school administrative employees hold their administrative positions at the pleasure of the employer.   They have no statutory right or tenure in their administrative position, as distinguished from their tenure as a teacher, and no right to due process prior to a change in assignment.  (Barthuli v. Board of Trustees (1977) 19 Cal.3d 717, 721–722, 139 Cal.Rptr. 627, 566 P.2d 261;  Hentschke v. Sink (1973) 34 Cal.App.3d 19, 22–23, 109 Cal.Rptr. 549.) 1  The reason for this policy is the close relationship between administrators and the necessity for their day-to-day cooperation, which requires complete trust by top administrators in their subordinates.  (Hentschke v. Sink, supra, 34 Cal.App.3d at 23, 109 Cal.Rptr. 549;  Barton v. Governing Board (1976) 60 Cal.App.3d 476, 479, 131 Cal.Rptr. 455.)   Upon compliance with the notice requirements of Education Code section 44951, a school board may, without due process and for whatever reasons satisfactory to the board, refuse to reappoint an administrator for the following school year.  (Barton v. Governing Board, supra;  Grant v. Adams (1977) 69 Cal.App.3d 127, 134, 137 Cal.Rptr. 834;  Anaclerio v. Skinner (1976) 64 Cal.App.3d 194, 197, 134 Cal.Rptr. 303.)

 Section 44951 does, however, give a limited form of protection to school administrative employees.   It provides in pertinent part “Unless a certificated employee holding a position requiring an administrative or supervisory credential is sent written notice ․ by March 15 that he may be released from his position for the following school year ․, he shall be continued in such position.”   This provision is intended to afford the employee time to seek other employment as an administrator.  (Barton v. Governing Board, supra, 60 Cal.App.3d at 479–480, 131 Cal.Rptr. 455.)   If the statutory notice is not timely given or is not properly served, the board is no longer free to change the employee's assignment at its pleasure.  (Hoyme v. Board of Education (1980) 107 Cal.App.3d 449, 454–455, 165 Cal.Rptr. 737.)   In those circumstances, a change in assignment requires cause.  (See Ellerbroek v. Saddleback Valley Unified School Dist. (1981) 125 Cal.App.3d 348, 365, 177 Cal.Rptr. 910.)

 In this case, compliance with section 44951 was impossible because the incident precipitating the transfer occurred after March 15.   Appellants contend that since compliance was impossible, appellants were free to transfer respondent for any reason in their discretion and without due process.   The trial court properly rejected this contention, which would render meaningless the provision of section 44951 that the administrator “shall be continued in such position.”   In determining whether a nontenured governmental employee has a sufficient property interest in his job to acquire constitutional due process protections, the courts have stated that the employee “must have more than an abstract need or desire for [the job].  He must have more than a unilateral expectation of it.   He must, instead, have a legitimate claim of entitlement to it” under state law.  (Board of Regents v. Roth (1972) 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548;  Barthuli v. Board of Trustees, supra, 19 Cal.3d at 722, 139 Cal.Rptr. 627, 566 P.2d 261.)   In this case, since respondent received no notice prior to March 15, he had a legitimate claim or expectation, based on Education Code section 44951, that he would not be removed as director of personnel for the 1986–87 school year, unless with due process and for cause.  (See Ellerbroek v. Saddleback Valley Unified School Dist., supra, 125 Cal.App.3d at 354, 365, 177 Cal.Rptr. 910.)

 Concluding that respondent was entitled to due process, however, is only the first step.   The next question is how much process was he due.   As distinguished from dismissing a permanent employee for cause (Ed.Code, § 44932), there appears to be no statutory provision for a hearing on transferring an administrator for cause.2  In the absence of a statutory provision for a hearing procedure, respondent was entitled only to the minimum requirements of constitutional due process.   These minimum due process requirements have been defined in the context of the procedural rights which a permanent employee must be accorded before disciplinary action becomes effective.  “As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.”  (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215, 124 Cal.Rptr. 14, 539 P.2d 774.)   If, prior to his transfer, respondent was accorded these preremoval safeguards, he received due process.   We conclude that the evidence in this case shows respondent was given due process rights prior to his removal, and therefore the trial court's remedy of reinstatement and a new “due process hearing” is superfluous.

In ruling on the petition for peremptory writ of mandate, the trial court reviewed the declarations of Dr. Shaw, Dr. Fortune and respondent, and the exhibits to respondent's declaration, which were copies of memoranda the parties sent to each other at the time of the incident.   This evidence shows that respondent received proper notice and opportunity to be heard before he was removed.   At the time of the incident respondent was advised that his behavior had been intolerable and that action might be taken with respect to his position as director of personnel.   The same day the incident occurred, August 8, Dr. Shaw submitted a memorandum to Dr. Fortune reviewing the incident and recommending that respondent be removed from his position.   Likewise that same day, Dr. Fortune sent a memorandum to Dr. Shaw reviewing the incident.   Also on August 8, Dr. Fortune sent a written reprimand to respondent advising him that “the manner of disagreement and physical contact was inappropriate and will not be tolerated.   As also noted in the memorandum from the Board president, further action may be taken with respect to your assignment.”   It is evident that respondent was provided with these memoranda on August 8, because respondent specifically replied to them in a four-page single spaced letter he wrote to Dr. Fortune the next day, August 9.   In this August 9 letter respondent presented a lengthy and detailed defense to the charge, including his version of the incident and the circumstances leading up to it, and reviewing his accomplishments as director of personnel and his desire to continue in that position.

Subsequently, on August 13 respondent was notified that pursuant to the direction of Board he was assigned as an assistant principal effective September 15 and relieved of his duties as director of personnel effective August 15.

Thus, contrary to the trial court's conclusion that a writ should issue in order to afford respondent “a due process hearing at which he has the opportunity to present his case and refute the charges against him,” the record shows that respondent had already been provided the constitutional due process requirements.   Respondent received written notice of the charges and he exercised the opportunity which was given him to refute the charges and to present mitigating circumstances.   Respondent was treated with fairness and procedural due process.

 Respondent failed to show that appellants abused their discretion in finding good cause for transferring respondent.  (Code Civ.Proc., § 1085;  Weary v. Civil Service Com. (1983) 140 Cal.App.3d 189, 195, 189 Cal.Rptr. 442.)   Dr. Shaw and Dr. Fortune, who were the only other persons involved in the incident, both stated that respondent shouted at Dr. Shaw in an abusive manner, refused to leave the room or to permit Dr. Shaw to do so, physically blocked the exit, and shoved Dr. Shaw in the chest, pushing him back from opening the door.   Respondent's defense was to deny that he pushed or shoved Dr. Shaw.   The record supports appellants' rejection of respondent's defense and their conclusion that his conduct made it impossible for him to continue to function effectively as director of personnel and constituted good cause for his transfer.

Under all the circumstances no useful purpose would be served by reinstatement and a new due process hearing, since the record before the court indisputably establishes that respondent received procedural due process and that appellants did not abuse their discretion in finding cause for respondent's removal.

The judgment is reversed with directions to enter judgment denying the writ of mandate.   Costs on appeal awarded to appellants.

FOOTNOTES

1.   Respondent was not fired as a district employee.   He was offered other administrative and teaching positions.

2.   We agree with the trial court that it would be unreasonable to conclude that Board's only alternatives were either to retain respondent in his position as director of personnel for the entire 1986–1987 school year, or to dismiss him from employment.   The statutory scheme contemplates that employees may function well as teachers even though not successful as administrators.  (Barthuli v. Board of Trustees, supra, 19 Cal.3d at 721–723, 139 Cal.Rptr. 627, 566 P.2d 261.)

ASHBY, Associate Justice.

LUCAS, P.J., and KENNARD, J., concur.