HOLBROOK v. BOARD OF EDUCATION OF PALO ALTO UNIFIED SCHOOL DIST (1950)

The appellant sought a writ of mandate to compel the respondent board to reinstate and re-employ him in the position which he occupied when discharged in 1947. From a judgment denying the petition this appeal was taken on an agreed statement.

At all times herein involved appellant held a credential and certificate entitling him to teach in any elementary or secondary school in Santa Clara County and a general administrative credential and certificate entitling him to administer any such school.

On August 1, 1940 he was employed by the district as its business manager and principal of the evening high school for the school year 1940–41. In 1941–42 he continued in the same position. In 1942–43 his duties were designated as business manager and director of adult education. The dividing line between appellant's first three years and his fourth year was July 1, 1943, and for the school year 1943–44 his duties were designated as business manager for three-quarters of his time and director of adult education for one-quarter. In each of his fifth, sixth and seventh years (1944–45, 1945–46 and 1946–47) there was the same designation.

In 1947 his services as business manager were discontinued. However, his services as director of adult education for one-quarter time were continued, since the board recognized then and has conceded ever since that his status was that of a permanent employee of the district as director of adult education to the extent of one-quarter time. The court concluded ‘That * * * petitioner automatically was entitled to classification as a permanent one-fourth time employee of said district, and thereafter to one-fourth time permanent employment in a position or positions requiring certification qualifications.’

When appellant entered the employ of the district the teachers' tenure act was codified in § 5.500 of the School Code, St. 1935, c. 690, § 7, which read as follows: ‘Every employee of a school district of any type or class, who after having been employed by the district for three complete consecutive school years in a position or positions requiring certification qualifications, is reelected for the next succeeding school year to a position requiring certification qualifications shall, except as hereinafter otherwise provided, at the commencement of said succeeding school year, be classified as and shall become a permanent employee of the district * * *.’ The exceptions therein mentioned have no bearing on this case. In August, 1943 the new Education Code went into effect, see Stats.1943, p. 310, and what had been § 5.500, School Code, became (with a few changes not now material) § 13081, Education Code. During the first three years of appellant's service § 5.500, School Code, was in effect.

Appellant was employed by the district for three consecutive years and re-elected for the next succeeding school year but the question is, whether he was so employed and so re-elected ‘in a position or positions requiring certification qualifications?’

To say that a person is a ‘permanent employee of the district’ is to say that he has ‘tenure’ therein, and it is clear from the language of the former § 5.500 and the present § 13081 that the legislature was careful to limit the guarantee of tenure to such employees only as occupy positions ‘requiring certification qualifications.’

The Education Code specifies numerous positions wherein the employee, in order to qualify therefor, must hold a certificate, but the position of business manager of a school district is not among them.

Thus for the first two school years, 1940–41 and 1941–42, appellant was duly certificated as principal of the evening high school, but had no credential or certificate as business manager of the district, since none was required by statute. Likewise in his third year, 1942–43, it is conceded that he was certificated to be a director of adult education. From these premises it would seem to follow that the only services of appellant during those first three years which, under § 5.500, now § 13081, could be considered or counted in determining whether he was entitled to tenure would be such fractional part of his combined or total services as were certificated, that is, rendered under either one or both of those two certificates.

The court concluded that such certificated services added up to one-fourth time, and no more, and that appellant ‘did not acquire the right to permanent employment * * * by virtue of his services in the position of business manager.’ It concluded, also, that ‘the positions of business manager, principal of the evening high school, and director of adult education as held by petitioner, were three separate and distinct positions.’

Counsel for appellant insists that his client during the seven years occupied but one full-time position and that therefore he is entitled to full-time tenure. He has developed a unique theory on this subject which he repeats and reiterates in various forms throughout his 112 pages of typewritten briefs.

In the agreed statement this theory is set forth as follows: ‘Appellant does not contend that a person who is employed by a school district solely to manage business affairs need be certificated. Appellant does contend that the duties of managing business affairs may be combined with duties which do require certification qualifications so as to constitute one single position, and that such a position, so long as it involves a substantial amount of duties requiring certification qualifications, is itself a position requiring certification qualifications. Appellant's major contention is that he was employed in such a position.’ (Emphasis appellant's.)

In his opening brief appellant says ‘a full-time position confers full-time tenure if any part of the duties of the position are certificated.’ (Emphasis ours.)

In his closing brief he says: The tenure is not, however, tenure in any particular position; it is tenure in the school district.' Therein he says further: ‘Whether the strictly certificated duties imposed upon the employee bulk large or small—that is, whether they occupy all or only a part of his time—depends, of course, upon the assignments of work. But, regardless of whether they require a large proportion or only a small proportion of the total amount of time devoted to the position, it is still the entire position upon which the statute operates; and the extent of the position is to be determined by the contractual terms of the employment, and the duties performed * * *.’ (Emphasis appellant's.)

In the first place, no authority is produced in support of this novel theory. Secondly, the argument is inconsistent because of the concession that a person employed solely to manage business affairs need not be certificated. Thirdly, and most important, the argument either ignores or directly takes issue with the plain language of the statute which insures tenure only to an employee holding ‘a position requiring certification qualifications.’ Appellant's statement that ‘The terms is not * * * tenure in any particular position; it is tenure in the school district’ (emphasis added) simply discards the language of the statute, which specifies explicitly which ‘particular position’ leads to ultimate ‘tenure in the school district.’

Appellant claims, also, that the intention of the parties that there should be but one integrated position is shown by a series of acts and conduct of the board and its members (fifteen separate items of which are summarized) evidenced by the contracts entered into between the board and appellant, letters exchanged containing designations and characterizations of appellant's position, entries in the board's minutes, and similar matters.

Whether there was but one integrated position or not is but a subsidiary question in this case. The real question is whether appellant was entitled to full-time tenure, or only one-fourth time tenure, or something in between, and the solution of that question depends entirely on whether he comes within the teachers' tenure act as an employee occupying ‘a position requiring certification qualifications.’ That is the only test. Appellant concedes that the parties could not by contract ‘transform noncertificated duties into certificated duties.’ So conceding, it is difficult to see how he can still argue that there was but one integrated position when his ultimate purpose in doing so is, obviously, to ‘transform noncertificated duties into certificated duties' and thereby indirectly establish full-time tenure.

‘School districts' says the court in Pasadena School District v. Pasadena, 166 Cal. 7, 11, 134 P. 985, 986, 47 L.R.A.,N.S., 892, Ann.Cas.1915B, 1039, ‘are quasi municipal corporations of the most limited power known to the law. Their trustees have special powers, and cannot exceed the limit.’ Trustees ‘are special agents, without general power to represent the district.’ Skelly v. Westminster School District, 103 Cal. 652, 659, 37 P. 643, 645. ‘While it is true that the relation between the Board and a teacher is that of employer and employee, and that this relationship is created by contract, the terms of that contract are to be found in the authority granted the Board by law.’ Fry v. Board of Education, 17 Cal.2d 753, 790, 112 P.2d 229, 234.

The authorities hold that apart from employing the teacher, assigning his school, fixing his compensation, and re-employing him (or not) for succeeding years, the board and its members have practically no power by contract, or otherwise, to do anything which affects, one way or the other, the question whether such person eventually attains tenure. Some of the cases on the subject are Grigsby v. King, 202 Cal. 299, 304, 307, 260 P. 789; Abraham v. Sims, 2 Cal.2d 698, 710, 42 P.2d 1029; Owens v. Board, 68 Cal.App. 403, 229 P. 881; La Shells v. Hench, 98 Cal.App. 6, 276 P. 377; Gastineau v. Meyer, 131 Cal.App. 611, 22 P.2d 31; Sherman v. Board, 9 Cal.App.2d 262, 49 P.2d 350, and La Rue v. Board, 40 Cal.App.2d 287, 293, 104 P.2d 689.

Under the authorities it is clear that whatever tenure rights accrued to appellant, were acquired by what he did—by the services he rendered during the first three years—rather than by anything which the board or its members said in conversations, or wrote in formal contracts or informal ones, (whether such contracts created one position or two), or by reports of the superintendent, or by letters sent or exchanged, or by entries in the minutes, or by any other incidental act or conduct of the board, touching appellant's original employment or any renewal thereof.

The question, then, whether appellant's first three years of service entitled him to full-time tenure, half-time tenure, or only quarter-time tenure, depended entirely upon the kind and character of services rendered by him; in other words, upon how much service was rendered in a certificated capacity and how much in a noncertificated capacity. The agreed statement shows that appellant testified at length with respect to these various services, including those which doubtless went beyond the scope originally contemplated, including the defense training center, the committee planning for a junior college, and as acting superintendent or assistant superintendent. His secretary also testified, and at least one other witness, a former board member. There was documentary evidence as well. See 2 Cal.Jur. p. 932. All this evidence was for the trial court to value, weigh, classify, and put in its proper place, (to determine which services were attributable to one distinct set of duties and which to another) and it presented questions of fact from which different inferences could be drawn. Webster v. Board of Dental Examiners, 17 Cal.2d 534, 539–540, 110 P.2d 992, 996, holds that ‘where reasonable minds might differ on the inferences to be drawn from a particular set of facts, the appellate court will not substitute its own conclusions for those reached by the trial court [citations].’

The burden was on appellant to convince the trial court that he was entitled to full-time tenure, or at least half-time tenure (appellant's secondary point). The findings and conclusions of law indicate that he did not sustain that burden as to either.

We might add that the record shows that certification was required for all appellant's duties as principal of the evening high school while with respect to those as director of adult education a certificate was required for only part of them. The trial judge not only saw and heard the witnesses but also had the opportunity, by his own questioning of them, to examine minutely into these matters and to reach his own conclusions as to what part of the total services were performed as director and under certification to some extent, and what part as business manager, a wholly noncertificated position. Needless to say we have no such opportunity. It should be added that no section of the Education Code has been cited which expressly requires certification qualifications for a director of adult education, but since no point is made of this we do not inquire into it.

Still pressing his one-integrated-position theory, appellant contends that respondents are estopped to deny that he held such integrated position. This is based on the premise that for the first three years respondents by their acts and conduct led him to believe that during each year he occupied such a position, which (it is claimed) would lead to full-time tenure, and that he relied thereon to his detriment.

We have already seen that school districts possess ‘the most limited power known to the law’ and that their trustees are ‘special agents without general power to represent the district.’ We have cited, also, the cases holding that tenure accrues despite any maneuvers of the trustees to prevent it. If the rule works both ways, as it should, then certainly no acts, conduct or representations, of trustees with such limited powers can produce, insure, advance, or at all influence, the attainment of tenure, if such actions do not square with statute law.

Had the respondents attempted to make a contract with appellant pretending or purporting to bring his duties as business manager within the purview of § 5.500 School Code, now § 13081, Education Code it would have been utterly void. This is conceded, since appellant admits that the parties could not by contract ‘transform non-certificated duties into certificated duties.’

‘An estoppel in pais can have no more force or effect in binding the parties than would a contract including the very subject-matter urged by way of estoppel.’ Thompson v. Doaksum, 68 Cal. 593, 598–599, 10 P. 199, 202. See, also, Raisch v. San Francisco, 80 Cal. 1, 6, 22 P. 22; Lukens v. Nye, 156 Cal. 498, 506, 105 P. 593, 20 Ann.Cas. 158, 36 L.R.A.,N.S., 244, and Taylor v. Spear, 196 Cal. 709, 717, 238 P. 1038, 1041. In the latter case the court, (speaking of the plaintiff's ‘tenure’ under a lease made by the Harbor Commissioners) said: ‘They could not * * * create an estoppel which would have the effect of enlarging the plaintiff's tenure beyond that embraced within the express limitations of the Code section [citations].’ The same rule is recognized in McCormick Lumber Co. v. Highland School District, 26 Cal.App. 641, 643, 147 P. 1183, cited and quoted in Briney v. Santa Ana High School District, 131 Cal.App. 357, 361, 21 P.2d 610, a case, by the way, cited by appellant.

Appellant concedes that certification qualifications cannot ‘be attached to duties by means of estoppel.’ The estoppel that he seeks to establish is with respect to the ‘integrated contract’, which, as we have already seen, is only a subsidiary question in this case.

There is no merit in appellant's claim of estoppel, and there was no error in excluding the evidence offered in an attempt to prove it.

Appellant's final point is that he was never legally dismissed from the position of business manager. His severance from that part of his employment was a long-drawn-out process, extending over a six-months period. It started with a letter dated February 7, 1947, from the superintendent to appellant addressed to him as business manager of the district advising him to look for ‘different placement for next year.’ It refers to ‘dozens of personal conferences' and ‘two or three recent conferences involving the entire board and others.’ It suggested that appellant make his own announcement about the change. The tenor of the letter is friendly and co-operative. However, it concludes with the definite statement ‘I am not going to be able to recommend your reappointment for next year in Palo Alto.’ After this letter was received there ensued a number of meetings, at one of which the matter was considered by the board for about two hours and at which appellant appeared and addressed them, presumably presenting his side of the case. As the end of the 1946–47 school year drew near, the question now in litigation, as to the extent of appellant's tenure, became acute and the board sought legal advice.

Appellant's last yearly contract consists of an ‘Offer of employment’ dated June 12, 1946 and an acceptance dated June 27, 1946. It stated that at a meeting on June 6 appellant was elected to serve as ‘Business Manager (3/434 time) and Director of Adult Education (1/414 time) for the school year beginning July 1, 1946 and ending June 30, 1947. * * * You are hereby classified by this board as a permanent 1/414 time employee, subject to acceptance of this offer.’ It was signed on behalf of the board, and the acceptance was signed by appellant. By its terms the contract expired on June 30, 1947. It was never renewed, and the parleys which had gone on from as early as February made it clear that it was not to be renewed. The agreed statement shows that one of the board's members had been conferring with appellant respecting the matter, and this member testified that ‘appellant's employment was extended at appellant's request from July 31st to August 31st; and that the final act done was the adoption of a formal resolution which was drawn by the District Attorney, and which the Board modified to soften somewhat, which was adopted by the Board in August.’ If the testimony which we have just emphasized was believed by the court—as it apparently was—it would show that appellant had notice that his yearly contract as business manager was not to be renewed. The formal resolution adopted August 21, 1947 just referred to (after the preamble) reads ‘Be it hereby resolved that the * * * District offer said C. R. Holbrook employment as a permanent employee of this District, for one-fourth full time service only, as Adult School Director at an annual salary of $1245 and that his services as Business Manager of this District be discontinued as of September 1, 1947.’

Appellant's request for a renewal of his yearly contract was met with the following action at the board's regular meeting on June 26, 1947, as shown by its minutes:

C. R. Holbrook the business manager presented a letter calling attention to the fact that the salary of the business manager and director of adult education had not been fixed nor had any contract been issued for the following year. He requested that the Board authorize the secretary to execute such a contract incorporating the $360 increment, plus one annual increment. Mr. Packard moved and Mr. Vanderpool seconded the motion that the superintendent be authorized to take whatever action is necessary to pay Mr. Holbrook at the present rate of salary for the month of July and that it be the understanding that he would be entitled to the usual four weeks' vacation with pay in August.'

There can be no doubt that appellant had ample notice that he was not to be reemployed as business manager.

Sections 14001–14027, Education Code deal with non-certificated employees.

The authority to appoint a business manager comes from § 14001 which provides that ‘The governing board * * * shall employ janitors and other employees of the school.’ By § 14003 the board is authorized to prescribe the duties of noncertificated employees, and by § 14026 it is authorized to fix their compensation. The duties of appellant, important as they were in all three capacities, are not to be compared or bracketed with those of a janitor, but it just happens that the legislature used the quoted language; it is not ours. It follows that appellant was one of the ‘other employees' mentioned in § 14001, and as business manager the only legal hold he had on the district was his yearly contracts, the last of which expired on June 30, 1947, and was never renewed as a yearly contract, but only as an expedient for a decent severance allowance with full pay for the month of July and ‘the usual four weeks' vacation with pay in August.’ He knew by such action that his ‘noncertificated’ employment had come to an end, wherefore the arguments in appellant's brief that some of the ‘personnel conferences' held in the homes of the trustees were not open meetings or legal meetings is of no force. These actions of the board constituted substantial notice of termination of appellant's contract as business manager, and there is no merit in the contention that he was not legally discharged, with ample and legal notice, from that position.

The judgment is affirmed.

GOODELL, Justice.

NOURSE, P. J., and DOOLING, J., concur.