GOVERNING BOARD OF RIALTO UNIFIED SCHOOL DISTRICT v. MANN (1976)

OPINION

The judgment here under review was rendered in a statutory proceeding commenced under sections 13412¹ and 134132 of the Education Code. It was brought for the purpose of determining whether certain charges against the defendant were true and, if they were, whether sufficient grounds existed for dismissal of defendant as a tenured teacher by the plaintiff school district. The defendant had been placed on compulsory leave of absence in February of 1969 after his arrest on a marijuana charge, and this lawsuit was finally filed in March of 1971 after the protracted criminal proceedings eventually led to defendant's plea of guilty to a violation of then section 11530 of the Health and Safety Code (possession of marijuana). (Now Health & Saf.Code, § 11357.)

The defendant challenges the judgment on 11 different grounds, but we view the case as essentially involving two areas of inquiry. We have first sought to find out if the statutory procedures and safeguards afforded certificated employees of school districts were followed and, having determined that they were, we next scrutinized the record to see if the evidence supports the findings. We found that it does, and so the judgment is affirmed.

HISTORICAL BACKGROUND

Because of the notoriety this case and the defendant himself have received and, further, because of the high level of feelings that the case generated at one time in the Rialto community, it seems appropriate to set forth the details of the larger context in which were framed the comparatively narrow issues actually tried.

On and before January 31, 1969, defendant was employed as a tenured teacher (permanent certificated employee) by the plaintiff school district at its Eisenhower High School. On that date he was arrested at his home in Redlands during the course of a party at which approximately 14 other persons were present. Under direct questioning of the defendant by the trial judge, it was learned that most of the others at the party were college students ranging from 18 to 21 years of age. At the time of his arrest, moreover, defendant was under the influence of marijuana and was later charged with possession thereof (Health & Saf.Code, § 11530) and maintaining a place for narcotic use (Health & Saf.Code, § 11557). Fourteen other persons present were also arrested at this same time and place for a variety of narcotics violations.

On February 5, 1969, plaintiff governing board took action, as provided for in section 13409 of the Education Code³ to place him on a compulsory leave of absence. On the day before the suspension, a criminal complaint had been filed in San Bernardino County Municipal Court charging defendant with the crimes of possession of narcotics and maintaining a place for narcotic use. The criminal proceeding was vigorously resisted on the question of the legality of the search for, and seizure of, contraband evidence. This issue finally reached the California Supreme Court via a petition for writ of mandate after the superior court denied defendant's motion to suppress under section 1538.5 of the Penal Code. The issue noted was resolved against the defendant in Mann v. Superior Court, 3 Cal.3d 1, 88 Cal.Rptr. 380, 472 P.2d 468.

After this delay and after this result, the defendant pleaded guilty to the possession charge, and the other charge against him was dropped. Accordingly, on February 8, 1971, some two years after defendant's arrest, the trial court withheld pronouncement of judgment, and placed him on a two-year probation. The court refused specifically to reduce the offense to a misdemeanor at that time; however, it indicated that it would consider reduction of the conviction from a felony to a misdemeanor if and when probation had been successfully completed.

That same day, written charges, signed and verified by the person filing them, i. e. by Dr. Louis D. Mathews, Superintendent of the Rialto Unified School District, were filed with the plaintiff; they set forth that there existed cause for dismissal of defendant as provided for in section 13403, subdivision (h) of the Education Code.⁴ On February 17, 1971, plaintiff governing board adopted a resolution directing plaintiff's intention to dismiss him upon the expiration of 30 days for the reason that there existed cause for such dismissal per section 13403, subdivision (h) of the Education Code. Such notice was actually given by registered mail to the defendant on February 18, 1971.

In response to this notice, the defendant made a written demand on March 1, 1971, for a hearing as permitted under the applicable statutory provision. The plaintiff, upon receiving such demand, chose to file a complaint to test the grounds for dismissal. (Ed.Code, § 13412.)

The complaint was filed on March 26, 1971. The defendant acknowledged receipt of copies of summons and complaint on April 1, 1971, but failed to appear within the time allowed by law, and his default was entered on April 15, 1971. The defendant moved promptly to have his default set aside, but the motion was denied by minute order of May 13, 1971. Judgment was later entered on the default, and although the defendant sought to appeal from the order denying his motion for relief from the default, a non-appealable order, this court in 4 Civil 11759 treated the appeal as actually taken from the judgment and proceeded to consider on its merits the issue presented to the trial court under Code of Civil Procedure section 473. The judgment was reversed, the defendant answered, and the case finally went to trial on its merits on June 12, 1973.

Before the case proceeded to the taking of evidence, the plaintiff moved to amend its complaint to allege that defendant had been convicted of a crime involving moral turpitude. A hindsight view of the posture of the case at that time shows the following. The various actions taken and notices given before the complaint was filed at all times referred to a ‘cause for dismissal’ under section 13403, subdivision (h) of the Education Code; that provision recites two actual grounds for dismissal: conviction of a felony and conviction of a crime involving moral turpitude. However, the charging allegation in paragraph VIII of the complaint made reference only to ‘conviction of a felony.’ When the civil case here under consideration finally came to trial, the defendant's probation had been successfully served, and the court in the criminal case had dismissed the case after declaring the offense to be a misdemeanor. (Pen.Code, § 1203.4.) Faced with this development, the county counsel chose to amend the complaint and to expand the charging allegation to include the ‘other’ ground contained in section 13403, subdivision (h) as noted. The court granted the motion to amend and ‘offered’ the defendant additional time to prepare for trial if he wished. However, the defendant declined and the case proceeded.

THE EVIDENCE AND THE FINDINGS

As observed at the outset, the factual issues presented to the trial court in this wholly statutory proceeding were very narrow. Under section 13403, subdivision (h), two causes for dismissal are recited: conviction of a felony and conviction of a crime involving moral turpitude. It follows then, as a matter of proof, that the plaintiff's seeming burden under the statute consisted only of offering evidence to show that one or both of these events actually occurred.

However, since the case was tried in June of 1973, an opinion dealing with similar subject matter was filed in the Second District. That case, Board of Trustees v. Judge, 50 Cal.App.3d 920, 123 Cal.Rptr. 830, among other things, construed section 13403, subdivision (h) of the Education Code as stating only one ground for dismissal: ‘We believe that here the context and evident meaning do require a different construction and we hold that subdivision (h) of section 13403 applies only to conviction of felonies involving moral turpitude.’ (Id. at 926, 123 Cal.Rptr. at 834.) We respectfully decline to follow this interpretation by our colleagues subscribing the Judge opinion. If the Legislature had wished to state the language of subdivision (h) in the conjunctive, it could have done so. Instead, it clearly stated the provision in the disjunctive. Further language in the Judge opinion, in our view, precisely refutes the interpretation placed on these provisions with which we differ. At page 927, 123 Cal.Rptr. at page 835, it is further stated, ‘When the Legislature wants to make it explicitly clear that conviction of a felony is a ground for discipline it knows how to do so. For example, Business and Professions Code section 3930, subdivision (c), dealing with nursing home administrators states that a license may be denied, suspended or revoked upon the ‘conviction of any crime involving moral turpitude . . . whether the act is a felony or a misdemeanor . . ..’' Indeed, if the Legislature, in the instance of section 13403, subdivision (h) of the Education Code, had intended to refer only to these felonies (as only those)involving moral turpitude, it could have done so by using language similar to that in Business and Professions Code section 3930 as above quoted. Because the Legislature did not choose to do so, we shall dispose of the appeal at bench in the light of the interpretation of section 13403, subdivision (h) which sees it as stating two grounds for dismissal rather than one as indicated in the Judge case.

Turning then to the evidence as it relates to the alleged first cause for dismissal, conviction of a felony, the criminal file in CR–22710, Superior Court of San Bernardino County, was placed in evidence. It has already been noted that defendant pleaded guilty to possession of marijuana, and it is clear beyond contradiction that the trial court declined to reduce the conviction to a misdemeanor at the time that defendant was placed on two years probation. Although one of defendant's contentions raised in this connection and to be discussed later is that defendant was not convicted of a felony for purposes of section 13403, subdivision (h) of the Education Code, we see it as plain that he was. As a consequence, the trial court's finding No. 14 (‘That Defendant has been convicted of a felony and said conviction was for possession of marijuana (Health and Safety Code Section 11530)’ was supported by uncontradicted evidence.

In passing, it can be observed that the plaintiff, at that point in the trial, had made its case in terms of proving a statutory ground for dismissal. However, a substantial amount of additional trial time was used to bring in evidence on the further issue of whether defendant had been convicted of a crime involving moral turpitude. Simply stated, this boiled down to an opinion contest on the evils of the use of marijuana by a school teacher in terms of an alleged unfitness to teach which this behavior allegedly demonstrated. The school administrators and others were emphatic in declaring that to allow the defendant to resume his teaching duties would damage the image of other teachers, disrupt student morale, further incite parental dismay, and otherwise have a most unfortunate impact on the moral climate at Eisenhower High School.

On the other side of the issue there were equally dedicated opinion that the defendant had an outstanding reputation as a teacher. In addition, there was evidence presented which would lead to a conclusion that marijuana is a harmless substance or, at least, less dangerous than alcohol.

There is no question but that the strongly held and divergent views on the subject of the use of marijuana which were reflected by this community's divided attitude towards the defendant's continuing employment at Eisenhower High School, were a reflection of the larger debate on the use of marijuana, which debate is not yet over. Moreover, especially in view of the new legislation on the subject which has just gone into effect, one could speculate that the result reached in the trial court, if the same case were tried today, might be different. However, within the limited scope of appellate review, the record leaves little doubt but that there was substantial evidence to support the court's finding No. 15: ‘The Defendant's conviction of the crime of possession of marijuana, whether it be a felony or misdemeanor, is a conviction of a crime involving moral turpitude.’

ISSUES AND DISPOSITION

Earlier in this discourse we stated that we viewed the case, when reduced to its legal essentials, as importing only two issues. One was whether the plaintiff had followed the procedural prerequisites to the bringing of an action under section 13412 of the Education Code as it read when the complaint was filed. The other was whether the evidence supports the key finding upon which this declaratory-relief type judgment rests.

In considering the first, it is only necessary to check the record against the sequence of events which the Education Code requires in cases of this kind. In so doing it is uncontradicted that the plaintiff board on February 17, 1971, adopted a resolution stating plaintiff's intention to dismiss defendant upon the expiration of 30 days for the reason that there existed cause for such dismissal per section 13403, subdivision (h) of the Education Code. Notice of this action was given to defendant in the form and manner prescribed by section 13410 of the Education Code.⁵ The defendant then demanded a hearing, and this presented plaintiff with the options contained in section 13412 of the Education Code as it then read. One such option was the filing of a complaint to ‘determine whether or not the charges are true, and if true, whether or not they constitute sufficient grounds for the dismissal of the employee.’ This option was the one chosen by the plaintiff, and the determination made by the court is the one here challenged on appeal.

It requires only the recitation of the foregoing sequence of events to establish that the necessary prerequisites to the filing of this wholly statutory declaratory-relief type action were met. Moreover, because of the fact that the stated grounds for dismissal are precisely defined as such by statute, the mere proof of the occurrence of the ground or grounds so defined serves also to establish their sufficiency as grounds for dismissal.

Turning then to the second issue, i.e. the evidentiary one, it is enough for purposes of disposing of the appeal to observe that there is uncontradicted evidence that defendant was convicted of a felony. On this point, the defendant has undertaken to weave the highly involved fabric of an argument which would have us view defendant's plea of guilty followed by the granting of probation as something other than or different from conviction. Such effort ignores the plain holding in People v. Ward, 66 Cal.2d 571, 58 Cal.Rptr. 313, 426 P.2d 881, where, at page 574, 58 Cal.Rptr. at page 315, 426 P.2d at page 883, the opinion states that ‘A guilty plea amounts to an admission of every element of the crime and is the equivalent of a conviction.’ This statement relies upon a similar pronouncement in People v. Jones, 52 Cal.2d 636, 651, 343 P.2d 577.

In the account of the background events, attention is now directed to the eventual dismissal of the criminal case under the procedure provided for by section 1203.4 of the Penal Code which allows the court, after the defendant has fulfilled the conditions of his probation for the entire period thereof, to permit a withdrawal of a guilty plea, set aside the conviction based thereon, and dismiss the case. This section specifically provides that the defendant so dealt with ‘. . . shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.’ This provision suggests, within the issues of the case at bench, that defendant, for purposes of the alleged cause for dismissal, i.e. conviction of a felony, should be released from that alleged penalty or disability. However, such is not the law.

Such a contention has arisen in a variety of factual situations noted in People v. Sharman, 17 Cal.App.3d 550, 552, 95 Cal.Rptr. 134, 135, where Justice Coughlin, writing for our colleagues in Division One of this District, observed: ‘It would be unreasonable to believe the statute was directed to the release of penalties or disabilities over which the State had no control. Stated otherwise, reasonably construed, the statute is directed only to penalties and disabilities from which the State can release the offender.’ In applying this reasoning to the present case, the designation by the Education Code of a cause for dismissal is an extrinsic circumstance that cannot be changed by a pronouncement of a court in the course of the administration of criminal justice; once that event has occurred, it is of no legal significance in terms of mitigating its civil consequences that the defendant in the course of his criminal case came to enjoy the benefits of what actually is a policy aimed at aiding his rehabilitation vis-a-vis the commission of crime.

The other aspect of this issue is whether such conviction was of a felony. This brings us to an application of section 17 of the Penal Code to the facts of this case. The text of that section is here set forth in its entirety.

‘(a) A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.

‘(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances:

‘(1) After a judgment imposing a punishment other than imprisonment in the state prison.

‘(2) When the court commits the defendant to the Youth Authority.

‘(3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.

‘(4) When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of his arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.

‘(5) When, at or before the preliminary examination and with the consent of the prosecuting attorney and the defendant, the magistrate determines that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.’

From a review of the criminal file which is part of the record in this case, it appears by a process of elimination that none of the circumstances occurred by which the defendant's conviction of violating section 11530 of the Health and Safety Code could be classified as a misdemeanor. Hence, it was a felony. The matter of such a characterization is addressed by the Supreme Court in People v. Banks, 53 Cal.2d 370, 380–383, 1 Cal.Rptr. 669, 348 P.2d 102 where in reliance on a much earlier precedent, it is stated: ‘The People point out that the following rule is generally recognized as the proper interpretation of section 17 as applied to a crime which is punishable either as felony or as misdemeanor: ‘the charge stands as a felony for every purpose up to judgment, and if the judgment be felonious in that event it is a felony after as well as before judgment . . ..’' (Id. at 381, 1 Cal.Rptr. at 676, 348 P.2d at 109.)

Before dealing directly with certain of the contentions of the defendant, we explain that the precise basis for our disposition of the appeal consists of our determination that plaintiff proved by uncontradicted evidence that defendant had been convicted of a felony. Being a statutory ground for dismissal, it is ipso jure a sufficient ground for dismissal. Accordingly, the lengthy excursion at the trial into the question of whether the defendant had been convicted of a crime involving moral turpitude was not necessary. By so saying, no criticism of the county counsel is in any way implied; good practice always dictates covering all bases. However, in view of the fast changing public attitude of the moral consequences arising from the use of marijuana, trying to measure whether a conviction for possession of two and a half marijuana cigarettes by a school teacher in 1969 was a crime involving moral turpitude would be a vain and pointless exercise.

Yet, because the stuff of morals is the community's collective opinion toward any given kind of behavior, if we were forced to take a position, it would seem clear that the evidence reflecting the climate of such opinion in that community at that time was sufficient to support the findings of the trial court that a crime involving moral turpitude had been proved. Again, however, we see no need to stigmatize the defendant further, and so because such a finding is not necessary to our disposition of the case, we specifically take no decisional position on that issue.

Turning then to certain of defendant's contentions, he first argues that there should have been some kind of hearing conducted by the governing board before it acted to give notice of its intention to dismiss him. In view of the statute, such an argument is almost puerile. This action of the plaintiff board was not in the slightest way determinative adversely of defendant's ultimate status. It merely set in motion, as a procedural matter, the machinery by which the alleged ground for dismissal could be tested. As stated in Board of Trustees v. Metzger, 8 Cal.3d 206, 210–211, 104 Cal.Rptr. 452, 455, 501 P.2d 1172, 1175: ‘In the case of permanent teachers under the law in effect at the time of the proceedings herein, the responsibility for determining the truth of the dismissal charges and their sufficiency as grounds for dismissal was vested in the trial court, not the governing board. (See former Ed. Code, § 13412; [Fn. omitted] Midway School Dist. v. Griffeath, 29 Cal.2d 13, 172 P.2d 875 . . .) Unlike dismissal procedures in other civil service systems, the first hearing on the merits of the dismissal of a permanent teacher under the prior law was judicial, not administrative. (See Coan, Dismissal of California Probationary Teachers, 15 Hast.[ings] L.[J.]Rev. 284, 295; George, Dismissal of Permanent Teachers, 3 Santa Clara Lawyer, 164.) The employee, being informed of the school board's decision to dismiss him, could under former section 13412 demand a hearing in superior court to determine whether or not he could be dismissed.’ The actual dismissal of a permanent certificated employee is only later accomplished by the governing board should the superior court conclude that a sufficient ground for dismissal was proved.

The defendant next complains that the trial court applied the wrong standard in assessing the evidence presented to it. He bases this argument on a comment made by the trial judge in the course of an exchange between court and counsel inquiring into the relevance of certain testimony during which the court said: ‘Now, let's get back down to the single issue as to whether or not the Board had sufficient reasons to exercise their prerogatives and whether or not such would constitute an abuse.’

At best such a contention demonstrates a complete disregard of the detailed findings; at worst it is a misrepresentation of the record. No fair reading of this portion of the record could possibly lead to the conclusion reached here by the defendant as a basis for his contention. In any event, the issue then being probed has turned out to be of no consequence in our disposition of the appeal.

Defendant's next argument is that the trial court erred in allowing plaintiff to amend its complaint on the day of trial so as to include a charging allegation that defendant had been convicted of a crime involving moral turpitude. Aside from the fact that such amendment was finally of no consequence in terms of our disposition of the case, the argument seeks to raise a tempest in a teapot. At all times the dealings with defendant by the plaintiff board had been in terms of section 13403, subdivision (h) of the Education Code which includes the moral turpitude ground. The county counsel's reason for seeking the amendment was obvious. Because of the disposition of the criminal case under section 1203.4 of the Penal Code, he wanted to be careful to avoid a nonsuit or a directed verdict. The rule calling for liberality in permitting the amendment of pleadings in the interests of justice is too common to require the citation of authority. Moreover, in this case, had the defendant wished to have further time to prepare his case, he could have had it. He declined to seek the offered continuance, and we see him now as inconsistent in claiming prejudice when he saw none at the time the case went to trial.

Defendant next argues that he should have been awarded judgment on his cross-complaint. This is a remarkable contention, for the parties stipulated at the conclusion of the trial that ‘the court has jurisdiction to determine the amount of money owed the defendant as the result of his suspension if the court—that is, the amount owed by the Board to the defendant if the court decides in defendant's favor.’ Obviously the trial court did not find in defendant's favor.

Finally, defendant complains of error in the form of a failure by the plaintiff board to conduct a hearing before it took action to dismiss defendant. Again, in terms of the record before us, this is a remarkable contention, for it deals with an event completely outside the record. We have no way of knowing, except through assertions in the briefs, that the defendant at some time following the entry of judgment herein was actually dismissed. However, at the risk of pedantry, we must remind the defendant that his appeal is from a judgment of the superior court, the result of which was that a sufficient ground existed for the dismissal of defendant. Any event which happened after the entry of judgment is beyond our legal attention.

Although not made explicit in the briefs, defendant's counsel at oral argument, in response to questioning, took the position that the holding of Skelly v. State Personnel Bd., 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, was applicable at the time defendant was placed on compulsory leave of absence pursuant to section 13409 of the Education Code. We do not agree. The action taken under section 13409 was not tantamount to the imposition of discipline or the deprivation of property. In our view the due process required by Skelly in the form of a hearing held before a deprivation of property occurred was, in this case, obtained in the superior court; furthermore, had this case been resolved in defendant's favor, as it was in Judge, supra, the defendant would have been entitled to receive full compensation for the period of compulsory leave.

The judgment is affirmed.

FOOTNOTES

1.  At the time the complaint herein was filed, section 13412 provided as follows:‘When any employee who has been served with notice of the governing board's intention to dismiss him demands a hearing, the governing board shall have the option either (a) to rescind its action, or (b) to file a complaint in the superior court of the county in which the school district or the major part thereof is located, setting forth the charges against the employee and asking that the court inquire into the charges and determine whether or not the charges are true, and if true, whether or not they constitute sufficient grounds for the dismissal of the employee, under the provisions of this code, and for judgment pursuant to its findings.’

FN2. At the time the complaint herein was filed, section 13413 provided as follows:‘If the board elects to file a complaint, the complaint shall be filed within 30 days from the date of the employee's demand for hearing. If the complaint is not filed within such period the board's action shall be deemed to be rescinded and all charges dismissed..  FN2. At the time the complaint herein was filed, section 13413 provided as follows:‘If the board elects to file a complaint, the complaint shall be filed within 30 days from the date of the employee's demand for hearing. If the complaint is not filed within such period the board's action shall be deemed to be rescinded and all charges dismissed.

3.  Education Code section 13409, as it read in 1969, provided in pertinent part as follows:‘Whenever any certificated employee of a school district is charged with the commission of any narcotics offense as defined in Section 12912.5, or a violation of subdivision 1 of Section 261 of the Penal Code, Sections 11530 to 11532, both inclusive, 11540, or 11910 to 11915, both inclusive, insofar as such sections relate to subdivision (c) of Section 11901, of the Health and Safety Code, by complaint, information, or indictment filed in a court of competent jurisdiction, the governing board of the school district may immediately place the employee upon compulsory leave in accordance with the procedure in this section.’That procedure included the following:‘[T]he governing board of the school district shall immediately place the employee upon compulsory leave of absence for a period of time extending for not more than 10 days after the date of the entry of the judgment in the proceedings. The governing board of the school district may extend the compulsory leave of absence of the employee beyond such period by giving notice to the employee within 10 days after the entry of judgment in the proceedings that the employee will be dismissed at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing as provided in Sections 13313, 13327 and 13338, and Sections 13403 to 13441, inclusive.’

4.  At the time the written charges herein were filed, section 13403, subdivision (h) provided as follows:‘No permanent employee shall be dismissed except for one or more of the following causes:‘. . .‘(h) Conviction of a felony or of any crime involving moral turpitude.’

5.  Section 13410 at the time plaintiff acted provided as follows:‘The notice of suspension and intention to dismiss, shall be in writing and be served upon the employee personally or by United States registered mail addressed to the employee at his last known address. A copy of the charges filed, together with a copy of Sections 13313, 13327 and 13338, and Sections 13403 to 13441, inclusive, shall be attached to the notice. If the employee does not demand a hearing within the 30-day period, he may be dismissed upon the expiration of 30 days after service of the notice.’

McDANIEL, Associate Justice.

KAUFMAN, Acting P. J., and HILLIARD, J.,* concur.