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Court of Appeal, Third District, California.

Trevor PENDRAY, Plaintiff and Appellant, v. BOARD OF TRUSTEES OF the LODI UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

Civ. 13637.

Decided: October 04, 1974

Karlton, Blease & Vanderlaan, Sacramento, for plaintiff-appellant. Richard W. Dickenson County Counsel by Ms. Paula Hutchins, Deputy County Counsel, Stockton, for defendant-respondent.

Plaintiff, Trevor Pendray, was a teacher employed by defendant Board of Trustees of the Lodi Unified School District. The three-year period of his probationary employment would have terminated at the end of the 1970–1971 school year. On March 15, 1971, Pendray was served by Superintendent Jansen of the district with a written notice that Jansen would recommend to the school board that Pendray's employment be discontinued. The notice stated as the reason ‘unprofessional or unethical conduct,’ but to that broad generalization it must be added that Jansen had twice reprimanded Pendray for specific behavior which we will discuss in the statement of facts below.

Upon Pendray's request, a hearing was held on an accusation framed. Findings were made, and the board adopted the proposed decision, determining there was sufficient cause not to reemploy Pendray. After denial by the superior court of Pendray's petition in mandate for reinstatement, appeal was made to this court. We will determine that under recent rulings by our Supreme Court, the trial court in reviewing the decision of the school board did not apply the standard of review required by law, and, therefore, that the judgment must be reversed.

Statement of Facts

Pendray was a teacher of mentally retarded children. That classification did not include credentials to counsel students in the field of abuse of narcotics. There were, however, such counselors in the school system of the district: 10 qualified teachers, 4 psychologists, a consulting psychiatrist and 2 teachers in training.

During the period with which this appeal is concerned, Pendray was interested as an individual in the problem of drug abuse. He belonged to a citizens' group of similarly interested individuals which held periodic seminars and which seems to have been engaged in some sort of group discussions called ‘rap sessions' and ‘sensitivity’ meetings about ‘matters of concern in our culture’ described as ‘current youth moires [sic].’ At the hearing, however, the only expertise to which he made claim was by reason of an undergraduate course in psychology in college not shown to have been focused on any of the matters hereinafter to be discussed.

A 17-year-old 11th grade girl student testified for the board at the administrative hearing. She had had a boy friend, B. D., whose father was a member of the school board.1 Her testimony was that Pendray had stated to her that this boy had ‘brain damage’ because of drug use and she was concerned. It may be irrelevant that she also testified to a problem of despondency of her own and ‘had some thoughts of suicide.’ B. D. testified at the hearing. He admitted having used drugs (‘speed’) later but it is not clear from the record that at the time covered by the accusation against Pendray B. D. admitted any use of drugs at all and there was no proof of drug addiction nor was there proof of the nature of any drug with which he may have experimented at the critical time. B. D. testified further that in a discussion with Pendray in March 1970, the latter had told B. D. he should have tests run on him because of ‘brain damage.’ There is no evidence that B. D. has or had any brain damage.

Pendray also asked B. D. if a fellow student, S. W., ‘was still peddling speed.’ (Emphasis added.) There was no evidence to confirm that charge (although Pendray produced testimony that S. W. had once been seen using narcotics, type unspecified). S. W. testified, denying Pendray's accusation.

S. W.'s father, a school district official, testified he had learned Pendray had accused both the other boy, B. D., and S. W. This was in March 1970. The father confronted Pendray. Pendray refused to disclose the full source of his information. Investigation made by the father disclosed no basis for either of Pendray's charges. S. W.'s father then went to Superintendent Jansen and other school district officials, charging Pendray with unprofessional conduct.

Superintendent Jansen's first complaint made directly to Pendray was regarding the latter's interference in connection with the foregoing incident. This, as stated, involved not only (1) the unverified claim by Pendray that one student was using dope, and (2) the similarly unproven contention that another student was peddling ‘speed,’ but also (3) the dissemination of that information to a third female student, all three being disturbances stirred up by the teacher. Pendray promised that he would not interfere with matters outside his sphere of authority and expertise again. According to the record he did not keep that promise.

K. B. was a student at Lodi High School. Charles Schiffman, dean of boys at the east campus of the school, a witness for the school district, described him as a typical teenager. That description was based upon the dean's greater than ordinary acquaintance with the boy. K. B. had been among a group whom Schiffman had directed on a trip to Europe the previous summer.

During the Christmas season of 1970 K. B. had gone to Pendray's home. He was despondent and he had voiced a temptation to commit suicide because of this mental depression, the source of which was undisclosed. Pendray told Dean Schiffman of K. B.'s visit and threat. Schiffman urged Pendray to keep his mission confidential. Pendray went with the boy to see the latter's parents. There the parents, the boy and Pendray discussed the matter. K. B. indulged in some histrionics. Pendray recommended a Stockton social worker with whom the boy should consult.

The father of K. B stated he had decided not to accept Pendray's recommended professional consultant. The father selected, and K. B. was thereafter treated by, a psychiatrist or psychologist of his own choice. K. B. had responded well to the professional treatment provided. The father testified at the hearing, ‘my son's mood improved readily and continued to improve, and he seemed to get back to his old self. There was a big improvement in him.’ The son, however, had been attending, and continued to attend, the ‘rap’ or ‘sensitivity’ group sessons over which Pendray presided. There is no conflict in the evidence that Pendray, without the knowledge or consent of either of the boy's parents, drove with the boy to Stockton where he took K. B. for consultation with, and to receive advice from, the social worker whom Pendray had first advised the father to retain and whom the father had rejected.

Because of the events discussed above and after several censorious consultations, the superintendent determined to recommend that the board not continue Pendray's employment after the probationary period, i. e., that he not be rehired for the ensuing school year. On March 12, 1971, he was so advised. On March 15, 1971, Superintendent Jansen advised the teacher in writing of the recommendation that he would not be so rehired. The notice stated: ‘The reason for this recommendation is as follows: 1. Unprofessional or Unethical Conduct.’ Pendray, however, was fully familiar with the specifications which have been discussed above.

Pendray asked for a hearing. An accusation was prepared and the hearing was held. The hearing officer issued a proposed decision which the board adopted in full. Order of dismissal was given May 7, 1971.

The foregoing facts have been set forth by this court with considerable detail to illustrate why, had the trial court decided to do so, and had it deemed it proper, it would have been justified, on the record before it, to make an independent Judgment that such facts justified the school board's decision to terminate Pendray's employment before the expiration of his probationary period, and in finding, as the trial court did find: ‘That the stated causes for dismissal relate to the welfare of the school and the pupils thereof and were divisive and disruptive of the educational function within the school.’ And the trial court made a further finding that substantial evidence (which the court stated in much less detailed from than we have stated it above) supported the quoted stated cause for dismissal.

The court, however, further stated (as a conclusion of law) the following: ‘That having determined that the stated causes for dismissal related to the welfare of the school and the pupils thereof, the Court does not consider whether the facts found are sufficiently serious to justify dismissal.’

When it made those findings, it was following the mandates of the Legislature in Education Code section 13443, subdivision (c), which at the relevant time read in part, as follows: ‘[B]ut the proposed decision shall not contain a determination as to the sufficiency of the cause or a recommendation as to disposition, which sufficiency and disposition shall be determined by the governing board.2 The proposed decision shall be submitted to the governing board on or before May 7 of the year in which the proceeding is commenced.’

That, however, does not exhaust the necessity of further discussion. By clearest inference, perhaps express statement, the Legislature, in Education Code section 13443, subdivision (c), in the wording above quoted his intended that the decision to terminate a probationary teacher's employment shall be by the governing board.

That determination must be for cause found by it, and the cause ‘shall relate solely to the welfare of the schools and the pupils thereof.’ (Educ. Code, § 13443, subd. (d).) (That subsection contains, as a further limitation as to cause—‘the reason specified in Section 13447.’) The latter section leads us to other sections in somewhat puzzling fashion. However, in view of the conclusions reached below, we believe any further attempt to follow the code through its intricacies will be unnecessary. Suffice it to say at this point that since the termination of a probationary teacher's services at the end of a school year can only be for cause, no determination of the school board can be totally beyond the reach of the courts under some judicial evaluation of the relevant evidence.

The Law

The explication by this court in which it will essay to determine the trial court's function may properly begin with Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242. Earlier cases are there reviewed, and we need not repeat that review.

Bixby was a judicial review of a decision of a nonconstitutional statewide agency—the commissioner of corporations. The trial court had found that the commissioner's ruling was supported by substantial evidence. The Supreme Court held the trial court had applied the accurate test to evaluate the evidence under the facts there involved. Since the facts of Bixby are not germane to the facts of the case at bench, statement of additional facts of Bixby need not be summarized.

This is a proceeding (as was Bixby) under Code of Civil Procedure section 1094.5, subdivision (c), which we set forth in the margin.3 Code of Civil Procedure section 1094.5, as amended in 1949, had followed earlier cases by our Supreme Court. The section, however, did not and does not in all instances require that the trial court must make an independent judgment review of an administrative agency's decision. The Bixby opinion states: ‘The separation of powers doctrine articulates a basic philosophy of our constitutional system of government; it establishes a system of checks and balances to protect any one branch against the overreaching of any other branch. . . . of such protections, probably the most fundamental lies in the power of the courts to test legislative and executive acts by the light of constitutional mandate and in particular to preserve constitutional rights, whether of individual or minority, from obliteration by the majority.’ (4 Cal.3d at p. 141, 93 Cal.Rptr. at p. 241, 481 P.2d at p. 249.)

The Bixby court, continuing on this theme, discusses the inevitable scope-development during the 1920's of administrative agencies with ‘quasi-legislative’ and ‘quasi-adjudicative'4 powers. ‘[T]roubled times [says Bixby] forced the courts to recognize that the new administrative tools were essential to cope with new complexities. [Citations.] [¶] [T]he courts have realized that in the area of economic due process the will of the majority as expressed by the Legislature and its delegated administrative agencies must be permitted to meet temporary crucial problems. . . . Concomitantly . . . the courts have given less emphasis to outmoded rights of property and to shibboleths of freedom of contract. [Citation.]’ (Id. at p. 142, 93 Cal.Rptr. at p. 242, 481 P.2d at p. 250.)

‘[But] by carefully scrutinizing administrative decisions which substantially affect vested, fundamental rights, the courts of California have undertaken to protect such rights, and particularly the right to practice one's trade or profession, from untoward intrusions by the massive apparatus of government.’ (Id. at p. 143, 93 Cal.Rptr. at p. 243, 481 P.2d at p. 251.) (Emphasis added.) In such cases, Bixby declares the trial court must ‘review the entire record’ and ‘exercise is independent judgment upon the weight of the evidence produced or which could not, in the exercise of reasonable diligence, have been produced before the administrative agency and any evidence which might have been improperly excluded by the administrative agency.’ (Id. at p. 143, fn. 10, 93 Cal.Rptr. at p. 243, 481 P.2d at p. 251 and see cases cited in fns. 9 and 10.) The Bixby court concludes that ‘[t]he courts must decide on a case-by-case basis whether an administrative decision or class of decisions substantially affects fundamental vested rights and thus requires independent judgment review.’ (Id. at p. 144, 93 Cal.Rptr. at p. 244, 481 P.2d at p. 252.) Since, as stated above, the facts in Bixby have no relevance to the facts of this case, this court benefits from the analysis of the law therein rather than its ruling. (Bixby ruled on its facts that a fundamental vested right was not involved.)

Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29 holds upon its facts that a fundamental vested right was involved. There, the petitioner sought and was denied a petition for benefits to which she claimed she was entitled because of the death of her husband who for 20 years had been a member of the San Diego County Marshall's Office. The San Diego County Employees Retirement Association had denied those benefits upon the ground there was no service-connected death. The widow brought a proceeding in mandate to compel their payment. The trial court denied the writ, finding that the decision of the respondent board was supported by substantial evidence. The same court made a supplemental finding, however, that ‘if this were a case in which the Court was authorized by law to exercise its independent judgment on the evidence, [it] would find that the death of decedent . . . was service-connected in nature.’ (Id. at p. 34, 112 Cal.Rptr. at p. 808, 520 P.2d at p. 32.)

The Supreme Court reversed the proceedings on appeal. It reached the decision because it decided that the decision of the administrative agency affected a fundamental vested right. It went one step beyond Bixby, supra. That case had, as dicta, declared that the trial court must exercise and independent judgment when the right involved in the 1094.5 mandamus proceeding was a fundamental vested right. In Strumsky, the majority stated that the right there involved was such a right a that therefore the trial court must exercise an independent judgment. That ruling, stated, was applicable notwithstanding that the agency involved was a local agency.

The proceeding in this court is also one involving a local agency. The question must still determine is whether or not the facts which we have summarized above involve a fundamental vested right.

It was stated in Bixby, reiterated Strumsky: “In determining whether the right is fundamental the courts do not alone weigh the economic aspect of it, but the effect of it in human terms and the importance of it to the individual in the life situation.' (4 Cal.3d at p. 144, 93 Cal.Rptr. 234, at p. 244, 481 P.2d 242, at p. 252.) is the latter consideration which renders the instant right fundamental. Above and beyond the ‘economic aspect’ present in pension cases, we have here a situation which the benefits sought might well me to the officer's widow the difference b tween self-support and the necessity that she supplement pension income throu employment brother means. Thus, the impact in human terms of the decision manifest.' (Strumsky, supra, 11 Cal.3d p. 45, 112 Cal.Rptr. at p. 816, 520 P.2d at 40.) (Fn. omitted.)

In Bixby the court equates a ‘vested’ right with a right in possession as distinguished from cases involving the agency initial determination whether an individual qualifies to enter a profession or trade. Bixby states (on p. 146 of 4 Cal.3d, on 245 of 93 Cal.Rptr., on p. 253 of 481 2d): ‘In cases involving applications for license, the courts have largely deferred the administrative expertise of the agency. [Citation.] Courts are relatively illequipped to determine whether an individual would be qualified, for example, to practice a particular profession or trade. [Citation.]’

In Valenzuela v. Board of Civil Service Comrs. (1974) 40 Cal.App.3d 557, 115 Cal.Rptr. 103, the issue of a decision by the respondent board in a proceeding of administrative review was whether a regularly employed maintenance laborer in the classified civil service of the City of Los Angeles had resigned voluntarily or had resigned under duress. The board had determined he had not been coerced. It the proceedings brought by the employee in the trial court the court had found that the agency had decided, on substantial evidence that there was no coercion. The court of appeal held that the trial court's evaluation of the evidence would have been proper ‘traditionally’ but that the case involved a fundamental vested right where, under Strumsky, supra, the trial court must exercise its independent judgment on the evidence. Judgment was reversed.

It is arguable that a probationary teacher's right to hold his job is a right solely in expectation, and not in possession, i. e., that it does not ripen into a vested right until tenure arises; that although the difference may be only one of time and degree, nevertheless, it is the very passage of time which throws weight onto the scales to balance them in favor of the individual, time which in this case has not yet elapsed. That postulation does not convince us.

A teacher to achieve even a probationary status must not only have prepared himself through a course of long and hard study, he must have survived a process of competitive selection. Although his status is 'probationary,' he is removable only for cause and after notice and hearing. (Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 832, 114 Cal.Rptr. 589, 523 P.2d 629.) As we have seen, the very fundamental vested right test rests upon a need to protect the individual against the danger of a substitution by the agency of caprice for cause. That danger is not measurable merely by the years, months and days during which a teacher may have ‘weathered’ his position. The trial court, exercising an independent judgment, may of course determine that the administrative officials, i. e., the school board, were right to their determination not to grant Pendray tenure. To declare, however, that even though the officials were wrong such wrong must be perpetuated (under the substantial evidence rule), would be to place Pendray's constitutional rights ‘at the mercy of administrative officials and seriously to impair the security inherent in our judicial safeguards.’

In reaching the conclusion that the sufficiency of Pendray's acts or omissions as a cause for dismissal was a matter ultimately to be determined by the trial court's exercise of an independent judicial decision, we are not unmindful that in Education Code section 13443, subdivision (c), hereinabove quoted (see p. 698) the Legislature has attempted to vest exclusive power in the governing school board to determine the sufficiency of the facts to justify dismissal of a probationary teacher. That, it lacked constitutional power to do. Where, as the courts found in Bixby, Strumsky and Valenzuela, the proceeding before the court involves a fundamental vested right, that is merely another way of declaring that the right is constitutionally guaranteed and the constitutional right extends to an independent judicial review by a court. Neither the Legislature nor an administrative creature of the Legislature to whom it has delegated power can destroy such a constitutional right.

The ground upon which this case is determined is not extensively discussed by the parties in their briefs. Pendray's argument where it is addressed to questions of law contends that the notice by the school superintendent that he intended to recommend to the school that Pendray not be rehired for the ensuing year insufficiently stated the reasons therefor. The written notice was cursory and expressed in conclusionary terms—‘unprofessional or unethical conduct.’ That notice, however, had been preceded by succinct oral notice of reasons and had been followed the same month by an accusation of the board itself which ‘spelled out’ in minute detail what the charges were. The purpose of a notice is to give the teacher a chance to be aware of the charges, and to prepare his defense. Pendray was not prejudiced. Under the circumstances here the preliminary notice was adequate.

There is no merit in the contention that the accusation lacked validity. Similarly without merit is the contention that the ‘cause’ or ‘causes' shown do not relate to the welfare of the schools and the pupils thereof. Also meritless is the argument that the board was barred because some of the alleged acts or omissions had occurred in preceding school years. The board was charged with the duty to determine whether Pendray, a probationary teacher, was an individual properly to be given permanent tenure. His entire record during the probationary period was relevant.

As to the contention that the board was prejudiced, while this will be a question of fact for the trial court's determination when it exercises its independent judgment on the whole record, nothing has been presented to this court on this record which would compel it to find prejudice.

In ruling that the right of a probationary teacher is a fundamental vested right and that the trial court must therefore adopt a new standard of review, we point out, as stated in Rigsby v. Civil Service Com. (1974) 39 Cal.App.3d 696, 701, 115 Cal.Rptr. 490, 493, ‘[w]e intend no intrusion on the fact finding process of the trial court on its remand. However, we point out that, should that court, employing the new Strumsky standard of review, make and enter findings adverse to appellant, the record before it would amply support such findings.’

Judgment is reversed and the case is remanded to the superior court with directions to vacate the findings and judgment heretofore made and thereupon to proceed in accordance with the law as set forth in the opinion herein.



1.  The father did not participate in the proceedings for Pendray's dismissal.

2.  But see page 701, infra.

3.  Section 1094.5, subdivision (c): ‘Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence; and in all other cases abuse of discretion is established if the court determined that the findings are not supported by substantial evidence in the light of the whole record.’

4.  Between 1971 and 1974 when our Supreme Court decided Strumsky v. San Diego County Employees Retirement Ass'n, 11 Cal.3d 28, 112 Cal.Rptr. 805, 520 P.2d 29, our Supreme Court's enthusiasm waned for the use of ‘quasi-judicial’ as an adjective to indicate the ‘peculiar adjudicatory powers possessed by administrative agencies.’ (See fn. 14 of the majority opinion on p. 42, 112 Cal.Rptr. on p. 814, 520 P.2d on p. 38.)

PIERCE,* Associate Justice. FN* Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.

RICHARDSON, P. J., and JANES, J., concur.

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Docket No: Civ. 13637.

Decided: October 04, 1974

Court: Court of Appeal, Third District, California.

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