BOARD OF EDUCATION OF LONG BEACH UNIFIED SCHOOL DISTRICT OF LOS ANGELES COUNTY v. MILLETTE (1976)

After certain preliminary steps, the appellant, Board of Education of the Long Beach Unified School District of Los Angeles County (Board) filed a complaint¹ for dismissal of defendant Jack Millette, a permanent teacher. The complaint was based on charges of immoral conduct and evident unfitness for service in that on about October 19, 1972, ‘in a public restroom, Jack Elmer Millette willfully and lewdly exposed his private parts to another person, masturbated his exposed penis and solicited a male person to engage in homosexual activities.’ The trial court found those facts were true, but also that it was an isolated act precipitated by an unusual accumulation of pressure and stress, there was no notoriety, defendant does not present a threat to students or fellow teachers, and his conduct does not demonstrate an unfitness to teach. The court found that the conduct did not constitute sufficient grounds for dismissal. Judgment was entered ordering that defendant be reinstated within five days after entry of the judgment and that defendant recover certain back pay plus interest. The Board appeals from this judgment.

The deputy sheriff who observed and arrested defendant testified that the act took place in a men's toilet containing several doorless stalls. Defendant's principal and another school principal testified as expert witnesses against defendant. Their conclusion was that defendant was not fit to teach. Defendant testified on his own behalf denying the act and testified that the long time he spent in the toilet was because of medication. A psychiatrist called by defendant testified that defendant was not a homosexual; that even if defendant had committed the act it would not re-occur; it was the result of pressures; and there was no effect on his teaching ability.

CONTENTIONS ON APPEAL:

1. The trial court erred in not finding that defendant's conduct in and of itseif constitutes, as a matter of law, sufficient grounds for dismissal.

2. Assuming, arguendo, that the criminal and public nature of defendant's conduct does not constitute sufficient grounds for dismissal, the expert testimony constitutes, as a matter of law, sufficient grounds for dismissal and the superior court erred in not so finding.

Our decision: we agree with appellant's first contention and we reverse the judgment of the trial court.

DISCUSSION:

Defendant relies primarily upon Morrison v. State Board of Education, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375. The trial court, like defendant, misinterprets Morrison and accordingly the court declared that it was compelled by Morrison to conclude that even though the act had occurred, it was insufficient to warrant dismissal. The court erred in this conclusion; the criminal nature of defendant's conduct constitutes, as a matter of law, sufficient grounds for dismissal. Morrison v. State Board of Education, supra, held that Education Code section 13202 provides that a teacher shall be dismissed for immoral or unprofessional conduct from which an inference can be drawn that he is unfit to teach, but that there, Morrison's conduct was not sufficient to indicate unfitness to teach. However, the facts in the instant case are substantially different from those in Morrison. Morrison is limited to its own set of facts. (Board of Trustees v. Stubblefield, 16 Cal.App.3d 820, 94 Cal.Rptr. 318; Moser v. State Board of Education, 22 Cal.App.3d 988, 101 Cal.Rptr. 86.) Morrison was concerned with what the court there described as non-criminal homosexual conduct by a teacher in the privacy of his own home three years prior to the revocation of his credential. The court in Morrison specifically noted that the teacher's conduct was non-criminal and that ‘[n]either sodomy (Pen.Code, § 286), oral copulation (Pen.Code, § 288a), public solicitation of lewd acts (Pen.Code § 647, subd. (a)), loitering near public toilets (Pen.Code, § 647, subd. (d)), nor exhibitionism (Pen.Code, § 314) were involved.’

In the instant case the facts as found by the Superior Court clearly demonstrate that defendant violated Penal Code sections 314, 647(a) and 647(d). Defendant committed the acts prohibited by Penal Code section 314 in that he willfully and lewdly exposed his private parts in a public place where there was present another person to be offended or annoyed thereby. Contrary to Penal Code section 647 he committed a disorderly act or conduct by soliciting the vice officer to engage in and defendant himself engaged in lewd or disorderly conduct in a place open to the public and exposed to public view, and he loitered in the toilet open to the public for the purpose of engaging in and soliciting in a lewd and unlawfl act.

The criminal conduct of defendant in this case is similar to that which was involved in Sarac v. State Board of Education, 249 Cal.App.2d 58, 57 Cal.Rptr. 69, and in Moser v. State Board of Education, 22 Cal.App.3d 988, 101 Cal.Rptr. 86. As this court previously indicated, some of the dicta in Sarac was disapproved in Morrison; however, the decision was undisturbed in its essential holding that evidence of homosexual behavior in a public place constitutes sufficient proof of unfitness for service in the public school system. As in Moser v. State Board of Education, supra, the determinative issue is whether conduct such as that engaged in by appellant is sufficient in and of itself to establish unfitness to teach. In Moser, this court held that it is. We follow that decision.

It is immaterial that the defendant is or is not convicted of the criminal offense. It is the act, not the conviction thereof, that formed the basis of his dismissal and evidences his unfitness. (Board of Education v. Calderon, 35 Cal.App.3d 490, 110 Cal.Rptr. 916.) Neither is it necessary that an expert testify as to the effect on his teaching ability, the notoriety, or the likelihood of reoccurrence, in order that the conduct be deemed self-evident of unfitness. (Moser v. State Board, supra.) ‘Defendant's actions in this case speak louder than any words of a psychiatrist [or any other expert]. The potential evidence which was found lacking in Morrison was overtly manifested here.’ (Board of Trustees v. Stubblefield, supra, 16 Cal.App.3d at p. 827, 94 Cal.Rptr. at p. 323.)

In reaching this decision, we do not disregard the findings of the trial court. We have recited the findings of fact in the first paragraph. We accept the true findings of fact. However, that part of the trial court's statement included in its ‘findings of fact’ that (1) defendant does not present a threat to students or teachers, and (2) his conduct does not demonstrate an unfitness to teach, are not findings of fact but are conclusions of law. It is the appropriate function of this court to determine the correctness of the legal conclusions drawn. (Morrison v. State Board of Education, supra, 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375; Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 74, 64 Cal.Rptr. 785, 435 P.2d 553; Oakland Unified School District of Alameda County v. Olicker, 25 Cal.App.3d 1098, 1107, 102 Cal.Rptr. 421.)

The conclusion that defendant does not present a ‘threat’ to students or teachers (1) is not a requisite element to be proven by the School Board before it may dismiss defendant, and (2) is erroneous as a matter of law. All that need be proven is that the defendant committed an act that is regarded as immoral or unprofessional conduct or as conduct demonstrating evident unfitness to serve. Nothing is said in the Education Code, section 13404, that a ‘threat’ must be shown. The law implies a threat. The state, through its legislation, has mandated that where such outrageous criminal conduct as that present here has taken place, the elementary school children need not hazard a risk of any kind whatever with the presence of such a person in the classroom. This is evident from the fact that if commission of the act is proven by a criminal conviction, such conviction alone is enough for dismissal. (Education Code, §§ 13403(h), 13255, 12912.) Nothing further need be proven. Under such circumstances, the Board not only has the right to proceed to dismiss the employee (Education Code, §§ 13403, 13408), but it would be the positive duty of the Board to seek to so dismiss such an employee (Education Code, §§ 13409, 13255). This court has heretofore recognized such positive duty. (Odorizzi v. Bloomfield School District, 246 Cal.App.2d 123, 128, 54 Cal.Rptr. 533.)

It is not necessary that the conduct must be established by criminal conviction. The conduct may be established by the admission of the defendant, or as here by the finding of the court upon civil trial under provisions of the Education Code. As we have indicated, it is of no significance that the conduct is proven by civil proceedings rather than criminal proceedings or conviction. ‘In determining whether discipline is authorized and reasonable, a criminal conviction has no talismanic significance.’ (Morrison v. State Board of Education, supra, 1 Cal.3d at p. 219, fn. 4, 82 Cal.Rptr. at p. 178, 461 P.2d at p. 378, accord Pettit v. State Board of Education, 10 Cal.3d 29, 33–34, 109 Cal.Rptr. 665, 513 P.2d 889.) The important point is that once established whether by a criminal conviction or by other due process, it follows as a matter of law that conduct such as respondent's is ground for dismissal without the need of additional testimony that such conduct presents threat of harm to the children.

If we accept the premise that a conviction has no talismanic significance in the matter of dismissal, then there is no reason why the same conduct that would constitute a crime does not constitute absolute cause for dismissal simply because it is established by proof in a ‘civil’ proceeding. The ‘threat’ to the children is the same. That threat lies in the fact that the children will not receive the full and effective teaching to which they are entitled. The teacher's ability to serve as an example is compromised. His ability to teach and demonstrate respect for the law and respect for the feelings of others has thus been reduced. This teacher has lost the self-respect and confidence with which he can fully and sincerely teach children obedience to reasonable rules and orders. The teaching of elementary school children is more than imparting of skills in the three ‘R's.’ While the foregoing may appear a broad interpretation of the meaning of ‘threat’, it is not merely our view. It is precisely this same effect on the teacher and his relation to his pupils that the cases of Board of Education v. Swan, 41 Cal.2d 546, 552, 261 P.2d 261; Pettit v. State Board of Education, supra, 10 Cal.3d at p. 36, 109 Cal.Rptr. 665, 513 P.2d 889; Board of Trustees of Compton v. Stubblefield, supra, 16 Cal.App.3d at p. 824, 94 Cal.Rptr. 318; Sarac v. State Board of Education, 249 Cal.App.2d 58, 57 Cal.Rptr. 69; Board of Education v. Calderon, 35 Cal.App.3d 490, 110 Cal.Rptr. 916; Moser v. State Board of Education, supra, 22 Cal.App.3d at p. 991, 101 Cal.Rptr. 86, all recognize, whether it be called a ‘threat’ of teaching failure or evident ‘unfitness to serve.’ The act of openly masturbating in public in the presence of a non-consenting adult, who is requested to join and participate in a lewd homosexul act, is, in our view per se cause for dismissal. The conduct itself evidences a threat to the students as we have described above. It follows that it is totally irrelevant that respondent's conduct was one isolated act committed under stress, and that he is not likely to repeat it.

The so-called finding that respondent is not unfit to serve is an erroneous conclusion of law. In arriving at this conclusion, the trial court as indicated by its remarks, relied almost exclusively on the statements in Morrison. In summary, the court concluded that because non-criminal but underscribed homosexual conduct of a private nature was found insufficient for dismissal in Morrison, it followed that homosexual conduct could not demonstrate evident unfitness or form the grounds for dismissal. That was too broad an interpretation.

We hold here that the conduct of defendant by its very nature evidenced unfitness to serve. Evident unfitness is a question of law. At bench, to the most reasonable and fair mind, respondent's openly masturbating in a public place shows that (1) respondent lacks self-control; (2) respondent lacks common sense judgment; (3) respondent has a complete disregard for the possibility that others might see him, including his own fifth grade pupils, fellow teachers, or other total strangers; (4) respondent lacks respect for the feelings of such others; and (5) respondent lacks respect for the law by flagrantly violating the law.² That ‘nexus' between act and inability to teach or unfitness to serve³ is established by operation of law. Additional testimony either by experts or lay witnesses is unnecessary to demonstrate this inability.

Many cases have talked about what evidence demonstrates unfitness to serve. However, few cases have actually faced the issue squarely of what is the meaning of ‘evident unfitness to serve.’ Morrison held that the private homosexual non-criminal acts in the home of the defendant committed in private did not demonstrate evident unfitness. But Morrison is inapplicable. By contrast, the conduct of defendant Millette here is exactly opposite on all comparisons: (1) it was not a private act; (2) it was not in the home of the defendant or any other place where he could reasonably anticipate privacy; and (3) the act here is clearly criminal in nature under the statutory definitions existing at the time of the conduct and at present.⁴ After the decision in Morrison, the Court of Appeal in Oakland Unified School District, etc. v. Olicker, supra, 25 Cal.App.3d 1098, 102 Cal.Rptr. 421, specifically considered the meaning of the words ‘evident unfitness to serve.’ In Olicker, the court there as here had before it problems involving (1) the scope of review, (2) the meaning of ‘evident unfitness to serve,’ and (3) whether the act of the teacher there demonstrated evident unfitness. The court there held, as we do here, that the scope of review is to determine whether or not the undisputed facts establish evident unfitness, that such inquiry was purely a question of law, but that in that case the facts proven did not so demonstrate. In Olicker, the court seemed to take the position that in order to dismiss there must be some evidence that the conduct of the defendant adversely affected her teaching ability and her classroom relation or had some other deleterious effect on her pupils. At the outset the court announced that given the facts it was a pure question of law whether or not the conduct demonstrated unfitness. However, the court then (somewhat inconsistently) proceeded to explain that the conduct there was not selfevident of unfitness because there was no additional testimony connecting or demonstrating in the mind of some experts or other witness a relationship between the conduct of the teacher and some threat or harm or other consequence to her pupils. In Olicker, the court also relied upon the language of Morrison.

Whatever may be our assessment and view of the logic and reasoning of either Morrison or Olicker, in Pettit v. State Board of Education, 10 Cal.3d 29, 109 Cal.Rptr. 665, 513 P.2d 889, the court sustained the revocation of a teacher's certificate on the basis that ‘the very nature’ of the misconduct involved disclosed that respondent was unfit to teach in the public elementary schools. (Pettit v. State Board of Education, supra, 10 Cal.3d at p. 36, 109 Cal.Rptr. 665, 513 P.2d 889.) Language in Pettit may seem to indicate that the trial court and the Board were said to be entitled to conclude that by the very nature of the conduct and on the expert testimony that the teacher there was unfit to teach. It is abundantly clear however, that the Pettit decision rests entirely upon the nature of the conduct involved. The court noted that the trial court gave no great weight to the testimony of the expert witnesses who testified that as a result of the conduct, the teacher was shown to be immoral and if she were immoral, it would be difficult if not impossible for her to teach morality to her students. It is clear, however, that such expert testimony was wholly unnecessary and in reality wholly unrelated let alone limited to the particular defendant Pettit. The exprt witnesses concluded that any person who engaged in the same conduct would be unfit to teach. In reality, the so-called experts were not explaining anything to the trial court that the trial court itself could not have concluded as a reasonable result to be drawn from the undisputed facts. In essence, what Pettit really states as the law in California is that certain conduct is as a matter of law clearly evidence of unfitness without the necessity of someone saying that it is evidence of unfitness. The so-called ‘expert’ testimony was to the trial court and to the Supreme Court's opinion just so much frosting on the cake. In Pettit, the Supreme Court declared that the conduct of the teacher at a private home but in the presence of twenty people made her conduct a ‘semi-public act.’ If that reasoning has any lasting validity, it certainly would attach to respondent here who openly masturbated and exposed himself to and publicly solicited a non-consenting stranger and risked the observation of his conduct by anyone who might happen to enter the public toilet. The ‘immorality’ and ‘indecency’ is not in the sexual aspect of conduct but in the disdain and contempt with which defendant regards the law and the feelings of others as reflected by his conduct in public. It is not for this court to decide the morality, normalcy, or acceptance of any particular private sexual conduct. It is, however, our duty to determine whether or not a school board that is charged with the absolute responsibility of protecting the elementary school children has reasonable cause to dismiss an employee who engaged in the conduct which we have described. Masturbation is not illegal or abnormal. That does not mean however, that it must be condoned when done in a public place and coupled with public solicitation of homosexual conduct, any more than urinating or defecating in public would be condoned. Although we are not here concerned with whether and how the criminal law should deal with homosexuals, still we need not condone public solicitation of lewd homosexual acts by a teacher of fifth grade school children. Compelling the retention of such a teacher in the employ of the school district would amount to such condonation. As noted above,⁵ private sexual conduct between consenting adults has been largely removed from the concern of the criminal law but public solicitation of a stranger for homosexual acts has not. Moreover, totally unlike Morrison, the conduct here was not in the privacy of one's own home. There was no expectation of the privacy and consent of an intimate group of adults as in Pettit, yet even Pettit's conduct was deemed evident unfitness. It well may be that under the recent legislation Pettit might be decided differently today. However, that possibility is unavailing as a defense to respondent here. His act remains criminal by definition and entirely disgusting and abhorrent by any reasonable standard of decency. Public solicitation of homosexual conduct is still a crime. There is not a single case in California, including Morrision, that has ever held that an elementary school teacher must be retained regardless of this type of conduct on his part or even that such public act is permissible. On the other hand, many cases (including Morrison itself!) have cited public homosexual acts or public solicitation thereof as an example of conduct which is clearly demonstrative of unfitness as compared to other conduct in issue, (Morrison v. State Board of Education, supra, 1 Cal.3d at p. 218, fn. 4, 82 Cal.Rptr. 175, 461 P.2d 375; Board of Trustees of Santa Maria, etc. v. Judge, 50 Cal.App.3d 920, 925–927, 123 Cal.Rptr. 830), or have expressly held such to be an act showing unfitness (Board of Education v. Calderon, 35 Cal.App.3d 490, 110 Cal.Rptr. 916; Hankla v. Governing Board of Roseland School District, 46 Cal.App.3d 644, 120 Cal.Rptr. 827; Moser v. State Board of Education supra, 22 Cal.App.3d 988, 101 Cal.Rptr. 86; Sarac v. State Board of Education, 249 Cal.App.2d 58, 57 Cal.Rptr. 69.) We emphasize that in the case at bench the open masturbation by defendant and his solicitation of a total stranger to join defendant in homosexual conduct occurred in a place open to the public. It was not private conduct.

The judgment is reversed and the cause remanded to the trial court with directions that it make and enter new conclusions of law that the conduct of defendant constitutes sufficient grounds for dismissal and that it further enter judgment in favor of the Board permitting the Board to dismiss defendant.

I dissent.

The court's opinion selects from among the findings of fact ‘the finding’ which describes the act upon which Board predicated its charges of unfitness, declares that ‘the finding’ is per se a conclusive showing of unfitness, ignores the other findings of fact and the evidence upon which they are based, and concludes by substituting its findings and its judgment for that of the trier of fact.

The record shows that until at or about 5 p. m. on October 19, 1972, respondent had been continuously for 16 years duly certificated as a teacher for elementary schools and was recognized as a teacher of conceded fitness and ability and as a man of unquestioned and unimpeached moral character. Immediately prior to the time mentioned, respondent had a brief encounter with one Wineinger, a vice officer of the City of Long Beach, in a public restroom, no other persons being present. The sworn testimony of each differs, but as a consequence thereof respondent was arrested for violating Penal Code section 647(a).¹ At or about 9 p. m. of the same day respondent reported the encounter to Mrs. Joan White, principal of the elementary school in which he was employed.

On March 6, Board pursuant to authority conferred by Education Code sections 13412 and 13413² filed a complaint against respondent charging him with ‘immoral conduct’ and ‘evident unfitness for service’ and alleging specifically that at the place and on the date of respondent's encounter with the vice officer, respondent ‘willfully and lewdly exposed his private parts to another person, masturbated his exposed penis and solicited a male person to engage in homosexual activities.’ The complaint also alleged on information and belief that the charges were true and ‘are sufficient * * * for dismissal of [respondent] as a permanent certificated employee.’ The charges were denied by respondent.

At the trial, Wineinger and respondent testified to contradictory versions of what happened in the restroom. Mrs. White testified that respondent was fit and competent in all respects as a teacher³ and that she knew respondent was under heavy emotional stress because of illness of his mother but she nevertheless felt the conduct charged demonstrated ‘unusual judgment and improper reaction to stress and pressure’ and that he therefore was unfit to teach. John A. Lepic, principal of School for Adults Evening High School, testified respondent was unfit to teach because adverse notoriety would hamper his relationship with students, parents, and staff. Dr. Davis, a psychiatrist subjected to extensive questioning by court and counsel testified on behalf of respondent that the episode of October 29, was a deviation from the usual normal behavior, character, and good judgment of respondent; the complete lack of evidence of any prior similar act was inconsistent with homosexuality and assuming the act charged was committed, its reoccurrence was not likely.⁴

Upon submission of the case, findings of fact in pertinent part were made as follows:

On October 19, 1972, respondent ‘* * * in a public restroom * * * exposed his private parts to a * * * Sheriff's deputy, masturbated his exposed penis, and solicited said deputy to engage in homosexual activities' (hereinbefore and hereinafter referred to as ‘the finding’). The findings were: respondent's conduct (1) did not come to the attention of the public, students, parents, fellow teachers, and other staff members other than to respondent's immediate superior to whom he reported the incident, (2) was an isolated act precipitated by an unusual accumulation of pressure and stress and there was no danger that respondent will repeat the conduct, (3) does not present a threat to students or fellow teachers, and (4) does not demonstrate an unfitness to teach.

A judgment was thereupon entered, reinstating respondent with back pay. Board appeals.

Predicated upon ‘the finding’ but excluding the other findings as irrelevant (see Pettit footnote 4 deciding that testimony of expert is relevant and probative) on the theory that they are not required by section 13404 of the Education Code, the majority declare:

‘The trial court erred in not finding defendant's conduct in and of itself constitutes, as a matter of law, sufficient grounds for dismissal. (Emphasis added.)

‘* * * The act of openly masturbating in public in the presence of a non-consenting adult, who is requested to join and participate in a lewd homosexual act, is in our view per se cause for dismissal. The conduct itself evidences a threat to the students as we have described above. It follows that it is totally irrelevant that respondent's conduct was one isolated act committed under stress, and that he is not likely to repeat it.’

And on the assumption that ‘the finding’ demonstrates ‘that defendant violated Penal Code sections 314, 647(a), and 647(d)’ the opinion states ‘It is immaterial that the defendant is or is not convicted of the criminal offense.’

It is trite to say that when findings made on substantial evidence support the judgment, this court cannot substitute its judgment for that of the trier of fact. When, as here, findings rest on expert opinion which, of course, is probative evidence (Pettit v. State Board of Education (1973) 10 Cal.3d 29, 35, 109 Cal.Rptr. 665, 513 P.2d 889), the judgment based on those findings must be affirmed. The mere statement of this principle should be ample reason to affirm the judgment. The position of the majority so forthrightly made does, however, deserve extended analysis.

Morrison (fn. 4) establishes that conduct which may be considered by small or large segments of the community as immoral or non-conforming does not in and of itself establish unfitness to practice one's profession. Indeed, Morrison fortified by Pettit (p. 33, 109 Cal.Rptr. 665, 513 P.2d 889) goes further. These cases recognize that it has been and is the law of this state that even if such conduct, suggestive of moral turpitude, is prosecuted to a judgment of conviction commission of the acts in question does not establish unfitness per se.⁵

It may be that a single finding of fact after a full-blown adversary proceeding in a proper forum, made on a charge involving moral turpitude, does per se embrace all the elements required to establish unfitness if no evidence other than the act of misconduct is submitted on the issue of unfitness to the trier of fact and only one logical conclusion can be drawn from evidence of the act.

But that is not this case. At bench there was no finding of moral turpitude, there is none implicit in ‘the finding’ made (see fn. 5), there was no criminal conviction from which any could be inferred and the evidence which supports the findings actually reached was submitted to the court for the specific purpose of showing fitness; and finally, the court did make additional findings and concluded from all the evidence that Board had not established respondent as unfit.

The majority state ‘that defendant violated Penal Code sections 314, 647(a) and 647(d),’ but assert that ‘[i]t is immaterial that defendant is or is not convicted of the criminal offense.’ However, although a conviction of any one of the offenses would not in my opinion be conclusive on the subject of unfitness such conviction would at least be hard evidence that respondent committed a crime and was tried as a defendant with the panoply of a defendant's rights at his disposal, not the least of which are proof beyond a reasonable doubt and a unanimous verdict of a jury he was in fact guilty.⁶

The premise of the majority that respondent's conduct described in ‘the finding’ constitutes per se unfitness is not the law nor is it fortified by the statement that respondent's conduct violated three separate criminal statutes. One thing is clear: the fact that rspondent could have been charged with any one of three crimes makes him guilty of none and is no support for the argument that the conduct reflected in ‘the finding’ was so heinous that all the other findings made by the trier of fact which refute Board's charges must be disregarded.

The trial court might have concluded from all the evidence submitted to it that Board did establish by a preponderance of the evidence that respondent was unfit and might have rendered judgment accordingly. If the trier of fact had so concluded this court would be faced with a situation similar in all respects to that in Morrison except that at bench respondent has the benefit of expert psychiatric testimony, unimpeached medically, which Morrison did not have, and which was disputed only by the opinions of two principals. (See fn. 3.)

This court is therefore reviewing charges of alleged immoral or non-conforming conduct from precisely the same perspective as was the Morrison court. The conduct charged at bench is alleged to be immoral and/or equating with unfitness to serve but it cannot be treated as a crime any more than the non-criminal conduct in Morrison was so treated.

Morrison holds that charges of unfitness even if buttressed by a criminal conviction must be evaluated in light of certain criteria before an ultimate finding of unfitness can be entered. Among those criteria is, sensibly enough, the likelihood whether the conduct criticized will recur. Thus the conclusion of the majority that it is ‘totally irrelevant’ if respondent is not likely to repeat the act not only mocks common sense, and the psychiatric evidence presented below, but also tosses aside the explicit dictate of Morrison to consider this factor along with a host of others in determining fitness to teach.

The reference to Moser v. State Bd. of Education (1972) 22 Cal.App.3d 988, 101 Cal.Rptr. 86 (hearing denied by a divided court), in the majority opinion to support the proposition that certain conduct, once established, proves unfitness per se establishes only the readiness of an appellate court under a well-settled rule of appellate review to accept the findings of the trial court decreeing unfitness, especially when supported by a criminal conviction, but it does not prove that the California Supreme Court did not mean what it said when it held:

‘* * * In determining whether the teacher's conduct thus indicates unfitness to teach the board may consider such matters as the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers. These factors are relevant to the extent that they assist the board in determining a teacher's fitness to teach, i. e., in determining whether the teacher's future classroom performance and overall impact on his students are likely to meet the board's standards.’ (Footnotes omitted.) (Morrison, supra, 1 Cal.3d at 229–230, 82 Cal.Rptr. at 186, 461 P.2d at 386.)

The primary purpose of Morrison is to adjure trial judges to proceed with great caution and insist on hard proof before any person licensed by a state board is debased, declassed, and deprived of a livelihood by a finding of unfitness to practice a chosen profession.

We cannot operate with a blunt scalpel when we weigh the fitness of a person to continue to follow a profession he has been engaged in for 16 years. An appellate finding of ‘per se’ unfitness, even if such were sanctioned by Morrison which it is not, cuts a broad swath across the realities of this case. Those realities include the lack of criminal prosecution which could indicate a realization that even a lawyer of average ability may have been able to secure an acquittal which would have made decertification highly unlikely; and the fact that the trial judge who saw and heard the witnesses (and applied Morrison) came to a conclusion which differs from that of the appellate justices who have merely read the record.

One of the prime reasons for the settled canon that an appellate court should construe all evidence in favor of a judgment is that the trier of fact has the parties and witnesses before him. They too are evidence. In sensitive cases such as the one before this court, every effort should be exerted to apply the rule to its fullest extent rather than to avoid it.

In cases cited by the majority, some of which are discussed below, affirmance of the trial court's judgment deciding unfitness on conflicting facts follows in each almost as routine procedure for the cogent reason that appellate courts are bound by the well-settled principle of appellate review mentioned above.

The majority finds that the holding of Board of Trustees v. Stubblefield (1971) 16 Cal.App.3d 820, 94 Cal.Rptr. 318, 323, that the dismissed teacher's actions in that case ‘speaks louder than the words of a psychiatrist,’,' applies to this case as well. Such a finding demonstrates the gulf between the majority opinion on the one hand and Morrison and Stubblefield on the other. The defendant in Stbblefield, a junior college teacher, had taken a female student into his car; a patrolman later found both student and teacher in compromising circumstances in the car which was parked in an unlighted area. Upon being discovered, the defendant reacted in a highly abusive and dangerous manner, imperiling the patrolman's life. In terms of Morrison, the teacher's acts in Stubblefield had, of course, an adverse effect not only on the morals of the student but also on the reputation of the local teaching community; his violent behavior directed against the patrolman only intensified the negative effect of his otherwise ungoverned conduct; and the record did not indicate any extenuating, but only aggravating, circumstances. Defendant's acts in the case at bench, however, were directed at an adult male vice officer who was in the restroom in order to make the kind of arrest which he ultimately made. It certainly does not take any psychiatric testimony to determine that a teacher who takes a young female student in his car in order to have sexual intercourse with her, and who assaults a police officer when discovered in flagrante, is, in fact, the kind of teacher who makes sexual advances to his students. It does, however, require some study to determine what significance, if any, an isolated act of this dismal nature has when committed by a man who has served well as a teacher for 16 years and who was passing through a personal crisis at the time the act was committed.

It does not do, therefore, to reclassify certain findings of fact as conclusions which, in fact, are such and to ignore factual findings which go directly to the criteria established by Morrison. Thus the trial court's ultimate finding of fact that respondent is fit to teach is a conclusion; but the following findings are of facts resting on the evidence adduced at the hearing:

‘6. Defendant's conduct did not come to the attention of the public, students, parents, fellow teachers, and other staff members other than to defendant's immediate superior to whom he reported the incident.

‘7. Defendant's conduct was an isolated act precipitated by an unusual accumulation of pressure and stress. There is no danger that defendant will repeat the conduct.’

If we are to accord the fact-finding process in the trial court any credit at all, and the law is that we must, findings of fact 6 and 7 are the facts of this case. And these facts differ sharply from those contained in the cases the holdings of which the majority says make respondent per se unfit to teach. In Pettit v. State Board of Education (1973) 10 Cal.3d 29, 109 Cal.Rptr. 665, 513 P.2d 889, the teacher in question engaged in numerous acts of sexual intercourse and oral copulation at parties attended by members of a club called ‘The Swingers' and she advocated, although disguised, such conduct on television; respondent's act, however, was found to be isolated and it was also found that it did not come to anyone's attention other than that of his superior to whom he had himself reported it. In Sarac v. State Bd. of Education (1967) 249 Cal.App.2d 58, 61, 57 Cal.Rptr. 69, the teacher was not only convicted for committing a homosexual act, he also admitted that he was a homosexual who, in addition to the act for which he was convicted, had had sexual relations with a man three weeks earlier. Again, I refer to the obvious distinctions as reflected by findings of fact 6 and 7. In Board of Education v. Calderon (1973) 35 Cal.App.3d 490, 493, 110 Cal.Rptr. 916, 918, the trial court's findings were that the teacher's act of oral copulation was indicative

“* * * of corruption, indecency, depravity, dissoluteness, and shamelessness, showing moral indifference to opinions of respectable members of the community and an inconsiderate attitude toward good order and public welfare,' and ‘was discussed at Board meetings attended by teachers and interested parents within the community.’ * * *'

The distinctions between these findings of Calderon and those at bench are clear.

Moser v. State Bd. of Education, supra, 22 Cal.App.3d 988, 101 Cal.Rptr. 86, was again an instance where, unlike at bench, the trier of fact found that the act rendered the teacher unfit to teach. Admittedly, however, the act performed in Moser was very much like that which respondent committed. The best that can be said of Moser therefore is that the trial judge reached a different result from the one at bench which may very well have been warranted on the facts of the Moser case. It did not establish the kind of ‘per se’ rule that the majority opinion does in this case.

Finally, in Hankla v. Governing Bd. (1975) 46 Cal.App.3d 644, 647, 120 Cal.Rptr. 827, an elementary school principal had been charged with contributing to the delinquency of a minor by causing the minor to place his hand on the principal's private parts and with indecent exposure. Hankla is like Stubblefield but certainly not like the case at bench.

In sum, the totality of the facts upon which the trier of fact sustained dismissal or decertification in Stubblefield, Sarac, Calderon, and Hankla were such as to warrant dismissal under Morrison. None of these decisions established any ‘per se’ rule, as the majority does in this case, which requires dismissal for any and all sexual misconduct.

One may well hold the private opinion, as the majority does, that respondent's acts show he lacks self-control, common sense and a regard for law and the feelings of others. Private opinion, however, cannot be substituted for principles established by the highest court of this state nor can private opinion, no matter from what exalted source, override medical testimony that respondent will not repeat this type of conduct. Yet the majority opines, in the teeth of the evidence and the trial court's finding, that respondent ‘lacks self-control.’ Appellate courts may be the repository of a great deal of wisdom but they have not as yet been certified to render ex cathedra psychiatric and medical opinions, especially about a person they have never seen.

The trial judge in this case applied the law (as he and I understand it) discerningly to a difficult case following the presentation of evidence. I would affirm the judgment.

FOOTNOTES

1.  The complaint was filed on March 6, 1973, in accordance with Education Code sections 13412 and 13413, as then in effect. On March 7, 1973, the amendments to those sections became effective. Those amendments now provide that where a teacher demands a hearing, the Board of Education is to schedule a hearing with the Commission on Professional Competence, rather than file a complaint with the Superior Court.

2.  The recent changes in the Penal Code making private sexual acts between consenting adults would have no effect on the illegality and outrageous disregard for others by committing the act in public and soliciting homosexual conduct.

3.  The statute refers to ‘unfitness to serve.’ This evidences concern not only with instruction in subject matter but with the broad duties expected of and trust reposed in a good and faithful teacher discussed in nearly all the cases cited herein.

4.  Changes in Penal Code sections relative to certain sexual offenses, effective January 1, 1976, have no effect on the criminal nature of respondent's acts. The changes do not permit public masturbation or public solicitation of homosexual acts. (See Statutes 1975, chapters 71, 877.)

5.  See footnote No. 4, supra.

1.  Penal Code section 647(a) reads as follows:‘(a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.’ Respondent so far as the record shows was not criminally tried for the above or any offense growing out of the encounter.

2.  The complaint was filed on March 6, 1973, in accordance with Education Code sections 13412 and 13413, as then in effect. On March 7, 1973, the amendments to those sections became effective. Those amendments now provide that where a teacher demands a hearing, the Board of Education schedules a hearing with the Commission on Professional Competence, instead of as was done at bench by a complaint filed in the superior court.

3.  In pertinent part on the subject of fitness, Mrs. White testified:‘Q. Could you tell us a little bit about Mr. Millette's duties as a teacher as they existed just before he was—just before October 19, 1972.‘A. Yes; he is responsible for teaching the prescribed curriculum as established by the district. He is responsible for maintaining the safety and healthful working conditions of his students. He is responsible for maintaining records, accurate and complete records of student attendance, illness, and of the work that they have done in the classroom, to evaluate students' work and prescribe lessons that assist them in maintaining those skills at that particular grade level. He is responsible for completing required reports, being punctual, maintaining professional manner at the school, participating in required staff functions, such as staff meetings, in-service meetings, for maintaining communication with parents and informing parents of their students' work.‘Q. Do you have any reason to believe he could not perform those duties at this time, those specific duties?‘A. I have no reason to believe that he could not.’

4.  It is clear from Pettit v. State Board of Education (1973) 10 Cal.3d 29, 109 Cal.Rptr. 665, 513 P.2d 889, that expert testimony cannot be disregarded because it is based ‘* * * to an extent based upon the personal opinion of the witness.’ Thus the testimony of the two principals and Dr. Davis was probative testimony which had to be weighed and considered. The testimony of Dr. Davis is of particular importance because Morrison v. State Board of Education (1969) 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375, suggests that the testimony of a psychiatrist is almost necessary. In Morrison at page 236, 82 Cal.Rptr. at page 191, 461 P.2d at page 391, the court said:‘* * * The board called no medical, psychological, or psychiatric experts to testify as to whether a man who had had a single, isolated, and limited homosexual contact would be likely to repeat such conduct in the future. The board offered no evidence that a man of petitioner's background was any more likely than the average adult male to engage in any untoward conduct with a student. * * *’

5.  Morrison at outset of the opinion specifically directs attention to the distinction between a proceeding such as the one at bench and a proceeding under other sections of the Education Code involving crimes implicit with moral turpitude and expressly holds that neither a criminal conviction nor a finding such as ‘the finding’ at bench can be accepted as a conclusive presumption of unfitness. Morrison, page 218, note 4, 82 Cal.Rptr. page 177, 461 P.2d page 377, reads in pertinent part:‘4. Neither sodomy (Pen.Code, § 286), oral copulation (Pen.Code, § 288a), public solicitation of lewd acts (Pen.Code, § 647, subd. (a)), loitering near public toilets (Pen.Code, § 647, subd. (d)), nor exhibitionism (Pen.Code, § 314) were involved.‘Conviction of such offenses would have resulted in the mandatory revocation of all diplomas and life certificates issued by the State Board of Education. (Ed.Code, §§ 12912, 13206, 13207; see also Ed.Code, §§ 13216, 13218, 13255, 13586, and 13742.)’ (Cf. note 4, Morrison at p. 219, 82 Cal.Rptr. at p. 177, 461 P.2d at p. 377 and notes 9 and 10, at pp. 220–221, 82 Cal.Rptr. at pp. 179–180, 461 P.2d at pp. 379–380.)It is significant to note that the trial judge omitted from ‘the finding’ the words ‘willfully and lewdly’ as alleged in the complaint filed by Board and the words ‘lewd’ and dissolute embraced in Penal Code section 647(a) the charge upon which respondent was arrested. (See fn. 1.)

6.  It is inherently abhorrent to the American ethic of fair play to permit a state agency to dismiss a teacher by the use of ‘the finding’ as if it had the effect of a final criminal judgment. As appears from footnote 2, a teacher accused by Board in a proceeding authorized by the Education Code cannot in any such proceeding avail himself of a jury trial or any other rights allowed a defendant in a criminal action. It would seem therefore that as a condition precedent to basing a teacher's dismissal on a charge which equates with a crime involving moral turpitude, upon which Board would rely as per se proof of unfitness, the least an accused would be entitled to is that the conduct so charged should in fact be supported by a criminal conviction thereof.

BEACH, Associate Justice.

FLEMING, J., concurs.