Woodland Joint Unified School District v. Commission on Professional Competence

BLEASE, Acting P. J.

I dissent.

At issue is whether to reinstate Edward F. Zuber, a dedicated but crusty teacher, or to uphold his dismissal by a school administration that failed to warn him, as required by Education Code section 44938, that it found his acid speech intolerable. The majority upholds the administration asserting it is compelled to do so. This is based upon a wooden reading of the statute, taken out of the context of the Education Code and predicated upon a misreading of the case law. While I cannot condone Zuber’s intemperate conduct, under the present law he is entitled to reinstatement, since the Legislature has chosen that as the lesser of two evils.

Zuber is a teacher whose competence is unquestioned. The trial court explicitly found his “desire ... to properly educate his students is uncontradicted.” He taught in the Woodland School District from 1969 to 1981 without incident. He was on disability leave from 1981 until December 2, 1985, when he returned to find a new school administration. He again went on extended medical leave on December 16, 1986. Four months after going *1458on leave, on April 30,1987, Zuber was sent an accusation by the Woodland School Board notifying him of an intention to dismiss him, listing twenty-nine factual charges ranging over the entire period of his return, from December 4, 1985, (and beyond) to February 1987. The accusation alleged that such charges violated Education Code section 44932, subdivision (a)(5), evident unfitness for service, and section 44932, subdivision (a)(7), persistent refusal to obey school rules.

A hearing was held before a three-member commission on professional competence (Commission). The Commission unanimously found many of the charges not to be true, and, as to others, found that Zuber was not informed of a change in school rules he violated and that he modified his conduct after being so notified. The remaining charges were found not to constitute evident unfitness for service.

The trial court disagreed with the latter conclusion, relying upon the remaining charges as evidence supporting the finding that Zuber was evidently unfit, for service. It reversed the decision of the Commission.

I

The ground of discharge—evident unfitness for service—is based upon numerous acts of intemperate (and therefore unprofessional) conduct occurring over a period of one year. The school district took no action on any of these acts, suffering them to occur, without notice to Zuber that it considered them grounds of discipline, until a decision was made to cumulate them as evidence of “evident unfitness for service.” The majority opinion reasons that the notice and period for remediation, required by Education Code section 44938 before disciplinary action may be imposed for unprofessional conduct, need not be given if unprofessional conduct is not specified as a cause of discipline in the formal charging document, the accusation. It concludes that the acts constitute evident unfitness for service, viewing them as evidence of an irremediable character trait predisposing unprofessional conduct.

The majority opinion thus permits the district to avoid the strictures of section 44938 by characterizing individual acts of unprofessional conduct, not otherwise made a cause of discipline, as evidence of evident unfitness for service, thereby transmuting one cause of discipline into another. The semantic ploy is not new in the history of teacher discharge. Until this case it has consistently been rejected because of its obvious conflict with the policy of section 44938.

II

The Education Code establishes a detailed procedure for the discipline of teachers. Section 44932 lists the causes of discipline, among them “(1) *1459[Unprofessional conduct” and “(5) Evident unfitness for service.” As pertinent here a disciplinary proceeding is initiated by vote of the governing board “upon a written statement of charges formulated by [it], charging that there exists cause, as specified in Section 44932 or 44933, for the dismissal or suspension of a permanent employee of the district . . . .” (Ed. Code, § 44934.) The employee must be given notice in writing by accusation containing the information required by Government Code section 11503. (Ed. Code, § 44936.) The accusation must contain “a written statement of charges which ... set forth in ordinary and concise language the acts or omissions with which the respondent is charged” and must “specify the statutes and rules which the respondent is alleged to have violated . . . .” (Gov. Code, § 11503.)

Unprofessional conduct is given special consideration. Section 44938 provides that a school board “shall not act upon any charges of unprofessional conduct unless [it] has given the employee . . . written notice of the unprofessional conduct specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for such charge.” (Italics added.) The notice perforce must precede action upon the charges. “Unprofessional conduct” is defined as “the unprofessional conduct particularly specified as a cause for dismissal or suspension in Sections 44932 and 44933 and does not include any other cause for dismissal specified in Section 44932.” (Ed. Code, § 44938.)1 As will be seen, the majority opinion seizes upon this definition to support its view that the provisions of section 44938 need not be met if the accusation omits to state unprofessional conduct as a cause of discipline.

“The purpose [of Education Code section 44938] is to enable a permanent teacher to remedy correctable faults or defects that might be corrected in [the time allotted] and thus prevent discharge. This is in harmony with the entire purpose of the Teachers’ Tenure Act which is to insure an efficient permanent staff of teachers for our schools whose members are not dependent upon caprice for their positions as long as they conduct themselves properly and perform their duties efficiently and well.” (Fresno City High School Dist. v. De Caristo (1939) 33 Cal.App.2d 666, 674 [92 P.2d 668]; see also Crowl v. Commission on Professional Competence (1990) 225 Cal.App.3d 334 [275 Cal.Rptr. 86].) The problem arises when conduct which is unprofessional conduct is “only” alleged to constitute evident unfitness for service.

*1460III

The question is how to apply Education Code section 44938 when acts of unprofessional conduct are charged but the school board omits to allege they constitute the cause of “unprofessional conduct” and contends that they collectively constitute the cause of “evident unfitness for service.”

Section 44938 is ambiguous on this point. It says that a school board may not act upon “charges of unprofessional conduct” without the required notice and opportunity for remediation. As noted, “unprofessional conduct” is defined as “the unprofessional conduct particularly specified as a cause for dismissal or suspension in Sections 44932 and 44933 and does not include any other cause for dismissal specified in Section 44932.” Contrary to the assumption indulged by the majority opinion, this does not refer to the charging document, the accusation, but to the sections which list the causes for discipline. So it need not be concluded that the requirements of section 44938 may be avoided simply because the charging document, the accusation, omits to label the cause of discipline as unprofessional conduct. Later I explain the purpose of the defining clause. It suffices at this juncture to say that the purpose of section 44938 is to require notice and an opportunity for remediation prior to the decision to take disciplinary action. The section refers to action that must be taken before the filing of the accusation, the document which initiates a formal proceeding. On this reading, the definition of “unprofessional conduct” says nothing about the accusation.

This reading is also impelled by the fact that section 44938 was amended in 1983 to drop the qualifier “only” as modifying the reference to sections 44938 and 44933. In that form it read: “ ‘Unprofessional conduct’ ... as used in this section means, and refers only to, the unprofessional conduct . . . particularly specified as a cause for dismissal in Sections 44932 and 44933 and does not include any other cause for dismissal specified in Section 44932.” (Italics added.) It is difficult to attribute this alteration to mere grammatical housekeeping since the “only” was retained in the branch of the statute addressing notice for incompetence.

It is often said that we are to read significance into changes in the statutory language. (See, e.g., People v. Cicero (1984) 157 Cal.App.3d 465, 476-477 [204 Cal.Rptr. 582].) I do not rest the resolution of the ambiguity in section 44938 upon the mechanical application of a single canon of construction. Rather, this amendment tends to affirm the meaning attributed by case law to the notice statute rather than alter that meaning. The majority opinion overlooks the ambiguity of section 44938 and hence never reaches the question of its resolution.

*1461IV

Zuber claims that the individual acts alleged and made the basis of discipline on the ground of “evident unfitness to teach” are in fact “charges of unprofessional conduct” and that he was not given the notice and opportunity for remediation required by Education Code section 44938. The majority opinion concedes that each of the acts could so be categorized but insists that they may nonetheless be made the basis for dismissal because together they permit an inference of an irremediable defect in temperament which constitutes evident unfitness for service.

This reasoning ignores the question presented by Zuber, whether charges of unprofessional conduct can be acted upon without compliance with section 44938 by the post hoc device of limiting the ground of discipline in the formal charging document, the accusation, to the cause of unfitness for service and omitting to state unprofessional conduct as a cause of discipline.

The problem should not be resolved by the label which the school district affixes to its charging allegations. That would permit the district to avoid the notice provisions of section 44938 by the simple use of the pen. That notion was thoroughly scotched in Livermore Valley Joint Unified Sch. Dist. v. Feinberg (1974) 37 Cal.App.3d 920 [112 Cal.Rptr. 923],

Feinberg held that “the notice described in section 13407 [the predecessor to Education Code section 44938] is required for a charge of unprofessional conduct, whether it be labeled as one under section 13403, subdivision (a) [now Education Code section 44932, subdivision (a)] or section 13403.5 [now section 44933].” (Feinberg, supra, 37 Cal.App.3d at p. 922.) The teacher in Feinberg, it should be noted, was dismissed “upon grounds of unprofessional conduct, evident unfitness for service, and persistent violation of school laws and regulations.” (Id. at p. 921.) As the reference for “unprofessional conduct” the accusation referred to section 13403.5 (now § 44933) and not to section 13403 (now § 44932). At that time the predecessor to section 44938 (§ 13407) did not refer to section 13403.5, hence it was argued that its notice requirements did not apply. The court replied that “[t]o give literal effect to the final sentence of section 13407 would be to distinguish between two identical grounds for dismissal. It would permit astute counsel to avoid the notice requirement by labelling a single ground for dismissal under one section rather than its identical twin.” (37 Cal.App.3d at p. 922.) The Feinberg opinion refused to sanction such a circumvention of the law. The court did not end there. It also said: “Here, the great bulk of the specific deficiencies charged and proven against appellant fall within the term ‘unprofessional conduct,’ even though they may also go *1462to establish either ‘evident unfitness’ or ‘persistent disregard of regulations.’ It follows that we cannot attribute the judgment to grounds other than unprofessional conduct, and must reverse the judgment in its entirety . . . .” (Id. at pp. 922-923.)

The majority opinion rejects Zuber’s reliance upon Feinberg, with the assertion that it “is distinguishable because there the teacher was charged with ‘unprofessional conduct.’ ” If that is intended to endorse the labeling device as a means of avoiding the strictures of section 44938 it is not only bad policy but affords no principled basis of distinction.

The majority opinion misses the point. The teacher in Feinberg was charged with a violation of unprofessional conduct in (now) section 44932, subdivision (a). However, he was also charged with “acts or omissions other than those specified in Section 44932 . . . .” (Ed. Code, § 44933, italics added.) As I will show, the charged acts of unprofessional conduct underlying the other asserted grounds of evident unfitness for service and persistent violation of school rules also were viewed in Feinberg as requiring notice under (now) section 44938.

V

The majority opinion hews to the view in Fresno City High School Dist. v. De Caristo, supra, 33 Cal.App.2d 666 that each separate ground of removal “refers to some act or omission not necessarily included in any of the others.” (Id. at p. 671.) This is unobjectionable as far as it goes. However, the fact that different meanings are assigned to the subdivisions does not mean that they can never overlap the same acts or omissions and De Caristo does not stand for that proposition.

Acts that are unprofessional conduct may at the same time be evidence of evident unfitness, i.e. a fixed character trait or temperamental defect which renders the teacher incapable of avoiding acts that are unprofessional. (See, e.g., Morrison v. State Board of Education (1969) 1 Cal.3d 214, 233 [82 Cal.Rptr. 175, 461 P.2d 375] [“file prohibitions against immoral and unprofessional conduct and conduct involving moral turpitude by a teacher constitutes a general ban on conduct which would indicate his unfitness to teach”]; Tarquin v. Commission on Professional Competence (1978) 84 Cal.App.3d 251, 260 [148 Cal.Rptr. 522] [“It is true that a particular act or omission on the part of a teacher may constitute more than one of the causes for his removal specified in Education Code section 13403”]; Perez v. Commission on Professional Competence (1983) 149 Cal.App.3d 1167, 1174 [197 Cal.Rptr. 390] [“Unprofessional conduct,” as used in section 44932, *1463subdivision (a), has been viewed broadly as “conduct such as to indicate unfitness to teach”].) Indeed, that is precisely the view of the majority opinion.

The question is what to do with acts that come within both the causes of unprofessional conduct and evident unfitness in this manner. De Caristo provides an answer to that question as well, one not recognized by the majority opinion. The teacher in De Caristo was given a notice of intention to dismiss which alleged several charging allegations arising under different subdivisions of the dismissal statute analogous to section 44932, including the following.

‘4. That you have committed acts of unprofessional conduct, in that you have in the presence and hearing of pupils in the school started disputes with other teachers and severely criticized them.

“ ‘5. That for the causes above stated, you are evidently unfit for service, and for the further reason that you do not properly conduct yourself in the presence and hearing of pupils in and out of your classrooms, and in this connection you fly into fits of temper and rage and make unwarranted statements of abuse of pupils and teachers; that you, without cause or justification, accused the Superintendent, Principal and teachers of attempting to and persecuting you, and have made statements to such effect publicly to others.’ ” (De Caristo, supra, 33 Cal.App.2d at p. 669.)

At the time the predecessor to section 44938 (former School Code § 5.652 (Stats. 1935, ch. 691, § 3, p. 1886)) provided that governing boards of school districts could not “act upon any charges of incompetency other than incompetency due to physical or mental disability” unless there had been prior written notice with sufficient particularity “ ‘as to furnish the employee an opportunity to correct his faults and overcome his incompetency.’ ” (De Caristo, supra, 33 Cal.App.2d at p. 673.) It did not include, as section 44938 now does, “unprofessional conduct.” Nonetheless the De Caristo opinion concluded that this prior notice provision applied to the allegation that the teacher had committed acts of unprofessional conduct and was evidently unfit for service.

“The purpose [of the notice statute, then former School Code § 5.652] is to enable a permanent teacher to remedy correctable faults or defects that might be corrected in [the time allotted] and thus prevent discharge. This is in harmony with the entire purpose of the Teachers’ Tenure Act which is to insure an efficient permanent staff of teachers for our schools whose members are not dependent upon caprice for their positions as long as they conduct themselves properly and perform their duties efficiently and well.

*1464“The [faults related in the charging allegations quoted above] relate to very serious delinquencies on the part of the teacher. They indicate a quick temper and an uncontrolled tongue. While such faults are not to be excused, often they can be corrected. Many persons have learned to curb their tempers and to control their tongues when confronted with the necessity of so doing.” (De Caristo, supra, 33 Cal.App.2d at pp. 674-675.)

What is first to be observed is that the notice requirement was found applicable to charged causes of unprofessional conduct and evident unfitness for service notwithstanding that the notice statute did not refer to them at all. If the majority opinion is right, this case turns on the simple proposition fact that unprofessional conduct was not alleged as a cause in addition to that of evident unfitness for service. But that makes no sense of De Caristo. If collective acts of unprofessional conduct can constitute evident unfitness for service without notice then the result in De Caristo should have been to predicate discipline solely upon that ground of accusation, the charge of unprofessional conduct failing for lack of notice. Instead, De Caristo reversed the disciplinary action.

De Caristo obviously does not stand for that proposition that this case can be resolved on the label affixed to the ground of discipline alleged in the accusation. I find De Caristo's view more pragmatic and more equitable than the circular view of the majority opinion that the notice provision serves no purpose as to a charge of “evident unfitness” because “where a flaw of temperament is the root cause of a teacher’s bad conduct, there is no reasonable likelihood the teacher can so reform his or her temperament within 45 days as to assure the employing school district the bad conduct will not recur.” (See maj. opn., ante, at p. 1445.) There may be cases where the facts afford an inference of an irremediable defect in temperament. But with De Caristo I would say that where the school administration never draws a disciplinary line as to rudeness, the argument that notice would have served no purpose will not lie in its mouth.

The majority opinion rejects the argument that the duty to give notice should not depend upon the label attached to the offensive conduct in the charging document. It says that the argument proves too much, that “if the dissent’s view were to prevail, notice would have to be given whenever a school district sought to discipline a teacher for refusal to obey the school laws, or for conviction of a crime involving moral turpitude, or for any of the other statutory grounds constituting de facto unprofessional conduct.” (Maj. *1465opn., ante, at p. 1448.) The majority exaggerates the consequences of my argument.

The point of the rule requiring notice of unprofessional conduct is to give the teacher an opportunity to avoid conduct which amounts to a cause for dismissal. If the teacher has already engaged in sufficiently egregious conduct to meet incontestably some statutory criterion for dismissal the rule is not applicable to bar dismissal. “When the reason of a rule ceases, so should the rule itself.” (Civ. Code, § 3510.) Accordingly, the rule has no application to bar dismissal, for example, on the ground that the teacher has been convicted of a felony. The fact that the felony might also be viewed as unprofessional conduct is unavailing because a statutory criterion for dismissal has already been met.

However, certain statutory criteria may only be met by multiple instances of misconduct (unprofessional conduct, persistent violation of school laws) and others such as evident unfitness for service at least ordinarily will require such multiple acts or omissions. The notice argument does not “prove too much,” for it is only applicable to these latter circumstances. It is notable, as the trial court found, that there is no tenable claim that any one of Zuber’s acts of unprofessional conduct taken in isolation would afford an inference of evident unfitness for service.

In this circumstance the result is to permit the avoidance of section 44938 by the cumulation of individual acts, each of which is concededly within the strictures of that section and each of which has been suffered in silence, leading the teacher to believe they have been tolerated. This transgresses the policy of section 44938.

The majority suggests that Zuber’s behavior indicates “a fixed character trait, presumably not remediable merely on receipt of notice that one’s conduct fails to meet the expectations of the employing school district.” (Maj. opn., ante, at p. 1444, italics added.) The presumption that ought to be indulged in light of Education Code section 44938 and section 44031, which prohibits maintaining files of derogatory information that may serve as the basis for affecting employment status without notice and an opportunity for comment, runs in precisely the opposite direction.2 Whether a teacher could have changed his manner if properly warned entails needless speculation.

*1466The policy of section 44938 is that the proof of irremediability should be found in the pudding of postwaming behavior. I note that on occasions when Zuber was warned his behavior did not measure up he corrected it, as the Commission found.

The majority opinion misses the point of notice in deriding Zuber’s claim that he needed to be warned that his behavior was unprofessional on the ground that he must have known his conduct was wrongful. The purpose of the notice requirement is not to inform about abstract mores, telling an uncouth teacher what is nice behavior and what is naughty behavior. It is performative—a warning—shape up or we will ship you out. Failing to give notice within the requisite time or to make a lawful record in the personnel file in keeping with section 44031 lulls the teacher into the belief that his value to the school renders his asperity, surliness, and profanity tolerable. (Cf., Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151 [213 Cal.Rptr. 53].)

There is a place for righteous anger in the education system, albeit when displayed in an unprofessional manner, as here, it can lawfully be suppressed by disciplinary means. However, it is not an unduly burdensome requirement to ask the school administration to warn a teacher who crosses its line of unacceptable behavior before acting to dismiss him.

The core of Be Caristo’s reasoning on this point has been applied under language parallel to the present formulation of the notice statute in Feinberg, supra. In that case the school district “sought and was granted judicial authorization to discharge appellant upon grounds of unprofessional conduct, evident unfitness for service, and persistent violation of school laws and regulations.” (37 Cal.App.3d at p. 921.) The notice statute then provided, “ ‘Unprofessional conduct’ and ‘incompetency’ as used in this section means, and refers only to, the unprofessional conduct and incompetency particularly specified as a cause for dismissal in Section 13403 [the dismissal section; now Education Code section 44932] and does not include any other cause for dismissal specified in that section.” (Ed. Code, former § 13407, Stats. 1965, ch. 2001, § 3, p. 4530.) The school district sought to evade the notice requirement by making no mention of Education Code, former section 13403, pleading rather that the conduct was unprofessional under former section 13403.5. “A permanent employee may be dismissed on grounds of unprofessional conduct consisting of acts or omissions other than those

*1467specified in Section 13403, but any such charge shall specify instances of behavior deemed to constitute unprofessional conduct.” (Ed. Code, former § 13403.5, Stats. 1965, ch. 2001, § 1, p. 4529; compare Ed. Code, § 44933, fn. 1, ante.) The Feinberg court could not fathom the meaning of this provision but rejected this device as a means for “permit[ting] astute counsel to avoid the notice requirement,” recognizing that the statutes presented “by no means the least of the contradictions and confusions of the Education Code.” (37 Cal.App.3d at p. 922.) It then applied the reasoning of De Caristo.

“Here, the great bulk of the specific deficiencies charged and proven against appellant fall within the term ‘unprofessional conduct,’ even though they may also go to establish either ‘evident unfitness’ or ‘persistent disregard of regulations.’ It follows that we cannot attribute the judgment to grounds other than unprofessional conduct, and must reverse the judgment in its entirety (see [De Caristo], decided under a predecessor statute).” (Feinberg, 37 Cal.App.3d at pp. 922-923.)

As related, the majority opinion cursorily dismisses Zuber’s reliance upon Feinberg with the assertion that it “is distinguishable because there the teacher was charged with unprofessional conduct.” (Maj. opn., ante, at p. 1448.) This is a difference without a principled distinction. (See McKee v. Commission on Professional Competence (1981) 114 Cal.App.3d 718, 721-722 [171 Cal.Rptr. 81] [“Failure to give the teacher such minimum written notice will deprive the district of authority to discharge a teacher on grounds of unprofessional conduct or unfitness for service.”], citing Feinberg, italics added.) Plainly, under the logic of the majority opinion the correct action in Feinberg would have been to reverse the judgment not “in its entirety” but only insofar as it purported to justify the action of dismissal under the label of unprofessional conduct. The majority opinion would permit “astute counsel” to evade De Caristo and Feinberg by simply choosing to omit appending the label of unprofessional conduct to the acts alleged in the accusatory pleading.

This is not in keeping with our code pleading theory nor the thrust of these precedents. The majority opinion should have faced up to its disagreement with these precedents rather than purporting to distinguish them.

For the reasons given I would not take the majority’s course.3 The existing provisions of the Education Code under which Feinberg was decided are *1468substantially similar to the present pertinent provisions of the Education Code. There is no indication in the present language that the rule of these precedents has been found unsatisfactory by the Legislature. The only textual indication is to the contrary. W'e are directed to construe the present statutes as restatements and continuations of their predecessors. (§ 3; Stats. 1959, ch. 2, § 3., p. 596.) In light of the grammar of Education Code section 44938, the backdrop of case law construction, and the ancillary indication in section 44031 that employees are to be warned of unprofessional conduct, there is only one tenable resolution of the ambiguity of section 44938 and that is the reading favoring Zuber.

I would reverse the judgment.

The petition of real party in interest for review by the Supreme Court was denied April 23, 1992. Mosk, J., and Panelli, J., were of the opinion that the petition should be granted.

Education Code section 44933 provides in pertinent part, “A permanent employee may be dismissed ... on grounds of unprofessional conduct consisting of acts or omissions other than those specified in Section 44932, but any such charge shall specify instances of behavior deemed to constitute unprofessional conduct.”

The majority opinion concludes that Zuber waived his contention that material from such files should not have been admitted in evidence against him by failing to object to admission based upon Education Code section 44031.1 assume for the sake of discussion that is correct, despite the fact that section 44031 is not addressed to the topic of admissibility as evidence. Nonetheless, the lack of an evidentiary objection does not preclude Zuber from raising section *146644031 for the purpose of amplifying the legislative warning policy evident in section 44938. Section 44031 manifests a policy that teachers should be given contemporaneous notice of matters which school administrators deem to be derogatory and which may affect their employment status.

Upon further reflection I must also disavow the sentiment (p. 1452 of maj. opn., ante), to which I acquiesced in Crowl v. Commission on Professional Competence, supra, 225 Cal.App.3d 334, that the consideration that organized interest groups play a role in the *1468enactment of the Education Code has a bearing on the reading of the enacted statutes. Indeed, there never was a legislative product more in need of “the gladsome light of jurisprudence.” This suggested abdication of the function of judicial construction of these statutes rests upon the implicit view that the law is a treaty between interest groups. I cannot abide such a cynical view regarding the topic of public education. “The [Education Code] establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice.” (§ 2.)