Barthuli v. Board of Trustees ( 1977 )

Opinion

CLARK, J.

Petitioner appeals from judgment denying writ of mandate sought to compel his reinstatement as an associate superintendent for business in respondent school district. We affirm the judgment.

Petitioner held the position of associate superintendent of business for eight years. On 1 July 1972, petitioner and respondent entered a contract pursuant to Education Code section 938 (§ 35031),¹ renewing his employment for a four-year term. The board of trustees voted to rescind the contract on 11 July 1973 “because of [petitioner’s] prior breach of his employment contract.”

The petition for writ of mandate alleges petitioner was at all times ready to perform, did not consent to the rescission, was not notified or provided a statement of reasons prior to rescission, and demanded reinstatement. The trial court ruled mandamus would not lie because petitioner possesses an adequate remedy at law in an action for breach of contract. The court held that petitioner had acquired the status of a permanent certificated employee as a classroom teacher but had not sought reinstatement to that position. Additionally, the court found petitioner was not entitled to a peremptory writ because respondent had shown, by a preponderance of evidence, petitioner breached the employment contract. The latter portion of the court’s decision was based on findings petitioner failed to fulfill the responsibilities of his position concerning budgets, accounts and payroll; failed to carry out respondent’s directives; improperly split purchase orders to avoid legally mandated competitive bidding; and allowed improper use of school district property.

Reinstatement has been recognized as an appropriate remedy when an employee has been discharged in violation of his statutory rights (e.g., Blodgett v. Board of Trustees (1971) 20 Cal.App.3d 183, 190 [97 Cal.Rptr. 406]; Ball v. City Council (1967) 252 Cal.App.2d 136, 141 [60 Cal.Rptr. 139]) or constitutional rights (e.g., Bekiaris v. Board of Education (1972) 6 Cal.3d 575, 593 [100 Cal.Rptr. 16, 493 P.2d 480]; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 503-505 [55 Cal.Rptr. 401, 421 P.2d 409]; Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 334, 340 [38 Cal.Rptr. 625, 392 P.2d 385]).

Provisions of the Education Code govern employment of associate superintendents. Section 938 (§ 35031) provided in relevant part: “Any . .. associate .. . superintendent of schools, may be elected for a term of four years. The governing board of any school district, with the consent of the employee concerned, may at any time terminate, effective on the next succeeding first day of July, the term of employment of, and an)' contract . . . with . . . any associate . . . superintendent of schools of the district, and reelect or reemploy the employee, on such terms and conditions as may be mutually agreed upon by the board and employee, for a new term to commence on the effective date of the termination of the existing term of employment.”

Section 13314 (§§ 44893, 87454) provided that a tenured teacher “when advanced from a teaching position to an administrative or supervisory position . . . shall retain his permanent classification as a classroom teacher.” (Italics added.) Section 13315 (§§ 44897, 87458) stated: “A person employed in an administrative or supervisory position requiring certification qualifications upon completing a probationary period, including any time served as a classroom teacher, in the same district, shall... be classified as and become a permanent employee as a classroom teacher.” (Italics added.)

Although numerous statutes list grounds for teacher'dismissal, providing hearings for charges of teacher misconduct (see, e.g., Turner v. Board of Trustees (1976) 16 Cal.3d 818, 822-823 [129 Cal.Rptr. 443, 548 P.2d 1115]), there are no similar statutory provisions governing assistant superintendent misconduct.

In the absence of such provisions sections 13314 (§§ 44893, 87454) and 13315 (§§ 44897, 87458) must be read as establishing that administrative and supervisory personnel do not possess a statutory right to their positions. The statutes vest such persons with rights to the position of classroom teachers, not to administrative positions. (See Board of Education v. Swan (1953) 41 Cal.2d 546, 555 [261 P.2d 261]; Holbrook v. Board of Education (1951) 37 Cal.2d 316, 334 [231 P.2d 853]; Council of Directors and Supervisors v. Los Angeles Unified Sch. Dist. (1973) 35 Cal.App.3d 147, 152 [110 Cal.Rptr. 624]; Hentschke v. Sink (1973) 34 Cal.App.3d 19, 22 [109 Cal.Rptr. 549].) Petitioner has not sought reinstatement to a classroom teacher position, nor has respondent indicated that petitioner would be refused such position. Petitioner does not contend the contract of employment for an administrative position is specifically enforceable. (See Civ. Code, § 3390, subds. 1, 2; 7 Witkin, Summary of Cal. Law (8th ed. 1974) Equity, § 48, pp. 5270-5271.)

We are satisfied that in absence of a deprivation of a constitutional right, reinstatement to his former position is not an available remedy for a discharged associate superintendent; reinstatement is available only to the position of classroom teacher. Insofar as Titus v. Lawndale School Dist. (1958) 157 Cal.App.2d 822 [322 P.2d 56], and Main v. Claremont Unified School Dist. (1958) 161 Cal.App.2d 189 [326 P.2d 573], are contrary, they are disapproved.

Petitioner claims a denial of constitutional rights because he was given no notice, no specification of reasons, and no opportunity to respond prior to the termination of his contract. Petitioner asserts he possessed a legitimate expectation of entitlement to continued employment as an administrator, and he therefore was denied his preremoval procedural due process rights. He relies primarily upon this court’s decision in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14, 539 P.2d 774],

In Skelly we held that a permanent civil service employee is entitled to “notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” {Id., at p. 215.) This holding is predicated on the finding that permanent civil service employees possess a property right in continued employment because they cannot, under statutory law, be disciplined without cause. {Id., at p. 207.)

Quoting at page 206 from Board of Regents v. Roth (1972) 408 U.S. 564, 576-577 [33 L.Ed.2d 548, 560-561, 92 S.Ct. 2701], we pointed out that property interests may take many forms: “ ‘To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. [H] Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain, benefits and that support claims of entitlement to those benefits.’ ” {Skelly v. State Personnel Bd., supra, 15 Cal.3d at p. 207.)

Petitioner, in his position as an administrator,' is not a permanent employee. {Council of Directors and Supervisors v. Los Angeles Unified Sch. Dist., supra, 35 Cal.App.3d 147, 152.) The Legislature has not given him a property right in the administrative position. Rather, the Legislature has made clear by sections 13314 (§§ 44893, 87454) and 13315 (§§ 44897, 87458) that petitioner’s tenure rights and thus his property rights are those of a classroom teacher and not those of an administrator. Respondent has not denied or repudiated petitioner’s classroom teacher property interests, and the procedural rights recognized in Shelly are inapplicable.

Perry v. Sindermann (1972) 408 U.S. 593, 601 [33 L.Ed.2d 570, 579, 92 S.Ct. 2694], is distinguishable. It held that a nontenured teacher employed for four years prior to discharge had a property interest based on “mutually explicit understandings.” The case involved the issue whether there was a property interest when no statute provided for one—not the issue whether a statute concededly creating a property interest should be given effect as defining the interest.

Petitioner has not sought damages for breach of contract.

The judgment is affirmed.

Mosk, J., Richardson, J., Wright, J.,^* and Sullivan, J.,^† concurred.

1 Unless otherwise indicated, all references are to the Education Code. The Education Code was renumbered effective 30 April 1977. This opinion retains the former section numbers followed by a parenthetical notation indicating the new numbers.

* Retired Chief Justice of California sitting under assignment by the Acting Chairman of the Judicial Council.

† Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.