Main v. Claremont Unified School District

Appeal by Claremont Unified School District and members of its governing board from judgment in mandamus ordering restoration of respondent Main to his position as superintendent of said school district and directing payment of his salary at the rate of $750 a month from February 29, 1956, so long as he shall lawfully remain such superintendent.

Respondent was employed as superintendent for said district for a four-year term beginning July 1, 1955, and ending on June 30, 1959. This was done by motion duly adopted on December 14, 1954, “by the terms of which it [the board] approved an offer to petitioner of a four year contract as superintendent and business manager of said school district, said contract to become effective on July 1, 1955; that petitioner thereupon accepted said offer and that said offer and such acceptance thereof were recorded in the official minutes of said meeting.” (Finding IV.) This was followed by

Respondent’s brief says “. . . that the large majority of evidence introduced by him in the trial court was devoted to the proof of his full and proper performance of the terms of his contract.” The trial judge ruled that a school superintendent is a public officer, can be removed only in a manner prescribed for public officers and “ [i]n view of the court’s foregoing findings it is unnecessary to pass or make any finding on the issue of whether or not petitioner performed any or all of the provisions of said contract of June 13, 1955.”

The instant ease closely parallels Titus v. Lawndale School Dist., 157 Cal.App.2d 822 [ 322 P.2d 56 ], in which this court held that there is no method provided by the Education Code for unilateral termination by the school board of the contract or services of a superintendent who has a four-year contract; like any other agreement it may be terminated for substantial nonperformance; the question of breach of contract by the superintendent is to be determined in an appropriate court action; a district which has discharged its superintendent and prevented him from further performing has the burden of proving good cause for a dismissal; mandamus is an appropriate remedy for the superintendent to pursue and the issue of breach of contract is properly tried therein. The Titus case was reversed because the trial judge had refused to pass upon the issue of good cause for discharge of the superintendent, the court having the evidence upon the subject before it, the court saying at page 838: “Upon a retrial the court should determine whether good cause existed for discharge of appellant from his position as superintendent of schools.”

The instant case is so closely similar to Titus that it must result in like disposition unless there is merit in the contention now earnestly advanced by respondent that a city school superintendent is a public officer and cannot be discharged or removed except upon accusation of the grand jury under Government Code, section 3060, or some other procedure prescribed for removal of a public officer. That question, though presented, was deemed unnecessary to the decision in Titus, supra (see p. 837). Upon principle and authority we con-

The term “employ” implies the making of a contract. Malloy v. Board of Education, 102 Cal. 642 [ 36 P. 948 ], makes this clear. In that instance, “the members present regularly proceeded to ballot for the election of a teacher to fill the vacancy” (p. 644), and thus chose plaintiff. Before he had accepted the board in effect rescinded the resolution. At page 646 the court said: ‘ ‘ The board, as we have seen, was authorized to employ teachers, but in what way the employment might be effected was not prescribed. . . . Employment implies a contract on the part of the employer to hire, and on the part of the employee to perform services, and until such a contract is mutually entered into it can have no binding obligation upon either party. The words ‘to employ’ teachers can mean nothing more, therefore, than that the board was clothed with power to contract with suitable persons to engage in the work of teaching in the public schools of the city for a

Independently of specific authorization of the Education Code (which, as declared in § 2 thereof is a restatement and continuation of previously existing and substantially similar enactments), the school board has a right to contract with teachers as an exercise of its general powers. (Marion v. Board of Education, 97 Cal. 606 , 608 [ 32 P. 643 ]; Gould v. Santa Ana High School Dist., 131 Cal.App. 345 , 349 [ 21 P.2d 623 ].) But, as shown by the above quoted sections, the code plainly recognizes the propriety of express contracts. Numerous other sections treat a teacher’s status as one created by an employment. Section 12001 provides that only certificated persons shall be employed in positions requiring certification qualifications. Section 12008 defines the word “certificate,” when used as a verb, as referring to “licensing individuals for employment in educational positions.” Section 13001: “Governing boards of school districts shall employ persons in public school service requiring certification qualifications as provided in this code.” Section 13031: “Governing boards of school districts shall employ for positions requiring certification qualifications, only persons who possess the qualifications therefor prescribed by law.” Section 13081 defines the term “permanent employee.” Other examples of recognition of employee status of teachers are found in sections 12200, 13001.1, 13003.1, 13004, 13031.1, 13034, 13035, 13037, 13038 and 13090.

The word “elected” appears in section 13002, which applies to probationary employees (§13101). Section 13002 says: “Persons in positions requiring certification qualifications may be elected for the next ensuing school year on or after the first day of May, and each person so elected shall be deemed reelected from year to year except as provided in this chapter.” Section 13003 refers to election or employment in a manner

Section 13032, relating to principals, says: “The governing boards of each school district shall employ a principal for each school under their control.” Section 13033 authorizes certain districts to unite “in the employment of a supervising principal.” Section 13089 covers a superintendent, saying: “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, in a district having an average daily attendance of 850 or more pupils, be classified as and become a permanent employee as a classroom teacher. ...”

Teachers, principals and superintendents must possess qualifications prescribed for a teacher (§§ 1304, 13034). All of them are “elected”—elected for one-year terms, except superintendents (other than city superintendents) who may be “elected” for terms varying from one to four-years; city superintendents must be “elected” for four years (§§ 13002, 1303). Although a principal or superintendent cannot acquire tenure with respect to his administrative or supervisory function, he can, after serving the requisite period (three years plus election for a fourth year), revert to permanent status (tenure) as a classroom teacher. (Holbrook v. Board of Education, 37 Cal.2d 316 , 334 [ 231 P.2d 853 ].) If a teacher’s election be but an employment for a single school year, it seems but a short step to the conclusion that a superintendent’s election for one or two or three or four years is but an employment, not a public office.

The law is definitely settled in this state that a teacher does not hold a public office and serves as an employee of the district under an employment contract. (Leymel v. Johnson, 105 Cal.App. 694 , 702 [ 288 P. 858 ] ; Martin v. Fisher, 108 Cal.App. 34 , 39 [ 291 P. 276 ]; Weiser v. Payne, 110 Cal.App. 378 , 380 [ 294 P. 407 ]; Fidler v. Board of Trustees, 112 Cal.App. 296 , 303-304, 306 [ 296 P. 912 ] ; Gould v. Santa Ana School Dist., supra, 131 Cal.App. 345 , 349; Wood v. Los Angeles City School Dist., 6 Cal.App.2d 400 , 402 [ 44 P.2d 644 ]; Kimball v. Ledford, 13 Cal.App.2d 602 , 604 [ 57 P.2d 163 ]; Board of Education v. Ballou, 21 Cal.App.2d 52 , 55 [ 68 P.2d 389 ];

In Leymel v. Johnson, supra, at page 697, it is said: “ ‘The words “public office” are used in so many senses that the courts have affirmed that it is hardly possible to undertake a precise definition which will adequately and effectively cover every situation. Definitions and application of this phrase depend, not upon how the particular office in question may be designated nor upon what a statute may name it, but upon the power granted and wielded, the duties and functions performed, and other circumstances which manifest the nature of the position and mark its character, irrespective of any formal designation.’ ” At page 699: “It would seem, therefore, that one of the necessary characteristics of a public officer is that he perform a public function for the public benefit and that in so doing he be invested with the exercise of some of the sovereign powers of the state. No matter how highly we regard the profession of teaching, we cannot conclude that the teacher is exercising some of the sovereign powers of the state in performing the arduous duties of his profession. ...” At page 702: “The conclusion that the status of a teacher is that of an employee is irresistible. The position is secured by selection by the board of trustees and the terms of the employment are fixed by contract, the authority for which is found in the Political Code (§ 1609). Under its general powers the board of education- is authorized to enter into contracts with teachers and fix their compensation and terms of employment. . . . The contract of employment of a teacher produces the relation of employer and employee, the first, the board of education, and the second, the teacher.” Abraham v. Sims, supra, at page 711: “ ‘It is perfectly true, as said in Martin v. Fisher, 108 Cal.App. 34 , 39 [ 291 P. 276 ], that “the position of a teacher in the public schools of California is not an office.” It is strictly an employment and initiated by a contract. ’ ”

Existence of a contract of employment is essentially inconsistent with the status of public officer. Mono County v. Industrial Acc. Com., 175 Cal. 752 , 753 [ 167 P. 377 ] : “Under these sections, the essential condition of the relation of em

That the same considerations govern the status of supervising or administrative certificated employees appears from Nielsen v. Richards, 69 Cal.App. 533 , 542 [ 232 P. 480 ], and Holbrook v. Board of Education, supra, 37 Cal.2d 316 , 331. The Nielsen case involved a “supervising teacher.” At page 542 the court said: “Neither teachers nor supervising teachers, are public officers. This is clear, not only from the duties to be performed, but from the terms of the sections of the Political Code under consideration, which authorize the ‘employment’ of supervising teachers. Public officers are elected or appointed rather than employed.”

It was observed in Titus v. Lawndale School Dist., supra, 157 Cal.App.2d 822 , 826 that: “Correct solution of these questions requires studious recognition of the difference between the superintendent’s contract rights and his potential tenure rights under the teachers’ tenure act (§§ 13081-13104).” Holbrook, supra, gives emphasis to this thought. It dealt with one who was both business manager and director of adult education. Petitioner, who had no contract other than that following an election for a yearly period, had devoted three-fourths of his time to administrative work and one-fourth to teaching. The school board classified him as a permanent one-fourth time director of adult education and

Our exact problem was solved in Stewart v. Eaves (1927), 84 Cal.App. 312 [ 257 P. 917 ], which holds that a city school superintendent is not a public officer but is an em

Counsel for respondent stress the language of the Stewart case, supra, 84 Cal.App. 312 , to the effect that the superintendent’s “duties apparently are entirely ministerial and not outlined or enumerated by any law;” also the sentence: “In the absence of any charter provision or statutory law defining the duties of a city superintendent it may be fairly deduced that neither the state nor the municipality intended to vest this officer with any of the sovereign powers of the state or municipality, except such as are directed by the employing power which, under the statute and the charter, have complete control and government of the city schools.” (P. 320.) It is insisted that that is the principal basis of the decision and that the foundation has been swept away by the later enactment of section 1306 which does define the duties. In the same connection counsel invoke definitions of “public office,” such as found in Leymel v. Johnson, supra, 105 Cal.App. 694 , 697: “ ‘Of the various characteristics attached to public office by definition, some are regarded as indispensable, and others, while not in themselves conclusive, are yet said to indicate more or less strongly the legislative intent to create or not to create an office. One of the prime requisites is that the office be created by the Constitution or authorized by some statute. And it is essential that the incumbent be clothed with a part of the sovereignty of the state

Examination of section 1306 reveals that the superintendent is the chief executive officer of the board, not the district; that he is charged with preparation and submission of the budget at such time as directed by the board unless someone else has been designated by it to perform that function; that the superintendent when he submits the budget must “revise and take such other action in connection with the budget as the board may desire.” His assignments of teachers are also subject to approval of the board. Under the 1957 amendment his power to enter into contracts (§ 1306, subd. (d)) is limited to those which have been approved or ratified by resolution of the board. In no real sense does the superintendent exercise independent powers. Always he operates under control of the board and hence exercises none of the sovereignty of the state.

Respondent’s reliance upon West v. Board of Education, 43 Cal.App. 199 [ 184 P. 877 ], is misplaced. The case makes no holding inconsistent with Stewart v. Eaves, supra. The question there considered was not involved. The West dispute was whether the statute or the Pasadena charter provision governed as to term of employment of a superintendent. The closest approach to the Stewart-Eaves problem is found at page 202 in the following language, which is entirely eon

We conclude that Stewart v. Eaves, supra, remains the law of this state and that a city or district superintendent of schools is not a public officer but is an employee of the district. Hence the rules announced in the Titus case, supra, 157 Cal.App.2d 822 , are fully applicable here.

One other point requires discussion, the matter of salary for the last two years of the contract term.

Petitioner had been acting as superintendent for two years before he was hired for the four-year period. The motion to employ him made no mention of salary, nor did he do so when orally accepting the proffered employment. He later handed to his secretary the written contract covering his previous two-year tenure and told her to adapt it to the new employment. Following its form she designated the employment as that of superintendent for a four-year term, and then copied the former contract as follows: “The salary of the superintendent shall be paid as specified below: The estimated annual salary for the first year of service will be $9,000.00, payable at the rate of $750.00 per calendar month for 12 months of service beginning July 1, 1955, and ending June 30, 1956. The salary rate for the subsequent year shall be determined by Board action prior to July 1, and it is stipulated that the salary rate for this year shall not be less than the salary rate paid during the first year of service under this contract.” Thus the third and fourth years escaped mention salary-wise. Petitioner was paid $750 a month until his discharge on February 29, 1956. The trial court found : “That it was the intent of the parties prior to February 11, 1956, under the contract of June 13, 1955, and by the election of petitioner that the annual salary of petitioner for each calendar year of said four year term should be not less than $9,000, that is to say, not less than $750 per calendar month for 12 months each year beginning on July 1, 1955, and ending on June 30, 1959.” Appellant says that this is erroneous; that the vacuum in the contract cannot be filled in this manner and that respondent’s only remedy is an action for reformation; that the petition for mandate contains no appropriate allegations to that end. We hold that this is not a case for

Section 1655, Civil Code, provides: “Stipulations which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention.” Section 1656: “All things that in law or usage are considered as incidental to a contract, or as necessary to carry it into effect, are implied therefrom, unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded. ’ ’ Cousins Inv. Co. v. Hastings Clothing Co., 45 Cal.App.2d 141 , 143 [ 113 P.2d 878 ] : “It may be stated generally that implied covenants are not favored in the law; and courts will declare the same to exist only when there is a satisfactory basis in the express contract of the parties which makes it necessary to imply certain duties and obligations in order to effect the purposes of the parties to the contract made. Furthermore, implied covenants can be justified only upon the ground of legal necessity arising from the terms of the contract, or the substance thereof, and the circumstances attending its execution; and the implication from the words must be such as will clearly authorize the inference of an imputation in law of the creation of a covenant.” Sharpe v. Arabian American Oil Co., 111 Cal.App.2d 99 , 102 [ 244 P.2d 83 ] : “If the parties have omitted from the agreement something that was so clearly a part of their understanding that the agreement would be unworkable without it, and which would have been incorporated without question if either party had requested it, the missing stipulation will be implied as a part of the agreement. But before this may be done justification, and the necessity for it, must be found in the agreement. Nothing may be added by way of implication except that which is necessary to carry out the intentions of the parties, as derived from the agreement itself and not merely from the circumstances under which it was made.”

Petitioner had been working in the position of superintendent for two years and receiving a salary of $9,000 per annum. When agreeing upon a new term for four years, without mention of any reduction in compensation, it is inferable only that it should be no less than previously. Employment on a permanent basis implies satisfaction with former services and permits of no inference of a reduction in salary without express mention of the fact. The specific

Applying the principles settled by the Titus case, supra, 157 Cal.App.2d 822 , it appears that respondent is entitled to mandamus herein unless appellant district has borne, or hereafter bears, the burden of proving good cause for his dismissal as superintendent; but the trial judge having declined to pass upon that controlling issue, the judgment must be reversed.

Accordingly, the judgment is reversed with instructions to the trial court to find upon the issue of whether good cause existed for the discharge of respondent from his position as superintendent of schools, and to take any other appropriate proceedings not inconsistent with the views herein expressed.

Fox, P. J., and Herndon, J., concurred.

A petition for a rehearing was denied July 3, 1958, and respondent’s petition for a hearing by the Supreme Court was denied August 6,1958. Carter, J., was of the opinion that the petition should be granted.