Barthuli v. Board of Trustees

TOBRINER, Acting C. J., Concurring and Dissenting.

Although I concur in the majority’s initial conclusion that plaintiff enjoys no statutory tenure rights to his assistant superintendent position, I cannot agree that defendant board of trustees properly dismissed plaintiff in the middle of his four-year employment contract term without affording him notice of the charges against him or a hearing of any sort. In reaching the-conclusion that plaintiff is entitled to none of the procedural due process protections afforded by the numerous recent decisions of both the United States Supreme Court and this court, the majority rely solely on the fact that plaintiff possessed no statutory entitlement to his administrative position. The majority overlook, however, the fundamental principle that “property interests” protected by the state and federal due process provisions may arise from the terms of a contract as well as from the language of a statute.

*724 In this case, plaintiff’s employment contract clearly provided him with a “legitimate claim of entitlement” to continued employment for the duration of the four-year term of his contract. 1 Thus, while the board of trustees unquestionably retained the authority to terminate the contract on the basis of the charges discussed in the majority opinion, the due process clause of the state and federal Constitutions precluded the board from dismissing plaintiff on the basis of such charges without affording him any notice or opportunity to respond to the charges.

The flaw in the majority’s analysis becomes apparent upon just a brief review of the seminal United States Supreme Court decision of Board of Regents v. Roth (1972) 408 U.S. 564 [ 33 L.Ed.2d 548 , 92 S.Ct. 2701 ], a decision upon which the majority purport to rely. In Roth , the court explained at some length the nature of the “property interests” to which the due process clause applies. “The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests—property interests—may take many forms. [U] . . . [I]n the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions [citation] and college professors and staff members dismissed during the terms of their contracts [citation] have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle ‘proscribing *725 summary dismissal from public employment without a hearing or inquiry required by due process’ also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment. [Citation.]” (Italics added; 408 U.S. at pp. 576-577 [33 L.Ed.2d at pp. 560-561].)

As this passage clearly demonstrates, the existence of a contract providing for an individual’s employment for a term of years itself gives rise to a “property interest” protected by the due process clause, without regard to the presence or absence of any complementary statutory tenure provisions. Indeed, in Roth, all oí the justices agreed that a governmental entity’s dismissal of an employee in the middle of an employment contract must be accompanied by notice and some kind of hearing. The controversy that divided the court in Roth , and in the companion case of Perry v. Sinderman (1972) 408 U.S. 593 [ 33 L.Ed.2d 570 , 92 S.Ct. 2694 ], was simply whether in the absence of an explicit employment contract for a term of years an employee had a right to notice and hearing when the employer refused to continue the employment relationship. Inasmuch as Perry holds that even in the absence of such an express contract the due process right to notice and hearing may attach if the employer’s conduct gives rise to an “implied contract” for continued employment, the present plaintiff’s constitutional right to notice and some kind of hearing follows a fortiori.

Indeed, in the wake of Roth and Perry , a number of federal and state decisions have explicitly held that school administrators in precisely the same position as plaintiff are constitutionally entitled to notice and an opportunity to be heard prior to the termination of their employment contracts. (E.g., Hostrop v. Board of Junior College Dist., No. 515 etc., Ill. (7th Cir. 1972) 471 F.2d 488, 494 , cert. den., 411 U.S. 967 [ 36 L.Ed.2d 688 , 93 S.Ct. 2150 ]; Peacock v. Board of Regents of Univ. & State Col. of Ariz. (D.Ariz. 1974) 380 F.Supp. 1081, 1086-1087 ; McClanahan v. Cochise College (1975) 25 Ariz.App. 13 [ 540 P.2d 744, 749 ]; accord Wertz v. Southern Cloud Unified School Dist. (1975) 218 Kan. 25 [ 542 P.2d 339, 344-346 ].)

As the Seventh Circuit stated in Hostrop: “A term of employment set by contract has been recognized as a property interest which the state cannot extinguish without conforming to the dictates of procedural due process. [Citations.] The existence of such a contractually established property interest obligates the Board to grant plaintiff a hearing where he can be fully informed of the reasons for his nonretention and challenge *726 their sufficiency.” ( 471 F.2d at p. 494 .) The majority fail to discuss the Hostrop decision or any other of these directly applicable precedents.

Plaintiff has been deprived of his constitutional right to an opportunity to be heard by defendant board of trustees, the body that possesses the ultimate discretionary authority over his employment. I therefore believe that the requested writ of mandate should issue, directing the board to reconsider plaintiff’s dismissal after affording him an opportunity to respond to the charges against him. (Cf. Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 556-557 [ 116 Cal.Rptr. 245 , 526 P.2d 253 ].)

With all respect, the majority’s failure to give effect to the clear mandate of the Roth and Perry decisions is, in my mind, simply inexplicable.

Appellant’s petition for a rehearing was denied August 25, 1977. Bird, C. J., and Tobriner, J., were of the opinion that the petition should be granted.

The record expressly reflects that the district entered into a four-year contract with the plaintiff. The contract, as set forth in the record and signed by the chairman of the board of trustees, stated in full; “At the regular meeting of the Board of Trustees of the Jefferson Elementary School District, held on June 21, 1972, it was regularly voted to continue the employment of Roger Barthuli as Associate Superintendent-Business, for a four (4) year term, beginning July 1, 1972 and ending June 30, 1976. The salary of the Associate Superintendent-Business, shall be specified below:

“The annual salary will be $26,336.04 payable at the rate of $2,194.67 per calendar month of service beginning July 1, 1972. [11] The salary rate for subsequent three years may be determined by Board action annually, prior to July 1; however, the Board reserves the right to increase the Associate Superintendent’s salary at any time. It is stipulated that the salary rate for the subsequent three years shall not be less than the salary rate paid during the first year of service under this contract. [$] It is stipulated that service will be required for twelve months of full and regular service during the period covered by this contract with the exception that the Associate Superintendent shall be entitled to a thirty-day vacation with full pay during each year of service under this contract. [II] The vacation shall be taken at the end of the current year or in the next subsequent school year. In the event that the Associate Superintendent should be unable to take his just entitlement or vacation time under the provisions of this contract, due to the urgency of school district business, he shall so notify the Board at a legally constituted meeting of same, at which time the Board shall take positive action to continue his entitlement or purchase said entitlement at his daily rate of compensation under the provisions of this contract.”