Poschman v. Dumke

On September 23, 1970, the board of trustees of the California state colleges held a meeting. By emergency regulation, they empowered the Chancellor to revise grievance procedures. By nonemergency regulation, while revoking the present grievance procedures, the trustees ordered that prevailing grievance procedures were to apply to all cases pending except that the decision of the Chancellor's review panel would only be advisory to the Chancellor whose decision would be final. On September 30, the Chancellor, while adopting new grievance procedures pursuant to the emergency regulation, ordered that the prior grievance procedures were to apply to' all cases pending with the exception that the decision of the Chancellor’s review panel would be only advisory, the Chancellor reserving the right of final decision; however, the Chancellor’s decision must agree with the review panel except in rare instances, for compelling reasons stated in writing.

On March 23, 1971, the Chancellor’s review panel unanimously recommended that appellant be granted tenure and considered for promotion. On June 1, 1971, the Chancellor overruled the decision of his review panel and ruled that appellant be denied tenure. The Chancellor also remanded appellant to the college for an additional probationary period during which a more thorough tenure evaluation would be possible. Although it is not in the record, the briefs of both parties state that appellant was granted tenure in March 1972.

The appeal poses the questions that follow.

I. Did appellant’s complaint state a cause of action?

Yes. Administrative mandamus lies for “the purpose of inquiring

The facts alleged in the massively documented petition and of which judicial notice may be taken establish: The trustees of the California state colleges are authorized to provide, as we have noted, rules governing various employee matters, including tenure. (Ed. Code, § 24201.) Pursuant to this authorization, the trustees enacted regulations concerning tenure for probationary teachers and also allowed each college to develop its own tenure procedure subject to meeting certain basic requirements set forth in California Administrative Code, title 5, sections 42701-42703, 43560-43567. Such procedure was developed by California State College at Hayward. The established procedures required a hearing with testimony either oral or written, a dispositive recommendation or ruling, and provided that records be kept of the proceedings. The hearing of appellant’s grievance conducted in accordance with the rules promulgated by the trustees and those in effect on the Hayward campus was a hearing before an administrative body and mandamus was the proper procedure for its review, including the disposition of the appeal to the Chancellor. (Ishimatsu v. Regents of University of California (1968) 266 Cal.App.2d 854 , 860-862 [ 72 Cal.Rptr. 756 ].) It does not matter that the grievance hearing is characterized by executive order as “in no sense a trial”; a hearing suffices for administrative mandamus. (Cal. Administrative Mandamus (Cont.Ed.Bar) p. 40.) Although appellant as a probationary academic employee may not have had an “expectancy” of continued employment and no right not to be denied tenure (Toney v. Reagan (N.D. Cal. 1971) 326 F.Supp. 1093 ), he had, even under most minimal due process, a right to have his status determined in accordance with the valid rules and regulations established by the board of trustees or the administration on the local campus applicable thereto at the time. We agree that the delicate matter of tenure should be determined by the academic community and that courts should be reluctant to intervene. But where a determination is made in violation of its own established rules and regulations or under regulations that are invalid under statutes that bind the academic community (question II, below), it cannot be argued that no legal remedy exists. In the circumstances reflected in the petition the case falls within the exception noted in Wong v. Regents of University of California (1971) 15 Cal.App.3d 823 , 830 [ 93 Cal.Rptr. 502 ], where it is recognized that

In connection with the issues tendered by the pleadings, the decisions relied upon by respondents are not in point because, in each case, the appellate courts had examined the record before denying the writ. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771 , 781-782 [ 97 Cal.Rptr. 657 , 489 P.2d 537 ]; Stanton v. Dumke (1966) 64 Cal.2d 199 , 207 [ 49 Cal.Rptr. 380 , 411 P.2d 108 ].)

If, however, the decision of the Chancellor’s review panel recommending tenure was final, then the Chancellor was under a mandatory duty, not involving any discretion, to grant tenure. The petition in that circumstance states a cause of action for ordinary mandamus. (Code Civ. Proc., § 1085; People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480 , 491 [ 96 Cal.Rptr. 553 , 487 P.2d 1193 ]; May v. Board of Directors (1949) 34 Cal.2d 125 , 133-134 [ 208 P.2d 661 ].) A justiciable issue was presented by the pleadings and it was error to sustain the demurrer without leave to amend.

II. Did the Chancellor have the authority to overrule the decision of the Chancellor's review panel granting appellant tenure?

No. Prior to September 23, 1970, the Chancellor had no power to overrule the decision of the Chancellor’s review panel on grievance tenure decisions. The only two ways in which the Chancellor may have been given the power to overrule the decision of the Chancellor’s review panel are: First, the Chancellor’s Executive Order No. 112, section 1.3, adopted September 30, 1970, provided that the review panel’s decision is only advisory to the Chancellor even in pending cases. Second, the trustee’s resolution RFSA 70-24, adopted as a regular nonemergency measure on September 23, 1970, provided for the repeal of existing grievance procedures, and provided that the decision of the Chancellor’s review panel is only advisory to the Chancellor even in pending cases. But if both alternatives fail, the Chancellor could not overrule the decision of the panel. For the reasons stated below, it is our opinion that neither alternative furnishes valid support for the Chancellor’s override of the review committee’s decision.

Executive Order No. 112, section 1.3, reads as follows: “Grievance proceedings under the Interim Procedures for Handling Grievances and Personnel Complaints of Academic and Administrative Personnel (issued in

This order was promulgated pursuant to emergency regulation RFSA 70-23 of September 23, 1970, providing: “. . . the Board of Trustees of the California State Colleges, acting under the authority of, and to implement, interpret, and make specific, Education Code Sections 22600, 22604, 23604, and 24201, and pursuant to the Administrative Procedure Act, that this Board hereby adds to and amends its regulations in Sub-chapter 6 of Chapter 1, Part V, Title 5 of the California Administrative Code, as hereinafter set forth, such action being emergency action, to take effect immediately upon filing with the Secretary of State and with the Rules Committee of each House of the Legislature:

“2. Section 42714 is added to Article 2 to read:

“42714. Grievance Procedures for Academic Personnel. The Chancellor shall prescribe, and may from time to time revise, Grievance Procedures for Academic Personnel of the California State Colleges. These procedures may be utilized by all full-time tenured and probationary academic employees, including those on leave of absence with or without pay. The Trustees may, on their own motion, review grievance matters under this Section. The Chancellor shall report to the Board on procedures issued or revised purusant to this Section.”

The statement of emergency in RFSA 70-23 reads as follows:

“Finding of Emergency

“The Board of Trustees finds that an emergency exists and that the foregoing regulation is necessary for the immediate preservation of the public health, safety or general welfare. The facts constituting such emergency are as follows:

“It is essential to the discharge of the academic program of the California State Colleges that personnel practices be maintained at a high

level of effectiveness. Of crucial importance to the attainment of that objective is an efficient and fair method of promptly resolving legitimate grievances of academic employees.

“These considerations of good personnel policy require that this resolution, adopted with that objective be effective for the entire 1970-71 academic year, rather than to just a part of that year. Unless this resolution is adopted as an emergency measure as proposed, it will not so apply, with the result that two separate grievance systems would be operative in the fall term. The resulting confusion could well be productive of just the opposite effect on academic personnel practices from that intended.

“In order to implement and interpret the foregoing powers, duties and responsibilities conferred on the Board of Trustees, it is necessary that the foregoing resolutions be adopted to become effective immediately upon filing with the Secretary of State and with the Rules Committee of each House of the Legislature.

“The said regulations are therefore adopted as emergency regulations to take effect immediately upon filing with the Secretary of State and with the Rules Committee of each House of the Legislature.”

Government Code section 11440 authorizes courts to declare regulations invalid “in the case of an emergency regulation . . . upon the ground that the facts recited in the statement [of emergency] do not constitute an emergency within the provisions of Section 11421(b).” Government Code section 11421, subdivision (b), provides that a regulation may be adopted or repealed as an emergency “[i]f in any particular case the state agency makes a finding, including a statement of facts constituting the emergency in writing that the adoption of a regulation or order of repeal is necessary for the immediate preservation of the public peace, health and safety or general welfare, . . .” Courts are not conclusively bound by an agency’s determination that an emergency exists, although it is recognized that what constitutes an emergency is primarily a matter for the agency’s discretion. (Schentey Affiliated Brands Corp. v. Kirby (1971) 21 Cal.App.3d 177 , 194-195 [ 98 Cal.Rptr. 609 ].) There may be abuse of the emergency power when the enacting agency repeatedly and habitually resorts to it without a credible statement of genuine emergency. (Id. at p. 194.) The finding of and statement of facts constituting an emergency must be more than mere “statements of the motivation” for the enactment and provide an adequate basis for judicial review. (California Assn. of Nursing Homes etc., Inc. v. Williams (1970) 4 Cal.App.3d 800 ,

Respondents contend that the invalidity of the emergency regulation is not at issue because a conventionally adopted measure would have gone into effect before the selection of appellant’s review panel. This, however, would totally abolish any judicial review of emergency regulations because of mootness and undermine Government Code section 11440.

At the same meeting at which Emergency Regulation 70-23 (quoted supra) was adopted, the trustees adopted the following (nonemergency) Resolution 70-24: “Resolved, By the Board of Trustees of the California State Colleges, that the Board revokes its policy on Grievance Procedures for Academic Personnel adopted June 27, 1968 (RFSA 68-11) and its modification of that policy adopted February 26, 1969 (RFSA 69-06), and procedures adopted to implement that policy, except that these procedures shall continue to be applicable to matters commenced but not finally concluded by the date of the intitial adoption of new grievance procedures for academic personnel, provided that decisions of the Chancellor’s Review Panel in such matters shall be advisory to the Chancellor whose decision shall be final.”

The public schools of this state are a matter of statewide rather than local or municipal concern. (Town of Atherton v. Superior Court (1958) 159 Cal.App.2d 417 , 421 [ 324 P.2d 328 ].) The trustees of California state colleges are a state agency created by the Legislature and its actions are subject to and must comply with the state Administrative Procedure Act (Gov. Code, §§ 11370-11440; cf. 10 Ops.Cal.Atty.Gen. 243, 246, holding State Board of Education [the then governing body of state colleges] subject to the Administrative Procedure Act). Appellant contends that this regulation is invalid because the notice and hearing requirements therein (Gov. Code, §§ 11371, 11420, 11423-11425) were not complied with. The record so shows. Respondents contend that these requirements do not apply because the regulation related only to the internal management of a state agency, thus falling within the exception

The minutes of the September 23d meeting reflect a very close vote on the proposal to eliminate the “advisory only” clause found in both resolutions—seven to eight in the emergency and six to eight in the nonemergency resolution. With opinion as closely divided upon the desirability of the proposed change in a matter of importance to the entire academic community and of special importance to the five members thereof involved in cases then pending, it is not unlikely that, if those whose rights were to be affected had had notice of the proposed action, they could have presented considerations that might have changed the opinion of one or two of the trustees who voted against eliminating the particular clause. We are compelled to sustain appellant’s contention that the nonemergency resolution purporting to revoke the grievance procedures established by Executive Order No. 56 is invalid because of failure to give the required notice. It follows that the procedures promulgated by Executive Order No. 56 were not revoked and the Chancellor' did not have the discretionary power to reject the recommendation of his review panel. Appellant was accordingly entitled to tenure as of the beginning of the academic year 1970-1971.

No. Appellant was granted tenure effective March 1, 1972. However, he was entitled to tenure and the salary and service benefits accruing thereto, from the beginning of the 1970-1971 academic year. The com