Trahan Educational Treatise- The Origins of School Board and Administrative Abuse; Berkeley Unified School District and California at Large.
Many educators have asked me why the teaching profession is in such dire straights. Much publicized has been the stories of the statewide teacher shortage, forced retirements, and a lack of new teachers coming into credentialing programs. The teaching profession, which in the past has been the most respected and important profession has been diminished in many ways to constant abuse, bullying and outright crimes perpetrated by the administrators, private law firms and by extension local school boards. To explain the current we must look to the past and examine the education code last updated in 1976.
In 1976 State Senator John Stull wrote many of the principles highlighted in the evaluation process, student conduct and most importantly teacher discipline and removal. The requisite statutes can be found in California Education Codes 44660-44664, 44932, 44938 and 44939 all inclusive. While the codes and statutes were well intentioned for the times, in the post modern era the omissions of these statutes have unwittingly opened the door for the attack on teachers and pubic education employees at large.
A cursory analysis of the performance evaluation code (44664b) punctuates the point: The Evaluation
(b) The evaluation shall include recommendations, if necessary, as to areas of improvement in the performance of the employee. If an employee is not performing his or her duties in a satisfactory manner according to the standards prescribed by the governing board, the employing authority shall notify the employee in writing of that fact and describe the unsatisfactory performance. The employing authority shall thereafter confer with the employee making specific recommendations as to areas of improvement in the employee’s performance and endeavor to assist the employee in his or her performance. If any permanent certificated employee has received an unsatisfactory evaluation, the employing authority shall annually evaluate the employee until the employee achieves a positive evaluation or is separated from the district.
While at first glance the statute seems neutral what is missing is the binding authority of statute. The phrase “the evaluation shall be signed under penalty of perjury” is missing. Therefore the “description” of the unsatisfactory performance, “areas of improvement” can easily and often are based on fiction and not on the actually events that occurred in the classroom observation. Testimonies of teachers …“my administrator said I didn’t have a warm up on the board, he said I didn’t have a goal and objective, he said I didn’t check for understanding, he said I didn’t have an exit ticket..none of this was true.”
California Education Code 44938: The NUC/NUP also called the 45/90
The statute states: 44938.
(a) The governing board of any school district shall not act upon any charges of unprofessional conduct unless at least 45 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, 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 the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.
The statute as designed derives the NUC/NUP from the evaluation. Like the evaluation again there is no stipulation in the language that the “specific instances of behavior” need be truthful. Nor is there any criteria established in the statute to justify the disciplinary document. As the appellate court complained in Perez vs Commission on Professional Competence;1983;[149 Cal. App. 3d 1170]
“We conclude unsatisfactory teacher performance said to be unprofessional conduct should be measured by the standard of fitness to teach. Absent this objective measure of performance, the livelihood of the teacher is dependent upon an abstract characterization of conduct which will shift and change from board to board, district by district and year by year. Such discretion is required to be bridled by the restraints of the standard of fitness to teach.”
Going beyond the analysis of the appellate court the standard of the fitness to teach should be anchored and based on the truthfulness, accuracy, and integrity of the events surrounding the education process and the employee in question. A recent anonymous teacher opined, “I just received a warning letter from my administrator. He said that I was recording the P.E. teacher on my Iphone. Not only was this not true, I was not even on the playground when this happened.”
The Notice of Unprofessional Conduct (44938) also is not signed under penalty of perjury which gives the administrator license to arbitrarily threaten the livelihood of a teacher.
California Education Code 44939 (b) and (c); Egregious Misconduct-Immediate Suspension and Removal
The statute states:
(b) Upon the filing of written charges, duly signed and verified by the person filing them with the governing board of a school district, or upon a written statement of charges formulated by the governing board of a school district, charging a permanent employee of the school district with immoral conduct, conviction of a felony or of any crime involving moral turpitude, with incompetency due to mental disability, with willful refusal to perform regular assignments without reasonable cause, as prescribed by reasonable rules and regulations of the employing school district, or with violation of Section 51530 , the governing board of the school district may, if it deems that action necessary, immediately suspend the employee from his or her duties and give notice to him or her of his or her suspension, and that 30 days after service of the notice of dismissal, he or she will be dismissed, unless he or she demands a hearing.
(c)(1) An employee who has been placed on suspension pursuant to this section may serve and file with the Office of Administrative Hearings a motion for immediate reversal of suspension. Review of a motion filed pursuant to this section shall be limited to a determination as to whether the facts as alleged in the statement of charges, if true, are sufficient to constitute a basis for immediate suspension under this section. The motion shall include a memorandum of points and authorities setting forth law and argument supporting the employee's contention that the statement of charges does not set forth a sufficient basis for immediate suspension.
Analysis. In this statute the statement of charges can be signed by an administrator or by the governing board of the school district. Consistent with the previous mentioned statutes the charges are not signed “under penalty of perjury” and therefore the charges have no standard of being factual or accurate. In addition, the motion to oppose the charges is not allowed to contest the truthfulness or accuracy of the charges, but simply allows the employee to “beg” not to be dismissed. In effect, in all above mentioned statutes the employee is guilty until proven innocent rather than innocent until proven guilty. This is the reverse of due process guaranteed by the California Constitution.
An anonymous teacher in Los Angeles reports: “A student who had been suspended and reprimanded several times accused me of slamming him up against a locker after I removed him from class. Over 25 students were in the class at the time. Miraculously somehow only 7 reported that this had actually happened. I have been in teacher jail for almost 2 years. The preponderance of evidence standard is over 51%. This is not fair…”
Remedies: Reporting by School Employees of Improper Governmental Activities Act
In any other venue besides education these situations would be prosecuted as crimes. On the level of Superintendent or Assistant Superintendent these crimes could be enforced under the “Abuse of Office Clause” residing in California Code 53243. Contrary to popular belief employees do have recourse in these situations where their livelihood is threatened under false pretenses. Beginning with California Education Codes 44110-44114 employees may file a compliant with law enforcement in the following situations:
For the purposes of this article, the following terms have the following meanings: California Ed Code 44112:
(a) “Employee” means a public school employee as defined in subdivision (j) of Section 3540.1 of the Government Code.
(b) “Illegal order” means any directive to violate or assist in violating a federal, state, or local law, rule, or regulation or an order to work or cause others to work in conditions outside of their line of duty that would unreasonably threaten the health or safety of employees or the public.
(c) “Improper governmental activity” means an activity by a public school agency or by an employee that is undertaken in the performance of the employee’s official duties, whether or not that activity is within the scope of his or her employment, and that meets either of the following descriptions:
(1) The activity violates a state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty.
(2) The activity is economically wasteful or involves gross misconduct, incompetency, or inefficiency.
(d) “Person” means any individual, corporation, trust, association, any state or local government, or any agency or instrumentality of any of the foregoing.
(e) “Protected disclosure” means a good faith communication that discloses or demonstrates an intention to disclose information that may evidence either of the following:
(1) An improper governmental activity.
(2) Any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.
(f) “Public school employer” has the same meaning as in subdivision (k) of Section 3540.1 of the Government Code.
After much legal research done by a statewide team we can find only 1 case where “perjury” was enforced and invoked in an educational setting. The case in question (People vs Clark;72 Cal.App.3d82) dealt with a College Professor who filed a falsified grievance. Over 40 years ago the legislature omitted this issue from the ed code, but the issue still resides in other statutes in California state law.
Remedies in Penal Codes 132, 134 and 135
Penal Code 132: Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony.
Penal Code 134: Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.
Penal Code 135: A person who, knowing that any book, paper, record, instrument in writing, digital image, video recording owned by another, or other matter or thing, is about to be produced in evidence upon a trial, inquiry, or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor.
Penal Codes enforced in an Educational Setting: People vs Clark; [72 Cal. App. 3d 82]
“1b] In the instant case the language of Penal Code section 134 clearly covers administrative proceedings instituted pursuant to section 24315 of the Education Code. Section 134 of the Penal Code applies to matters intended to be produced at "any trial, proceeding, or inquiry whatever, authorized by law." The Legislature in addition to providing that this section apply to full-scale trials, provides a penalty for falsely produced material at other proceedings or inquiries "authorized by law," which plainly need not be full-scale trials. (United States v. Bekins, 304 [72 Cal. App. 3d 84] U.S. 27, 47 [82 L. Ed. 1137, 1141, 58 S. Ct. 811]. fn. 3) The instant grievance board hearing is both a proceeding authorized by law, Education Code section 24315, and an inquiry pursuant to that code section.”
To continue,... " This statute must also be construed to effectuate the purpose of the law. (Moyer, supra, 10 Cal. 3d 222; Select Base Materials v. Board of Equal., 51 Cal. 2d 640, 645 [335 P.2d 672].) Interpretation of the Penal Code section shows that its objective is to prevent the fraudulent introduction of material in a proceeding under the authority of law. To apply the Penal Code section to inquiry proceedings is necessitated by the purpose of discouraging introduction of this material."
"[1c] Respondent states that Penal Code section 134 has only been used in proceedings before a fully convened court of law. (People v. McKenna, 11 Cal. 2d 327 [79 P.2d 1065]; People v. Housman, 44 Cal. App. 2d 619 [112 P.2d 944]; People v. Horowitz, 70 Cal. App. 2d 675 [161 P.2d 833]; People v. Geibel, 93 Cal. App. 2d 147 [208 P.2d 743].) However, respondent has not cited any authority proscribing application of section 134 to other proceedings. The fact that section 134 has not been invoked outside the courtroom is not authority against permitting such use. [72 Cal. App. 3d 85]”
There is no ambiguity that a performance evaluation or notice of discipline is in fact a proceeding, inquiry or whatever authorized by law. The evaluation and notice of discipline is a document with legal and professional consequences, therefore the document not being signed under penalty of perjury taints the entire process of the public education system.
The Failure of Collective Bargaining Contracts:
For whatever reason, the unions have failed to address this glaring issue when it comes to defending the rights of public education employees. As a consequence, veteran teachers have been driven out of the profession. Counterposed to that young adults no longer want to come into a profession where they can be arbitrary abused and summarily dismissed. The unions have also failed to address the rights of “temporary” and “probationary” teachers who can be dismissed even with a stellar evaluation. However as noted before “tenure” ultimately gives no protections for teachers for reason I have outlined above. The Berkeley Schools Labor caucus has amassed data for thousands of teachers throughout the State of California. The data shows a disproportionate number of veteran teachers targeted for credential removal, teacher jail, administrative leave, Notices of Unprofessional Conduct, PAR, subpar evaluations and forced retirement. The data we have quantified shows the acute attack on teachers over 46 years of age, African American, highly educated and seniority on the salary schedule. Janus v AFSCME and agency shop dues are the least of the unions worry. A larger factor and point is their failure to advocate for a tangible deterrent for administrative and school board abuse.
Mandatory vs Directory Language:
Oftentimes the employer will argue directory language (or discretionary language) as a rationale to discipline an employee. However mandatory language such as “shall” protects not only the employee but the governing board from discretionary administrative abuse. A simple modification of California Ed Codes 44664, 44938, and 44939 will focus the discussion to objective facts and truths and away from what Superintendent Donald Evans calls “micro-politics”. A careful read of Evans thesis shows a complete deviation from the rule of law and a total embrace of politicizing events and outcomes in public education.(http://digitalassets.lib.berkeley.edu/etd/ucb/text/Evans_berkeley_0028E_10299.pdf) Public education is not a cesspool of power struggles going on at any given moment. At its best public education is the incubation of creativity and ideas and the development of young minds. Therefore, for this reason Evans thesis must be rejected outright.
To quote Evans thesis:
“Five out of six principals found the evaluation process very political. Disagreements over observations often involved other teachers, parents and the district.”(@p27&28)
The appellate court in Perez v Commission on Professional Competence found this outcome in the evaluation process displeasurable. Since the courts can only interpret statutes it is clear that the legislature must correct and amend this horrific error.
The School Board:
School Boards have an inherent conflict of interest when it comes to voting to retain or dismiss an employee. Over 99% of the time the employee is told not to demand their rights to an open hearing to clear their names. The rebuttal to the statement of charges is never read, and the accuracy and veracity of the charges are not considered. The edict of the Superintendent is considered sacrosanct. In many districts the Superintendent is paid $250,000.00 per year to “manage” the district with no oversight. The boards have totally surrendered their fiduciary duty to serve the public and provide oversight. School Boards are reticent to hold the Superintendent accountable because by nature the job of the Superintendent is to provide “political cover” for the board. The board doesn’t want to be seen as losing confidence in the Superintendent because the “appearance” of operations appearing above board is what will allow them to become a multi term incumbent. The lawyers have a financial interest in not only creating conflict but also advising the board how to violate the rights of the employee in question. Often times it is the lawyers themselves who are authoring the fraudulent statement of charges! The charges are then signed by a lower level administrator who will garner no consequence after the crime is committed. The final vote of the board is done in the star chamber of closed session as a throw back to the privy council for the Queen of England.
As a result the teacher or employee gets fired under false pretenses rubber stamped by the unwitting school board. It can’t be understated how many thousands of public school employees have lost their jobs, homes, marriages, careers and health in the current system.
“…its a system of trust and it works.” (Quote from anonymous school board member). The fact of the matter is the system is enmeshed with criminal racketeering and it should be defined as just that. A teacher or employees job and career is at the mercy of arbitrary discipline the current state of affairs can not stand.
Often times in law the remedy to what may appear to be a complex problem is that simple.
The legislature must amend The Stull Act to include the mandatory language of “shall be signed under penalty of perjury” into the aforementioned statutes. (44664, 44938, 44939).This will protect the employer from senseless litigation which could solve problems at the board level instead of feeding the firms of ambulance chasing lawyers. The employee will feel safe that they can serve as the delivery system to students without the fear of losing their career to a rogue administrator or micro-politics. In summary, to the public school employees: If the above situations happen to you, call the Police and the District Attorney.
Member; Berkeley Schools Labor Caucus
M.E.D.; Harvard University