Trahan Educational Treatise- The Origins of School Board
and Administrative Abuse; Berkeley Unified School District and California at
Large.
by
Valerie Trahan
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,... "[3] 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."
In addition:
"[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.
In Summary:
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.
Valerie Trahan
Member; Berkeley Schools Labor Caucus
M.E.D.; Harvard University
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