Netwig v. Huntington Beach Union High School District

[531]

Opinion

TAMURA, J.

Petitioner appeals from the judgment denying his petition for writ of mandate to compel the Huntington Beach Union High School District, the district’s board of trustees,, and the trustees individually (hereinafter collectively referred to as “School District”) to assign him to the position of counselor.

Petitioner was first employed by School District as a teacher in 1960. In 1963, having served the district as a teacher for three years and having been elected for a fourth year, petitioner became a permanent employee of the district. (See Ed. Code, § 13304.) In common parlance, petitioner obtained tenure. He continued as a teacher until 1968 when he was reassigned to the position of counselor.

1

Petitioner served as counselor until April of 1971 when School District served him with a notice of intention to dismiss and filed a complaint in superior court seeking his dismissal.

2

Petitioner’s employment with the district was suspended pending the outcome of the dismissal proceedings. After a trial the court ruled in favor of School District but on appeal to this court the judgment was reversed in a nonpublished opinion. (4 Civ. 12163, Jan. 15, 1973.) Thereafter School District dismissed its complaint, notified petitioner that he was being reinstated with back pay and, in March of 1973, assigned him to a teaching position. In response to petitioner’s request for a statement of reasons for the reassignment from counseling to teaching, he was informed that: “You spent excessive time with one student who was not your counselee, and . . . this prevented you from, adequately and fully performing your counseling responsibilities to your counselees during the 1970-1971 school year.”

In August of 1973, petitioner filed the instant action. Section 13439 of the Education Code provided at the time relevant hereto that when a permanent employee successfully defends a dismissal action, “he shall be reinstated within five days after- the entry of judgment in his favor. . . .” The sole question on appeal is whether this provision required School District to return petitioner to the position of counselor rather than reassigning him to a teaching post.