| The Chula Vista Elementary School District’s efforts to connect this case to Board of Education v. Matthews (1957) 149 Cal.App.2d 265 are inappropriate. |
| This is the type of teacher who should be dismissed! |
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| Any comparison between the Matthews case and the Larkins case is ludicrous. Maura Larkins is the polar opposite of Matthews. However, the three panelists who concocted the Larkins decision may have something in common with Matthews. They appear to have allowed their brains and consciences to wander down the coast highway. |
The following year there were similar problems (with Matthews).
The CVESD District in its Memorandum (Exhibit J-4), cites Matthews to
justify all three of its charges against Mrs. Larkins. In so doing, it
underlines the fact that all three charges are based on a single act, Mrs.
Larkins’ refusal on October 5, 2001 to return to work without an
investigation and retraction.
Matthews makes it clear that the
school authorities do not have the
power to make an illegal rule.
Matthews did not concern a hostile
work environment. The two cases could
hardly be more different.
COMMISSION’s LEGAL CONCLUSION 4, “The refusal of a teacher to
accept an assignment…is, in essence, insubordination,” fails to allow for
laws allowing employees to defend themselves.
The COMMISSION misconstrued Board of Education v. Swan (1953) 41 Cal.
2d 546 by automatically applying the decision in Swan to this case without
recognizing that refusal to accept assignment is not automatically
insubordination, but that an employee may defend against a charge of
insubordination by establishing that the conduct for which he or she is
being dismissed was justified. This COMMISSION incorrectly permits the
district to disobey the law and the contract.
Swan concerned a principal who badmouthed the school board at a
PTA meeting, and who refused to be demoted to a teaching
assignment.
Mrs. Larkins was perfectly happy in her
teaching assignment for twenty-six years,
then in 2001 was taken out of her
classroom and sent home twice, for
months at a time, because of false
allegations.
Mrs. Larkins was willing to go back to
teaching as soon as it was safe, which
required measures to stem the rising tide of
hysteria in the District, an end to the District’s violations of
the Collective Bargaining Agreement, and an end to Assistant
Superintendent Werlin’s total, arbitrary, and abusive control over every
aspect of Mrs. Larkins’ employment.
In Swan, the Court clearly states that not all employees are in the
same category as Ione Swan. The decision states, “The case of Hanley
v. Murphy, 40 Cal.2d 572 [255 P.2d 1], is clearly distinguishable.
There the superior officer acted without regard for the prescribed
civil service rules, and his alleged bad faith therefore became a
material consideration in determining the aggrieved employee’s
rights.” Petitioner’s contract clearly required a conference, and
reasonable necessity, and safety. It clearly allowed her to file
grievances, and forbade retaliation by the district when she did so. The
law allows her to file a lawsuit. The law specifically forbids retaliation when
an employee files a PERB charge, and when an employee reports illegal or
criminal behavior to a public agency.
The Court in Swan refers to Hayman v. City of Los Angeles, 17 Cal.App.2d
679 [62 P.2d 1047] also rules that there are limits on the power of
public employers: “Control over public employees is not only a right but a
duty, and in the discharge thereof a wide discretion is allowed, which will
not be disturbed until the point of illegality is reached.”
In the instant case, the weight of the evidence shows that the point
of illegality was reached early in 2001,
and the illegal actions of the District have
been growing in number ever since.
The CVESD District in its Memorandum (Exhibit J-4), cites Matthews to
justify all three of its charges against Mrs. Larkins. In so doing, it
underlines the fact that all three charges are based on a single act, Mrs.
Larkins’ refusal on October 5, 2001 to return to work without an
investigation and retraction.
Matthews makes it clear that the
school authorities do not have the
power to make an illegal rule.
Matthews did not concern a hostile
work environment. The two cases could
hardly be more different.
COMMISSION’s LEGAL CONCLUSION 4, “The refusal of a teacher to
accept an assignment…is, in essence, insubordination,” fails to allow for
laws allowing employees to defend themselves.
The COMMISSION misconstrued Board of Education v. Swan (1953) 41 Cal.
2d 546 by automatically applying the decision in Swan to this case without
recognizing that refusal to accept assignment is not automatically
insubordination, but that an employee may defend against a charge of
insubordination by establishing that the conduct for which he or she is
being dismissed was justified. This COMMISSION incorrectly permits the
district to disobey the law and the contract.
Swan concerned a principal who badmouthed the school board at a
PTA meeting, and who refused to be demoted to a teaching
assignment.
Mrs. Larkins was perfectly happy in her
teaching assignment for twenty-six years,
then in 2001 was taken out of her
classroom and sent home twice, for
months at a time, because of false
allegations.
Mrs. Larkins was willing to go back to
teaching as soon as it was safe, which
required measures to stem the rising tide of
hysteria in the District, an end to the District’s violations of
the Collective Bargaining Agreement, and an end to Assistant
Superintendent Werlin’s total, arbitrary, and abusive control over every
aspect of Mrs. Larkins’ employment.
In Swan, the Court clearly states that not all employees are in the
same category as Ione Swan. The decision states, “The case of Hanley
v. Murphy, 40 Cal.2d 572 [255 P.2d 1], is clearly distinguishable.
There the superior officer acted without regard for the prescribed
civil service rules, and his alleged bad faith therefore became a
material consideration in determining the aggrieved employee’s
rights.” Petitioner’s contract clearly required a conference, and
reasonable necessity, and safety. It clearly allowed her to file
grievances, and forbade retaliation by the district when she did so. The
law allows her to file a lawsuit. The law specifically forbids retaliation when
an employee files a PERB charge, and when an employee reports illegal or
criminal behavior to a public agency.
The Court in Swan refers to Hayman v. City of Los Angeles, 17 Cal.App.2d
679 [62 P.2d 1047] also rules that there are limits on the power of
public employers: “Control over public employees is not only a right but a
duty, and in the discharge thereof a wide discretion is allowed, which will
not be disturbed until the point of illegality is reached.”
In the instant case, the weight of the evidence shows that the point
of illegality was reached early in 2001,
and the illegal actions of the District have
been growing in number ever since.
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| Matthews is about a bizarrely unaware teacher who decided "it was too cold and nasty and foggy |
| up here” in Richmond, so she had “gone south to get warm.” |
| Ms. Matthews drove down to Los Angeles where she stayed for ten days without any further communication... |
| ...and when the school called, “all her interests in Richmond came rushing into her brain and she did feel ashamed she had been gone so long and... |
| ...it dawned then, she had been gone longer than she should have been.” |
| Illegal OAH Decision Page 24 |
| This Was a Really Strange Case |
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| Chula Vista Elementary School District |