THE BOARD OF EDUCATION OF THE SAN FRANCISCO UNIFIED SCHOOL DISTRICT et al., Respondents, v. JOHN W. MASS, Appellant, 47 Cal. 2d 494

GIBSON, C. J. This case involves the constitutionality of

section 12604 of the Education Code which provides that any employee of a school district who fails or refuses on any ground whatsoever to answer questions put to him by a legislative committee relating to specified matters, including past or present knowing membership in the Communist Party, shall be guilty of insubordination and of violating the

section and shall be dismissed from his employment in the manner provided by law. In 1950 defendant, an instructor at the City College of San Francisco, signed a loyalty oath required of school employees in which he stated that he “had been a member of the Communist Party from the fall of 1947 to the fall of 1949” but that he was no longer connected with it. On December 2, 1953, pursuant to subpoena, defendant appeared as a witness before a subcommittee of the House of Representatives Committee on Un-American Activities.

He refused to answer a number of questions put to Mm by the committee, basing his refusal on the ground of privilege against self-incrimination under the Fifth Amendment to the federal Constitution. In particular he declined to state whether he had been a member of the Communist Party since he signed the loyalty oath, whether he was presently a member of the Communist Party, and whether his statement in the loyalty oath was true when he made it.

The superintendent of schools filed with the board of education a verified statement charging defendant with unprofessional conduct, unfitness for service, insubordination and disobedience of the school laws of the state because of his refusal to answer the questions propounded to him by the committee. A transcript of the hearing before the committee was attached to and made a part of the charges.

At a meeting of the board held on December 8, 1953, to consider what action should be taken, defendant offered- to answer under oath any questions the board wished to ask him with respect to whether he had been a member of the Communist Party since 1950, whether he told the truth when he signed the loyalty oath, and whether to his knowledge atiy employee of the San Francisco School District was a member of the Communist Party. The offer was refused.

Defendant’s attorney stated that defendant’s conduct before the committee was based upon the attorney’s opinion that, if defendant answered a question regarding his affiliation with the Communist Party, he would waive any right to claim the privilege against self-incrimination with respect to questions concerning membership of other persons in the Communist Party. The board’s refusal to accept the testimony offered by defendant or to consider the reasons for his conduct apparently resulted from its belief that under

section 12604 of the Education Code, it was compelled to dismiss him and had no discretion in the matter. Defendant was suspended and notified of the board’s intention to dismiss him. He demanded a hearing, and the board elected to file this action in the superior court pursuant to

section 13529 of the Education Code which provides that the board shall have the option either to rescind its action or file a complaint in the superior court, setting forth the charges against the employee. A copy of the superintendent’s charges, including a transcript of defendant’s testimony before the committee, was designated “Exhibit A” and attached to and made a part of the complaint.

Defendant in his answer admitted that he had been asked the questions by the committee and that he had refused to answer them “on the basis of the Fifth Amendment.” The evidence at the trial consisted of a transcript of the proceedings at the board meeting held on December 8, 1953. The court found that the charges were true and concluded that they constituted grounds for dismissal. On this appeal from the ensuing judgment, defendant’s principal contention is that

section 12604 of the Education Code is unconstitutional. The State of California has the power to require teachers in our public schools, as a condition to continued employment, to give evidence with respect to matters bearing upon their fitness to teach. (See Adler v. Board of Education, 342 U.S. 485, 493 [72 S.Ct. 380, 96 L.Ed. 517, 27 A.L.R.2d 472]; Steinmetz v. California State Board of Education, 44 Cal.2d 816, 824 [285 P.2d 617]; Pockman v.

Leonard, 39 Cal.2d 676, 687 [249 P.2d 267].) It has been established by legislative findings and judicial decisions that the Communist Party is a continuing conspiracy against our government. (Ed. Code, § 12600, added by Stats. 1953, ch. 1632, § 1; Gov. Code, § 1027.5, added by Stats. 1953, ch. 1646, § 1; Internal Security Act of 1950, 64 Stats. 987, 50 U.S.C.A. § 781; Communist Control Act of 1954, 68 Stats. 775, 50 U.S.C.A. § 841; Black v. Cutter Laboratories, 43 Cal.2d 788, 800-806 [278 P.2d 905]; Daniman v.

Board of Education of City of New York, 306 N.Y. 532, 540 [119 N.E.2d 373].) Loyalty on the part of public employees is essential to orderly and dependable government and is therefore relevant to fitness for such employment. A teacher may properly be required to disclose information relative to fitness and loyalty as a reasonable condition for obtaining or retaining public employment, even though the disclosure under some circumstances may amount to self-incrimination. See Steinmetz v. California State Board of Education, 44 Cal.2d 816, 824 [285 P.2d 617]; Pockman v.

Leonard, 39 Cal.2d 676, 687 [249 P.2d 267] ; Christal v. Police Com., 33 Cal.App.2d 564, 567 et seq. [92 P.2d 416].) In determining whether

section 12604 of the Education Code is constitutional, we must consider the effect of the recent decision of the United States Supreme Court in Slochower v. Board of Higher Education (1956), 350 U.S. 551 [76 S.Ct. 637, 100 L.Ed. 692], In that case a teacher was summarily dismissed from his position in accordance with a

section of the city charter which provided that the term of employment of any city employee should terminate if, when called before any legislative committee, he refused to answer a question regarding his official conduct on the ground his answer would tend to incriminate him. The court held that the

summary dismissal violated the constitutional requirement of due process, pointing out that the charter provision “operates to discharge every city employee who invoked the Fifth Amendment. ... No consideration is given to such factors as the subject matter of the questions, remoteness of the period to which they are directed, or justification for exercise of the privilege. It matters not whether the plea resulted from mistake, inadvertence or legal advice conscientiously given whether wisely or unwisely.

The heavy hand of the statute falls alike upon all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive.” (350 U.S. at p. 558.) We understand the holding of the Sloehower case to be that a public employee may be dismissed for invoking the privilege against self incrimination only if, after a full hearing in which he is afforded an opportunity to explain his reasons for claiming the privilege, it is determined that his refusal to answer is sufficient under the circumstances to warrant dismissal.

The judgment involved here was rendered before the Sloehower case was decided by the United States Supreme Court, and it is clear from the record that the parties and the trial court construed

section 12604 of the Education Code as requiring the dismissal of an employee who refused to answer a question on the ground his answer might incriminate him, regardless of his reasons for claiming the privilege allowed by the Fifth Amendment. Any construction which would require us to hold that

section 12604 is unconstitutional should be avoided if possible (Bodinson Mfg. Co. v. California Emp. Com., 17 Cal.2d 321, 326-327 [109 P.2d 935]), and we are of the opinion that the statute may be reasonably interpreted in a manner consistent with due process.

Section 12604, as we have seen, provides for the dismissal of an employee “in the manner provided by law,” and we construe these words to mean that, before an employee may be found guilty of insubordination or dismissed for refusing to answer under the claim of privilege against self-incrimination, there must be a full hearing and a determination that his reasons for invoking the privilege are not sufficient. Factors of the type mentioned in the portion of the Sloehower decision quoted above should, of course, govern the determination as to the sufficiency of the employee’s reasons.

It is apparent that no consideration was given to defendant’s reasons for invoking his constitutional right. The scope of inquiry was limited to a determination of whether he refused to answer the questions which were put to him by the committee. Such a hearing did not meet the requirements laid down in the Slochower case and contemplated by

section 12604 of the Education Code, when properly construed, and a new trial must be had. We do not, of course, mean to suggest that, on retrial, the sufficiency of defendant’s reasons for invoking the privilege is the only question which may be considered in determining whether his dismissal is warranted. Any matter germane to the charges filed against him would be open to inquiry. The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion. Traynor, J., and Schauer, J., concurred.

Section 12604 of the Education Code, as it was enacted in 1953, read: “It shall be the duty of any employee of any school district who may be subpenaed by a United States Congressional Un-American Activities Committee or a subcommittee thereof or a California Legislative Un-American Activities Committee or a subcommittee thereof or any other committee or subcommittee of the United States Congress or the California Legislature or of either house of either thereof to appear before said committee or subcommittee and specifically to answer under oath a question or questions propounded by any member or counsel of the committee or subcommittee relating to: "(

a) Present personal advocacy by the employee of the forceful or violent overthrow of the Government of the United States or of any state or political subdivision. “(

b) Present knowing membership in any organization which, to the knowledge of such employee, advocates the forceful or violent overthrow of the Government of the United States or of any state or political subdivision. “(

e) Past knowing membership at any time since September 10, 1948, in any organization which, to the knowledge of such employee, during the time of the employee’s membership advocated the forceful or violent overthrow of the Government of the United States or of any state or political subdivision. “(

d) Past knowing membership of such employee in the Communist Party at any time since September 10, 1948. “(

e) Present knowing membership of such employee in the Communist Party. “Any employee who fails or refuses to answer under oath on any ground whatsoever any such question propounded by any member or counsel of any such committee or subcommittee shall be guilty of insubordination and guilty of _ violating this

section and shall be suspended and dismissed from his employment in the manner provided by law.” (Sections 12600-12607, commonly known as the Dilworth Act, were added to the Education Code in 1953. In 1955

section 12604 was amended by changing the dates from September 10, 1948, to October 3, 1945, and a new subdivision (f), which is not involved here, was also added.) The oath required by

chapter 8 of the Government Code in 1950 was set forth in

section 3103 of that code and was the same in all material respects as the one which, since 1953, has been required by

chapter 8 in the form appearing in

section 3 of

article XX of the California Constitution.

On the printed form of oath, in the place reserved for exceptions to the statement that during the preceding five years defendant had not been a member of any organization that advocated the overthrow of the government by force or violence, he wrote: “To the best of my knowledge and belief, no exceptions (Over).” On the back of the form he wrote: “Since it has been alleged by certain persons that the Communist Party and the California Labor School fall in the category described in the oath I am now taking, I feel compelled to state that I had been a member of the Communist Party from the fall of 1947 to the fall of 1949 and of the California Labor School from the fall of 1946 to the summer of 1950.

However, I am definitely no longer connected with either of the above groups. Finally, at no time was I aware of nor did I hear of any person or group within these two organizations advocating either the overthrow of the government by force or any other activity described in the oath.”

Section 13529 of the Education Code provides: “When any employee who has been served with notice of the governing board’s intention to dismiss him demands a hearing, the governing board shall have the option either (

a) to rescind its action, or (

b) to file a complaint in the superior court of the county in which the school district or the major part thereof is located, setting forth the charges against the employee and asking that the court inquire into the charges and determine whether or not the charges are true, and if true, whether or not they constitute sufficient grounds for the dismissal of the employee, under the provisions of this code, and for judgment pursuant to its findings.”