Justices Uphold Pay for Suspended Teacher : Courts: Appeals panel says the Oxnard instructor should get wages for 22 months he was off after his arrest on drug charges.

In a split decision, a state appeals court has upheld a Ventura County judge’s decision to award back pay to a public school teacher who was suspended after his arrest on charges of possessing and using cocaine.

Simon Unzueta of Ventura returned to teaching at the Ocean View Elementary School District in Oxnard after he completed a drug counseling program, and he is entitled to back pay for the 22 months he was suspended, the 2nd District Court of Appeal ruled Thursday.

Because Unzueta earned more than $30,000 at other jobs while he was suspended, he is not entitled to the $40,000 he would have received if he had been teaching, according to the majority opinion written by Justice Kenneth Yegan for the three-justice panel.

The opinion did not specify how much Unzueta should receive in back pay and directed a judge in Ventura County to determine an appropriate amount.

The original ruling of Ventura County Superior Court Judge Richard D. Aldrich said Unzueta was entitled to the full $40,000. Donald Austin, attorney for the school district, said administrators will offer Unzueta $10,000, the difference between his salary and his outside earnings.

In a strongly worded dissent, Justice Arthur Gilbert said Unzueta “should receive no compensation. . . . He is lucky to have been rehired by the district. His luck should stop there.”

After Unzueta was arrested in December, 1988, he was permitted to enter an educational and counseling drug program because he had had no prior narcotics sales offenses and no probation or parole violations.

It took him about 18 months to complete the program, and afterward the drug charges against him were dismissed on Sept. 18, 1990.

By law, if a public school employee is suspended because of criminal charges and is later acquitted or the charges are dismissed, back pay would be awarded for the time the employee was suspended, said Paul Powers, Unzueta’s attorney.

“The district urges us to reverse the trial court because its order violates common sense and public policy by rewarding a teacher for using drugs,” Yegan wrote. “Framing the issue in these terms illustrates the district’s myopia.

“The legislative ‘reward’ for use of drugs is criminal prosecution. The legislative reward for successful completion of (the drug program) is dismissal of the criminal charge and rehabilitation of the experimental drug user by returning him to productive citizenship,” Yegan wrote.

Gilbert took strong exception to this reasoning in his dissent.

“Absurdity--I know it when I see it,” Gilbert wrote.

In his seven-page dissent, he maintained that “a mechanical, literal interpretation of the statute in the lifeless atmosphere of a vacuum creates a result contrary to public policy, contrary to legislative intent, contrary to common sense, and contrary to our shared notions of justice.”

Austin said he was not surprised that the appeals court upheld the education code statute.

“This was passed in 1955, before we had huge drug problems in our society,” Austin said. “It was designed for people accused of child molesting.”

Unzueta now teaches at Laguna Vista Elementary School in Oxnard.

“He is doing an excellent job,” said Associate Supt. Don Hodes. “There is no animosity between us and Mr. Unzueta.”

But Hodes said the ruling would send a negative message to the community.

“It will be: If you do drugs, there is no penalty,” he said.

Austin said the school district has yet to decide whether it will further challenge the law in an appeal to the state Supreme Court.

“If it’s going to be changed, it’s going to be done by the Legislature or the California Supreme Court,” he said.