Burgess v. Coronado Unified Sch. Dist.

RANDALL BURGESS, Plaintiff and Appellant, v. CORONADO UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

D072976

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

October 1, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2017-000225390-CU-WM-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed.

Herronlaw and Matthew V. Herron for Plaintiff and Appellant.

TencerSherman and Sam G. Sherman, Allison C. Schneider for Defendant and Respondent.

Plaintiff and appellant Randall Burgess appeals a judgment denying his petition for writ of mandate in which he sought an order reinstating him to his position as a teacher at Coronado Unified School District (District). Burgess contends neither the Education Code nor District's collective bargaining agreement with the Coronado Teachers Association permitted District to place him on involuntary administrative leave without following statutory suspension and termination procedures, which require a charge of misconduct followed by an opportunity to address those charges in a hearing. He maintains the trial court erred when it reasoned he did not meet his burden to show District's action placing him on paid administrative leave was an illegal suspension, violated the Education Code, or did not follow the collective bargaining agreement's procedures.

District has moved to dismiss the appeal,¹ pointing out it reinstated Burgess into the classroom in November 2017, and asserting his appeal is moot. On the merits, it contends this court should affirm the court's ruling because District has the authority to place employees on non-disciplinary paid administrative leave, which is not a suspensionunder the Education Code. District further argues the collective bargaining agreement is silent on the issue of paid administrative leave and thus did not prohibit its action, but that Burgess waived his right to challenge its action in any event. It finally argues Burgess has not shown he was denied his due process rights by his placement on paid administrative leave.

Though Burgess's appeal is technically moot, we address his claims on the assumption the issues potentially will recur between tenured teachers and school districts. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND²

Burgess is a credentialed teacher at Coronado High School and since 1982 has been the executive director of the Coronado Aquatics Club (the Club), which contracts to use the pool at the school's facilities. Between 1987 and 2015, Burgess was the school's head aquatics coach. In March 2017, during the school's spring break, a former student presented a claim to District concerning allegations of sexual assault involving Burgess. District's superintendent considered student and staff safety, as well as the potential disruption to school activities, and decided Burgess would be placed on paid administrative leave. When school resumed in April 2017, District's assistant superintendent placed Burgess on paid administrative leave, telling him District wasdoing so with full salary and benefits pending an investigation into the claim. District began investigating the claim.

Burgess filed a verified petition for writ of administrative mandamus under both Code of Civil Procedure sections 1985 and 1994.5 seeking to be reinstated to his teaching position. He alleged his paid administrative leave was an illegal and indefinite suspension imposed by District without following mandatory procedures provided by his collective bargaining agreement or the Education Code. Burgess alleged the collective bargaining agreement included article XXIV (titled "Just Cause Discipline") with a procedure and conditions for District to impose an up-to 15-day suspension, and unless District invoked that article it was required to follow notice, written accusation, and

administrative review procedures of Education Code sections 44932, 44934 and 44939.³ Burgess asked the court to issue a writ of mandate "to order the District to terminate his suspension and restore [him] to his regular duties as a teacher at Coronado High School without prejudice to the District following Article XXIV of the [collective bargaining agreement] should it seek a new suspension, and to cease interfering with [his] duties as a teacher and as the Executive Director of the Club."

District's investigation continued and was ongoing through the October 2017 writ hearing. Burgess did not file a grievance under the collective bargaining agreement for any violation, misinterpretation or misapplication of the agreement's provisions, the Education Code or school board policy.

The trial court denied Burgess's writ petition. It ruled Burgess did not meet his burden to show that District's action was an illegal suspension or a breach of his collective bargaining agreement, or a violation of the Education Code. The court found District established that Burgess was not on suspension but on paid administrative leave during the pending investigation into the claim; it had not instituted a suspension or disciplinary mandatory leave of absence, and it had not put any negative report in his personnel file regarding the claim. It ruled that absent a suspension without pay or termination of his employment, Burgess was not entitled to a hearing, and he did not fit within leave-of-absence provisions of either the collective bargaining agreement or the Education Code. Rather, the court found the collective bargaining agreement and various board policies authorized District's actions. Burgess filed a notice of appeal.

The following month, District notified Burgess by letter it was terminating his paid administrative leave and he would be reinstated effective November 27, 2017. District expressed its understanding that no complaint making misconduct allegations had been filed against him, and it was "currently unaware of any ongoing, continuing investigation into past allegations of misconduct by you which would have implications for terminating your employment with Coronado Unified School District." District instructed Burgess to meet with the assistant superintendent and principal to assist in hisreturn. It emphasized that safety and welfare of the students was among District's "highest priorities," and thus it gave Burgess "guidance the District would provide to any employee in similar circumstances," "strongly recommend[ing]" that he not be alone with any student unless absolutely necessary for the student's health, safety or welfare. District advised Burgess that a copy of its letter would be placed in Burgess's official personnel file, and that he and/or his representative could supply a written response that District would attach.⁴

DISCUSSION

I. This Appeal is Moot

"California courts will decide only ' "justiciable controversies." ' [Citation.] A moot case is one in which there may have been an actual or ripe controversy at the outset, but due to intervening events, it no longer presents a context in which the court can grant effectual relief." (Placer Foreclosure, Inc. v. Aflalo (2018) 23 Cal.App.5th 1109, 1112-1113; Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1222.) There must be an actual controversy for which a judgment can be carried into effect; a court will not pass upon moot questions or abstract propositions, or to declare principles or rules of law that cannot affect the matter in issue in the case before it. (In re David B. (2017) 12 Cal.App.5th 633, 644.) The critical factor in considering whether an appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error. (Ibid.; see Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413, 423.) "If the issues on appeal are rendered moot, a reversal would be without practical effect, and the appeal will be dismissed." (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866.)

In opposition to District's motion to dismiss, Burgess does not dispute District directed him to return to the classroom. He asserts, however, that his appeal is not moot, because District assertedly ordered his return "with conditions, admonitions and warningsplaced in his personnel file" and without a hearing at which he could address any of the charges, so his dispute with District continues. He characterizes District's action as "a continuation of District's illegal conduct" and its reinstatement letter as a "form of punishment" or admonishment now within his personnel file. Burgess points out that the trial court noted the absence of negative reports in his personnel file as one of the reasons to deny his writ petition.

Here, the relief requested by Burgess by his petition—termination of the assertedly "illegal suspension" and reinstatement to his teaching position at the school—has been satisfied by District. The main substantive claims raised by Burgess in his appeal are that District did not follow certain Education Code suspension and termination procedures in placing him on involuntary leave; that the Education Code contains no provision for involuntary leave where no criminal charge is pending against the teacher; and the collective bargaining agreement required District to send him a written notice of suspension with the opportunity to file a grievance, which would have stayed the suspension. He did not seek a judicial declaration as to the propriety or validity of District's use of paid administrative leave for credentialed teachers pending investigations into claims of misconduct. (See Eye Dog...