Deyoung v. Comm'n On Prof'l Competence of the Hueneme Elementary Sch. Dist.

228 Cal.App.4th 568

175 Cal.Rptr.3d 383

Vincent DEYOUNG, Plaintiff and Appellant,

v. COMMISSION ON PROFESSIONAL COMPETENCE OF THE HUENEME ELEMENTARY SCHOOL DISTRICT, Defendant and Respondent;Hueneme Elementary School District, Real Party in Interest and Respondent.

2d Civil No. B248502

Court of Appeal, Second District, Division 6, California.

Filed July 30, 2014

See3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 309.

Henry J. Walsh, Judge, Superior Court County of Ventura (Super. Ct. No. 56-2012-00412966-CU-WM-VTA)

Trygstad, Schwab & Trygstad, Daniel J. Kolodziej, Lawrence B. Trygstad, Richard J. Schwab, for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Garcia, Hernandez, Sawhney & Bermudez, Chaka C. Okadigbo, for Real Party in Interest and Respondent.

PERREN, J.

Vincent DeYoung was a tenured teacher with the Hueneme Elementary School District (District). The District's governing board voted to dismiss him based on charges he had physically and abusively disciplined his students. The vote occurred after a District representative orally presented the charges to the board in a confidential proceeding. Although written charges subsequently were prepared and provided to DeYoung, the Education Code required that the board, prior to initiating dismissal, consider either verified written charges prepared by the District or written charges formulated by the board itself. (Ed.Code, § 44934.) ¹ DeYoung contends the board's failure to consider or formulate written charges before initiating his dismissal nullified all further proceedings. ( Ibid.) Because this procedural error was neither substantive nor prejudicial, we conclude DeYoung's dismissal was proper. (§ 44944, subd. (c)(2).)

The Commission on Professional Competence of the Hueneme Elementary School District (Commission) upheld DeYoung's dismissal on the merits. It rejected his assertion the governing board's procedural error in initiating dismissal deprived it of jurisdiction to review the board's decision. Nonsubstantive procedural errors committed by a school district or governing board do not preclude dismissing a teacher “unless the errors are prejudicial errors.” (§ 44944, subd. (c)(2).)

The trial court denied DeYoung's petition for writ of mandate. It found, as did the Commission, that the governing board's failure to consider or formulate written charges before initiating DeYoung's dismissal was a nonsubstantive procedural error that was not prejudicial. We affirm.

FACTS AND PROCEDURAL BACKGROUND

DeYoung is a permanent, certificated (tenured) teacher who began working for the District in 1990. His assignment for the 2009/2010 school year was a combination class of second and third graders who were English learners; their first language was Spanish. On March 25, 2010, DeYoung became angry and frustrated with students who were talking and laughing during a classroom movie. He grabbed some of the students, told them to “shut up,” called them “stupid,” struck one student in the foot with a chair, hit three students on top of the head with a yardstick or metal desk leg, and threw a pencil or pen at two or three students. His conduct frightened the students and, in some instances, caused physical pain.

The next day, after receiving complaints from parents, the school principal, Heidi Haines, discussed the incident with DeYoung and his union representative. DeYoung admitted raising his voice and using the word “stupid.” He claimed he “re-directed” a child to a different chair, but denied hitting any of the students or throwing chairs. Haines discussed the matter with him again the following week and in April 2010. During that time frame, DeYoung told a colleague he was being accused of hitting his students.

In late April 2010, the assistant superintendent, Deborah DeSmeth, met with DeYoung to discuss the incident. He denied throwing anything, hitting any students or calling them names. District representatives orally informed the governing board of the complaints against DeYoung. On May 4, 2010, the District sent a letter to DeYoung detailing the charges against him and advising he was being placed on administrative leave. In September 2010, the District held a Skelly² meeting to allow DeYoung and his counsel to respond to the District's proposed action to dismiss him. At that meeting DeYoung acknowledged that the students' misbehavior and laughter frustrated him and caused him to use poor judgment. He also admitted using the word “stupid” and throwing a pencil at a student.

During a closed meeting in October 2010, the District's governing board voted to dismiss DeYoung based on charges and information orally presented by DeSmeth. Thereafter, the District sent a letter advising DeYoung of the board's decision and outlining the specific charges. In December 2010, the District served an amended written accusation proposing to dismiss DeYoung on grounds of evident unfitness for service (§ 44932, subd. (a)(5)), refusal to obey school laws ( id. at subd. (a)(7)) and immoral conduct (§§ 44932, subd. (a)(1), 44939). DeYoung requested a hearing before the Commission and actively participated in all phases of the administrative process.

DeYoung moved to dismiss the administrative proceeding, citing the governing board's violation of section 44934 when it failed to consider or formulate written charges before initiating his dismissal. At the start of the four-day evidentiary hearing, the Commission's chairperson asked DeYoung's counsel if he had “any case law to support any situation where there's ever been a decision to dismiss the case because of this type of oversight?” He responded: “There's no preceden[t] on 44934 that I'm aware of.” The chairperson denied the motion to dismiss. In a unanimous decision, the Commission upheld DeYoung's dismissal based on his evident unfitness for service, violation of school rules and immoral conduct. Among other things, it determined DeYoung's testimony was not credible and that “[h]e appeared to be adapting his testimony to explain the children's accounts of his conduct without acknowledging the full extent of his inappropriate actions.”

DeYoung petitioned for a writ of mandate. He claimed the Commission lacked jurisdiction over the proceeding because the District's governing board “was not acting on written charges presented to it when it authorized the District to terminate [his] employment,” as required by section 44934. He did not contest the merits of the Commission's decision. The trial court rejected DeYoung's strict interpretation of section 44934, choosing to apply “a less strict construction ... viewed in conjunction with the allover circumstances which are present.” In denying the petition, the court found “the failure to prepare written [charges] as the very first step in the process was error, but it was non-substantive and non-prejudicial.” DeYoung appeals.

DISCUSSION

Standard of Review

“ ‘[T]he construction of statutes and the ascertainment of legislative intent are purely questions of law. This court is not limited by the interpretation of the statute made by the trial court....’ [Citation.]” (Bravo Vending v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 391–392, 20 Cal.Rptr.2d 164.)

“In reviewing a commission's decision, the superior court ‘shall exercise its independent judgment on the evidence.’ [Citation.] Where a superior court is required to make such an independent judgment upon the record of an administrative proceeding, the scope of review on appeal is limited. An appellate court must sustain the superior court's findings if substantial evidence supports them. [Citations.] In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court. [Citation.]” (Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314, 142 Cal.Rptr. 439, 572 P.2d 53; see San Diego Unified School Dist. v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 1461–1462, 124 Cal.Rptr.3d 320.)

Statutory Framework

“A permanent employee, such as a certificated tenured teacher, has a vested right to [his] position and may not be deprived of it without due process of law. [Citation.]” (Raven v. Oakland Unified School Dist. (1989) 213 Cal.App.3d 1347, 1357, 262 Cal.Rptr. 354.) The Education Code prescribes the “procedures” to be followed when a school district wishes to dismiss, suspend or otherwise discipline a tenured teacher. (Wilmot v. Commission on Professional Competence (1998) 64 Cal.App.4th 1130, 1132, 75 Cal.Rptr.2d 656 (Wilmot); Paramount Unified School Dist. v. Teachers Assn. of Paramount (1994) 26 Cal.App.4th 1371, 1378, 32 Cal.Rptr.2d 311; see § 44660 et seq.) Section 44932 lists the causes for dismissal. (Boliou v. Stockton Unified School Dist. (2012) 207 Cal.App.4th 170, 176, 143 Cal.Rptr.3d 189 (Boliou ).) Section 44934 permits the school district's governing board to give notice of intent to dismiss a tenured teacher upon consideration of either the district's filing of verified written charges or the board's formulation of written charges. Here, the District did not file verified written charges; nor did the board formulate written charges before voting to dismiss.³

Once a governing board votes to dismiss under section 44934, the teacher must be given notice by a written accusation. (Gov.Code, §§ 11503, subd. (a), 11507; see Boliou,supra, 207 Cal.App.4th at p. 176, 143 Cal.Rptr.3d 189.) The teacher may request a hearing before a Commission on Professional Competence.⁴ (§ 44944.) If a hearing is requested, the board must either rescind its action or schedule a hearing. (§ 44943.) If a hearing is held,...