Galland v. Governing Bd. of the L. A. Unified Sch. Dist.

GABRIEL GALLAND, Plaintiff and Appellant, v. GOVERNING BOARD OF THE LOSANGELES UNIFIED SCHOOL DISTRICT et al. Defendants and Respondents.

B258018

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

November 5, 2015

ORDER MODIFYING OPINION, DENYING REHEARING, AND GRANTING REQUEST FOR JUDICIAL NOTICE

THE COURT:*

It is ordered that the opinion, filed herein on November 5, 2015, be modified as follows:

1. On page 4, the text of footnote 3 is to be deleted, and replaced with the following:

In his reply brief, plaintiff suggests that the district's appearance as a respondent on appeal is insufficient because he is challenging the actions of the governing board and the commission. For purposes of our review, however, the board and commission need not be individually before the court, as each exercises the district's decision-making authority in the administrative review process. The governing board is the district's decision-making body (§ 35010, subd. (a)), and the commission is the governing board's final decision maker on issues of employee discipline once its procedures are invoked (§ 44944, subd. (c)(4)). A commission on professional competence is not a standing body but "a nominal, transitory body" whose "decision, once made, becomes the decision of the employing school district [citation] . . . ." (Fontana Unified School District v. Burman (1988) 45 Cal.3d 208, 224 & fn. 17 (Fontana Unified School District).) "[T]he commission serves no identifiable function in the remainder of the review process" and "therefore need not be before the court to enable the court to accord complete relief between the employing school district and the employee." (Id. at p. 224.)

2. On page 7, line 2, the words and numbers beginning with "Fontana" are deleted, and replaced with the following:

Fontana Unified School District, supra, 45 Cal.3d at pp. 215-216.)

3. On page 8, the text of footnote 7 is to be deleted, and replaced with the following:

Plaintiff argues that the Board's Chief Human Resources Officer is not a "public officer," but her status as a public officer is irrelevant because she is undoubtedly a district employee. A district's governing board "employ[s], pay[s], and otherwise control[s] the services" of the district's classified (nonteacher) employees (Educ. Code, § 45241), and as explained in footnote 3, the board and the (nominal, ad hoc) commission on professional competence each exercise the district's decision-making authority. Consequently an employee of the district is for all relevant purposes in this case an employee of "the agency before which the proceeding is to be held."

4. On page 13, first full paragraph, the following sentence is inserted at the end of the paragraph, line 9:

Plaintiff has since sought review of the portions of the ruling adverse to him, of which we also take judicial notice; however, the pendency of this review does not affect the "immoral conduct" ruling in his favor.

Appellant's request for judicial notice is granted.

Appellant's petition for rehearing is denied.

There is no change in the judgment.

/s/_________

*BOREN, P. J.,

/s/_________

ASHMANN-GERST, J.,

/s/_________

HOFFSTADT, J.

NOT TO BE PUBLISHED IN THE 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.

(Los Angeles County Super. Ct. No. BS145931)

APPEAL from a judgment of the Superior Court of Los Angeles County. James C. Chalfant, Judge. Affirmed.

Ronald C. Lapekas for Plaintiff and Appellant.

Bergman Dacey Goldsmith, Gregory M. Bergman, Michele M. Goldsmith, and Mark W. Waterman for Defendants and Respondents.

* * * A public school district initiated administrative dismissal proceedings against one of its teachers. That teacher moved to dismiss those proceedings because the charges against him were not properly "verified"; because he was suspended without pay before the evidentiary hearing on the charges; and because the "immoral conduct" charge is unconstitutionally vague. The administrative tribunal rejected the teacher's challenges, and so did the trial court when the teacher subsequently filed a writ. We also conclude that the administrative proceedings were conducted appropriately and constitutionally. Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Alleged Misconduct

Gabriel Galland (plaintiff) was working for the Los Angeles Unified School District (the district) as a permanent certificated teacher in 2012. The district received reports that plaintiff had engaged in several acts of misconduct during 2012. In January 2012, he was "disrespectful" and "aggressive" when addressing the assistant principal of his school. In April and May 2012, he told his entire class that another teacher was a "mija" who should be selling tamales; told the class that they have no future and will amount to nothing; told one student that his future entailed "selling oranges"; told another student that he was a "shit" who would never amount to anything because he is black; and made gorilla noises after asking a black student to leave the classroom. In August 2012, he put his finger in a student's face and yelled. In September 2012, he pushed and yelled at a student using profanity; grabbed and pushed another student; and in the course of kicking a student out of class, pushed that student in the chest and argued with him in view of the class.

II. Investigation and Initiation of Disciplinary Process

School administrators met with plaintiff in January, May and November 2012 to discuss the incidents and to give plaintiff the opportunity to respond.¹

On March 5, 2013, the district served plaintiff with a notice of unsatisfactory acts and with a notice of suspension, both of which expressly referred to the August and September 2012 incidents, and which incorporated by reference the incidents memorialized at the earlier meetings. Plaintiff denied the charges.

In March and April 2013, the district's administrator of operations sent plaintiff four letters attempting to set up a meeting at which plaintiff could "present any statements or documents on [his] own behalf" to assist the administrator in deciding whether or not to recommend that the district's Board of Education (governing board) move forward with the dismissal. Each of those letters "[a]lternatively" advised plaintiff that "if [he] wish[ed] to resign," he could fill out an attached resignation form and that any resignation would be "forwarded to the Board of Education instead of the recommended discipline." Plaintiff and his representative ultimately met with the administrator on April 22, 2013. After hearing from plaintiff, the administrator decided to recommend dismissal to the governing board.

On September 27, 2013, the district's Chief Human Resources Officer filed a statement of charges with the board. The statement of charges listed five different "causes" (or statutory bases) for dismissing plaintiff, two of which also authorized his immediate suspension without pay. It also enumerated all eleven incidents from January through September 2012. The line above the officer's signature stated: "The undersigned verifies on information and belief that the foregoing Charges are true and correct." A few weeks later, the governing board met in closed session and voted that good cause existed for plaintiff's dismissal and to suspend plaintiff without pay.

III. Hearing On Disciplinary Charges

The governing board provided plaintiff notice of its action in a letter dated October 9, 2013, and informed him that he had 30 days to request an evidentiary hearing before the Commission on Professional Competence (commission) contesting the charges. Plaintiff requested a hearing. The district's Chief Human Resources Officer thereafter filed an "accusation" against plaintiff that detailed the same causes and charges set forth in the initial statement of charges.

Plaintiff then filed a motion to dismiss the charges on the grounds that (1) the statement of charges was not properly verified, and (2) he was not accorded due process prior to being suspended without pay. The commission denied the motion to dismiss.

IV. Litigation

Plaintiff filed a petition for writ of mandate in the Los Angeles County Superior Court. In the operative first amended petition, plaintiff alleged that the dismissal proceedings were defective for the same reasons raised in his motion to dismiss, and additionally because Education Code section 44939² is unconstitutionally vague. Plaintiff thereafter filed an ex parte application for a peremptory writ specifically challenging the commission's denial of his motion to dismiss.

The trial court denied plaintiff's application and "denied" the petition "on the merits" as well. Plaintiff did not request a statement of decision.

After the trial court entered judgment, plaintiff timely appealed.³

DISCUSSION

Plaintiff makes two sets of arguments on appeal: (1) the governing board (and hence the commission) lacked subject matter jurisdiction over his disciplinary proceeding because the statement of charges and accusation were not signed under "penalty of perjury"; and (2) the proceeding violated his constitutional rights to due process because (a) he was not accorded meaningful predeprivation review of his immediate suspension without pay, in violation of Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly), and (b) the "immoral" conduct charge is unconstitutionally vague on its face and as applied.

Although a trial court engaging in writ review of administrative proceedings reviews both the evidence and the law regarding those proceedings de novo (Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 840 [questions of law]; Code Civ. Proc., § 1094.5 [evidence]; San Diego Unified School Dist. v....