Filed 12/17/18; Certified for Publication 1/14/19 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ARLIE RICASA, D071088
Plaintiff and Appellant,
v. (Super. Ct. Nos. 37-2016-00010146- CU-WM-CTL) OFFICE OF ADMINISTRATIVE HEARINGS,
Defendant;
SOUTHWESTERN COMMUNITY COLLEGE DISTRICT GOVERNING BOARD et al.,
Real Parties in Interest and Respondents.
ARLIE RICASA, D071122
v. (Super. Ct. Nos. 37-2015-00025984- CU-WM-CTL) OFFICE OF ADMINISTRATIVE HEARINGS,
SOUTHWESTERN COMMUNITY COLLEGE DISTRICT GOVERNING BOARD et al.,
Real Parties in Interest and Appellants. CONSOLIDATED APPEALS from a judgment of the Superior Court of San
Diego County, Eddie C. Sturgeon, Judge. Affirmed as modified.
Dinsmore & Shohl and Adriana Cara for Plaintiff and Appellant.
No appearance for Defendant Office of Administrative Hearings.
Lozano Smith, Mark W. Waterman and Mark K. Kitabayashi for Respondents,
Appellants and Real Parties in Interest Southwestern Community College District
Governing Board and Southwestern Community College District.
Southwestern Community College District (District) and its governing board
(Board) (together Southwestern) demoted Arlie Ricasa from an academic administrator
position to a faculty position on the grounds of moral turpitude, immoral conduct, and
unfitness to serve in her then-current role. Ricasa filed two petitions for writs of
administrative mandamus in the trial court seeking, among other things, to set aside the
demotion and reinstate her as an academic administrator.
Ricasa appeals from the denial of her petitions, arguing the demotion occurred in
violation of the Ralph M. Brown Act (the Brown Act) (Gov. Code, § 54950 et seq.)
because Southwestern failed to provide her with 24 hours' notice of the hearing at which
it heard charges against her, as required by Government Code section 54957. Assuming
we reject her first argument, she argues that the demotion was unconstitutional because
no nexus exists between her alleged misconduct and her fitness to serve as academic
administrator.
Southwestern also appeals, arguing that the trial court made two legal errors when
it: (1) held that Southwestern was required to give 24-hour notice under the Brown Act
2 prior to conducting a closed session at which it voted to initiate disciplinary proceedings,
and (2) enjoined Southwestern from committing future Brown Act violations.
We conclude that Southwestern did not violate the Brown Act and that substantial
evidence supported Ricasa's demotion. However, we reverse that part of the judgment
enjoining Southwestern from future Brown Act violations.
FACTUAL AND PROCEDURAL BACKGROUND
Introduction
In 1990 Ricasa started working at Southwestern as a tenured faculty counselor.
After about 10 years in this position she served as the interim dean until she was selected
to serve as Southwestern's director of Student Development and Health Services (DSD),
an academic administrator position. As the DSD, Ricasa acted as an advisor to the
elected student government, working directly with student leaders and conducting
leadership training. Ricasa understood that this position required her, among other
things, to avoid any conflicts of interest, refrain from using District time and equipment
for non-District activities, act within the law, and not use the position to benefit herself.
In 2008 Ricasa's supervisor evaluated her as "extremely competent" in her position.
In 2013 Ricasa worked under a written "Academic Administrator Employment
Agreement" (Agreement) that provided for a 12-month nonrenewable position,
terminating on June 30, 2015. The terms and conditions of her employment were set
forth in an "Academic Administrator Handbook" (the Handbook).
While employed by Southwestern as the DSD, Ricasa also served as an elected
board member of a separate entity, the Sweetwater Union High School District (SUHSD).
3 SUHSD and Southwestern are both large educational institutions in the South Bay area of
San Diego. The District and SUHSD work together to promote higher education and
have overlapping contractors and employees, such as Ricasa. The largest number of
incoming District students were from SUHSD, and the community viewed the school
districts as having significant ties.
Ricasa's position at SUHSD required her to complete an annual Statement of
Economic Interest Form 700 (Form 700). As a SUHSD board member, Ricasa voted on
million-dollar vendor contracts to construction companies, such as Seville Group, Inc.
(SGI) and Gilbane Construction Company, who ultimately co-managed a bond project for
the SUHSD. Before and after SGI received this contract, Ricasa went to dinners with
SGI members that she did not disclose on her Form 700. Ricasa's daughter also received
a scholarship from SGI to attend a student leadership conference that Ricasa did not
report on her Form 700. In July 2009, during business hours at Southwestern, she faxed
two notes to Rene Flores, an SGI member, confirming the amount ($1,800) necessary for
her daughter to attend a conference and thanking him for the money.
Charges and Guilty Plea
In January 2012 the district attorney filed about 30 charges against Ricasa for
bribery and corruption. After charges were filed against Ricasa, Southwestern placed her
on nondisciplinary paid administrative leave. In June 2012 Ricasa returned to work as
the director of Extended Opportunity Programs, another academic administrator position.
Ricasa suffered no change in her compensation or benefits, but was "subject to
prospective compensation adjustments negotiated with all employee groups."
4 Other individuals from the SUHSD were also charged. The press labeled the
criminal matter as the " 'South Bay pay for play scandal' " and the "South Bay Corruption
Scandal." In December 2013 Ricasa pleaded guilty to one misdemeanor count of
violating the Political Reform Act (Gov. Code, § 89503), which prohibits board members
of local agencies from receiving gifts from a single source in excess of $420. Her guilty
plea provided:
"I now plead Guilty/No Contest and admit the charges, convictions, and violations of probation described in Paragraph #1, above, because I am guilty. I admit that on the dates charged, . . .
"i. I received, reviewed, understood, and biannually voted on Sweetwater's Conflict of Interest Code delineating the Form 700 reporting requirements sent to Sweetwater Board by the Superintendent.
"ii. In 2009, I was elected School Board member for the [SUHSD]. I accepted gifts from Rene Flores (SGI) in 2009 worth a value of $2,099 and did not report them.
"iii. The maximum contribution one may lawfully receive from one source per year is $420. Rene Flores provided these gifts with the intent to influence my vote on business awarded to Seville Group, Inc."
Ricasa resigned her SUHSD board position as part of her guilty plea.
Ricasa's Demotion
In February 2014 Southwestern delivered to Ricasa a document entitled "Notice of
Charges and Recommendation for Termination of Academic Administrator Agreement
and Demotion to Faculty Position" (the Original Charges), along with a letter indicating
that a " 'Skelly' " meeting had been scheduled and that Southwestern was considering a
5 recommendation to terminate her Agreement and demote her to a faculty position. 1
Later that month, Ricasa and her counsel met with a "Skelly officer" to conduct a
predisciplinary Skelly meeting. In March 2014 Southwestern delivered a letter, along
with an amended notice of charges (the Amended Charges). The Amended Charges
notified Ricasa that under Education Code 2 section 87669 her demotion could take place
immediately upon service of the Amended Charges. Ricasa submitted a written response
to the Amended Charges.
In April 2014 Southwestern responded to Ricasa's arguments, but concluded that
the "totality of the circumstances establish a reasonable basis for the District to conclude
that [Ricasa's] conduct may justify discipline based upon Section 87732." The District's
president and superintendent, Dr. Melinda Nish, agreed with the demotion
recommendation and the matter was placed on the Board's agenda for closed session on
May 7, 2014 (the May meeting) to address "Public Employee
Discipline/Dismissal/Release."
Two days later, as required by section 87672, Ricasa received the Board's decision
advising her that she was being disciplined under sections 87671 and 87732, demoted to
1 Some public employment arrangements confer to certain public employees a property interest in their jobs. (See Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 206-207 (Skelly).) In such cases, "the state must comply with procedural due process requirements before it may deprive its permanent employee of this property interest by punitive action." (Id. at p. 208.) A so-called Skelly pre-termination hearing requires, at a minimum, "notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline." (Id. at p. 215.)
2 Undesignated statutory references are to the Education Code. 6 the faculty position of academic counselor "effective immediately," that she had a right
under section 87673 to object and request a hearing, and that the written charges against
her were attached. Thereafter, Southwestern conducted a noticed meeting at which
several individuals addressed the Board in open session regarding Ricasa's demotion. At
this meeting the Board voted to demote Ricasa. In June Ricasa requested a hearing to
appeal the decision.
Additionally, in December 2014, the District notified Ricasa that her contract for
her administrative position, which expired on June 30, 2015, would not be renewed.
Ricasa remains employed by the District as an academic counselor.
The Administrative Hearing
An administrative law judge (ALJ) from the Office of Administrative Hearings
(OAH) conducted an evidentiary hearing regarding Ricasa's discipline and later issued a
38-page decision upholding Southwestern's decision to demote Ricasa. The ALJ
concluded that a "preponderance of the evidence established that Ms. Ricasa engaged in
immoral conduct in violation of [] section 87732, subdivision (a)," "is evidently unfit for
service as an academic administrator in violation of [] section 87732, subdivision (d),"
and "was convicted of a crime of moral turpitude in violation of [] section 87732,
subdivision (g)."
The Instant Actions
Before the ALJ rendered her decision, Ricasa filed a petition for writ of mandamus
against Southwestern alleging violations of the Brown Act (Brown Act Petition). She
first alleged that, based on Southwestern's position that the May meeting did not
7 constitute a violation of the Brown Act, it is likely that Southwestern will continue to
violate the Brown Act's open meeting requirement in the future. She next alleged that
Southwestern was required to report the action taken at the May meeting under the
Brown Act, but failed to do so. She claimed that Southwestern failed to acknowledge
this violation and it is likely that Southwestern will continue to violate this requirement in
the future. She sought to enjoin these future violations of the Brown Act.
After the ALJ's decision, Ricasa filed a second petition seeking a writ of mandate
under Code of Civil Procedure section 1094.5 for relief from the OAH's final decision
and incidental damages. She sought to set the ALJ's decision aside alleging, among other
things, that the evidence did not support the ALJ's findings.
The Trial Court's Ruling
The trial court issued a joint order on both petitions. The court ruled in favor of
Southwestern on the merits of Ricasa's demotion, finding that the evidence supported the
ALJ's decision regarding the demotion. The court also ruled that the ALJ did not abuse
her discretion or fail to proceed in a manner required by law. The court found that
substantial evidence supported upholding the decision to demote Ricasa. It agreed with
the ALJ's decision to terminate Ricasa's Agreement and demote her to the faculty position
of academic counselor.
As to Ricasa's Brown Act claims that Southwestern was required, but failed, to
give 24-hour notice under Government Code section 54957 prior to the May meeting, the
court found that Southwestern was obligated to provide 24-hour notice prior to the May
meeting. Nonetheless, it concluded that this claim for a past violation of the Brown Act
8 was barred because Ricasa did not timely submit the required cease and desist letter
under Government Code section 54960.2. The court entered judgment in favor of
Southwestern on Ricasa's claim for a past violation of the Brown Act.
To the extent Ricasa sought to prevent future violations of the Brown Act, the
court granted Ricasa's petition. Accordingly, the court issued a peremptory writ of
mandate enjoining Southwestern "from holding closed session meetings on specific
complaints or charges brought against an employee by another person or employee unless
the employee has been given written notice of his or her right to have the complaints or
charges heard in an open session rather than a closed session, which notice was delivered
to the employee personally or by mail at least 24 hours before the time for holding the
session" as required by Government Code section 54957, subdivision (b)(2).
The Appeals
Both parties appealed. Southwestern contends that the Education Code provided a
mechanism by which a community college may discipline an employee by giving the
employee notice of charges against her and the right to dispute those charges in a full
evidentiary hearing before a neutral ALJ. Accordingly, it asserts the trial court erred in
concluding that Ricasa was entitled to 24-hour notice in advance of the May meeting
under the Brown Act.
Southwestern also argues that, under California law, a future violation under the
Brown Act occurs only when a public entity engages in a longstanding continued
practice, not when it undertakes a one-time event based on specific circumstances.
Accordingly, it asserts that its one-time decision to discipline Ricasa under the Education
9 Code based on her specific admissions in her criminal conviction does not constitute a
future violation of the Brown Act and that the trial court erred in enjoining future Brown
Act violations.
Ricasa contends that the trial court erred as a matter of law when it held that her
Brown Act claim was time-barred as to past actions because the Brown Act's cure
provisions do not apply to a Government Code section 54957 violation. She also asserts
that the court's upholding of her demotion must be reversed because no evidence
establishes her unfitness to serve as an academic administrator.
DISCUSSION
This action involves the interplay between the Education Code and the Brown Act.
Accordingly, we start our analysis with a review of the relevant statutory provisions. We
then explain why we agree with Southwestern that Ricasa was not entitled to 24-hour
advance notice of the May meeting under the Brown Act. This decision renders moot
Ricasa's argument that the trial court erred as a matter of law when it held that her Brown
Act claim was time-barred as to past actions because she did not comply with the cure
provisions in Government Code section 54960.2. Accordingly, we express no opinion on
this issue.
We also agree with Southwestern that the court improperly enjoined Southwestern
from committing future violations of the Brown Act. Finally, we reject Ricasa's
arguments and conclude that the court did not err in upholding her demotion.
10 I. THE EDUCATION CODE
The terms and conditions of employment for community college employees are
governed by a comprehensive statutory scheme set forth in the Education Code.
(§ 87660 et seq. [governing "the evaluation of, the dismissal of, and the imposition of
penalties on, community college faculty"].) Contract or regular employees "may be
dismissed or penalized for one or more of the grounds set forth in Section 87732."
(§ 87667.) "A 'regular' employee is . . . one who has achieved tenure. 'Contract' status is
the first step toward tenure." (McGuire v. Governing Board (1984) 161 Cal.App.3d 871,
874.) Section 87732 provides multiple independent bases upon which an employer may
take action against an employee, including: immoral or unprofessional conduct, evident
unfitness for service, and conviction of a felony or of any crime involving moral
turpitude. (§ 87732, subds. (a), (d), (g).)
The governing board determines whether an employee is to be dismissed or
penalized and whether the dismissal or penalty shall be imposed immediately or
postponed. (§ 87669.) The employee "may be dismissed or penalized if one or more of
the grounds set forth in Section 87732 are present and the following are satisfied: [¶] (a)
The employee has been evaluated in accordance with standards and procedures
established in accordance with the provisions of this article. [¶] (b) The district
governing board has received all statements of evaluation which considered the events for
which dismissal or penalties may be imposed. [¶] (c) The district governing board has
received recommendations of the superintendent of the district and, if the employee is
working for a community college, the recommendations of the president of that
11 community college. [¶] (d) The district governing board has considered the statements of
evaluation and the recommendations in a lawful meeting of the board." (§ 87671.)
"If governing board decides it intends to dismiss or penalize a contract or regular
employee, it shall deliver a written statement, duly signed and verified, to the employee
setting forth the complete and precise decision of the governing board and the reasons
therefor." (§ 87672.) The employee then has 30 days to object to the governing board's
decision. (§ 87673.)
If the parties do not agree to an arbitrator (§ 87674), then the governing board
must certify the matter to the OAH. (§ 87678.) An ALJ conducts proceedings "in
accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code." (§ 87679.) "The written notice delivered to the
employee pursuant to Section 87672 shall be deemed an accusation. The written
objection of the employee delivered pursuant to Section 87673 shall be deemed the notice
of defense." (§ 87679.)
The ALJ must determine whether cause exists to dismiss or penalize the employee
and whether to dismiss or penalize the employee. (§ 87680.) The governing board or the
employee may petition the court for review of the ALJ's decision. (§ 87682.)
II. THE BROWN ACT
The Brown Act requires that school district board meetings be open to the public.
(Gov. Code, §§ 54951 & 54953; Fischer v. Los Angeles Unified School Dist. (1999) 70
Cal.App.4th 87, 95 (Fischer).) Closed sessions may only be conducted if authorized by
statute. (Gov. Code, § 54962.) One such statutory authorization is Government Code
12 section 54957, known as the "personnel exception," which is designed to permit the free
and candid discussion of personnel matters by a local governmental body and to protect
the employee from public embarrassment. (Fischer, at p. 96.)
Specifically, the personnel exception allows a local agency to hold a closed
session hearing "to consider the appointment, employment, evaluation of performance,
discipline, or dismissal of a public employee or to hear complaints or charges brought
against the employee by another person or employee unless the employee requests a
public session." (Gov. Code, § 54957, subd. (b)(1).) The agenda for a closed session
regarding a public employee discipline matter merely has to state: "PUBLIC
EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE." (Gov. Code, § 54954.5, subd.
(e).) But, "[a]s a condition to holding a closed session on specific complaints or charges
brought against an employee by another person or employee, the employee shall be given
written notice of his or her right to have the complaints or charges heard in an open
session rather than a closed session, which notice shall be delivered to the employee
personally or by mail at least 24 hours before the time for holding the session. If notice is
not given, any disciplinary or other action taken by the legislative body against the
employee based on the specific complaints or charges in the closed session shall be null
and void." (Gov. Code, § 54957, subd. (b)(2).) 3
3 We sometimes refer to the 24-hour notice requirement of Government Code section 54957, subdivision (b)(2) as the "24-hour rule." 13 III. NO PAST VIOLATION OF THE BROWN ACT OCCURRED
The trial court held that the Board's May meeting violated the Brown Act because
Southwestern failed to comply with the 24-hour rule. The court found that the following
facts supported Ricasa's argument: "1) there was an hour long closed meeting and the
decision was not announced at the reconvened session; 2) there were multiple exhibits
attached to the charging document; 3) [Dr.] Nish could be considered a charging party, in
addition to her role as secretary; and 4) most importantly, [Ricasa] was disciplined
immediately."
Southwestern contends the trial court erred in concluding that Ricasa was entitled
to 24-hour notice in advance of the May meeting under the Brown Act. Because
resolution of this issue requires us to interpret the Education Code and the Brown Act,
our review is de novo. (Regents of University of California v. Superior Court (1999) 20
Cal.4th 509, 531.)
We begin our analysis by reviewing the actions Southwestern took and conclude
that Southwestern's actions complied with its obligations under the Education Code. We
then explain that Southwestern's actions did not violate the Brown Act because the
personnel exception to the Brown Act applied to the May meeting.
A. Southwestern's Actions Complied with the Education Code
Ricasa is a community college employee. Under the Handbook, when Ricasa
advanced to an administrative position she retained her classification as a tenured faculty
member. Section 87660 et seq. governs ". . . the imposition of penalties on[] community
14 college faculty." These Education Code provisions apply to Ricasa as a tenured faculty
member. (§ 72411.5.)
Southwestern provided Ricasa with a predisciplinary notice of charges and
recommendation that she be demoted. This notice informed her that a Skelly hearing had
been scheduled. Ricasa participated in the Skelly hearing with her counsel. Southwestern
delivered a letter and the Amended Charges to Ricasa. The letter informed her that she
would have the "opportunity to respond to the Amended Charges before a final decision
is made . . . ." The Amended Charges informed her that under section 87669, which
allowed the Board to impose an immediate penalty, her demotion could take place
immediately upon service of the Amended Charges. Ricasa submitted a written response
Ricasa then received notice of the next steps required by the Education Code.
First, as required by section 87671, Dr. Nish would present a recommendation to the
Board at a Board meeting, along with a copy of Ricasa's performance evaluations issued
since the 2009-2010 academic year, the Amended Charges, Ricasa's written response to
the Amended Charges, and the Skelly decision. After the meeting, as required by section
87672, Ricasa might be served with a notice of disciplinary action. As required by
section 87673, Ricasa would have 30 days to file a written objection. As contemplated
by sections 87674 and 87678, Ricasa and the District would then select an arbitrator or
choose to have the matter heard by an ALJ.
Specifically, as a prerequisite to a full evidentiary hearing before an ALJ, section
87671 required that the Board consider Ricasa's "statements of evaluation and the
15 recommendations [of the president of that community college] in a lawful meeting of the
board." (§ 87671, subd. (d), (c).) Thus, section 87671 required that the Board hold the
May meeting before it could demote Ricasa.
After the May meeting, if the Board decided to penalize Ricasa, it was statutorily
mandated to "deliver a written statement, duly signed and verified, to the employee
setting forth the complete and precise decision of the governing board and the reasons
therefor." (§ 87672.) The Board decided to demote Ricasa immediately and delivered
the verified statement to Ricasa. Section 87669 allowed the Board to impose an
immediate penalty, such as a demotion.
As this review shows, three of the facts the trial court relied on in finding that a
hearing occurred on specific complaints or charges were either statutorily mandated or
permitted under the Education Code. Section 87669 allowed the Board to impose an
immediate penalty. Section 87671 required that Dr. Nish, the District's president and
superintendent, present her recommendation to the Board at a Board meeting, along with
copies of specified documents.
The other facts relied on by the trial court, the length of time the Board took in
closed session, and that a decision was not announced at the reconvened session do not
support its conclusion that a hearing occurred. Ricasa cited no authority, and we are
aware of none, supporting an assertion that the amount of time spent in closed section, or
the lack of an announcement, are relevant to determining whether a violation of the 24-
hour rule occurred.
16 B. The May Meeting Fell Within the Personnel Exception
Having found that Southwestern's actions complied with its statutory obligations
under the Education Code, we next address whether the Board "consider[ed] the
appointment, employment, evaluation of performance, discipline, or dismissal of a public
employee" (Gov. Code, § 54957, subd. (b)(1), italics added) at the May meeting, or
whether the Board "hear[d] complaints or charges brought against the employee by
another person or employee." (Ibid., italics added.) In the former instance, the personnel
exception applied and Ricasa did not have the right to 24-hour notice, while in the latter
instance she had this right. (Id. at subd. (b)(2); Fischer, supra, 70 Cal.App.4th at p. 96.)
What occurred during the May meeting presents a disputed factual question.
Accordingly, we review this issue under the substantial evidence standard of review.
Under this standard, we resolve all conflicts in evidence in favor of the prevailing party
and indulge all legitimate inferences to uphold the judgment if possible. (Western States
Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)
"A 'hearing' is '[a] proceeding of relative formality . . . , generally public, with
definite issues of fact or of law to be tried, in which witnesses are heard and evidence
presented.' " (Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568,
574.) In contrast, "[t]o 'consider' is to 'deliberate upon[.]' " (Ibid.)
Here, the agenda for the May meeting complied with Government Code section
54954.5, subdivision (e), regarding how the agenda must identify an employee discipline
matter that will be considered in closed session. In an attempt to bring the May meeting
within the 24-hour notice requirement of Government Code section 54957, Ricasa
17 contends that Dr. Nish's presentation of the Amended Charges to the Board at the May
meeting constituted "specific complaints or charges brought against an employee by
another person or employee." (Gov. Code, § 54957, subd. (b)(2).) To support this
contention, she cited to a portion of a declaration by Board member Tim Nader.
However, a full reading of Nader's declaration shows that the Board did not receive
evidence or testimony from any percipient witness, nor did it hear from a third party
about any claims against Ricasa:
"On May 7, 2014, the District's Board met in closed session to initiate the process of demoting Petitioner from her administrative position of Director of Extended Opportunity Programs to a staff position as academic counselor. The initiation of this process was directly related to Petitioner's December 18, 2013 guilty plea, where she pled guilty to a misdemeanor violation of Government Code section 89503. The Board did not conduct any type of hearing regarding Petitioner.
"At the May 7, 2014 closed session, neither I nor any of the Board members received evidence and at most considered whether Petitioner's guilty plea and underlying conduct, as presented by the District's President Dr. Melinda Nish, justified disciplinary action. Again, the District's Board did not conduct any type of evidentiary hearing. I have always understood that Petitioner has a legal right to an evidentiary hearing on her discipline in accordance with the Education Code. In fact, it is my understanding that Petitioner did request, and was a party to, a four day administrative hearing before an Administrative Law Judge in August 2015."
The evidence shows that Dr. Nish presented her recommendation to the Board
along with all the documentation required by the Education Code. (§ 87671, subd. (b),
(c), (d).) Dr. Nish testified that "closed-session deliberation" occurred at the May
meeting. Ricasa cited nothing in the record showing that Dr. Nish was a percipient
witness to Ricasa's misconduct. Moreover, the charges considered by the Board is a
18 pleading, based on information and belief, not a piece of evidence. (Kolter v.
Commission on Professional Competence (2009) 170 Cal.App.4th 1346, 1352 (Kolter)
[governing board does not conduct evidentiary hearing in deciding whether to approve or
reject a statement of charges].)
If we were to accept Ricasa's argument, a hearing of "specific complaints or
charges brought against an employee by another person or employee" within the meaning
of Government Code section 54957, subdivision (b)(2) would occur anytime the
superintendent of the district or president of a community college presents a disciplinary
recommendation during a lawful meeting of the governing board as required by
Education Code sections 87669 and 87671. Such an interpretation would eviscerate the
personnel exception by preventing the governing boards of community colleges from
engaging in the type of "free and candid" discussions that the Legislature has deemed
necessary for them to manage their personnel. (Fischer, supra, 70 Cal.App.4th at p. 96.)
The plain language of Government Code section 54957 allowed the Board to consider
public employee discipline in closed section. This is what occurred here.
The parties analogize the instant matter with other cases addressing alleged Brown
Act violations, specifically Kolter, supra, 170 Cal.App.4th 1346 and Bell v. Vista Unified
School Dist. (2000) 82 Cal.App.4th 672 (Bell).
Southwestern contends that Kolter, supra, 170 Cal.App.4th 1346 is "[o]n point"
and "dispositive" on the issue whether the 24-hour rule applies here. While the process
utilized in Kolter is similar to the process utilized here, the statutory scheme in Kolter
distinguishes this case. In Kolter, a school board initiated dismissal proceedings against a
19 certified teacher under section 44934 which requires that the board either consider filed
written charges or formulate written charges, and allows the employee to request a
hearing on the charges by a separate commission. (Kolter, at p. 1349; §§ 44934, subd.
(b), 44944, subd. (a), (c)(1).) Under this statutory scheme, the personnel exception to the
Brown Act applied and 24-hour written notice was not required because the "board did
not conduct an evidentiary hearing on the verified statement of charges against [the
teacher]; rather, it considered whether those charges justified the initiation of dismissal
proceedings under [] section 44944." (Kolter, at p. 1352.) Here, unlike Kolter, the Board
makes a disciplinary decision in the first instance and can immediately penalize or
dismiss an employee. (§ 87669.) Thus, Kolter is not dispositive.
Ricasa relies on Bell, supra, 82 Cal.App.4th 672 for the proposition that the 24-
hour rule applied. While Bell has significant factual parallels to the matter before us, we
find it distinguishable. In Bell, the issue was whether a board of trustees violated the 24-
hour rule when it met in closed session to discuss the potential disciplining of a teacher
who also coached the football team. (Bell, at pp. 678-679.) The appellate court
identified the issue as whether the proceedings consisted of hearing "complaints or
charges" against the teacher, as that term is used in Government Code section 54957,
subdivision (b). (Bell, at p. 682.) The appellate court defined the phrase "complaints or
charges" as an accusation, something that is " 'brought against' " an employee by another
person or employee, but excluded negative comments in an employee's performance
evaluation from this definition. (Id. at p. 683.) On the facts of that case, the Bell court
concluded that the employee was entitled to 24-hour notice because prior findings by a
20 panel became the basis for a "complaint" or "charge" that the board of trustees later
considered at its meeting. (Id. at pp. 679, 683.) Under these facts, the teacher should
have been afforded the opportunity to respond to the accusations against him before the
board of trustees decided his discipline. (Id. at pp. 683-684.)
Here, unlike Bell, supra, 82 Cal.App.4th 672, the Board did not conduct an
evidentiary hearing when it met in closed session; rather, it debated whether the facts
established by Ricasa's guilty plea constituted a sufficient basis for discipline. The Board
did not resolve a factual dispute that required a response from Ricasa, but instead debated
whether the undisputed facts warranted discipline. Accordingly, because the Board did
not consider a complaint or charge, the 24-hour rule did not apply. 4
In a final attempt to avoid a conclusion that the May meeting fell under the
personnel exception of Government Code section 54957, Ricasa argues that
Southwestern waived the ability to present argument on the interaction between the
Education Code and the Brown Act by failing to raise the Education Code below. We
reject this argument because the record shows that the Education Code was the basis for
Southwestern's disciplinary action against Ricasa. Southwestern also relied on the
Education Code in arguing to the trial court why the 24-hour rule did not apply.
4 Ricasa's reliance on Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860 (Housing Authority) and Moreno v. City of King (2005) 127 Cal.App.4th 17 (Moreno) is likewise misplaced. In these cases, the governing body in closed session heard "complaints or charges" against an employee as that term is used in Government Code section 54957, subdivision (b). (Morrison, at pp. 872-875; Moreno, at pp. 28-29.)
21 Southwestern asserts that, under California law, a future violation under the Brown Act
occurs only when a public entity engages in a longstanding continued practice, not when
it undertakes a one-time event based on specific circumstances. Accordingly, it argues
that the trial court erred in enjoining future Brown Act violations.
Ricasa's Brown Act Petition sought declaratory and injunctive relief, praying for
an order that the Board "refrain from holding closed session meetings unless specifically
authorized by the Brown Act." Ricasa contends that, based on Southwestern's instant
violation of the Brown Act, it is reasonable to conclude that the Board will continue to
engage in this improper conduct in the future. Accordingly, she asserts the trial court did
not err in granting the writ for this purpose.
The Brown Act provides that an action for declaratory relief may be brought to,
among other things, "determine the applicability of this chapter to actions or threatened
future actions of the legislative body . . . ." (Gov. Code, § 54960, subd. (a).)
"Declaratory relief operates prospectively to declare future rights, rather than to redress
past wrongs." (Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan
(2007) 150 Cal.App.4th 1487, 1497.) "[T]he Brown Act [also] authorizes injunctive
relief that is based on, in relevant part, a showing of 'past actions and violations that are
related to present or future ones' " (Shapiro v. San Diego City Council (2002) 96
Cal.App.4th 904, 917, italics omitted), and therefore the trial court may enjoin "future
such actions and violations." (Ibid.)
In Center for Local Government Accountability v. City of San Diego (2016) 247
Cal.App.4th 1146 we analyzed what constituted a future violation of the Brown Act. We
22 concluded that "the City's continued adherence to a long-standing ordinance providing for
one nonagenda public comment period over the course of its two-day regular weekly
meetings constitute[d] an ongoing or threatened future action, not a past action." (Center
for Local Government Accountability, at pp. 1150-1151.) We noted that the adoption of
the ordinance did not have a one-time effect, but applied "to every regular weekly
meeting but for the City's postlitigation enactment of another ordinance altering the City's
practice." (Id. at p. 1156.)
Here, in contrast, Southwestern did not violate the Brown Act in handling Ricasa's
demotion. Moreover, Ricasa has not presented evidence showing that Southwestern has
ever violated the Brown Act. Under these circumstances, the trial court erred in issuing a
writ to enjoin future Brown Act violations. Accordingly, we order the judgment
modified to reverse the writ enjoining future Brown Act violations.
V. COURT DID NOT ERR IN UPHOLDING RICASA'S DEMOTION
A. General Legal Principles
The Education Code governs the evaluation and discipline of community college
faculty (§ 87660) and establishes procedures to be followed in penalizing a contract or
regular employee. (§ 87666.) The governing board of a community college district has
the authority to determine whether a contract or regular employee is to be penalized and
the nature of those penalties. (§ 87669.) The governing board may penalize a regular or
contract employee for one of eight specific causes. (§§ 87667, 87671.) As relevant here,
these causes include "[i]mmoral or unprofessional conduct," "[e]vident unfitness for
23 service," and "[c]onviction of a felony or of any crime involving moral turpitude."
(§§ 87671, 87732, subd. (a), (d), (g).)
" 'The term "immoral" has been defined generally as that which is hostile to the
welfare of the general public and contrary to good morals. Immorality has not been
confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative
of corruption, indecency, depravity, dissoluteness; or as willful, flagrant, or shameless
conduct showing moral indifference to the opinions of respectable members of the
community, and as an inconsiderate attitude toward good order and the public welfare.' "
(Board of Education v. Weiland (1960) 179 Cal.App.2d 808, 811.)
" '[E]vident unfitness for service' connotes a fixed character trait, presumably not
remediable merely on receipt of notice that one's conduct fails to meet the expectations of
the employing school district." (Woodland Joint Unified School Dist. v. Commission on
Professional Competence (1992) 2 Cal.App.4th 1429, 1444 [addressing § 44932, subd.
(a)(5)].) It means " 'clearly not fit, not adapted to or unsuitable . . . ordinarily by reasons
of temperamental defects or inadequacies.' " (Ibid.) " 'Unprofessional conduct' is, as it
were, often a lesser included form of proscribed behavior within 'evident unfitness for
service.' Thus, conduct constituting 'evident unfitness for service' will often constitute
'unprofessional conduct.' But the converse is not true. 'Evident unfitness for service'
requires that unfitness for service be attributable to a defect in temperament—a
requirement not necessary for a finding of 'unprofessional conduct.' " (Id. at p. 1445.)
" ' "Moral turpitude" is . . . "an act of baseness, vileness or depravity in the private
and social duties which a man owes to his fellowmen, or to society in general, contrary to
24 the accepted and customary rule of right and duty between man and man." [Citations.]
Moral turpitude has also been described as any crime or misconduct committed without
excuse [citations], or as any "dishonest or immoral" act, not necessarily a crime.' "
(Golde v. Fox (1979) 98 Cal.App.3d 167, 181.) "[M]oral turpitude is inherent in crimes
involving fraudulent intent, intentional dishonesty for purposes of personal gain or other
corrupt purpose." (Id. at p. 185.)
The trial court reviews an administrative decision under the independent judgment
standard of review. (§ 87682.) "In exercising its independent judgment, a trial court
must afford a strong presumption of correctness concerning the administrative findings,
and the party challenging the administrative decision bears the burden of convincing the
court that the administrative findings are contrary to the weight of the evidence."
(Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817 (Fukuda).) We review the trial
court's determination under the substantial evidence test. (Id. at p. 824.)
The question before us "is whether the evidence reveals substantial support—
contradicted or uncontradicted—for the trial court's conclusion that the weight of the
evidence supports the [administrative agency's] findings of fact." (Breslin v. City and
County of San Francisco (2007) 146 Cal.App.4th 1064, 1078.) We do "not reweigh the
evidence, but consider that evidence in the light most favorable to the trial court,
indulging in every reasonable inference in favor of the trial court's findings and resolving
all conflicts in its favor." (Ibid.) "When more than one inference can be reasonably
deduced from the facts, [we] cannot substitute [our] deductions for those of the [trial]
court." (Pasadena Unified School Dist. v. Commission on Professional Competence
25 (1977) 20 Cal.3d 309, 314.) If "substantial evidence supports the trial court's findings
and conclusions, the judgment must be affirmed." (Board of Education v. Jack M. (1977)
19 Cal.3d 691, 697.)
B. Analysis
The ALJ concluded that Ricasa engaged in immoral conduct, was evidently unfit
for service as an academic administrator, and had been convicted of a crime involving
moral turpitude. After reviewing the evidence in the administrative record, the trial court
found substantial evidence supported the conclusion that Ricasa had engaged in immoral
conduct and agreed with Southwestern's decision to demote her. The trial court cited
three paragraphs in the ALJ's decision that addressed the evidence.
As a preliminary matter, Ricasa complains that the trial court merely copied and
pasted three paragraphs of the ALJ's decision upholding her demotion and failed to
provide a reasoned and factually supported decision. Ricasa, however, does not contend
that she requested a statement of decision under Code of Civil Procedure section 632 and
our review of the record does not show that she requested one. "It is . . . well established
that Code of Civil Procedure section 632 applies to administrative mandamus
proceedings in which the trial court exercises its independent judgment in reviewing the
record." (Cooper v. Kizer (1991) 230 Cal.App.3d 1291, 1301.) Where, as here, an
appellant fails to make a timely request for a statement of decision, we must infer any
finding to uphold the judgment that is supported by substantial evidence in the
administrative record. (Code Civ. Proc., §§ 632, 634; Smith v. City of Napa (2004) 120
Cal.App.4th 194, 198-199.) Additionally, the court correctly identified the independent
26 judgment standard in its ruling. Because there was no request for a statement of decision
and the court prepared none, we presume the court exercised its independent judgment.
(See Fukuda, supra, 20 Cal.4th at p. 812 ["[F]indings by the trial court [having] been
waived, . . . '[i]t must be conclusively presumed on this appeal that the trial court
weighed the evidence giving due weight to the presumption in favor of the board's
findings, but nevertheless, exercising its independent judgment,' " reached its finding.].)
Ricasa contends that substantial evidence does not support the trial court's findings
that she engaged in acts of moral turpitude, immoral conduct, or was evidently unfit for
service as an academic administrator because no connection existed between her alleged
conduct and her ability to carry out her job duties as an academic administrator. As we
shall discuss, the evidence presented at the administrative hearing supports a finding that
Ricasa engaged in "[i]mmoral or unprofessional conduct," which constituted grounds for
her penalty demotion under section 87732, subdivision (a). (§ 87667.)
Before SGI was awarded a bond contract worth over a million dollars, Ricasa
accepted a dinner from Flores, the owner of SGI. Ricasa did not report this meal on her
Form 700 and she voted on SGI's contract when it came before the SUHSD board. After
the SUHSD board awarded SGI the contract, Ricasa accepted meals from SGI members
and did not report these meals on her Form 700.
Ricasa also solicited money for her daughter from Flores "on [her] own time."
She admitted, however, sending facsimile documents to Flores and using Southwestern
equipment during business hours regarding her daughter's trip, including thanking him
for the money. Ricasa believed that the money did not benefit her "personally as an
27 individual" because it would be used for her daughter. It was only after her conviction
that she learned the money would be construed as benefiting her or a family member.
She pleaded guilty to a misdemeanor count of violating the Political Reform Act by
accepting gifts from Flores valued at $2,099 without reporting them. Ricasa agreed that
the South Bay corruption scandal received a lot of negative media coverage for both
Southwestern and SUHSD and that her name was mentioned as part of the scandal. She
also agreed that local newspapers named her as a convicted defendant while the
corruption scandal was ongoing, that she was named as a Southwestern administrator in
media coverage and that the scandal cast a doubt on her ability to be a good role model
for students.
Ricasa understood that as a board member for the SUHSD she acted as a fiduciary
for SUHSD. She stated that her board membership with SUHSD required that she sign a
one-page conflict of interest form; however, she did not know that a larger conflict of
interest code existed until after charges had been filed. She conceded that she had a
responsibility to read the conflict of interest code. Ricasa agreed that her administrative
position at Southwestern and her board membership at SUHSD carried similar high
ethical obligations, with the addition that her board membership included fiduciary
responsibilities.
When the South Bay corruption scandal was ongoing SUHSD was the largest high
school district in California and provided the largest percentage of students to
Southwestern. SUHSD also worked with Southwestern to get its students into
Southwestern. Dr. Nish testified that people frequently confused SUHSD and
28 Southwestern because of the connection between the two institutions. Several witnesses
testified that Ricasa's criminal conduct tarnished Southwestern's reputation and
negatively impacted the District's image. Norma Hernandez, the superintendent and
president for the District until she retired in 2006, believed that a link existed between
Ricasa's criminal conduct at SUHSD and her employment or duties and responsibilities at
Southwestern based on the strong connection between SUHSD and Southwestern, the
overlap in board members at SUHSD who are employees at Southwestern, and the
sharing of contractors on bond projects.
Southwestern Board member Tim Nader also believed a link existed between
Ricasa's conduct at SUHSD and Southwestern because some of Ricasa's criminal
activities "took place on Southwestern College campus grounds using Southwestern
College campus equipment on Southwestern College time." Additionally, he testified
that "there is something untenable about saying on the one hand we're trying to promote a
new era of good ethics and respect for law at Southwestern, and on the other hand one of
our leaders has entered a guilty plea that not only—that includes language in that plea
that indicates very deep involvement in these scandals. And I guess the third is that they
were kind of—more than kind of—they were interrelated not only in terms of the public
image of them because they were almost always reported together. When it was reported,
for example, that Miss Ricasa was indicted and then pled guilty and convicted and
sentenced and so forth, it was almost always mentioned at least that she was also an
administrator of Southwestern College."
29 Ricasa agreed that the community viewed SUHSD and Southwestern as having
significant ties. She also agreed that the close ties between the two institutions made it
important for someone like her with connections to both institutions to act as a positive
role model, to be above board and ethical in all dealings with both institutions, and that
any unethical conduct by her would not be viewed favorably by the community. She
testified that her positions at both institutions required that she avoid any conflicts of
interest or appearance of impropriety, refrain from using district time, supplies and
equipment for nondistrict activities, act within the law, act ethically, set a good example
for her school, the student body and community, not use her position or employer's
property to illegally benefit herself, and represent her employers as a positive role model.
Comparing Ricasa's own testimony regarding how she was expected to behave at
Southwestern and SUHSD with her admitted conduct supports a conclusion that Ricasa
engaged in immoral or unprofessional conduct. The evidence also shows that Ricasa's
conduct as a SUHSD board member negatively impacted both institutions based on the
close ties between the institutions.
To avoid this conclusion Ricasa complains that the ALJ and trial court failed to
examine whether her conduct and misdemeanor conviction demonstrated her inability to
perform her duties as an academic administrator. She argues that under Morrison v. State
Board of Education (1969) 1 Cal.3d 214 her demotion should be reversed because
Southwestern failed to show a connection between her misconduct and her ability to
perform her duties as an academic administrator. We disagree.
30 A person cannot be removed from or "denied government employment because of
factors unconnected with the responsibilities of that employment." (Morrison v. State
Board of Education, supra, 1 Cal.3d at p. 234; Vielehr v. State Personnel Bd. (1973) 32
Cal.App.3d 187, 192.) In determining whether the conduct indicates an unfitness to
practice the profession in question the board "may consider" such matters as: (1) the
likelihood that the conduct may have adversely affected others and the degree of such
adversity anticipated; (2) the proximity or remoteness in time of the conduct; (3) the type
of certification held by the party involved; (4) the extenuating or aggravating
circumstances, if any, surrounding the conduct; (5) the praiseworthiness or
blameworthiness of the motives resulting in the conduct; (6) the likelihood of the
recurrence of the questioned conduct; and (7) the extent to which disciplinary action may
inflict an adverse impact or chilling effect upon the constitutional rights of the person
involved or other people in the profession. (Morrison v. State Board of Education, at p.
229.) The Morrison v. State Board of Education factors are not rules, but broad classes
of issues to be considered to assist in determining whether to impose discipline. Only the
relevant factors need to be analyzed. (West Valley-Mission Community College Dist. v.
Concepcion (1993) 16 Cal.App.4th 1766, 1777 (West Valley).)
"Whether the conduct occurs on duty or off duty, whether the actor is a state
employee or another public employee, the essential test is whether the conduct harms the
public service. [Citation.] Once the determination is made that the misconduct has
occurred, the administrative agency must be shown great deference in its determination
of penalty." (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 50.) The trial
31 court must uphold the penalty determination of the agency absent a manifest abuse of
discretion. (West Valley, supra, 16 Cal.App.4th pp. 1778-1779.) We use the same
standard as the trial court. (Id. at p. 1779.) " 'If reasonable minds may differ as to the
propriety of the discipline imposed, the administrative decision may not be regarded as an
abuse of discretion.' " (Ibid.)
After considering the Morrison v. State Board of Education factors, the trial court
upheld the ALJ's decision to demote Ricasa. Our consideration of those factors does not
compel a contrary conclusion. First, it is likely that Ricasa's misconduct adversely
affected students and the District. The scandal, and Ricasa's involvement, received
extensive negative media coverage for Southwestern. A newspaper polled community
members and found that only five individuals out of 111 that knew about Ricasa's plea
bargain thought Ricasa should keep her job. (See Broney v. California Com. on Teacher
Credentialing (2010) 184 Cal.App.4th 462, 477 [wearing an ankle bracelet to school for a
month may have adversely affected others under first Morrison v. State Board of
Education factor].)
Ricasa's misconduct involved her use of employer's resources, was not remote in
time, and was aggravated because it resulted in a criminal conviction. Her misconduct,
motivated by personal gain, is certainly blameworthy and her discipline does not chill any
constitutional rights. Finally, even if it is unlikely that Ricasa will commit similar
misconduct in the future, the risk here is the perception of students and the community
that Ricasa serves as a poor role model. (See Pettit v. State Board of Education (1973)
10 Cal.3d 29, 36, fn. 7 ["[T]he 'risk of harm' which justified revocation of plaintiff's
32 license in this case is not the likelihood that plaintiff will perform additional sexual
offenses but instead that she will be unable to teach moral principles, to act as an
exemplar for her pupils, or to offer them suitable moral guidance."].)
Here, a rational connection existed between Ricasa's misconduct and her
employment. 5 In sum, substantial evidence supported Southwestern's decision to demote
Ricasa based on immoral or unprofessional conduct connected to her ability to carry out
her job duties as an academic administrator. Accordingly, we need not address the
remaining two bases for her demotion and express no opinion on them. We also perceive
no abuse of discretion in Southwestern's chosen penalty. 6
5 We acknowledge that Lillian Leopold, Chief Public Information and Government Relations Officer for Southwestern, commented in June 2012 about a lack of nexus between Ricasa's conduct as a SUHSD board member and her duties as a district administrator for Southwestern. Leopold made the comment as part of talking points for Ricasa's return to work, which was two years before the Amended Charges were brought against Ricasa. The context and timing of this comment decrease its value in the overall analysis.
6 In her Brown Act Petition Ricasa sought a peremptory writ of mandate ordering Southwestern to reinstate her original DSD position, with all attendant pay, benefits, seniority, and emoluments of that position. Our conclusion that the trial court did not err in upholding Ricasa's demotion moots her argument that she is entitled to reinstatement and we need not address the parties' arguments regarding this issue. 33 DISPOSITION
The judgment is modified to reverse the writ enjoining future Brown Act
violations. The judgment is affirmed as modified. Southwestern Community College
District Governing Board and Southwestern Community College District are entitled to
their costs on appeal.
NARES, Acting P. J.
WE CONCUR:
DATO, J.
GUERRERO, J.
34 Filed 1/14/19
CERTIFIED FOR PUBLICATION
v. (Super. Ct. Nos. 37-2016-00010146- CU-WM-CTL) OFFICE OF ADMINISTRATIVE HEARINGS,
SOUTHWESTERN COMMUNITY COLLEGE DISTRICT GOVERNING BOARD et al.,
v. (Super. Ct. Nos. 37-2015-00025984- CU-WM-CTL) OFFICE OF ADMINISTRATIVE HEARINGS,
Defendant; ORDER CERTIFYING OPINION SOUTHWESTERN COMMUNITY COLLEGE FOR PUBLICATION DISTRICT GOVERNING BOARD et al.,
Real Parties in Interest and Appellants. THE COURT:
The opinion in this case filed December 17, 2018, was not certified for
publication. It appearing the opinion meets the standards for publication specified in
California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for
publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), and
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
Copies to: All parties