San Dieguito Union High School District v. Commission on Professional Competence

174 Cal. App. 3d 1176, 220 Cal. Rptr. 351, 1985 Cal. App. LEXIS 2809

• Court: California Court of Appeal
• Decided: November 26, 1985
• Docket: D001626
• Status: Published

Opinions

Opinion

WIENER, J.

Gretchen Harris (Harris) is a permanent certificated employee of the San Dieguito Union High School District (District). On May 8, 1980, the District gave Harris written notice of its intention to dismiss her. In proceedings before the Commission on Professional Competence (Commission) pursuant to Education Code section 44932¹ the Commission determined that no grounds for dismissal existed and ordered that she should not be dismissed. The District then sought and obtained a writ of mandate in the superior court commanding the Commission to set aside its decision and to order Harris’ dismissal from the District’s employment. Harris successfully appealed. (See San Dieguito Union High School Dist. v. Commission on Professional Competence (1982) 135 Cal.App.3d 278 [185 Cal.Rptr. 203].) On remand the trial court again directed the Commission to set aside its decision and ordered Harris’ dismissal. Harris again appeals. We affirm.

Facts

The District’s statement of charges against Harris allege cause to dismiss her on two separate grounds: evident unfitness for service (§ 44932, subd. (e) [now § 44932, subd. (a)(5)]) and persistent violation or refusal to obey the school laws of the state or reasonable regulations of the District (§ 44932, subd. (g).)

The specific acts forming the basis of Harris’ alleged unfitness were her numerous intermittent absences totalling 21 percent of all work days over a 4-year period: 22 days in the school year 1976-1977; 54 days in 1977-1978; 38V2 days in 1978-1979; and 33 ¥2 days in 1979-1980. Harris’ alleged refusal to obey the District’s regulations was based on the numerous times she had failed to supply lesson plans for substitute teachers.

The trial court found the evidence in the administrative record established cause existed for Harris’ dismissal for both unfitness and persistent refusal to follow the District’s regulations.

Discussion

Standards of Review

As stated in San Dieguito, “The decision of the Commission may be challenged in the superior court by means of a petition for writ of mandate. (§ 44945; Code Civ. Proc., § 1094.5.) In reviewing a Commission’s decision for either the governing board or the employee the superior court shall exercise its independent judgment on the evidence. (§ 44945.) An appellate court must sustain the superior court’s finding if supported by substantial evidence. (Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314 [142 Cal.Rptr. 439, 572 P.2d 53].)” (Id. at p. 283.)

The foregoing brief summary explains the respective roles of the trial and appellate courts. The trial court is “not bound by the findings of the Commission in exercising its independent judgment review [citation], and, . . . [is] free to make its own determination of the credibility of witnesses in the process.” (Pittsburgh Unified School Dist. v. Commission on Professional Competence (1983) 146 Cal.App.3d 964, 977 [194 Cal.Rptr. 672].) As a matter of public policy where administrative adjudications are subject to the independent judgment test the responsibility to make factual determinations is left with the trial court rather than with the administrative agency. (Guymon v. Board of Accountancy (1976) 55 Cal.App.3d 1010, 1015 [128 Cal.Rptr. 137].)

After the superior court makes an independent judgment upon the record of an administrative proceeding our 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].)

Here, our analytical responsibility is to examine the administrative record to determine whether it contains the evidence referred to in the court’s statement of decision and later judgment. If there is substantial evidence on either ground upon which the court based its determination of cause to dismiss Harris, we must affirm the judgment.

Persistent Violation of District’s Regulations

The court’s conclusions that Harris’ dismissal could be based upon a violation of school rules within the meaning of section 44932, subdivision (g) were predicated on the following.

The District notified Harris of failing to provide lesson plans on June 6, 1977, January 11, March 29, April 24, May 8, May 21, 1978 and on April 14 and April 28, 1980. Harris acknowledged she had received written notices complaining about her lack of lesson plans.

The court found Harris “repeatedly failed to provide adequate and timely lesson plans for substitute teachers which could have somewhat mitigated the detrimental effects of her absences on her students.”

Harris was transferred to the Torrey Pines High School for the school year 1979-1980. William Butler, the principal of Torrey Pines testified he was aware Harris had a reputation for excessive absenteeism. He conferred with her in September 1979 during what he described as an “initial goal setting conference.” In the written evaluation conference form signed by both Butler and Harris, Harris’ responsibilities included “[setting] goals of improving personal attendance, providing thorough lesson plans when absent, and calling early for a substitute when needed.’’'’ After that meeting Harris failed to provide lesson plans on five occasions. On a few occasions the teacher substituting for Harris managed to contact Harris by telephone after class had started in order to locate the lesson plans. In many instances Harris could not be reached when such attempts were made.

Kay Dillon, a teacher with administrative responsibility in the Spanish department at Torrey Pines testified Harris worked in her department during the 1979-1980 school year. Teachers substituting asked her for assistance because they were unable to find lesson plans. Dillon would unsuccessfully attempt to locate the plans. Harris also failed to fill out the “substitute teachers’ information sheet” on which the teachers were to provide the location of lesson plans. On several occasions when there were no lesson plans the substitutes for Harris complained they were hampered in teaching Harris’ class.

Darlene Palmer, an English teacher and department chairperson at Torrey Pines testified Harris failed to supply lesson plans for substitute teachers. Three substitutes asked Palmer’s assistance because they were unable to find lesson plans. Palmer explained she never had any difficulty in locating lesson plans for other substitutes who filled in for the 19 other English teachers in her department.

Susan Martino, a Spanish teacher at Torrey Pines during the 1979-1980 school year testified she shared a desk with Harris. When asked for a lesson plan by a substitute she was unable to locate it.

Kathleen Oversmith substituted 17 times for Harris. She could not locate lesson plans on about 12 of those occasions. The lessons she did find were either vague or unhelpful. Incomplete lesson plans omitted titles of books which were to be used and when a particular chapter was mentioned the book remained unknown. Oversmith expressed surprise at the lack of students’ progress in Harris’ class compared to the level of achievement in the other classes at Torrey Pines in which she had been a substitute teacher.

John Silverman substituted for Harris six times over a two-year period commencing in 1977-1978. No lesson plans were made available to him. He would ask the class what they had been doing. He described that inquiry as a “somewhat fruitless” exercise. He testified that ordinarily, at least 97 percent of the time when he would substitute he would receive a detailed lesson plan.

Application of the Morrison Criteria

In weighing the evidence to determine whether Harris’ conduct was sufficient to warrant dismissal, the trial court followed San Dieguito’s instructions and applied the criteria of Morrison v. State Board of Education (1969) 1 Cal.3d 214 [82 Cal.Rptr. 175, 461 P.2d 375]. Morrison recommended seven criteria should be considered in determining unfitness to teach: (1) likelihood of recurrence of the questioned conduct; (2) extenuating or aggravating circumstances; (3) effect of notoriety and publicity; (4) impairment of teacher—student relationships; (5) disruption of the education process; (6) motive; (7) proximity or remoteness in time of conduct. (Id. at p. 229; see also San Dieguito, 135 Cal.App.3d at pp. 278, 284.)

Here, the trial court’s written statement of decision examined and explained why each of the Morrison criteria was applicable.

The court explained it believed the likelihood of Harris’ conduct adversely affected students or fellow teachers was reflected in the testimony of teachers who had to assist substitute teachers in Harris’ classes. When administrators or other teachers were required to devote their time to locate lesson plans valuable time which could otherwise have been devoted to educational purposes was being wasted.

The court stated these “repeated failures to supply adequate and timely lesson plans have been persistent for the last four (4) year period [under] . . . review . . . despite numerous communications to Harris of the problems associated therewith.” The court concluded the failure to provide lesson plans where the teacher is absent a considerable period of time has a continuing adverse effect on students, teachers and parents particularly where the behavior continued over a period of time.

The court was also concerned that the subjects Harris taught were “academic basics which require diligent, continuing and progressive instructions in contrast to that held by one of Harris’ two witnesses who testified [s]he was out frequently but who [was] a P. E. teacher. The stress placed on academic basics for High School students is uncontroverted and within the common knowledge of any teacher or parent whose child seeks a higher education. ”

Although the court improperly considered the number of Harris’ absences as per se unfitness, a consideration precluded by San Dieguito, since those absences had been stipulated to as being legitimate within the District’s policy (id. 135 Cal.App.3d at p. 289), the court properly focused on the “detrimental effect on [Harris’] students which was being compounded by her failure to provide adequate and timely lesson plans.” The court decided “Harris’ response to these problems was one of indifference and a feeling that she had no responsibility to assure location of the lesson plan by substitute teachers when she was absent.”

Harris had been on notice since 1976 of the need to provide lesson plans in an appropriate and accessible location. In light of Harris’ continuing conduct the court concluded it was likely Harris would repeat her unsatisfactory performance since she appeared to be indifferent to the seriousness of the problem.

The court also weighed the extent to which the disciplinary proceedings on Harris could create a chilling effect upon the constitutional rights of other teachers. In resolving this issue the court was satisfied the District was addressing a teaching issue not an unrelated social or political problem. The court decided that within this narrow context involving the need to properly educate students there could be no harmful effect on the constitutional rights of other teachers.

In summary, the trial court considered and correctly applied the Morrison criteria. The court’s determination that Harris’ violations were persistent, i.e., stubborn and continuing (Governing Board of the Oakdale Union School Dist. v. Seaman (1972) 28 Cal.App.3d 77, 82 [104 Cal.Rptr. 64]) is supported by the evidence.

Conclusion

The trial court in this case was required to function within the framework of San Dieguito since San Dieguito “remanded [the case] for further proceedings conformable to this opinion.” (Id. 135 Cal.App.3d at p. 289.) San Dieguito held, “Without question a persistent refusal to prepare lesson plans for substitute teachers, viewed in light of the number of absences Harris was experiencing, might be sufficient to constitute ‘persistent violation of school rules’ within the meaning of Education Code section 44932, subdivision (g).” (San Dieguito, at pp. 287-288.) Had the San Dieguito decision decided otherwise and held the trial court could not decide in favor of the District, it would have reversed with instructions to deny the District’s writ and to enter judgment for Harris.

Having complied with San Dieguito’s instructions on a record which contains substantial evidence to support the court’s findings and conclusions, we affirm the judgment.

Disposition

Judgment affirmed. The parties to bear their respective costs on this appeal.

Butler, J., concurred.

1 All statutory references are to the Education Code unless otherwise specified.