Brennan v. AnaheimUnionHigh School Dist.

Filed 9/5/07 Brennan v. Anaheim Union High School Dist. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed.

Grace E. Emery; Law Office of Julie M. McCoy and Julie M. McCoy for Plaintiff and Appellant.

Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff, Jack M. Sleeth, Jr., and Paul V. Carelli IV for Defendant and Respondent.

Tracy Brennan petitioned for a writ of mandate (Code Civ. Proc.,  1085), seeking a declaration that the Board of Trustees (the Board) of the Anaheim Union High School District (the District) violated the Ralph M. Brown Act (Gov. Code,  54950 et seq., hereafter, the Brown Act) when it met in closed session and decided not to renew her term as an Assistant Superintendent of the District. She contended the closed session involved a hearing of specific complaints or charges against her and thus she was entitled to 24‑hours notice of her right to have specific complaints or charges heard in public. (Gov. Code,  54957.) The trial court denied the petition. On appeal, Brennan contends the courts ruling is not supported by substantial evidence. We find no error and affirm the judgment.

FACTS AND PROCEDURE

Brennan, an educator for 26 years, was first hired by the District in 1995 as a high school principal. In 1999, she became the Districts Director of Instructional Services. In 2004, Brennan became Assistant Superintendent of Education. Her written employment contract provided for a two‑year term expiring on June 30, 2006. Education Code section 35031 required the Board give Brennan 45‑days advance written notice if it decided to not renew her term upon its expiration, or the contract would be automatically renewed on the same terms.

Joseph Farley was hired to be the Superintendent of the District in June 2005, and became Brennans supervisor. Farley immediately was very concerned about Brennans leadership, interpersonal conduct, and method of communication after observing her interactions with the Board and parents at their first Board meeting together on June 16, 2005. Several parents with children in the Districts Puente Program, which Brennan oversaw, addressed the Board about difficulties they were having with her. The parents complained Brennan disrespected and patronized them and was condescending[.] In response to the parents complaints, Brennan made remarks that were so unprofessional that [Farley] immediately became concerned about [her conduct]. Parents subsequently communicated to Farley their total and complete disdain for [Brennan.]

Over the next few months, Farleys concerns about Brennan increased, particularly as to her interpersonal skills. Several staff members and Board members made negative comments to him about Brennans interactions with others. Additionally, Farley believed Brennan lacked sufficient knowledge about instruction to be the leader of instruction for the District. She was unable to engage in any meaningful discussions about instruction and typically did not participate at all at meetings with school principals concerning instruction issues.

Farley developed a list of leadership targets and skills for use by Brennan and other administrators in the District he believed had leadership problems. He also developed an evaluation schedule for management staff. Although Brennan appeared to dodge scheduling an evaluation meeting with Farley, he eventually had his first meeting with her in December 2005 at which they discussed her specific deficiencies. They had two more meetings in January at which he advised Brennan she must be less controlling of others. Farley reviewed with Brennan numerous incidents in which she had said or done things he believed were totally inappropriate for management. The behaviors included cussing at and threatening subordinates; using demeaning and sexist language when addressing Julie Mitchell, the Assistant Superintendent of Human Resources; holding the hand of Tim Holcomb, a Deputy Superintendent, for prolonged period of time while talking to him and calling him Timmy; constantly touching and hugging coworkers, including Farley who she would approach saying hugs as she would reach to embrace him. Farley hired a job coach to work with Brennan on how to appropriately interact with others. He reviewed with Brennan new rules of engagement in the workplace concerning her language, inappropriate physical touching, and unwelcome gestures of endearment. Farley had many more meetings with Brennan in February and March concerning her continuing poor interpersonal skills, and inappropriate interactions with other administrators.

In late March 2006, a coworker made a complaint to the District alleging hostile workplace harassment by Brennan. By the time the specific complaint was made, Farley had already determined Brennan was not appropriate for the Assistant Superintendent of Instruction position and he would not seek renewal of her employment agreement. Brennans two‑year contract and the contracts of two other Assistant Superintendents were to expire on June 30, 2006. Because the law required 45‑days advance notice of nonrenewal, the Board would have to make a decision concerning these three contracts by early May.

In Farleys assessment, the specific employee complaint against Brennan appeared to raise an issue that was required to be investigated within 60 days under California Department of Education regulations. On March 29, 2006, Brennan was informed by Farley and Mitchell, that a hostile environment claim had been filed against her. Brennan was placed on administrative leave and told to not speak to District employees or come on school property while the complaint was being investigated. Farley stated Brennan was provided an opportunity to respond to the specific allegations both when he and Mitchell met with her and when she met with the investigator.

Farley placed both the issue of the investigation into the specific complaint filed against Brennan and the issue of the renewal of Brennans and the other two Assistant Superintendents contracts on the Boards May 4, 2006, agenda. The agenda listed six matters to be considered in closed session including: (1) pursuant to Government Code section 54957: Conference with Labor Negotiators [Farley and Mitchell], concerning negotiations with unrepresented employees (assistant superintendents); (2) pursuant to Government Code section 54957: Public Employee Discipline/Dismissal/Release‑2005/06‑HR‑27; and (3) pursuant to Government Code section 54956.9, subdivision (b); conference with Legal Counsel‑anticipated litigation.

The investigation into the specific complaint against Brennan was conducted by Robert Price. Prior to the May 4 meeting, Price met with Farley and Mitchell to review the results of his investigation, his conclusion was that there had been no violations of law by Brennan. Farley concluded the investigation did not turn up anything meriting disciplinary proceedings against Brennan. But, the investigators report further confirmed Farleys overall concerns about Brennans abilities. Farley stated that had the investigator found any violations of the law, and if discipline were going to be sought, the District would have held a separate hearing on the charges and Brennan would have been given notice of the hearing.

At the May 4 meeting, Price and the Districts legal counsel were present during the Boards closed session, which lasted about one and one‑half hours. According to Farley, at the closed session meeting, Price spoke to the Board for just a few minutes, reporting he had found no violations of law by Brennan. Then the Districts legal counsel spoke about confidentiality issues relating to such investigations. Afterwards, the Board considered the employment agreements of Brennan and two other Assistant Superintendents. The Board accepted Farleys recommendation to not renew Brennans contract as Assistant Superintendent. Farley stated his recommendation to not renew Brennans contract was not because of the specific employee complaint made against Brennan, nor was it based on the investigation into the complaint. After the closed session, the Board reconvened and voted to renew the agreements of the other two Assistant Superintendents, but took no action to renew Brennans employment agreement.

On May 5, Farley told Brennan the result of the investigation was, No charges, no complaint[,] and no dismissal for cause. She was told the Board had decided to not renew her employment contract. On May 9, the District sent Brennan written notice pursuant to Education Code section 35031 that her contract as Assistant Superintendent was not going to be renewed. Brennan was later offered and accepted an administrative position at the [D]istricts most highly regarded and high achieving school.

In support of her petition for writ of mandate, Brennan submitted her declaration stating that when she was first placed on administrative leave, Farley and Mitchell assured her that if she resigned, there would be no investigation. Brennan also submitted the declaration of Deborah Boyer, the Director of Instructional Services for the District. Boyer stated that at meetings on March 29 and 30, 2006, Farley and Mitchell announced Brennan had been placed on administrative leave pending investigation of a complaint against her. Boyer said she was interviewed by Price and told the complaint against Brennan involved a claim of hostile workplace environment due to taunting, threats[,] and intimidation.

Boyer stated that on May 5, the day after the Boards closed session meeting, Brennan told Boyer the results of the investigation, i.e., that no charges were going to be brought against her. The following Monday, Boyer called an informal meeting of the education division and told them the charges against Brennan had been dismissed. Later that day, when Boyer told Farley she had made the announcement, he was upset. Farley told Boyer there was more than one claimant and there had not been any dismissal. He directed Boyer to gather the education division and tell them she had been in error and the dismissal had not occurred. At a meeting of the education division 10 days later, Farley announced, weve dealt with a serious situation, and []Brennan would not be returning. He made no reference to the outcome of the investigation. Another education division employee at that same meeting declared she was under the impression from Farleys comments there were still unresolved charges against . . . Brennan.

In his declaration, Farley stated the possibility of resignation was first raised by Brennan when he and Mitchell met with her to inform her that a complaint had been filed. He also stated Boyer had misrepresented his comments. Boyer had announced to Farley that because Brennan had been exonerated of charges[,] she had summoned the education division employees to announce that Brennan had been cleared of any wrongdoing. Farley was sensitive to the need to fully and accurately inform some of the participants to the investigation of the findings and he would not have expected Boyer to make such an announcement. Farley was upset not because Boyer believed Brennan had been exonerated, but because she had made the announcement to the education division.

Brennan filed a petition for writ of ordinary mandate under Code of Civil Procedure section 1085. She sought to have the Districts decision to terminate her employment on June 30, 2006, declared null and void because the District violated the Brown Act by failing to give her 24‑hour notice required by Government Code section 54957, subdivision (b)(2), that complaints and charges against her were going to be heard and she had a right to demand a hearing in open session.

The Districts original opposition contained no evidence, but attacked the adequacy of Brennans evidence to establish a violation of the Brown Act. The hearing began on August 11, 2006. Although the trial court indicated it intended to rule in the Districts favor, during the course of the hearing, the court expressed concern about the lack of evidence about what happened in the closed session. The court continued the hearing, inviting the District to submit declarations concerning the decision to not renew Brennans contract and what occurred in the closed session meeting. The District filed a declaration from Farley, the substance of which is detailed above. Following the continued hearing, the court issued a minute order ruling in the Districts favor and denying Brennans petition.

I

STANDARD OF REVIEW

Brennan contends the Boards closed session decision to not renew her contract must be set aside because it violated the Brown Act. Ordinary mandamus is the appropriate procedural mechanism for resolving the dispute. The writ may be issued by any court to any . . . board . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person. (Code Civ. Proc.,  1085, subd. (a).) When a court reviews an administrative decision pursuant to Code of Civil Procedure section 1085, it merely asks whether the agencys action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires. [Citation.] In reviewing a trial courts judgment on a petition for writ of ordinary mandate, we apply the substantial evidence test to the trial courts factual findings. However, we exercise our independent judgment on legal issues, such as the interpretation of statutory . . . provisions. [Citations.] (Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 52‑53.)

II

THE STATUTES AND REGULATIONS

A. Education Code: Nonrenewal of Assistant Superintendent Contract

Education Code section 35031 provides an assistant superintendent of schools may be elected for a term of no more than four years[,] but if the governing board of a school district determines the . . . assistant superintendent of schools . . . is not to be reelected or reemployed as such upon the expiration of . . . her term, . . . she shall be given written notice thereof by the governing board at least 45 days in advance of the expiration of . . . her term. In the event the governing board of a district fails to reelect or reemploy the . . . assistant superintendent of schools . . . and the written notice herein provided for has not been given, . . . she shall be deemed reelected for a term of the same length as the one completed, and under the same terms and conditions and with the same compensation.

[T]he purpose of the statute . . . [is] to afford an administrator proper notice of a possible change in duties and assignment in sufficient time to seek other satisfactory employment as an administrator. [Citation.] (Jenkins v. Inglewood Unified School Dist. (1995) 34 Cal.App.4th 1388, 1394.) The failure to give the requisite 45‑day notice of nonrenewal of an employment contract will render void any decision to not renew the contract void. (Ibid.)

B. California Code of Regulations, Title 5

California Code of Regulations, title 5, section 4630, subdivision (a), permits an individual to register a complaint with a school district superintendent concerning matter[s] which, if true, would constitute a violation by [the] local educational agency of federal or state law or regulation[.] The complaint may be filed by anyone who has suffered discrimination or who believes a class of individuals has been subjected to discrimination. (Cal. Code Regs., tit. 5,  4630, subd. (b)(1).) The school district must conduct and complete an investigation of the complaint within 60 days. (Cal. Code Regs., tit. 5,  4631, subd. (a).) The investigation is to be conducted in a manner that protects the confidentiality of the parties[.] (Cal. Code Regs., tit. 5,  4630, subd. (b)(3).) Upon completion of the investigation, the school district is to give the complaining party a written decision and advise the complainant of his or her right to appeal to the California Department of Education. (Cal. Code Regs., tit. 5,  4631, subd. (e)(6).)

C. The Brown Act

The Brown Act requires legislative bodies of local agencies, including boards of education, to conduct open and public meetings, except where closed sessions are specifically authorized. (Gov. Code,  54951, 54952, subd. (a), 54953, subd. (a), 54962.) The personnel exception to the Brown Acts open meeting requirement allows a local legislative body to conduct a closed session 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 personnel exception exists to protect the employee from public embarrassment and to permit free and candid discussions of personnel matters by a local governmental body. (San Diego Union v. City Counsel (1983) 146 Cal.App.3d 947, 955.)

There is, however, an exception to the personnel exception. As 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), italics added.)

Government Code section 54957, subdivision (b)(2), does not create a right to a hearing where none otherwise exists. It simply requires a local legislative body give 24‑hours notice before holding a hearing on complaints or charges against an employee and allows the employee the right to request the hearing be conducted publicly rather than in closed session. In requiring the local body provide notice to the employee of the right to demand a public hearing, the statutory scheme draw[s] a reasonable compromise, leaving most personnel matters to be discussed freely and candidly in closed session, but permitting an employee to request an open session to defend against specific complaints or charges brought against him or her by another individual[,] to clear his or her name. (Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876, 882 (Furtado).)

III

ANALYSIS

The resolution of this case turns on whether the matters presented to the Board at the May 4 closed session constituted complaints or charges against Brennan and, if so, whether the session involved a hearing on those complaints or charges. We conclude the trial court properly found no Brown Act violation occurred.

We begin with the premise that, standing alone, consideration of Brennans performance as Assistant Superintendent of Education and the decision to not renew her contract upon its expiration did not constitute a hearing on complaints or charges against her within the meaning of Government Code section 54957. Furtado, supra, 68 Cal.App.4th 876, is instructive. In that case, a community college did not violate the Brown Act when it met in closed session to consider the job performance of a librarian and to decide whether to renew her employment agreement. Under the plain language of the statute, an employees right to request an open session exists only when complaints or charges are going to be heard,[1] not when a closed session has been convened to consider [an employees] appointment, employment, evaluation of performance, discipline, or dismissal[.] (Id. at p. 881.) The court found a performance evaluation resulting in nonrenewal, even one premised upon specific negative comments, did not constitute a hearing of complaints or charges against the employee. (Id. at pp. 882‑883.)

Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87 (Fischer), is also instructive. There, four probationary teachers were in their second one‑year teaching term with the school district. By law, the school board was required to give probationary teachers advance written notice if they were not going to be reappointed or they would be automatically reelected for another term. (Ed. Code,  44929.21, subd. (b).) The teachers contended the school board violated the 24‑hour notice provision of the Brown Act when it met in closed session to consider their performance and decided to not renew their terms. As with Furtado, the court concluded, [Government Code] section 54957 requires 24‑hour written notice only when the Board hears specific complaints and charges, and not when it considers the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee. (Fischer, supra, 70 Cal.App.4th at p. 100.) Even though the school board had received information regarding specific allegations of misconduct against [the teachers] (ibid.), the closed session was proper to conduct a performance evaluation and decide whether to reelect the probationary teachers. The [school boards] decision to reelect or nonreelect necessarily involved the evaluation of performance, which [Government Code] section 54957 permits to be in a closed session. The record shows that the probationary teachers performance evaluations served as the basis for the [school boards] determination to nonreelect them. We do not find that mere consideration of reasons for nonreelection constitutes hearing specific complaints or charges brought against an employee by another person or employee. (Id. at p. 102.)

Here, Brennans employment agreement was one of three Assistant Superintendent contracts expiring on June 30, 2006. To avoid the automatic renewal provisions of Education Code section 35031, the Board had to decide on the renewals and give written notice of any nonrenewals by May 15. As in Fischer, any decision to renew or not renew the Assistant Superintendents contracts necessarily involved the evaluation of performance, which [Government Code] section 54957 permits to be in a closed session. (Fischer, supra, 70 Cal.App.4th at p. 102.) And, this is true even if specific reasons for finding Brennans performance inadequate were considered.

But, Brennan contends, this case is about more than a mere performance evaluation. She contends because a specific complaint had been filed against her by a coworker, she was placed on administrative leave pending an investigation, and the results of the investigation were disclosed to the Board at the same closed session, it necessarily follows the Board heard that specific complaint against her and decided to not renew her contract based on that complaint. But substantial evidence in the record, and the reasonable inferences to be drawn there from, support the trial courts contrary conclusion.

In his declaration, Farley stated the results of the investigation of the specific employees complaint found no violations of any law and no grounds for disciplining Brennan. He further stated the investigator spoke to the Board only briefly to relay that conclusion. The Board did not consider whether to impose discipline due to the specific complaint, but simply accepted the report of the investigator. No disciplinary action was taken against . . . Brennan and none was recommended. As to why her contract was not renewed, Farley summarized, [T]here were ongoing conversations with . . . Brennan about my concerns with her performance as [A]ssistant [S]uperintendent. Even if the [specific] complaint had not been filed, I would have sought the non‑renewal of her employment agreement. There was nothing in the investigation that was not previously known about [her] interactions with staff members. While the investigation provided further proof of the concerns I had regarding . . . Brennans conduct, it in itself was not the reason her contract was not renewed. In short, there was no evidentiary hearing on charges against Brennan because the investigation turned up nothing worth pursuing. That the investigation further confirmed Farleys own negative opinion about Brennan, does not mandate a finding the Board conducted a hearing on the complaint. The record supports the trial courts conclusion this was simply a case of unfortunate timing.

Brennan complains about the absence of a declaration from Price explaining the results of his investigation. The Districts investigator, she asserts, was in the best position to attest to what his investigation revealed and what he told the Board. Having failed to present a declaration from the investigator, Brennan argues, it must be presumed he would not have provided evidence favorable to the District. Brennan cites Evidence Code section 412, which provides, If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust. She also cites Evidence Code section 413, which provides, In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the partys failure to explain or to deny by his testimony such evidence or facts in the case against him, or his willful suppression of evidence relating thereto, if such be the case. But, any presumptions or inferences those statutes support are for the trier of fact, and have little relevance on appeal. (See, e.g., Ericson v. Petersen (1953) 116 Cal.App.2d 106, 111‑112.) Here, substantial evidence supports the conclusion the Board did not conduct a hearing on the specific complaint against Brennan and it was not a basis for the Boards decision to not renew her contract.

The cases cited by Brennan, Moreno v. City of King (2005) 127 Cal.App.4th 17 (Moreno), Morrison v. Housing Authority of the City of Los Angeles Bd. of Comrs. (2003) 107 Cal.App.4th 860 (Morrison), and Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672 (Bell), are distinguishable for in each of those cases the record demonstrated the local agency governing board had an evidentiary hearing on a specific complaint or charge against the employee and disciplined the employee as a result of those specific charges.

Bell involved a tenured high school teacher who was also the schools football coach. The California Interscholastic Federation (CIF) found the coach violated its undue influence rules, placed the schools athletic program on probation, and ordered the school district to consider disciplinary action against the coach. (Bell, supra, 82 Cal.App.4th at p. 679.) At a closed session meeting, the districts board of trustees voted to remove the teacher from his coaching duties, prior to the expiration of his coaching contract, as a result of the CIF findings. The appellate court held the presentation to the school board of the CIF findings involved complaints or charges for purposes of Government Code section 54957, and thus, the boards decision was null and void for failure to comply with the statutory notice requirements. (Bell, supra, 82 Cal.App.4th at pp. 683‑684.)

In Morrison, supra, 107 Cal.App.4th 860, a housing authority terminated plaintiffs employment because she allegedly violated confidentiality rules. After the plaintiff requested a hearing on her termination, the hearing officer found she had not willfully violated the confidentiality rules, but had merely been negligent, and the hearing officer found termination was not an appropriate punishment. In a closed session, and without prior notice to the plaintiff, the housing authoritys board of commissioners conducted its own review of the evidence, made new factual findings that the violations were willful, and terminated the plaintiffs employment. (Id. at p. 866.) The court concluded, a meeting in which the agency, having rejected the hearing officers report and recommendations, engages in its own factfinding proceeding[,] constituted a hearing on charges or complaints against the employee within the meaning of Government Code section 54957. (Id. at p. 873.)

In Moreno, supra, 127 Cal.App.4th 17, at a closed session of the city council, the city manager presented the council with a memorandum detailing five specific complaints of financial misconduct by the plaintiff, the citys finance director. The city council voted to terminate plaintiffs employment as discipline for the specific instances of misconduct. The plaintiff was never given notice of the charges or an opportunity to defend himself. The court held the city had violated the Brown Act. Simply considering whether to dismiss an employee, where the dismissal is not based on accusations of misconduct, does not amount to a hearing of complaints or charges and therefore does not require advance notice to the employee. [Citation.] And where complaints or charges have already been heard and sustained at a public evidentiary hearing, a public agency may hold a closed session to consider whether to discipline or dismiss the employee without giving the employee advance notice. [Citation.] [] On the other hand, a public agency that receives accusations of misconduct and considers whether to dismiss an employee based on those accusations must give advance notice to the employee because its actions do amount to a hearing of complaints or charges. [Citations.] (Id. at p. 28.)

Unlike Bell, Morrison, andMoreno, here the Board did not hear the employee complaint concerning Brennan, rather it received the investigators report that no violations of law had been found and there were no grounds for disciplining her on the complaint. It was unfortunate that at the same closed session, the Board also had before it the decision on whether to renew Brennans and the other two Assistant Superintendents contracts. But, the record supports the trial courts apparent conclusion that Brennans contract was not renewed due to her performance in her job, not as discipline for any specific wrongdoing.

IV

EVIDENTIARY OBJECTIONS

Brennan contends the trial court erred when it overruled her objections to Farleys declaration. She complains that Farleys declaration said much about his reasons for recommending nonrenewal of her employment agreement, but said very little about what actually transpired in the closed session. Brennan cites no law in support of her claim of evidentiary error. She does not refer to any particular part of Farleys declaration containing inadmissible material or suggest why any particular part of the declaration was inadmissible (other than her broad assertion the entire declaration was irrelevant). She offers no statutes or cases and does not engage in any reasoned legal analysis of her contention. We need not consider an argument for which no authority is furnished. [Citation.] (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384.) We treat the point as waived. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115‑1116; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 978‑979.)

V

DISPOSITION

The judgment is affirmed. The Respondent is awarded its costs on appeal.

OLEARY, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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[1] We hasten to add that the word hear as used in Government Code section 54957, is not used in the auditory sense, it is used in the due process sense, To hear is to listen to in an official . . . capacity[.] [Citation.] 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. [Citation.] (Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568, 574.)