Filed 10/1/18 Burgess v. Coronado Unified School Dist. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed.

Herronlaw and Matthew V. Herron for Plaintiff and Appellant.

TencerSherman and Sam G. Sherman, Allison C. Schneider for Defendant and Respondent.

Plaintiff and appellant Randall Burgess appeals a judgment denying his petition for writ of mandate in which he sought an order reinstating him to his position as a teacher at Coronado Unified School District (District). Burgess contends neither the Education Code nor District's collective bargaining agreement with the Coronado Teachers Association permitted District to place him on involuntary administrative leave without following statutory suspension and termination procedures, which require a charge of misconduct followed by an opportunity to address those charges in a hearing. He maintains the trial court erred when it reasoned he did not meet his burden to show District's action placing him on paid administrative leave was an illegal suspension, violated the Education Code, or did not follow the collective bargaining agreement's procedures.

District has moved to dismiss the appeal,[1] pointing out it reinstated Burgess into the classroom in November 2017, and asserting his appeal is moot. On the merits, it contends this court should affirm the court's ruling because District has the authority to place employees on non-disciplinary paid administrative leave, which is not a suspension under the Education Code. District further argues the collective bargaining agreement is silent on the issue of paid administrative leave and thus did not prohibit its action, but that Burgess waived his right to challenge its action in any event. It finally argues Burgess has not shown he was denied his due process rights by his placement on paid administrative leave.

Though Burgess's appeal is technically moot, we address his claims on the assumption the issues potentially will recur between tenured teachers and school districts. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND[2]

Burgess is a credentialed teacher at Coronado High School and since 1982 has been the executive director of the Coronado Aquatics Club (the Club), which contracts to use the pool at the school's facilities. Between 1987 and 2015, Burgess was the school's head aquatics coach. In March 2017, during the school's spring break, a former student presented a claim to District concerning allegations of sexual assault involving Burgess. District's superintendent considered student and staff safety, as well as the potential disruption to school activities, and decided Burgess would be placed on paid administrative leave. When school resumed in April 2017, District's assistant superintendent placed Burgess on paid administrative leave, telling him District was doing so with full salary and benefits pending an investigation into the claim. District began investigating the claim.

Burgess filed a verified petition for writ of administrative mandamus under both Code of Civil Procedure sections 1985 and 1994.5 seeking to be reinstated to his teaching position. He alleged his paid administrative leave was an illegal and indefinite suspension imposed by District without following mandatory procedures provided by his collective bargaining agreement or the Education Code. Burgess alleged the collective bargaining agreement included article XXIV (titled "Just Cause Discipline") with a procedure and conditions for District to impose an up-to 15-day suspension, and unless District invoked that article it was required to follow notice, written accusation, and administrative review procedures of Education Code sections 44932, 44934 and 44939.[3] Burgess asked the court to issue a writ of mandate "to order the District to terminate his suspension and restore [him] to his regular duties as a teacher at Coronado High School without prejudice to the District following Article XXIV of the [collective bargaining agreement] should it seek a new suspension, and to cease interfering with [his] duties as a teacher and as the Executive Director of the Club."

District's investigation continued and was ongoing through the October 2017 writ hearing. Burgess did not file a grievance under the collective bargaining agreement for any violation, misinterpretation or misapplication of the agreement's provisions, the Education Code or school board policy.

The trial court denied Burgess's writ petition. It ruled Burgess did not meet his burden to show that District's action was an illegal suspension or a breach of his collective bargaining agreement, or a violation of the Education Code. The court found District established that Burgess was not on suspension but on paid administrative leave during the pending investigation into the claim; it had not instituted a suspension or disciplinary mandatory leave of absence, and it had not put any negative report in his personnel file regarding the claim. It ruled that absent a suspension without pay or termination of his employment, Burgess was not entitled to a hearing, and he did not fit within leave-of-absence provisions of either the collective bargaining agreement or the Education Code. Rather, the court found the collective bargaining agreement and various board policies authorized District's actions. Burgess filed a notice of appeal.

The following month, District notified Burgess by letter it was terminating his paid administrative leave and he would be reinstated effective November 27, 2017. District expressed its understanding that no complaint making misconduct allegations had been filed against him, and it was "currently unaware of any ongoing, continuing investigation into past allegations of misconduct by you which would have implications for terminating your employment with Coronado Unified School District." District instructed Burgess to meet with the assistant superintendent and principal to assist in his return. It emphasized that safety and welfare of the students was among District's "highest priorities," and thus it gave Burgess "guidance the District would provide to any employee in similar circumstances," "strongly recommend[ing]" that he not be alone with any student unless absolutely necessary for the student's health, safety or welfare. District advised Burgess that a copy of its letter would be placed in Burgess's official personnel file, and that he and/or his representative could supply a written response that District would attach.[4]

DISCUSSION

I. This Appeal is Moot

"California courts will decide only ' "justiciable controversies." ' [Citation.] A moot case is one in which there may have been an actual or ripe controversy at the outset, but due to intervening events, it no longer presents a context in which the court can grant effectual relief." (Placer Foreclosure, Inc. v. Aflalo (2018) 23 Cal.App.5th 1109, 1112-1113; Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1222.) There must be an actual controversy for which a judgment can be carried into effect; a court will not pass upon moot questions or abstract propositions, or to declare principles or rules of law that cannot affect the matter in issue in the case before it. (In re David B. (2017) 12 Cal.App.5th 633, 644.) The critical factor in considering whether an appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error. (Ibid.; see Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413, 423.) "If the issues on appeal are rendered moot, a reversal would be without practical effect, and the appeal will be dismissed." (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866.)

In opposition to District's motion to dismiss, Burgess does not dispute District directed him to return to the classroom. He asserts, however, that his appeal is not moot, because District assertedly ordered his return "with conditions, admonitions and warnings placed in his personnel file" and without a hearing at which he could address any of the charges, so his dispute with District continues. He characterizes District's action as "a continuation of District's illegal conduct" and its reinstatement letter as a "form of punishment" or admonishment now within his personnel file. Burgess points out that the trial court noted the absence of negative reports in his personnel file as one of the reasons to deny his writ petition.

Here, the relief requested by Burgess by his petition—termination of the assertedly "illegal suspension" and reinstatement to his teaching position at the school—has been satisfied by District. The main substantive claims raised by Burgess in his appeal are that District did not follow certain Education Code suspension and termination procedures in placing him on involuntary leave; that the Education Code contains no provision for involuntary leave where no criminal charge is pending against the teacher; and the collective bargaining agreement required District to send him a written notice of suspension with the opportunity to file a grievance, which would have stayed the suspension. He did not seek a judicial declaration as to the propriety or validity of District's use of paid administrative leave for credentialed teachers pending investigations into claims of misconduct. (See Eye Dog Foundation v. State Board of Guide Dogs for Blind (1967) 67 Cal.2d 536, 541 [exception to mootness for material questions remaining has been applied to actions for declaratory relief on the ground the court must do complete justice once it has assumed jurisdiction; relief may encompass future rights]; Building a Better Redondo, Inc. v. City of Redondo Beach, supra, 203 Cal.App.4th at

p. 867.) Thus, resolution of the issues Burgess raises will not impact him, as he is no longer on involuntary leave.

Burgess makes no claim that the District is "interfering with [his] duties as a teacher and as the Executive Director of the Club . . ." such that our resolution of his claim against District will result in some effectual relief. As District points out, Burgess's only remaining request for relief seeks an award of attorney fees and costs. But that request does not affect our conclusion that the appeal has been rendered moot. "[I]t is settled that an appeal will not be retained solely to decide the question of liability for costs." (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134.)

As for the November 2017 letter that has been placed in Burgess's personnel file, the trial court has not passed on those particular circumstances, including the nature of the letter, whether the circumstances surrounding the letter violate Burgess's statutory or due process rights, or whether the letter gives rise to any privilege issues. It is a new controversy for which Burgess did not affirmatively seek relief below. Absent a showing of unusual circumstances, which Burgess has not made here, we will not treat the claim as a petition for writ of mandate. (Olson v. Cory (1983) 35 Cal.3d 390, 401; Doran v. Magan (1999) 76 Cal.App.4th 1287, 1294.) Resolution of any issues arising from the letter must be left to the trial court.

II. Assuming an Exception to Mootness Applies, Burgess's Claims Are Unavailing

Though a controversy may be technically moot, a court may " 'exercise its inherent discretion to resolve an issue when there remain "material questions for the court's determination" [citation], where a "pending case poses an issue of broad public interest that is likely to recur" [citation], or where "there is a likelihood of recurrence of the controversy between the same parties or others." ' " (In re David B., supra, 12 Cal.App.5th at p. 644; People v. Carbajal (1995) 10 Cal.4th 1114, 1120; City of Los Angeles v. City of Los Angeles Employee Relations Bd. (2016) 7 Cal.App.5th 150, 157-158.) Burgess contends that because District characterized its use of paid administrative leave as a "common practice," it should be judicially estopped from arguing his appeal does not raise a matter of broad public interest likely to recur. He maintains that the issue of whether school districts can place teachers on paid involuntary leave without notice and hearing is a matter of statewide importance.

We will assume arguendo that the issues here present a " 'potentially recurring question of public importance' " between school districts and teachers. (People v. Carbajal, supra, 10 Cal.4th at p.1120; Green v. Layton (1975) 14 Cal.3d 922, 925 [exception to mootness applies to issues of "general public interest" that are likely to recur].) Considering Burgess's claims on their merits, we would reject them in any event. Under the standard of review applicable to either type of mandate (Code Civ. Proc., §§ 1085, 1094.5), we review the court's factual findings for substantial evidence resolving all conflicts and drawing all reasonable inferences in favor of the prevailing party and the trial court's findings. (Hayes v. Temecula Valley Unified School District, supra, 21 Cal.App.5th at p. 746; San Diego Unified School Dist. v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 1461.) We review questions of statutory interpretation de novo. (Hayes, at p. 746; Citizens for a Better Eureka v. California Coastal Commission (2011) 196 Cal.App.4th 1577, 1583-1584.)

Burgess initially suggests we should be guided by principles expressed in Shields v. Poway Unified School District (1998) 63 Cal.App.4th 955 and Raven v. Oakland Unified School District (1989) 213 Cal.App.3d 1347, as to the procedural due process protections contained in the Education Code. The cases are inapposite. In Shields, a tenured teacher's teaching credential was suspended for 10 years as part of a stipulated settlement between the teacher and a state commission on teacher credentialing, arising out of allegations of a teacher's sexual and other misconduct against a student. (Shields v. Poway Unified School District, at p. 957.) The school district notified the teacher it intended to terminate his employment as a result, and on appeal from an order granting the teacher's writ petition, contended he was not entitled to a hearing under Education Code section 44934 because he no longer held a valid credential. (Id. at pp. 958, 959.) This court rejected the school district's arguments, holding that despite a voluntary or involuntary suspension of a teaching credential, that suspension was nevertheless temporary and thus the teacher retained his status a permanent employee, requiring the school district to comply with the due process requirements of notice and an opportunity for a hearing under section 44934 et seq. of the Education Code. (Shields v. Poway Unified School District, supra, 63 Cal.App.4th at pp. 958, 959-960.) "Nowhere in the comprehensive statutory scheme pertaining to school district employees is permanency, with its attendant rights and duties, affected by a suspended credential." (Id. at p. 962.) Thus, the school district was required to hold a hearing before terminating the teacher. (Ibid.)

Here, the trial court made a factual finding, unchallenged by Burgess, that District did not suspend Burgess's employment. Burgess has not demonstrated District deprived him of his constitutionally protected property interest in his employment (id. at p. 959) because at all times he remained in District's employ with pay and full benefits.

Raven v. Oakland Unified School District involved a school district that declined to reinstate a teacher, provide her a psychiatric hearing, or otherwise comply with the safeguards of Education Code section 44942, setting forth a summary procedure for suspending or transferring a certificated school employee who is believed to be suffering from mental illness. (See Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 768 [summarizing procedures].) The teacher had taken voluntary sick leave due to her condition, and the school district argued the protections did not apply when she sought reinstatement because it had neither suspended nor terminated her. (Raven v. Oakland Unified School District, supra, 213 Cal.App.3d at pp. 1353-1355.) The appellate court in part observed the school district had circumvented the statutory procedures by requiring approval from a staff psychiatrist and refusing to take formal action to suspend or dismiss the teacher; it held the district was required to either reinstate her or grant her a competency hearing. (Id. at pp. 1356, 1357.) Burgess's mental competence is not at issue here. We decline to extend the Raven court's broad statements to these circumstances—in which Burgess was given his full pay and benefits while on leave pending an investigation into allegations of sexual misconduct—not governed by the Education Code section 44942 scheme.

Burgess further points to Education Code section 44940, which requires a school district to place a teacher on leave when he or she is charged with any "mandatory leave of absence offense," including specifically defined sex offenses. (Ed. Code, §§ 44010, 44940, subd. (a), (d)(1); see Tuffli v. Governing Board (1994) 30 Cal.App.4th 1398, 1403 & fn. 2 (Tuffli).) Citing this court's opinion in Tuffli, he suggests a hearing is required for teachers accused of other sexual misconduct not involving a criminal charge, then argues that "nowhere does the Education Code permit the school to impose an involuntary leave where there is no criminal charge against the teacher." Burgess also points to the collective bargaining agreement's alleged silence on the issue of "summarily remov[ing] a teacher from the classroom without any charge of misconduct and without a hearing"; he maintains at most District might be able to suspend a teacher for up to 15 days with notice and certain approvals, giving the teacher an opportunity to file a grievance that would stay the suspension.

We are not persuaded by these arguments. Tuffli held that the procedural protections of section 44934 et seq. should have been afforded a teacher whose sex offense conviction, for which he had been summarily terminated under Education Code section 44836, was reversed on appeal and the charges dismissed. (Tuffli, supra, 30 Cal.App.4th at pp. 1401-1402.) Tuffli does not address teacher suspensions with pay pending an investigation into allegations of sexual misconduct, and it is not authority for the proposition suggested by Burgess. Burgess refers to Tuffli's quote of a statement made in Morrison v. State Board of Education (1969) 1 Cal.3d 214, as to whether notice and a hearing were required for certain charges of sexual misconduct under former provisions of the Education Code. Burgess discusses neither these former provisions nor their current counterparts, and he has not shown they apply to the circumstances at hand.

We do not read the Education Code's asserted silence on the question of teacher suspensions with full pay and benefits as affirmatively prohibiting school districts from taking such actions in the face of circumstances warranting an investigation, as here. But as District points out, in this particular case, the Education Code did not govern its ability to act in the manner it did because it has an operative collective bargaining agreement. (Ed. Code, § 44932, subd. (b) [authorization to suspend a teacher without pay on grounds of unprofessional conduct "does not apply to a school district that has adopted a collective bargaining agreement pursuant to subdivision (b) of Section 3543.2 of the Government Code"].) The collective bargaining agreement (¶ 2.1.7) does not prohibit District from placing a teacher on paid administrative leave; as District points out, District's authority is limited only by the agreement's "specific and express

terms . . . ."[5] Further, under District's board policy, District's superintendent, as its governing board's chief executive officer (Ed. Code, § 35035, subd. (a)), is granted authority to act on District's behalf "[i]n any situation in which immediate action is needed to avoid any risk to the safety or security of district students . . . ." (Board Policy 2210, titled "Administrative Discretion Regarding Board Policy.") Board policy specifically prefaces this authority by declaring, "[T]he Board recognizes that, in the course of operating district schools or implementing district programs, situations may arise which may not be addressed in written policies." (Ibid.)

Our conclusions are not made entirely on a clean slate. In Hayes v. Temecula Valley Unified School District, supra, 21 Cal.App.5th 735, this court rejected arguments similar to Burgess's concerning District's authority to place him on paid administrative leave. In Hayes, among other challenges, a former principal challenged a school district's decision to place her on paid administrative leave for approximately five months of the school year pending an investigation into her conduct as principal. (Id. at pp. 756-757.) She argued the paid leave was a pretext to remove her as principal and reassign her to a teaching position without having to satisfy statutory requirements applicable to a for-cause immediate reassignment or dismissal, and also that the district in that case had acted without authority absent board approval. (Id. at p. 756.) This court rejected the arguments, observing first that the trial court had a reasonable basis to credit the district's evidence that there was a need to fully investigate the plaintiff's conduct as a principal, and also that the plaintiff had not presented evidence showing the board lacked notice of the school district's administrative leave decision. (Id. at p. 757.) We observed that at the appellate stage, it was the plaintiff's burden to show error, not the school district's obligation to identify specific authority for its actions. (Ibid.) Further, we observed that the school district's board policy granted the superintendent broad authority to serve as the district's educational leader and to make decisions concerning the school district's

" 'internal operations.' " (Id. at pp. 757-758.) We affirmed the trial court's decision to deny plaintiff's petition for writ of mandate seeking her reinstatement as a middle school principal. For the reasons stated above, Hayes's conclusions apply here. We therefore affirm the judgment.

The conclusions we reach in this decision concerning the merits of the claims made in Burgess's writ petition do not encompass or purport to resolve questions arising from any circumstances or events, including placement of District's November 15, 2017 letter in Burgess's personnel file, that have occurred subsequent to the trial court's October 20, 2017 decision to deny the petition.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.