Barbee v. Los Angeles Unified School Dist. Personnel Commission

Filed 10/30/07 Barbee v. Los Angeles Unified School Dist. Personnel Commission CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County.

David P. Yaffe, Judge. Affirmed.

The Torgow Law Firm and Martha A. Torgow for Plaintiff and Appellant.

Kevin S. Reed and Stephanie Bowick for Defendant and Respondent and for Real Party in Interest and Respondent.

Cottrell Barbee (appellant) appeals from the judgment denying his petition for writ of administrative mandate (Code Civ. Proc.,  1094.5), which sought to set aside a decision of the Personnel Commission (commission) of the Los Angeles Unified School District (LAUSD) imposing discipline on appellant, a classified employee of LAUSD.

Appellant advances the following contentions: (1) a conclusion that none of the sustained charges justified the alleged causes for discipline precluded imposition of discipline; (2) the commission exceeded its jurisdiction by imposing suspension in addition to demotion; (3) the conclusion that plaintiff drank on the job is unsupported by the findings; and (4) petitioner did not receive a fair trial because the hearing officer refused to enforce subpoenas and admitted forged documents and apparently coerced testimony.

We find no merit in these contentions, and affirm the judgment.

FACTS

Appellant was a Plant Manager II for LAUSD. Following an unsuccessful effort to terminate him, plaintiff received from LAUSD an Amended Statement of Charges, providing for his demotion to Plant Manager I, as of February 13, 2003. The statement recited that the demotion was based on eight causes, or general categories of misconduct, which existed by reason of 18 charges, of specific incidents.

Appellant requested an appellate hearing before the commission. The hearing, conducted by a hearing officer, consumed 11 days. The hearing officer then rendered findings of fact and conclusions of law. She determined that seven of the charges had been sustained, including number 4, to the effect that appellant had consumed Crown Royal liquor while on duty. In a separate section of her report, following the findings and conclusions and entitled Causes, the hearing officer stated: Although some serious charges have been sustained. . . , the mitigating factors in this case were also serious and substantial. And none of the charges sustained in part or full justified any of the causes cited in the statement of charges.

The hearing officer recommended that appellant be offered reinstatement as Property Manager II, after completing courses on the documentation and supervisory skills required of the job. These reflected some of the areas in which his performance had been found deficient. For those deficiencies, moreover, as well the alcohol incident, the hearing officer believed appellant should be disciplined by a suspension of two weeks, to be considered as already served. Appellant should also receive back pay between the time of his demotion in February 2003 and the time the commission decided the case.

On July 28, 2004, the commission adopted the hearing officers findings, but modified the decision to provide that appellant be reinstated as Plant Manager II, effective immediately, uphold[ing] the two-week suspension considered as already served, but denying appellants request for attorney fees and lost wages.

Appellant then filed his petition for writ of administrative mandate against the commission. Appellant claimed he had not had a fair trial ( 1094.5, subd. (b)), because of various errors in the hearing, including admission of unspecified forged documents. For the same reasons, the commission had not proceeded as required by law (ibid.). The decision allegedly was not supported by the findings, of lack of cause and use of alcohol off duty. Appellant also asserted that no discipline could be imposed without cause. The petition prayed that the discipline be set aside, and that appellant receive back pay and attorney fees.

In his points and authorities in support of his motion for the peremptory writ, appellant principally stressed the failure to perceive support for the charged causes. He cited two statutes requiring cause for discipline.^[1]Appellant also alluded to an allegedly forged document by a deceased subordinate. He further contended that while he had been found to have failed to submit inspection reports, he had received no warning that this would warrant discipline.

The trial court rejected all of these arguments, and denied the writ.

DISCUSSION

We first resolve an artificial controversy the parties have raised regarding the scope of appellate review. The commission argues that we must apply the substantial evidence test, to the trial courts findings. That is indeed the test applicable to such findings in an administrative mandate case involving substantial vested rights. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10.) But, as appellant recognizes, his appeal does not challenge factual findings, by the trial court or by the commission. Rather, the issues appellant poses are questions of law, concerning the validity of the administrative proceedings. And the scope of review of such questions is de novo. (Bostean v. Los Angeles School Dist. (1998) 63 Cal.App.4th 95, 107.)

Appellants first and most prominent contention concerns the effect of the hearing officers statement that none of the charges sustained in part or full justified any of the eight causes cited in the statement of charges. Appellant contends that cause is a prerequisite to school employee discipline, including suspension (see fn. 1, ante), and that having adopted the hearing officers quoted statement, the commission was precluded from imposing discipline.

Given the statutory requirement of cause for discipline, the hearing officers declaration does appear contradictory of the officers recommendation of discipline. Although appellant would characterize that recommended discipline as legally baseless, a more rational construction is that the officers ameliorative conclusion about cause was directed at cause for the demotion that was under review, not the alternative, reduced discipline recommended.

In any event, appellant can only assume, not show, that the commission adopted the hearing officers assessment of cause in connection with imposing discipline. As provided for by section 45312 and rule 904(P) of the commissions rules, the commission, in its decision, adopted the hearing officers findings of fact, and (in part) its proposed decision. The commission did not adopt the officers gratuitous opinion about cause.

In short, as we perceive and construe the record, the commission did not engage in the self-defeating exercise that appellant would attribute, of determining no cause for the discipline it imposed.

Appellant next contends that the commission exceeded its jurisdiction under section 45307, by imposing a two-week suspension in addition to the demotion originally imposed by LAUSD.^[2] Section 45307 relevantly provides that The commission may modify the disciplinary action, but may not make the action more stringent than that approved by the board. The commission, however, did not violate this limitation. Although LAUSDs discipline did not include a suspension, it called for appellants permanent demotion, whereas the commission terminated that demotion, and limited it, while imposing a two-week demotion. The net discipline the commission imposed was not more stringent than LAUSDs, but rather was substantially milder.

Appellants third contention is that the commissions conclusions regarding the charge of consuming Crown Royal were not supported by the relevant findings. In this connection, the original charge was that on January 2, 2002, appellant drank Crown Royal while on duty. The responsive finding was that [Appellant] did drink Crown Royal with his . . . crew on Jan. 2, 2002, when he was off duty but on district property. A mitigating conclusion of law also recited in part that appellant had been off-duty. However, the ultimate conclusion decided, By a preponderance of the evidence, Charge 4 was sustained.

The failure to find that appellant drank while on duty is clarified by the finding that he did so on district property. That was a clear violation of LAUSDs Drug-Free and Alcohol-Free Workplace Policy, which prohibited the use of alcohol by employees in any and all workplaces. The charges specifically alleged that appellants actions had violated the policy, and at the hearing LAUSD emphasized that violation, after appellant admitted drinking Crown Royal on school premises. Accordingly, the conclusion that the charge had been sustained was not inconsistent with the finding.

Appellants final contention is that he did not receive a fair trial, because the hearing officer did not require compliance with subpoenas, admitted forged or falsified docments, and relied on apparently coerced or unduly influenced testimony. Appellant does not, however, expound this contention, or document it by reference to the record, because he considers his other contentions clear and sufficient. Indeed, in his reply brief, appellant refers only to those other contentions as grounding his appeal. We therefore do not pursue the fair trial contention.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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^[1] Education Code section 45302 provides: No person in the permanent classified service shall be demoted or removed except for reasonable cause designated by rule of the commission as detrimental to the efficiency of the service. . . .  (Undesignated section references are to that code.) Section 45304 provides in part: (a) For reasonable causes, an employee may be suspended without pay for not more than 30 days . . . or may be demoted or dismissed. . . .

^[2] This contention was not raised below, but we entertain it as it presents a question of law.