Ricasa v. Office of Admin. Hearings

• Decision Date: 17 December 2018
• Docket Number: D071122,D071088
• Citation: 31 Cal.App.5th 262,242 Cal.Rptr.3d 419
• Parties: Arlie RICASA, Plaintiff and Appellant, v. OFFICE OF ADMINISTRATIVE HEARINGS, Defendant; Southwestern Community College District Governing Board et al., Real Parties in Interest and Respondents. Arlie Ricasa, Plaintiff and Appellant, v. Office of Administrative Hearings, Defendant; Southwestern Community College District Governing Board et al., Real Parties in Interest and Appellants.
• Court: California Court of Appeals Court of Appeals

31 Cal.App.5th 262

242 Cal.Rptr.3d 419

Arlie RICASA, Plaintiff and Appellant,

v.OFFICE OF ADMINISTRATIVE HEARINGS, Defendant;

Southwestern Community College District Governing Board et al., Real Parties in Interest and Respondents.

Arlie Ricasa, Plaintiff and Appellant,

v.Office of Administrative Hearings, Defendant;

Southwestern Community College District Governing Board et al., Real Parties in Interest and Appellants.

D071088

D071122

Court of Appeal, Fourth District, Division 1, California.

Filed December 17, 2018

Dinsmore & Shohl and Adriana Cara, Los Angeles, for Plaintiff and Appellant.

No appearance for Defendant Office of Administrative Hearings.

NARES, Acting P. J.

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 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). 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."

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 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 Code² 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 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 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...