Samann v. Trustees of Cal. State University & Colleges

• Decision Date: 15 December 1983
• Court: California Court of Appeals Court of Appeals
• Parties: , 15 Ed. Law Rep. 298 Makram K. SAMAAN, Plaintiff and Appellant, v. TRUSTEES OF the CALIFORNIA STATE UNIVERSITY AND COLLEGES, The Chancellor of the State University and Colleges, Defendants and Respondents. Civ. 22411.

Page 856

197 Cal.Rptr. 856

150 Cal.App.3d 646, 15 Ed. Law Rep. 298

Makram K. SAMAAN, Plaintiff and Appellant, v. TRUSTEES OF the CALIFORNIA STATE UNIVERSITY AND COLLEGES, The Chancellor of the State University and Colleges, Defendants and Respondents.

Civ. 22411.

Court of Appeal, Third District, California.

Dec. 15, 1983.

Hearing Denied Feb. 29, 1984.

Turner & Sullivan and Richard K. Turner and Mary O'Gara, Sacramento, for plaintiff and appellant.

John K. Van De Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen. and Talmage R. Jones, Deputy Atty. Gen., for defendants and respondents.

SPARKS, Associate Justice.

Appellant Makram K. Samaan appeals from a judgment of the Superior Court of Sacramento County which upheld his dismissal as a tenured professor at California State University at Sacramento. Appellant contends: (1) the trial court erred in determining that his proper remedy was a petition to set aside an arbitrator's award under Code of Civil Procedure section 1285 et seq., rather than a petition for a writ of administrative mandate under Code of Civil Procedure section 1094.5; (2) he was denied procedural and substantive due process; (3) the arbitration did not cure the due process violations; and (4) his dismissal from employment was an abuse of discretion. We reject these contentions and shall affirm the judgment.

FACTS

Appellant studied psychology and educational psychology at the University of Minnesota and earned a doctorate degree from that institution. He has been employed as a professor at California State University at Sacramento (CSUS) since 1970, and is a tenured employee. He also engages in the private practice of psychology and counseling. He holds licenses as a psychologist and as a marriage and family counselor. Appellant's wife, Mary Samaan, is licensed as a marriage and family counselor.

Appellant's difficulties arose out of activities with regard to billing for services under the Medi-Cal program. An investigation into appellant's practice developed evidence of three questionable activities. First, appellant had submitted billing to Medi-Cal for 119 services which his wife rather than he had performed. Appellant's wife does not hold a license which qualifies her to render services compensable under the Medi-Cal program and she is not licensed as a Medi-Cal provider. Appellant signed billing forms for these services in which he attested that he had personally performed the services, although he had not done so. Second, an auditor came to the conclusion that appellant had submitted bills to Medi-Cal for work performed at Serene Homes in excess of the number of hours he had been there. Third, on two different occasions appellant had performed services for Medi-Cal mothers and had submitted billing forms for the mothers and their children, although he had never seen the children. On these occasions appellant had submitted separate billing forms for each of the children involved. He had attested that he personally performed psychotherapeutic services for them, and listed his diagnosis of their problems, although he had not seen the children.

In May 1979 the Attorney General's office filed a 17-count criminal information against appellant and his wife. Ultimately, pursuant to a plea bargain, appellant entered a plea of guilty to one count of grand theft in violation of Penal Code section 487, subdivision (1), in return for dismissal of the charges against his wife and dismissal of all other charges against himself. Appellant was placed on probation for three When CSUS President Lloyd Johns learned of the conviction of appellant he invoked Executive Order 245, the interim disciplinary procedure for academic personnel for California State Universities and Colleges. Pursuant to Executive Order 245, Austin Gerber, Dean of the School of Business and Public Administration, was appointed as Administrative Officer with the duty of conducting a fact-finding investigation and making a recommendation of further action to the President. Appellant responded to the investigation in writing through his attorney. After receiving Gerber's report, President Johns determined to proceed with a disciplinary action.

years with conditions including the reimbursement of the Medi-Cal program of $5,431.50, payment of a fine of $1,000 plus penalty assessment, and that he perform 120 hours of community service. ¹

Education Code section 89535 provides that immoral conduct, unprofessional conduct, dishonesty, and conviction of a felony or of a misdemeanor involving moral turpitude are grounds for dismissal, demotion or suspension. Education Code section 89538 provides in relevant part: "Notice of dismissal, demotion, or suspension for cause of an employee shall be in writing, signed by the chancellor or his designee and be served on the employee, setting forth a statement of causes, the events or transaction upon which the causes are based, the nature of the penalty and the effective date, and a statement of the employee's right to answer within 20 days and request a hearing before the State Personnel Board." Education Code section 89539 provides that in the event the employee shall request a hearing before the State Personnel Board the hearing shall be conducted in the same manner as state civil service proceedings and the party taking the disciplinary action shall have the burden of proof.

Although an employee being disciplined for cause has the right to a hearing before the State Personnel Board, there is an optional procedure which the employee may elect. Pursuant to Education Code section 89542.5 the employee may choose to have the action heard by a faculty hearing committee composed of full-time faculty members chosen by lot from a panel elected by the campus faculty, which shall make a recommendation to the president of the university or college. ² If there is disagreement between the committee's decision and the president's decision, then the matter goes before an arbitrator whose decision is final.

The interim disciplinary procedures invoked by President Johns against appellant implement Education Code sections 89535 through 89542.5. Under those procedures the president must determine whether the matter should proceed after receiving the report of the designated Administrative Officer. At that time the person charged may waive a hearing and accept a recommended sanction without admitting the conduct charged. If the person does not accept the sanction then the matter must proceed to hearing and no cognizance shall Appellant was notified that under presidential authority, the appropriate sanction for his conduct was dismissal from employment. He was informed of the grounds for sanction and the factual basis therefor; that he could accept the sanction without admitting the conduct or could resign; and that if he chose to proceed to a hearing he could elect the type of hearing he desired. Appellant elected to proceed with a faculty committee hearing.

be taken of the recommended sanction. If there is to be a hearing then the person charged must elect whether the hearing shall be before the State Personnel Board or a faculty hearing committee. A failure to make a written election constitutes an election of a State Personnel Board hearing. In the event a State Personnel Board hearing is chosen, then the President must make his recommendation to the Chancellor and the employee must be served with notice of the sanction and reasons therefor.

A lengthy hearing was held before a faculty committee. Appellant testified concerning his background, and provided evidence of his educational contributions and services to the community. A number of faculty members and students testified on appellant's behalf. With regard to the charges against him, appellant admitted that he had billed Medi-Cal for his wife's services, but insisted that he believed it was proper to do so. He admitted that he was a sloppy bookkeeper and may have filed confused bills for his Serene Homes work, but he insisted that he had performed the services for which he billed. He finally admitted that he had billed Medi-Cal for services to the Mizell and Tanner children whom he had not seen, but testified that he formed his diagnosis on the basis of what their parents had told him, and he billed Medi-Cal in anticipation of seeing the children.

The faculty committee submitted a unanimous final report to President Johns. The committee reported that with respect to the Mizell and Tanner children it appeared the "mistake" was the result of casual bookkeeping, accumulation of forms, and the failure of an agreement whereby appellant would later see the children. The committee found "no convincing evidence that there was premeditation or intent to defraud." With regard to the Serene Homes billings the committee acknowledged that appellant had submitted impossible billings (e.g., "twelve fifty-minute sessions in one-half day"), but the committee concluded the errors were the result of unrealistic Medi-Cal billing procedures, and that appellant in fact provided the services for which he billed. With regard to the Medi-Cal billings for services performed by appellant's wife, the committee found that appellant's "mistake" was understandable, and that he submitted the claims in his name because he handled all the billings and the Medi-Cal provider number was issued to his corporation. The committee found no evidence of immoral conduct, unprofessional conduct, or dishonesty. With regard to appellant's felony conviction the committee emphasized "It is important to note that Dr. Samaan was not convicted of a felony, but rather pleaded guilty, a distinction of some significance." The committee recommended that appellant "receive a written reprimand in which he is informed of the importance of regulations and the necessity of seeking and following them in his professional practice." The committee explained that it found no nexus between appellant's...