San Dieguito Union High School Dist. v. Commission On Professional Competence

• Decision Date: 26 November 1985
• Citation: 174 Cal.App.3d 1176,220 Cal.Rptr. 351
• Court: California Court of Appeals Court of Appeals
• Parties: , 28 Ed. Law Rep. 842 SAN DIEGUITO UNION HIGH SCHOOL DISTRICT, Plaintiff and Respondent, v. COMMISSION ON PROFESSIONAL COMPETENCE, Defendant. Gretchen HARRIS, Real Party in Interest and Appellant. D001626. Civ. 31580.

Page 351

220 Cal.Rptr. 351

174 Cal.App.3d 1176, 28 Ed. Law Rep. 842

SAN DIEGUITO UNION HIGH SCHOOL DISTRICT, Plaintiff and Respondent, v. COMMISSION ON PROFESSIONAL COMPETENCE, Defendant Gretchen HARRIS, Real Party in Interest and Appellant.

D001626.

Civ. 31580.

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

Nov. 26, 1985.

Review Denied March 27, 1986. ^*

[174 Cal.App.3d 1178] David H. Askey, San Diego, for real party in interest and appellant.

Pettit & Martin, Mary Jo McGrath and Peter M. Bransten, Los Angeles, for plaintiff and respondent.

No appearance for defendant.

WIENER, Associate Justice.

Gretchen Harris (Harris) is a permanent certificated employee of the San Dieguito Union High School District (District). On May 8, 1980, the District gave Harris written notice of its intention to dismiss her. In proceedings before the Commission on Professional Competence (Commission) pursuant to Education Code section 44932 ¹ the Commission determined that no grounds for dismissal existed and ordered that she should not be dismissed. The District then sought and obtained a writ of mandate in the Superior Court commanding the Commission to set aside its decision and to order Harris' dismissal from the District's employment. Harris successfully appealed. (See San Dieguito Union High School Dist. v. Commission on Professional

                Competence (1982) 135 Cal.App.3d 278, 185 Cal.Rptr. 203.)   On remand the trial court again directed the Commission to set aside its decision and ordered Harris' dismissal.  Harris again appeals.  We affirm
                

FACTS

The District's statement of charges against Harris allege cause to dismiss her on two separate grounds: evident unfitness for service ( § 44932, subd. (e) [now § 44932, subd. (a)(5) ] ) and persistent violation or refusal to obey the school laws of the state or reasonable regulations of the District ( § 44932, subd. (g).)

The specific acts forming the basis of Harris' alleged unfitness were her numerous intermittent absences totalling twenty-one percent of all work days over a four-year-period: twenty-two days in the school year 1976-1977; fifty-four days in 1977-1978; thirty-eight and one-half days in 1978-1979; and thirty-three and one-half days in 1979-1980. Harris' alleged refusal to obey the District's regulations was based on the numerous times she had failed to supply lesson plans for substitute teachers.

The trial court found the evidence in the administrative record established cause existed for Harris' dismissal for both unfitness and persistent refusal to follow the District's regulations.

DISCUSSION

Standards of Review

As stated in San Dieguito, "The decision of the Commission may be challenged in the superior court by means of a petition for writ of mandate. (Ed.Code, § 44945; Code Civ.Proc., § 1094.5.) In reviewing a Commission's decision for either the governing board or the employee the superior court shall exercise its independent judgment on the evidence. (Ed.Code, § 44945.) An appellate court must sustain the superior court's finding if supported by substantial evidence. (Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314 [142 Cal.Rptr. 439, 572 P.2d 53].)" (Id., at p. 283, 185 Cal.Rptr. 203.)

The foregoing brief summary explains the respective roles of the trial and appellate courts. The trial court is "not bound by the findings of the Commission in exercising its independent judgment review [citation], and, ... [is] free to make its own determination of the credibility of witnesses in the process." (Pittsburgh Unified School Dist. v. Commission on Professional Competence (1983) 146 Cal.App.3d 964, 977, 194 Cal.Rptr. 672.) As a matter of public policy where administrative adjudications are subject to the independent judgment test the responsibility to make factual determinations is left with the trial court rather than with the administrative agency. (Guymon v. Board of Accountancy (1976) 55 Cal.App.3d 1010, 1015, 128 Cal.Rptr. 137.)

After the superior court makes an independent judgment upon the record of an administrative proceeding our scope of review on appeal is limited. "An appellate court must sustain the superior court's findings if substantial evidence supports them. [Citations.] In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court and must give that party the benefit of every reasonable inference in support of the judgment. When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute it deductions for those of the superior court. [Citation.]" (Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314, 142 Cal.Rptr. 439, 572 P.2d 53.)

Here, our analytical responsibility is to examine the administrative record to determine whether it contains the evidence referred to in the court's statement of decision and later judgment. If there is substantial evidence on either ground upon which the court based its determination of cause to dismiss Harris, we must affirm the judgment.

Persistent Violation of District's Regulations

The court's conclusions that Harris' dismissal could be based upon a violation of school rules within the meaning of section The District notified Harris of failing to provide lesson plans on June 6, 1977, January 11, March 29, April 24, May 8, May 21, 1978 and on April 14 and April 28, 1980. Harris acknowledged she had received written notices complaining about her lack of lesson plans.

44932, subdivision (g) were predicated on the following.

The court found Harris "repeatedly failed to provide adequate and timely lesson plans for substitute teachers" which could have somewhat mitigated the detrimental effects of her absences on her students.

Harris was transferred to the Torrey Pines High School for the school year 1979-1980. William Butler, the principal of Torrey Pines testified he was aware Harris had a reputation for excessive absenteeism. He conferred with her in September 1979 during what he described as an "initial goal setting conference." In the written evaluation conference form signed by both Butler and Harris, Harris' responsibilities included "[setting] goals of improving personal attendance, providing thorough lesson plans when absent, and calling early for a substitute when needed." After that meeting Harris failed to provide lesson plans on five occasions. On a few occasions the teacher substituting for Harris managed to contact Harris by telephone after class had started in order to locate the lesson plans. In many instances Harris could not be reached when such attempts were made.

Kay Dillon, a teacher with administrative responsibility in the Spanish Department at Torrey Pines testified Harris worked in her department during the 1979-1980 school year. Teachers substituting asked her for assistance because they were unable to find lesson plans. Dillon would unsuccessfully attempt to locate the plans. Harris also failed to fill out the "substitute teachers' information sheet" on which the teachers were to provide the location of lesson plans. On several occasions when there were no lesson plans the substitutes for Harris complained they were hampered in teaching Harris' class.

Darlene Palmer, an English teacher and department chairperson at Torrey Pines testified Harris failed to supply lesson plans for substitute teachers. Three substitutes asked Palmer's assistance because they were unable to find lesson plans. Palmer explained she never had any difficulty in locating lesson plans for other substitutes who filled in for the nineteen other English teachers in her department.

Susan Martino, a Spanish teacher at Torrey Pines during the 1979-1980 school year testified she shared a desk with Harris. When asked for a lesson plan by a substitute she was unable to locate it.

Kathleen Oversmith substituted seventeen times for Harris. She could not locate lesson plans on about twelve of those occasions. The lessons she did find were either vague or unhelpful. Incomplete lesson plans omitted titles of books which were to be used and when a particular chapter was mentioned the book remained unknown. Oversmith expressed surprise at the lack of students' progress in Harris' class compared to the level of achievement in the other classes at Torrey Pines in which she had been a substitute teacher.

John Silverman substituted for Harris six times over a two-year-period commencing in 1977-1978. No lesson plans were made available to him. He would ask the class what they had been doing. He described that inquiry as a "somewhat fruitless" exercise. He testified that ordinarily, at least 97 percent of the time when he would substitute he would receive a detailed lesson plan.

Application of the Morrison Criteria

In weighing the evidence to determine whether Harris' conduct was sufficient to warrant dismissal, the trial court followed San Dieguito's instructions and applied the criteria of Morrison v. State Board of Education (1969) 1 Cal.3d 214, 82 Cal.Rptr. 175, 461 P.2d 375. Morrison recommended seven criteria should be considered in determining unfitness to teach: (1) likelihood of recurrence of the questioned conduct; (2) extenuating or aggravating circumstances; (3) effect of notoriety and publicity; (4) impairment of teacher-student relationships Here, the trial court's written statement of decision examined and explained why each of the Morrison criteria was applicable.

(5) disruption of the education process; (6) motive; (7) proximity or remoteness in time of conduct. (Id., at p. 229, 82 Cal.Rptr. 175, 461 P.2d 375; see also San Dieguito at pp. 278, 284, 185 Cal.Rptr. 203.)

The court explained it believed the likelihood of Harris' conduct adversely affected students or fellow teachers was reflected in the testimony of teachers who had to assist substitute teachers in Harris' classes. When...