Today's Fresh Start, Inc. v. L.A. Cnty. Office of Educ.

Decision Date26 October 2011
Docket NumberB214470.,Nos. B212966,s. B212966
Citation11 Cal. Daily Op. Serv. 8789,269 Ed. Law Rep. 638,128 Cal.Rptr.3d 822,197 Cal.App.4th 436
CourtCalifornia Court of Appeals Court of Appeals
PartiesTODAY'S FRESH START, INC., Plaintiff and Appellant, v. LOS ANGELES COUNTY OFFICE OF EDUCATION et al., Defendants and Appellants.

OPINION TEXT STARTS HERE

Background: Charter school petitioned for writ of administrative mandate challenging county board of education decision revoking its charter. The Superior Court, Los Angeles County, No. BS112656,James C. Chalfant, J., granted charter school's motion for judgment. County board of education and office of education appealed.

Holdings: The Court of Appeal, Johnson, J., held that:

(1) statute governing charter revocation by county board does not require formal presentation of evidence or evidentiary hearing before neutral decision maker;

(2) due process did not require formal presentation of evidence;

(3) due process did not require evidentiary hearing before neutral decision maker; and

(4) prejudice was not presumed in charter school's receipt of notice from county office of education rather than county board of education.

Reversed.

Doll Amir & Eley, Los Angeles, Michael M. Amir, Mary Tesh Glarum, and Hemmy So for Plaintiff and Appellant.

Los Angeles County Office of Education, Vibiana M. Andrade, Sung Yon Lee; Greines, Martin, Stein & Richland, Los Angeles, Timothy T. Coates and Alison M. Turner for Defendants and Appellants.

JOHNSON, J.

The school board of Los Angeles County revoked the charter of a charter school. Before filing the administrative appeal to the state board of education, the charter school filed a petition for writ of administrative mandamus in the superior court, and filed an amended petition after the appeal to the state board of education ended in a tie vote. The trial court granted the writ, concluding that the charter school's due process rights were violated during the revocation proceeding. The judgment required the county school board to set aside its revocation decision and reinstate the charter. The county school board and the county office of education appeal from the judgment, and the charter school appeals from the trial court's denial of an award of attorney's fees. We conclude that no due process violation occurred, and we reverse the judgment.

BACKGROUND

Today's Fresh Start, Inc. (TFS) is a charter school serving Los Angeles County, and is organized as a not-for-profit corporation. The Los Angeles County Office of Education (LACOE) is a regional educational agency. The Los Angeles County Board of Education (County Board) is the governing board of LACOE. The County Board was the chartering authority for TFS and a signatory to the charter agreement. The County Board initially granted TFS's charter petition in 2003, and renewed the charter in 2005 for a five-year term.

TFS's charter renewal petition provided that LACOE would oversee TFS, investigating complaints and monitoring the school's operations pursuant to Education Code section 47604.3.1 TFS agreed to “respond promptly to requests made by LACOE for operational and fiscal concerns.” The charter renewal petition also provided: “The charter granted pursuant to this Petition may be revoked by LACOE if the county finds that [TFS] did any of the following: • Committed a material violation of any of the conditions, standards, or procedures set forth in this Petition. • Failed to pursue any of the student outcomes identified in this Petition. • Failed to meet generally-accepted accounting principles, or engaged in fiscal mismanagement. • Knowingly and willfully violated any provision of law. 2 [¶] Prior to revocation, the county will notify [TFS] of any violation (as set forth above) in writing, noting the specific reasons for which the charter may be revoked, and give the school a reasonable opportunity to cure the violation.”

I. Charter revocation and appeal

In June 2007, LACOE advised TFS that it planned to investigate concerns raised about TFS, including, but not limited to, four areas: The legal rights of students, parents, and employees; student attendance procedures; professional development; and applicable California Department of Education (CDE) procedures for testing. TFS responded that the planned investigation violated section 47604.4 3 and was contrary to the charter. Darline Robles, the county superintendent of schools 4 and the head of LACOE, wrote to TFS on June 18, 2007, requesting documents regarding the governance of TFS (information about TFS board members, minutes of board meetings, and other information).

On July 19, 2007, LACOE sent to TFS a “Report of Findings and Recommendations,” which called for improvement in each of the four identified areas. A “Corrective Action Plan” dated July 31, 2007 listed required actions with due dates for completion. On August 24, 2007, Superintendent Robles wrote to TFS, enclosing a staff memorandum analyzing the governance materials sent to LACOE, and stating, [s]taff express serious concerns regarding the governance of [TFS] and I share their concerns.” An attachment requested additional materials to allow LACOE to complete the review of the governance and determine that TFS's “board is fulfilling its governance responsibilities, holding sufficient meetings to conduct charter school business as needed, complying with the Brown Act [Gov.Code, § 54950 et seq.], and demonstrating conclusively that Board members are protecting public funds and not using their positions improperly to the end of personal enrichment,” so that Superintendent Robles could decide whether to recommend that the County Board take action to revoke TFS's charter.

On October 9, 2007, the County Board held a Board Meeting/Study Session at which TFS was one of several topics. The minutes of the meeting reflect that Dr. Lupe Delgado of LACOE's Charter School Office led a discussion of a LACOE staff analysis of TFS's governance structure and processes and TFS's response to the corrective action plan. The County Board members were provided [c]omprehensive materials,” and TFS had also received the three binders of material provided to County Board members. A public hearing on TFS was added to the calendar for the November 6, 2007 County Board meeting.

At a County Board meeting on October 16, 2007, six individuals addressed the County Board on behalf of TFS. Superintendent Robles recommended that the County Board give notice of its intent to revoke TFS's charter, adding that if the issues could not be resolved and the County Board did decide to revoke, the school would stay open during the appeal process to the State Board of Education (State Board),5 and LACOE would recommend that TFS stay open until the end of the school year. The County Board voted 6 to approve Superintendent Robles's recommendation to begin the revocation process. TFS had the option to provide a written response, and at the November 6, 2007 public hearing, TFS could make an oral presentation to supplement any documentary response. The final decision of the County Board would be made at the December 4, 2007 meeting (this date was later moved to December 11, 2007). An October 17, 2007 letter from the County Board informed TFS of the County Board decision, and advised TFS that it could submit written materials to support its oral presentation on November 6, 2007.

November 6, 2007 public hearing and subsequent County Board meetings

At the November 6, 2007 public hearing, six of seven County Board members were present, with member Sophia Waugh absent. Six TFS students addressed the County Board in support of TFS. Counsel for TFS provided the County Board with handouts, and five individuals, including TFS's Executive Director Dr. Jeanette Parker, Board Chair Dr. Clark Parker, General Counsel Mary Tesh Glarum, and Assemblyman Mervyn Dymally spoke on behalf of TFS.

At the County Board's November 20, 2007 meeting, TFS's counsel expressed concerns that LACOE's revocation procedures violated due process. LACOE's staff was both advocating that TFS's charter be revoked and also advising the County Board regarding the revocation, in addition to LACOE's having a preexisting relationship with the County Board. Stating, “I believe that the procedure that has been employed is unfair,” counsel objected that TFS had not had an opportunity to respond to the LACOE presentation scheduled that day. TFS's Board Chair, Dr. Clark Parker, urged the County Board to “send it out, to hold the hearing with an administrative law judge that will do fact-finding,” because due process required an “impartial adjudicator” to make findings of fact and make a recommendation to the County Board, and [s]taff cannot do that.” In response to a County Board member's question, Dr. Clark Parker explained that he was relying on general administrative law 7 rather than the charter school statute in the Education Code. Dr. Clark Parker objected to the introduction of any evidence after the public hearing. TFS's executive director made a brief appeal to the County Board to see things from TFS's perspective. Dr. Delgado from LACOE's Charter School Office gave a chronology of the events surrounding the charter revocation process, and asked for any specific items the County Board would like to see in the final report on TFS.

In response to a board member's request for an analysis of the “legal situation,” Shari Kim Gale, general counsel for the County Board and LACOE, explained that the County Board was the authorizer of TFS's charter. Superintendent Robles and LACOE were not the authorizers but the advisers to the County Board, and the County Board's job was to decide whether to revoke the charter. If the County Board decided to revoke, the Education Code provided that TFS could then appeal to the State Board. “And that is the due process stage. It is at that stage...

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