Grossmont Union High School Districts Opposition To Petitioners Supplemental Petition For Writ of Administrative MandamusOppositionCal. Super. - 4th Dist.May 4, 2018 1 2 3 4 5 6 7 8 9 10 11 > Th 52% 14 =< 15 Z& 2 333 1 17 18 19 20 21 22 23 24 25 26 27 28 DWK DMS 3571665v1 JONATHAN A. PEARL, State Bar No. 215413 ELECTRONICALLY FILED jpearl @DWKesq.com INGRID A. MEYERS, State Bar No. 209399 imeyers@DWKesq.com Dannis Woliver Kelley 750 B Street, Suite 2310 San Diego, CA 92101 Telephone: 619.595.0202 Facsimile: 619.702.6202 Attorneys for Real Party In Interest Superior Court of California, County of San Diego 06/25/2020 at 04:11:00 Ph Clerk of the Superior Court By Carolina Miranda, Deputy Clerk GROSSMONT UNION HIGH SCHOOL DISTRICT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO JOSHUA BARNEY, Petitioner, Vv. COMMISSION ON PROFESSIONAL COMPETENCE, Respondent; GROSSMONT UNION HIGH SCHOOL DISTRICT, Real Party in Interest. Case No. 37-2018-00022455-CU-WM-CTL GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER'S SUPPLEMENTAL PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS Date : July 17, 2020 Time : 2:00 p.m. Dept : C-74 Judge : Hon. Ronald L. Styn Trial: None set Original Writ Filed: May 4, 2018 Supplemental Writ Filed: October 22, 2019 Exempt from filing fees pursuant to Gov. Code, § 6103. GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IL. III. IV. TABLE OF CONTENTS Page SUMMARY. OF THE ARGUMENT sous summers nmaess mss sssvissm sms sms 1 STATEMENT OF FACTS... cesses sects saeeseeeeesneesaeeee 2 A. Hearing Before the CPC and Decision to Dismiss Petitioner. ..........ccccccoeveenneenee. 2 B. Petitioner’s Original Writ and Remand to CPC. ...........cccocoiiiiiiiiiinniiiccee 2 GC CPC Decision on Remand Again Affirming Dismissal of Petitioner. ................. 3 1. Relevant factual findings and credibility assessments by the CPC on 1eMANA. ...cooiiiiiieiieeiecteee eects see secre ees 3 2. CPC’s decision to dismiss Petitioner for immoral conduct and analysis of the Morrison factors. ..........ccceeueeieiniiinienieceeee e 5 3- CPCs decision to dismiss Petitioner for persistent violation of rules and regulation. ........c.ceevieeieiiiinnie rece eeeeee 5 D. Undisputed Evidence and Credible Testimony Support the CPC Decision......... 6 LEGAL ARGUMENT ......oiiiiiiie teeters eects see seers sae eevee eens sane 8 A. Standard of Review on Writ of Mandamus. ..........ccoecueeieeiieniinnienieciecnee seen 8 B. It is Imperative that the Court Give Deference to the CPC’s Decision Affirming Petitioner’s DISmissal.........ccccoouiiiiiiiiiiiiiiiiii ii 9 Petitioner was Afforded a Fair Hearing, TWice. .....c..ccccovviiiniiinniieiniiennieeene. 11 D. There is No Evidence the CPC Failed to Proceed in the Manner Required by LAW. c s essere esa eee 12 E. The CPC’s Decision is Fully Supported by the Undisputed Facts and Weight Of the EVIAENCe. .......cccooviiiiiiiiiiiiiiic ccc 15 I. Petitioner’s immoral conduct supports his dismissal. .........ccceceerrunenee 13 2. Analysis of the Morrison factors supports Petitioner’s dismissal.......... 17 3- Petitioner persistently violated and willfully refused to established rules and regulations. .........c.eoveeeieeieiniienie c ce reese 19 CONCLUSION cities sete see cece esses sete eects sate sete eect ee sree serene 19 i GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) State Cases ABC Unified Sch. Dist. v. Haar (1994) 28 Cal. APP-Ath 309.....coeiiiie ee eerste sates erases seas 16, 17, 18 Alford v. Pierno (1972) 27 CaLAPP-3A O82... eee eteeteeteeetteeteete ert ste sabe e eb ee sabe esas ene e snes saae eens 9 Bassett Unified Sch. Dist. v. CPC (1988) 201 CalLAPP.3d 1444 .....o eee eee eee eae eee sate saber eee 18 Bd. of Ed. of Long Beach Unified Sch. Dist. v. Jack M. CLIT) 19 CLI. BDL cin ssn nmmsssinsimss osmosis sims sin 550s 45550555 is 555550 505 5508 AS SRS ES RASA S553 17 Bd. of Ed. of San Francisco Unified Sch. Dist. v. Weiland (1960) 179 Cal. APP.2d BOB ....cneeeeee eee eee eet sate eae e sees st ee sbbe esse en seeeneens 15 Bd. Trustees v. Stubblefield (1971) 16 Cal APP-3A B20... eee eit eters st ee sateen e eae saae sabe ennees 15, 18 Better Alternatives for Neighborhoods v. Heyman CLOBT 21.2. Coll ATED]. 15965 munenressossssensosonsornsss o o ass s 08000 0 HA A RR SEARS 9 Cadilla v. Bd. of Medical Examiners (1972) 26 Cal. APP.3d 961, O07... eee ete eerste sates area 12 Campbell v. Bd. of Dental Examiners (1971) 17 CaALAPP-3A 872. eee eee eee eet ete sabes eet ee ssbe esse aseeenaeens 10 Clark v. City of Hermosa Beach (1996) 48 Cal. APP. 4th 1152. eee eters sees estes esas 11,12 Court in Goldsmith v. Bd. of Ed. (1924) 66 CLAPP. 157 cee eae eters sate eaters sb eesbbe sabe a sees eens 15 Doe v. Regents of University of California (2016) 5 Cal APPSIN. LOSS, TUT 6 500005 00 sumansn cnssn.onsnossss swans mss 55555538 5455875 555555 55555558 R555, 11 Dresser v. Board of Medical Quality Assurance (1982) 130 Cal.APP.3A S006... eects eee ete eee st ee sabe enbe eee seen 13 El Monte Sch. Dist. v. Calderon (1973) 35 CaLLAPP-3A 490... cies eee estes sates estes st ee sate enbe ene e ene n 16 English v. City of Long Beach CLO) BS Col Bt]. 1 BL cxsousosnsessssmsnensorsaessssansesrossnnstusnass s mes sss 06088 S050 OES SV SOT SR 11 ii GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208... cites eee ert east este estes teeta sabe asta ebeesaaeenbe anaes 9,12, 17 Fukuda v. City of Angels (1999) 20 Cal.4th B05, 817 c.ueeeeeeeeiieiieeiie eects eee eres t ees baesebe ares tee ssae anne 8,9 Gardner v. CPC C1985) 164 Cal. ADDI 103550 sxmsnnonssnss ssmansmo smn sn ones is 555585 5055s 5555558 5455875 555555 55555558 585 16, 17 Kolter v. Commission of Los Angeles Unified School Dist. (2009) 170 Cal. APP.Ath 1346. ....cc ues eee este sees sete sabe anaes nen 11 Landau v. Super. Ct. (1998) 81 Cal APP-Ath 191... eee eae eters ee sate sateen sees ee a 13 Lateef v. City of Madera (2020) 4S Cll, Api STR ZA mmensorsesn ssa somes sss 08550055 S060 SIE IES SUBST 11,12 Morrison v. State Board of Ed. (1969) 1 Cal.3d 214... eee eee eee ees e setae ee saae ee eaae ee eaae eens 5,17,18, 19 Oakdale Union Sch. Dist. v. Seaman (1972) 28 CaALAPP-3A 77 eee sees st ee ete e sates nbee sabe enbeaseeenseens 19 Oduyale v. Bd. Of Pharmacy (2019) 41 Cal. App.Sth 101, 113. eee eee seer eee sees 12, 13, 14 Palo Verde Unified Sch. Dist. v. Hensey (1970) 9 CalLAPP.3A DOT... eee ee eters eae eee teeta sabe enbe ene e seen 16 Pinheiro v. Civil Service Commission for the County of Fresno (2016) 248 Cal ADDATI, LAB. oo suum ssn ss sumans cnssn on sss isms m5 55555518 5455855 555555 55553558 R555, 11 Ruttenberg v. Dept. of Motor Vehicles (1987) 194 CalLAPP.3A 1277 eee eee eee eee sete eee estes sate sees e ee sbaeeeee 9 Sager v. County of Yuba (2007) 156 Cal. APP.Ath 1049.....co cei eee eerste sees sabes t ee saa eene 9 San Diego Unified Sch. Dist. v. Comm. on Prof. Competence (Lampedusa) (201 1) 1 94: Coll ATE AE: | 57s sossvoonssnsssosinoso a sss 000 S00 A RN 9,16, 18 San Diego Unified School Dist. v. CPC (Jesperson) (2013) 214 CalLAPP.Ath T120.c...ciciieiiiiiieee cece eee eee eters ee sate sabe e een 10 San Dieguito Union High Sch. Dist. v. CPC (1985) 174 CalLAPP.3A 11760... e eee aan 19 Topanga Assoc. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506,517 conic eteeeeeteeeeteeteesteeeaeee es ee st ae eate ebe es es st esbte esse eseeeseens 10 iii GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Topanga Assoc. for a Scenic Community v. County of Los Angeles (1989) 214 Cal. APP.3d. 1348... sete sree sees 9, 14 Von Durjais v. Bd. of Trustees of Roseland Sch. Dist. (1978) 83 CaALAPP.3A O81... ee steers ee ee eae eben 18 Zink v. City of Sausalito CLOT) TO CAL API: FU CBZ cs50.i5 mms sss as somos sso 555750 25555355 55055555 555555018 SAHSHS S555 5 SHHS58 SRHFH5, 13 State Statutes Education Code SECHIONS 44032. .....oooiiiiiiieeeeeee eee eee ester esas ee ee teas eres sse eseasasases aeesen 2,20 Education Code section 44932(2)(8)....uuuuirieiieieiiiiiiiieeeee cece eceitieteee eee essere area ease eeerarae ease seen enens 19 Education Code SECION 44934(C) ...uuuiiieiiiiieeiiiiie ee eiie ee eeitie ee esstieae ee erae ee ssa ae es ssseae es ssnsaeaesnnsseaeans 11 Education Code SECTION 44944 .........ououeeieeeeeeeeeeeeeeeeeeee e ats ase av s sas asa aeaeaea aes 2,9,10, 11 Education Code SECtion 44944.05 .........eeiiiiiiiiie eee eee steers sabe e ea 11 Education Code SECON 44945 .........ooiiiiie eee eee eee ete sees saeeesabeeesabeeesabee esas 8,9 Evidence Code SECON O04 .........cooiieiiiieiiie ete ee sabes sabe e estates sabe es sbae ans 10 Government Code SECHON 1 1425.50) 1x swmsssess swwssn suwsssn on suns cx5ssm.6.4555555 55555 5538 55557575 $5555 5045 5555555 $9553 50.55 10 Federal Statutes Code of Civil Procedure section 1094.5 «cu semsmommsmmn ons sam e ams snammmomae 8 Code of Civil Procedure section 1094.5(D) .......cooiiiiiiiiiiiieieeeeiiiieieee eee e cts es rv s 8, 14 iv GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Real Party in Interest Grossmont Union High School District (“District”) hereby submits this opposition to Petitioner Joshua Barney’s (“Petitioner”) Supplemental Writ of Administrative Mandamus (“Writ”) and requests the Writ be denied in its entirety. I. SUMMARY OF THE ARGUMENT Petitioner’s Writ is full of inaccuracies and skirts around the totality of the evidence presented to and properly relied on by the Commission on Professional Competence (“CPC”) to once again reach the correct decision to dismiss Petitioner from employment for his immoral conduct and persistent violation of or refusal to obey rules and regulations of the District. Petitioner presents no new arguments in his Writ. Rather, he cries foul on the CPC for following the law and applicable procedures set forth in the Education and Government Codes governing dismissals of permanent certificated employees to affirm Petitioner’s dismissal. Moreover, Petitioner’s attempts to present himself as the victim of the “evil” District, who lead a “campaign of misrepresentations,” and “super sensitive” Student B.P., who because of an alleged irrelevant past, made up everything about Petitioner to get him fired are not supported by the evidence. As outlined herein, Petitioner’s arguments fail on multiple levels. First, he is not a victim of any wrongdoing or conspiracy by Student B.P., the District or the CPC. Petitioner is the casualty of his own harassing, immoral, and deplorable conduct while a teacher at the District and, in particular, his targeting of female high school Student B.P. and other students for whom he was entrusted with their care, expected to inspire, and be a role model. Petitioner’s conduct was not limited to a single incident or person - it was willful and it was persistent. Second, Petitioner’s admissions at the hearing before the CPC in 2018, during the District’s investigatory meeting in February 2017, and failure to present any credible new argument on remand, were nails in his coffin. Not only was Petitioner represented by counsel at two hearings before the CPC and the meeting with the District, he was afforded the opportunity to present evidence and a defense at them all. He also participated in the discovery process outlined in the Education Code wherein he had the opportunity to request any and all relevant information from the District to support his defense. Petitioner was absolutely not deprived of any due process rights and the CPC fully complied with the applicable statutes and law in dismissing him. 1 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally, the CPC’s decision on remand is fully support by the facts and law. The CPC freshly weighed the evidence; did not consider Petitioner’s conduct during the 2012-2013 school year or Notice of Unprofessional Conduct; considered the parties briefs and oral arguments on remand; issued a well written and reasoned decision affirming Petitioner’s dismissal; and complied with controlling law. Petitioner presented no new evidence, new argument, or credible explanation for his conduct to the CPC on remand; nor does he now on his Writ. There is no reason to dismiss the CPC’s decision. The CPC correctly concluded on remand that Petitioner should be dismissed on grounds of immoral conduct and persistent violation of or refusal to obey rules and regulations as alleged and proven by the District in early 2018 and July 2019. The Writ should be denied and judgment entered for the District. II. STATEMENT OF FACTS A. Hearing Before the CPC and Decision to Dismiss Petitioner. On or about August 10, 2017, the District adopted a Statement of Charges (“SOC”) recommending the dismissal and immediate unpaid suspension of Petitioner from employment within the meaning of Education Code sections 44932 et seq. and served the SOC on Petitioner. (OAH Clerk’s Record, Case No. 2017090130 (“CR”) pp. 6-87.) In response, Petitioner timely served a Request for Hearing & Notice of Defense denying the allegations in the SOC. (CR pp. 128-133.) Pursuant to section 44944, a four day hearing was held before the CPC on January 29- February 1, 2018 at which Petitioner and the District were represented by counsel and presented documentary and testimonial evidence. (See, Hearing Transcripts (“HT”) Vol I-IV; CR p. 534.) On March 5, 2018, after evaluating the evidence and weighing the credibility of witnesses, the CPC issued its decision concluding, “Joshua Barney is dismissed from employment with the ... District. The Notice of Intent to Dismiss and Statement of Charges filed against Joshua Barney is affirmed.” (CR pp. 556.) B. Petitioner’s Original Writ and Remand to CPC. On May 4, 2018, Petitioner filed a Writ of Administrative Mandamus; and for Damages challenging the CPC’s decision and seeking a judgment and order, including but not limited to, that be reinstated to his previous position of employment. (See, Petitioner's Amended Writ.) After 2 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 briefing and oral arguments, on April 10, 2019, the Superior Court granted Petitioner’s writ, remanded the matter to the CPC, and ordered the CPC vacate its March 2018 decision and determine “whether the Commission would have reached the same decision, and/or imposed the same penalty [on Respondent], without consideration of the evidence from the 2012-2013 school year and without an adverse finding on the unprofessional conduct charges.” (OAH Clerk’s Record After Remand, Case No. 2017090130.1 (“CR2”) pp. 11-24) C. CPC Decision on Remand Again Affirming Dismissal of Petitioner. On July 3, 2019, the CPC issued an order setting oral argument on remand for July 16, 2019 and permitted the parties to submit briefs prior to oral argument. (CR2 p. 27.) Thereafter, the CPC heard oral argument from both parties. (CR2 p. 128.) On August 12, 2019, the CPC issued its decision on remand again concluding Petitioner should be dismissed from employment on grounds of immoral conduct and persistent violation of rules and regulations. (CR2 pp. 127-161.) 1. Relevant factual findings and credibility assessments by the CPC on remand. The CPC’s decision on remand not only includes accurate factual findings evidencing Petitioner’s misconduct and supporting his dismissal, but the CPC made credibility assessments. The CPC also considered the legal arguments presented by the parties in their briefs and closing arguments. Again, the CPC “did not find [Petitioner’s] legal arguments persuasive.” (CR2 p. 156, 927.) The Court cannot throw the CPC’s findings and assessments in the trash, as Petitioner suggests. Rather, the Court must give great deference to them when ruling on the Writ. Examples of the well-founded findings and assessments by the CPC include, but are not limited to, the following. On February 17, 2017, the District met with Respondent to get "his side of the story." Present at the meeting were Respondent, Respondent's attorney, Principal Napoleon, Ms. Cuizon, Mr. Schwartzwald, Holly Scarella ... and an attorney who represented the District. ... During this meeting, Respondent admitted the following: e He touches students when providing exercise instruction instead of modeling proper technique. e He touches students on the hamstring which is just below the buttocks. He uses two fingers and touched student B.P. along and just below the collar bones, a few inches above her breasts. e He makes statements such as: "Work your booty, tighten your booty, you can have the best booty ever" and "Bring the bar down to your nipples" or something similar to that 3 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 effect rather than using anatomic terms. He does not teach students the names of muscles, or muscle groups. eo He emphasizes the importance of exercise to improve appearance as opposed to improving health and fitness. e He touches students when providing exercise instruction instead of modeling proper technique.” (CR2 p. 139, {17.) eo “Respondent admitted that, in his class, he used the word "booty" and said, "you are going to look so amazing this summer in a bikini." He explained that he did so to motivate the students,” not because of any concern for their safety. (CR2 pp. 143-144, 130.) e Petitioner’s claim that he was instructed during a staff meeting to evaluate Student B.P. for injury rather than send her to the nurse’s office, was not confirmed by any witness, including the nurse Lonnie Raimond. (CR2 p. 143, 927.) e Petitioner also “did not dispute that he had a conversation with Student B.P. about: Whether she had a boyfriend? What guys liked her at school? Did she have a driver's license? Did she have a job? He was going to help her find a job.” (CR2 p. 144, |31.) In explaining the testimony of Mr. Peck, Petitioner again cherry picks his testimony to give the appearance that his inappropriate touching of students was in fact appropriate. According to Petitioner, Mr. Peck’s only testimony was that, “it is sometimes necessary to touch students for safety or instruction.” (Memorandum in Support of Supplemental Writ (“Motion”), p. 10:24-25.) Petitioner neglects to mention that Mr. Peck unambiguously testified, which the CPC found credible, that he “did not touch students as Respondent admitted he touched his students. When Mr. Peck taught weight training, he did not use the language that Respondent admitted he used in class.” (CR2 p. 146, 433.) Moreover, Petitioner's attempt at tarnishing Student B.P.’s reputation by having Ms. Raimond speculate on her state of mind, call her “super sensitive” and “very mixed up,” and that she “misunderstand[s] things,” is flat out not supported by any other witnesses. (Motion, p. 5:19- 23.) Nor is Petitioner’s statement that “[n]Jumerous students testify] in Barney’s favor” at the hearing. (Motion, p. 8:11.) Instead, the CPC determined that, e Student B.P.'s version of the events that transpired was more credible than Respondent's version. e The evidence established that Respondent lifted Student B.P.'s shirt, "play punched" her twice and told her that "she had a nice core." e The evidence established that Respondent helped Student B.P. squat, stood behind her and placed his hands on her lower hips as she squatted. e Based on N.H.'s testimony as well as Respondent's, it was established that Respondent touched females inappropriately; he touched them around their shoulders and "boob" areas; he made comments about their bodies and stared at their "boobs and butts." He 4 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 grabbed "thighs" and asked if they were sore. He made comments about female students’ bodies and "stuff." Respondent caused N.H. to feel uncomfortable in his class. (CR2 p. 146, 1434-37.) Of significant note from the CPC’s decision are the following findings, e During the hearing, Respondent provided an explanation for his acts and statements during the 2016-2017 school year (until January 24, 2017). At no time did he appear to understand that his conduct or statements could be misconstrued. At no time did he express appreciation for the wrongfulness of his misconduct. Respondent expressed remorse for his misconduct because it resulted in discipline, not because it was inappropriate or because of the impact it had on colleagues or students.” (CR2 p. 147, HL) e In briefs and during oral argument, the parties made factual and legal arguments in support of their positions. After consideration of the foregoing, the Statement of Charges, the exhibits presented during the hearing, and relevant sections of the record of the proceeding, the Commission rejected the factual arguments made by Respondent. (CR2 p. 147, J43.) 2. CPC’s decision to dismiss Petitioner for immoral conduct and analysis of the Morrison factors. Similar to his other arguments, Petitioner is incorrect that the CPC “failed to perform a Morrison analysis” or “to analyze any of the factors with the evidence” in concluding Petitioner engaged in immoral conduct. (Motion, pp. 2:18-19; 16:12.) Not only did the CPC correctly set forth the seven factors in Morrison and applicable case law, but in analyzing the Morrison factors the CPC concluded that, Respondent's misconduct and inappropriate language evidence his disregard for the District's primary goals and expectations that come with the teaching profession. His touching and making inappropriate and unprofessional comments, negatively impacted the work and educational environment. Respondent's conduct was detrimental to the District and its students. Respondent was fully to blame for his conduct. He is not a model of good behavior. He cannot be relied upon to act morally and to uphold the responsibilities of a public educator. Respondent has no appreciation for the wrongfulness of his acts and misconduct; as such, if allowed to retain his position, it is likely that he will engage in the same or similar misconduct again. (CR2 p. 157, 29.) 3. CPC's decision to dismiss Petitioner for persistent violation of rules and regulation. Not only did the CPC find Petitioner’s conduct to be immoral, but it concluded cause exists to dismiss Petitioner for his persistent violation or refusal to obey rules governing his employment. Based on the facts, it was established that Respondent's misconduct and inappropriate statements violated the Board's policy that set forth its expectation of certificated employees. (Board Policy No. 4119.21). Respondent repeatedly violated this Board policy. (CR2 p 146, 38.) 5 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Based on the facts, it was established that Respondent's misconduct and inappropriate statements violated the Board's policies that prohibit discrimination, intimidation, harassment and bullying (Board Policy Nos. 0410,4119.11, 5131.2, 5145.3, AR5145.3, and 5145.7). He repeatedly violated these Board policies. (CR2 pp. 146-147, 439.) D. Undisputed Evidence and Credible Testimony Support the CPC Decision. The CPC was again correct in concluding that the undisputed testimony and evidence support Petitioner’s dismissal. At the 2018 hearing before the CPC, the following testimony was elicited from Student B.P. supporting Petitioner’s dismissal and when considered in its totality is so deplorable that the only conclusion is to dismiss Petitioner. “I was working out, and he was explaining to me, like, how to do the workouts on the machine. He would bring the bar really close to my breasts and say it needs to hit your tits.” (HT 32:8-15.) When her jeans were frayed with the white showing, “but my skin wasn’t showing.” “So he thought it was dirt, and he tried to wipe it off. And his hand got really close to my private part.” “... close to my vagina.” (HT 34:10-16, 48:9-14.) “He ... walked up and lifted up my shirt, punched me in the stomach, and told me I had a really nice core.” (HT 34:18-23, 51:22-24.) “He asked me questions, like, if I have a boyfriend, what guys at school like me, if I drove, if I had a job, where I lived.” (HT 34:23-35:1, 43:7-10.) “When I was working my legs, [he said] that your body is going to look so amazing in a bikini this summer.” (HT 40:2-4.) When doing squats Respondent, “walked up behind me and placed his hands about right here [top of my butt crack] and was helping me squat.” (HT 52:6-16.) When asked how Respondent’s conduct made her feel, Student B.P. unequivocally said, “uncomfortable,” “disgusted,” and “gross.” (HT 40:5-7, 41:8-10, 42:7-19, 48:13-15, 52:2, 53:3-7.) Petitioner’s claim that he “emphatically denied all allegations of improper touching, in such unequivocal terms as ‘absolutely not’ or ‘never,’” is flat out false. (Motion, p. 7:19-21.) Petitioner actually testified as follows, When explaining how to a bench press, he says, “bring the bar to your nipple or nipple line” and, when specifically instructing Student B.P., said “you have to bring the bar to your nipple and then back up.” (HT 595:25-596:1, 598:20-21.) When speaking with Student B.P. “about checking to see if she was sore or injured. And I explained that to do that, I had to take two fingers and poke different spots along her collarbone and her shoulder. ... So at that point I took two fingers on my right hand, poked the front of her shoulder. She said ow. And then I went right across ... at the collarbone where the muscles intersects. Ow, ow, ow, ow ...” “I touched her four times across the collarbone. Two times to the shoulder.” (HT 602:7-603:2, 636:16-17.) When demonstrating the “proper way” to squat to Student B.P., “I had her stand in front of me. I had her mirror what I was doing ... then I watched her from the front do it.” (HT 604:19-605:4.) When helping Student B.P. with donkey kicks, “I put my hand on her shoelace, which would be the top of her shoe, my right hand. I was on my right knee. I told her to tighten her hamstring. ... And I took two fingers, closed fist, and tapped [her hamstring] like that. I said tighten that. ... And then I raised her leg with my right hand once, twice.” 6 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (HT 606:10-607:4.) e As to why he uses such words as “good booty,” “booty,” “bikini bodies,” or “working booties,” Respondent explained he tries to “relate to kids,” “I don’t define what good booty is,” and “I tell the kids to wear proper attire tomorrow. We’re working booties.” (HT 608:13-609:9, 611:34.) e “I did tell [Student B.P.] she has a strong core.” (HT 616:8, 22.) eo When the CPC asked him if he “thought it would be appropriate to do the same type of thing [conduct as alleged in the SOC]” he replied, “I would learn from this experience and change my ways, for sure, because I was disciplined.” (HT 642:2-7.) Even more disturbing and showing of Petitioner’s complete lack of comprehension of his wrongdoing is when the ALJ asked him to describe what “proper and improper physical contact” is based on his attendance at two anti-harassment trainings. (HT 639:9-640:10.) Petitioner fumbled around to answer the question and finally responded, Where the bathing suit covers. Like, you - you don’t touch that area by any means. ... Again, how do I describe that. ... High fives were fine. I'll just leave it at stuff like - / don’t know how to describe it or put it in words. [Emphasis added.]” (HT 640:14-641:1.) When District administrators Ms. Cuizon, Principal David Napoleon and Human Resources Director Gary Schwartzwald, met with Petitioner on February 17, 2017, regarding the allegations made by Student B.P., they all confirmed he admitted to the bulk of the allegations including touching students when providing instruction instead of modeling proper technique; touching students’ hamstring; using two fingers to touch Student B.P. along and just below the collarbone, a few inches about her breasts; sexualizing instruction by using words such as booty, nipple or titties; and making comments such as “You will get the best bikini body ever.” (HT 337:8-22, 338:5-8,412:10-18, 463:25-464:6.) Petitioner’s admissions shocked the administrators and in turn the CPC. Napoleon: “He should just stop talking,” “I felt that everything that he admitted to was just things that he should not be admitting,” and he showed no remorse. (HT pp. 339:11-18, 340:2-4.) Cuizon: Petitioner admitted “that he had done [the allegations]” and “Remorse, No, I don’t know that there was remorse.” (HT pp. 411:18-412:1, 412:24-413:2.) Schwartzwald: “Stunned that he didn’t admit to any wrongdoing or anything that he could have done differently” and “expressed that he was doing nothing wrong.” (HT pp. 463:4- 15, 467:23-5.) Petitioner’s arguments that the District conducted a “perfunctory” investigation into the allegations made by Student B.P., that statements from Students B.P. and N.H. were inconsistent, 7 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and witnesses forgetting dates support reaching a different decision than dismissal are not supported by the evidence and were rejected by the CPC. While “the District’s investigation was not optimal,” the CPC concluded, “Nevertheless, regarding the most salient issues, Student B.P.'s statements to Ms. Raimond, Ms. Cuizon, Officer Ehlers and Ms. Mottershaw were consistent. Her oral statements and testimony were consistent with her written statements. Most significantly, despite some inconsistencies, the statements of B.P. and N.H. were consistent with Petitioner’s Respondent's statements.” (CR2 pp. 141-142, 24.) Detective Mansour, the Head of Sex Crimes at El Cajon Police Department, also explained, that in his experience witnesses sometimes get dates confused or when multiple incidents occurred. But in no manner did this give him reason “to disbelieve [Student B.P.]” (HT 286:3-10.) When asked about the appropriateness of Petitioner’s conduct toward Student B.P., he stated, “from my experience, that teachers generally don’t -- or aren’t supposed to interact with students ... in a setting where there is contact with the breasts or buttocks of the student, of the pupil.” (HT 258:7- 18.) Ms. Mottershaw also testified that, “Touching should not be part of your teaching practice.” (HT 539:22.) III. LEGAL ARGUMENT A. Standard of Review on Writ of Mandamus. Petitioner seeks to overturn the CPC’s decision affirming the District’s recommendation to dismiss him pursuant to Code of Civil Procedure section 1094.5, which structures the procedure for judicial review of adjudicatory decisions by administrative agencies. On a petition for writ of mandamus, the trial court is required to exercise its independent judgment when reviewing the decision of an administrative agency to determine whether there is an abuse of discretion. (Ed. Code §44945; Code Civ. Proc. §1094.5.) Petitioner bears the burden of convincing the trial court that the administrative agency abused its discretion, by showing the administrative body (1) proceeded without jurisdiction; (2) there was not a fair trial; and/or (3) it engaged in a prejudicial abuse of discretion. (CCP §1094.5(b); see also, Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) Petitioner argues the CPC violated all three of these prongs. While the trial court is to “exercise its independent judgment on the evidence,” the court’s independent judgment is limited by a strong presumption of correctness with which the CPC’s 8 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 findings come before the court. (Ed. Code §44945.) And, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda, supra. 20 Cal.4th at 817.) “[R]arely, if ever, will a board determination be disturbed unless the petitioner is able to show a jurisdictional excess, a serious error of law, or an abuse of discretion on the facts.” (Fukuda, surpa., 20 Cal.4th at 814; see also San Diego Unified Sch. Dist. v. Comm. on Prof. Competence (Lampedusa) (2011) 194 Cal.App.4th 1454, 1461.) Further, “if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld.” (Better Alternatives for Neighborhoods v. Heyman (1989) 212 Cal. App.3d 663, 672; Sager v. County of Yuba (2007) 156 Cal.App.4th 1049, 1053, 1061.) Where key facts before an administrative body are uncontradicted, it is reversible error for the trial court to set aside the findings as unsupported by the evidence. (See, Ruttenberg v. Dept. of Motor Vehicles (1987) 194 Cal.App.3d 1277, 1282.) The Court must liberally construe the findings “to support rather than defeat the decision under review.” (Topanga Assoc. for a Scenic Community v. County of Los Angeles (1989) 214 Cal.App.3d. 1348, 1356.) As outlined herein, Petitioner has failed to present sufficient argument that the CPC abused its discretion by affirming his dismissal from employment. The CPC did not proceed without jurisdiction; Petitioner was afforded more than a fair trial (hearing); and the CPC did not engage in a prejudicial abuse of discretion. The CPC’s decision on remand is fully supported by the weight of the evidence and must be upheld by the Court. B. It is Imperative that the Court Give Deference to the CPC’s Decision Affirming Petitioner’s Dismissal. Petitioner asks this Court to substitute its judgment when law provides the Court must give deference to the CPC’s decision to dismiss him. (See, Fukuda, supra., 20 Cal.4™ at 817; Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208; Alford v. Pierno (1972) 27 Cal.App.3d 682.) The CPC’s findings come to the Court with a strong presumption of correctness and that the CPC regularly performed its official duties. (Ed. Code §44944.) The presumption of correctness stems 9 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from the CPC’s expertise regarding teacher disciplinary hearings, the CPC’s first-hand observation of the witnesses, and the presumption of correctness attached to official acts. (Evid. Code §664) The CPC is comprised of two credentialed individuals selected by each side (peers of Petitioner) and one administrative law judge who have experience and expertise in the area of determining fitness to teach. (Ed. Code, §44944.) Thus, this Court should exercise extreme caution before disregarding such experience and expertise in such a specialized area. Moreover, as explained in Petitioner’s “end-all-that-be-all-case” Jesperson, the Court of Appeal explained that while the trial court is entitled to make its own credibility determination it “cannot ignore its statutory obligation to defer to the Commission's considered credibility findings in doing.” (San Diego Unified School Dist. v. CPC (Jesperson) (2013) 214 Cal.App.4th 1120, 1148.)' Government Code section 11425.50 requires a trial court to “give great weight to the determination [of the CPC] to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it.” (Jesperson, supra., 214 Cal. App.4™ at 1147.) For it 1s the CPC that is most qualified to weigh the credibility of the witnesses. (Campbell v. Bd. of Dental Examiners (1971) 17 Cal.App.3d 872, 876.) The CPC is not required to outline every reason for its decision to dismiss Petitioner. As long as the CPC’s findings “enable the reviewing court to trace and examine the agency’s mode of analysis.” (Topanga Assoc. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506,517.) Here, the CPC reviewed all the witnesses' credibility in a fair-minded, lengthy, and detailed discussion in accordance with the applicable statutes and case laws. The CPC observed the witnesses in person, their body language, their tones of voice, hesitancy or willingness to answer questions, use of eyes, head tilts, non-verbal communication such as shrugs or head shakes. In doing so, the CPC concluded very clearly that Petitioner's testimony at the 2018 hearing was less credible than the other witnesses; Petitioner’s arguments on remand were not persuasive; Student B.P.’s version of events was more credible than Petitioner's; 1 In Jesperson, the Appellate Court analyzed the trial court’s erroneous review of the CPC’s decision, not whether the CPC erred itself. The Court found that the trial court erred in not giving great weight to the CPC’s credibility determinations and a “strong presumption of correctness” to the CPC’s decision. (Jasperson, supra, 214 Cal. App.4"™ 1120.) 10 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at no time has Petitioner expressed appreciation or remorse for his conduct; and based on the factual and legal arguments presented by the parties, the CPC rejected those presented by Petitioner. The Court cannot ignore the CPC’s in-person observations and credibility assessments by just reading the transcripts or misplaced quotes from Petitioner because the transcripts and select quotes do not include any of the highly important nonverbal aspects of communications at the 2018 hearing. Therefore, the Court must give weight to the CPC’s observations of witnesses’ demeanor in person and when done, the Court will reach the same conclusion as the CPC - dismissal of Petitioner is appropriate. Cc. Petitioner was Afforded a Fair Hearing, Twice. A fair hearing requires that a party be apprised of the evidence against him, provided an opportunity to refute, test, and/or explain the evidence, and ultimately receive a decision based on the evidence presented at hearing. (English v. City of Long Beach (1950) 35 Cal.2d 155, 158-159; Clark v. City of Hermosa Beach (1996) 48 Cal. App. 4th 1152, 1172; Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1076.) A right to a fair hearing is violated where, for example, the adjudicatory body relies on evidence outside the record in reaching its decision or lacks impartiality. (Pinheiro v. Civil Service Commission for the County of Fresno (2016) 245 Cal.App.4th 1458, 1467; Lateef v. City of Madera (2020) 45 Cal. App. 5th 245; Clark, supra, at 1173). An administrative hearing conducted pursuant to Education Code sections 44934 and 44944 satisfies the constitutional due process requirement for a fair hearing. (Kolter v. Commission of Los Angeles Unified School Dist. (2009) 170 Cal.App.4th 1346, 1353.) Additionally, in teacher dismissal cases, the Education Code requires the District Governing Board adopt a written statement of charges specifying “instances of behavior and the acts or omissions constituting the charge so that the employee may be able to prepare his or her defense. It shall, where applicable, state the statutes and rules that the employee is alleged to have violated, and it shall also set forth the facts relevant to each charge.” (Ed. Code §44934(c).) Education Code section 44944.05 also outlines the discovery (written discovery and depositions) requirements and rights of the parties involved in a teacher dismissal case. (Ed. Code §44944.05.) There is no question, although Petitioner disagrees, that he was afforded ample due process 11 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 through not just one but two administrative hearings conducted before the CPC. Petitioner was also served the Statement of Charges in August 2017, well before the 2018 hearing, outlining the causes and facts supporting his dismissal, and he participated in the discovery process including taking one deposition of Ms. Raimond. At the first hearing before the CPC, Petitioner was represented by counsel, presented documentary evidence, called only himself and two other witness to support his defense, and presented oral and written arguments supporting his defense. Similarly, in July 2019, Petitioner was afforded a second hearing at which he was represented by counsel and presented oral and written arguments. Accordingly, Petitioner has been afforded adequate due process. He knew the nature of the charges against him at all times, he was represented by counsel throughout the process, he participated in discovery, and he was afforded two full evidentiary hearings. D. There is No Evidence the CPC Failed to Proceed in the Manner Required by Law. Yet again, Petitioner is incorrect in arguing the CPC failed to proceed in the manner required by law and has failed to prove the CPC engaged in a prejudicial abuse of its discretion by affirming Petitioner’s dismissal. (Motion, p. 15:22-24.) The CPC properly exercised its authority in affirming Petitioner’s dismissal on two separate occasions. Whether the CPC abused its discretion requires a showing that its decision “‘is not supported by the findings, or the findings are not supported by the evidence.” (Oduyale v. Bd. Of Pharmacy (2019) 41 Cal. App.5th 101, 113, quoting Topanga, supra., 11 Cal.3d at 515; see also Clark, supra, 48 Cal. App. 4th at 1169; Lateef, supra, 45 Cal. App. 5th at 252.) A reviewing court, should not disturb the decision of the administrative body to impose or not impose a particular penalty, unless there has been a manifest abuse of discretion. (Cadilla v. Bd. of Medical Examiners (1972) 26 Cal.App.3d 961, 967; Fontana, supra., 45 Cal.3d 208 [trial court may not substitute its discretion for that of an administrative body concerning what, if any, penalty should be imposed, after the review of the evidence].) A manifest abuse of discretion exists if the penalty was arbitrary, capricious, or patently abusive. (Oduyale, supra, 41 Cal.App.5th at 118, citing Cassidy v. California Bd. of Accountancy (2013) 220 Cal. App.4th 620, 627-628.) If reasonable minds could disagree over the appropriateness 12 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of a penalty imposed, no manifest abuse of discretion exists. (Oduyale, supra, 41 Cal.App.5th at 118; Dresser v. Board of Medical Quality Assurance (1982) 130 Cal.App.3d 506, 519 [“The facts that reasonable minds might differ as to the propriety of the penalty imposed fortifies the conclusion that the administrative body acted within its discretion [citations].”]) “Even if a penalty were to appear to be too harsh according to the court's evaluation, the court is not free to substitute its own discretion for that exercised by the administrative agency.”” (Oduyale, supra., 41 Cal. App.5™ at 118, quoting Landau v. Super. Ct. (1998) 81 Cal.App.4th 191, 217-218, 221.) An abuse of discretion must appear very clearly before the courts will interfere," even under the independent judgment test. (Zink v. City of Sausalito (1977) 70 Cal.App.3d 662; Landau, supra. 81 Cal. App. 4th 191.) The CPC did not abuse its discretion and its decision affirming Petitioner’s dismissal must be upheld. Here, Petitioner makes an argument identical to the argument the Court rejected in Oduyale, supra., regarding the perceived identical nature between the CPC’s first decision and decision on remand. In Oduyale, the Court held the California State Board of Pharmacy did not abuse its discretion in revoking the petitioner’s license when a reasonable mind could reach the same conclusion as the Board based on its written decision. (Oduyale, supra, 41 Cal. App.5™ at 122.) Oduyale argued the Board abused its discretion because the Board’s decision on remand from the trial court was nearly identical to its previous decision which he contended demonstrated a lack of reconsideration of the penalty. (Id. at 116.) The court disagreed, holding the Board’s disciplinary decision was not a manifest abuse of discretion because its determination was supported by the evidence - the Board's written decision included a statement that the Board reviewed and considered the entire record, including the transcript, exhibits, and written arguments for reconsideration and on remand before issuing its decision; the decision included the allegations and findings related to the disciplinary action against Oduyale in the 2005 action, the terms of Oduyale's probation, and its completion; and the decision laid out each cause for discipline, the facts offered by the Respondent (Executive Officer), Oduyale's response, and an evaluation of each cause of action. (Oduyale, supra., 41 Cal. App.5™ at 115) The CPC’s decision on remand, mirrors the Oduyale Board’s decision in terms of content, 13 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 structure, and detail. The CPC reviewed and considered the record, including the transcript, exhibits, and written arguments and heard oral argument before issuing its second decision; the CPC’s decision on remand details the allegations and findings relating to the allegations in the SOC, lays out each cause for discipline, and evaluates each remaining cause of action in accordance with the trial court’s April 2019 order directing the CPC to vacate the decision and determine if the CPC would have reached the same decision and/or imposed the same penalty without an adverse findings on the unprofessional conduct charge. Additionally, and perhaps most importantly, both the Oduyale Board and the CPC appropriately articulated the need to protect the public (pharmacy patrons in Oduyale’s case and students in Petitioner’s case) as motivation behind their respective penalty decisions. (See Oduyale, supra, 41 Cal. App.4™ at 116.) The Oduyale Board expressed concern regarding Oduyale’s “cavalier attitude and lack of understanding of the serious nature of his misconduct in the context of the practice of pharmacy” and the CPC emphasized Petitioner’s complete lack of remorse or comprehension that his conduct during the 2016-2017 school year was wrong or that he should not touch students in the manner he did. Similar to the Board of Pharmacy’s focus on the public’s safety when deciding to revoke Oduyale’s license, here the CPC properly focused on the safety of students in affirming Petitioner’s dismissal. This Court should follow the Oduyale court’s lead in finding a reasonable mind could reach the same conclusion as the CPC and uphold Petitioner’s dismissal. Furthermore, the CPC’s decision sufficiently justified the penalty imposed, with factual and legal basis for the decision. (Oduyale, supra 41 Cal. App.4™ at 113; see also Topanga, supra, 11 Cal.3d at. 515 [the Board is only required to justify the penalty imposed, including “a statement of the factual and legal basis for the decision.”) Pursuant to Topanga, the CPC’s findings must bridge the gap between the evidence and the CPC’s decision, but the CPC is not required to outline every reason for its decided penalty. As long as the CPC’s findings “enable the reviewing court to trace and examine the agency's mode of analysis”, there is no abuse of discretion under Code of Civil Procedure section 1094.5(b). (Oduyale, supra, 41 Cal. App.4™ at 115, quoting Topanga, supra, 11 Cal.3d at 516.) In a thirty-three (33) page decision on remand, the CPC goes above and beyond justifying the penalty of dismissal, providing a detailed and well-reasoned decision emphasizing 14 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the same concerns articulated in the first decision that remain of concern on remand. The CPC, after a thorough and complete examination of the evidence and consideration of arguments presented by the parties found Petitioner engaged in immoral conduct and violated board policies. Where, as here, the record supports findings consistent with the CPC’s penalty determination, no abuse of discretion exists. Nothing in the CPC’s decision evidences arbitrary, capricious or abusive conduct; rather the detailed decision demonstrates thoughtful, traceable analysis and an appropriate exercise of the CPC’s statutorily granted discretion. E. The CPC’s Decision is Fully Supported by the Undisputed Facts and Weight of the Evidence. 1. Petitioner’s immoral conduct supports his dismissal. Petitioner’s attempt at narrowly defining immoral conduct to “conduct which is hostile to the welfare of the community” or that which “posses significant danger to either students, school employees, or others who might be affected by his actions as a teacher,” evidences his ignorance that immoral conduct is actually much more broadly defined. (Motion, p. 14:13-17.) It is well settled that the term “immoral” is defined as, [T]hat which is hostile to the welfare of the general public and contrary to good morals. Immorality has not been confined to sexual matters, but includes conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, or dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and the public welfare. (Bd. of Ed. of San Francisco Unified Sch. Dist. v. Weiland (1960) 179 Cal.App.2d 808, 811.) As stated by the Court in Goldsmith v. Bd. of Ed. (1924) 66 Cal. App. 157, 168: [T]he calling [of a teacher] is so intimate, its duties so delicate, the things in which a teacher might prove unworthy or would fail are so numerous, that they are incapable of enumeration in any legislative enactment. .... [T]he teacher is [e]ntrusted with the custody of children and their high preparation for useful life. His habits, his speech, his good name, his cleanliness, the wisdom and propriety of his unofficial utterances, his associations, all are involved. His ability to inspire children and to govern them, his power as a teacher, and the character for which he stands are matters of major concern in a teacher’s selection and retention. (Id.) Teachers are held to the highest moral standards because they are entrusted with children and are to be the pillar of example for children. (Goldsmith, supra, 66 Cal.App. at 168.) Public school teachers are regarded as exemplars “whose words and actions are likely to be followed by [students] coming under [teacher’s] care and supervision.” (Bd. Trustees v. Stubblefield (1971) 16 15 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal.App.3d 820, 824.) Additionally, the definition of immoral conduct must be considered in conjunction with the unique position of public school teachers, upon whom are imposed “responsibilities and limitations on freedom of actions which do not exist in regard to other callings.” (San Diego Unified Sch. Dist. v. CPC (2011) 194 Cal.App.4th 1454, 1466.) Numerous California court decisions have consistently upheld teacher dismissals based on immoral conduct due to the teacher’s sexually harassing conduct of students. (Lampedusa, supra, (2011) 194 Cal.App.4th 1454; El Monte Sch. Dist. v. Calderon (1973) 35 Cal.App.3d 490; Palo Verde Unified Sch. Dist. v. Hensey (1970) 9 Cal. App.3d 967; Gardner v. CPC (1985) 164 Cal.App.3d 1035; ABC Unified Sch. Dist. v. Haar (1994) 28 Cal.App.4th 369.) For instance, the Haar court upheld a male teacher’s suspension and dismissal finding he engaged in immoral conduct by sexually harassing female students when he rubbed a female student’s thigh, pressed his body against another female student’s body, placed his hand on a female student’s hand and squeezed it until she pulled away, commented on a female student’s appearance as “cute” and that she was so cute that she would need to take mace when she went to high school, which made the female student uncomfortable, and asked students to sit in his lap. (Haar, supra, 28 Cal. App.4th 369.) Similarly, the Gardner court held a male teacher’s conduct including stroking EAI a female student’s hand, remarking on female students’ “nice ass,” using the word “asshole,” and inviting female students to be alone with him constituted immoral conduct and upheld his dismissal. (Gardner, supra, 164 Cal. App.3d 1035.) Here, similar to the teachers’ misconduct in Haar and Gardner, Petitioner engaged in harassing conduct towards female students including touching students when providing instruction, instead of modeling proper technique; touching Student B.P. on the hamstring just below the buttocks; using his fingers and touching Student B.P. a few inches above her breasts; using the terms booty, nipple, and bikini during instruction and making comments such as “you are going to look so amazing this summer in a bikini;” lifting up Student B.P.’s shirt and play punched her twice and told her she had a “nice core;” placing his fingers through a hole in Student B.P.’s ripped jeans; and discussing with Student B.P. whether she had a boyfriend, job, guys she liked, and if she had a driver’s license. Students found Petitioner’s conduct gross, uncomfortable and awkward. 16 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Shockingly to District administrators and the CPC, Petitioner testified that he engaged in this conduct to better relate to the students and to prevent students from getting hurt; but his “explanations” was neither credible nor believable. As correctly noted by the CPC, Petitioner’s “explanations” show his complete lack of comprehending the difference between moral and immoral conduct (simple right from wrong) and what is acceptable conduct of a teacher. Just as the teachers’ actions in Haar and Gardner constituted immoral conduct, so too do Petitioner’s. Furthermore, there is no justification for Petitioner’s conduct and he has asserted no mitigating factors, despite being provided ample opportunity to do so at the hearing and on remand.? It is only now, in his second writ he argues that, “[h]ad he been made aware by administration that B.P. had special needs or sensitivities, he undoubtedly could and would have structured his teaching methods to accommodate them.” (Motion, p. 12, ftn. 15.) He also implies through no direct evidence the words nipple, booty and bikini were “used by the District itself in its own materials distributed to students.” (Motion, p. 15, ftn. 17.) These statements are pure speculation and a deflection of his own misconduct. For as noted by the CPC, at no time did Petitioner “appear to understand that his conduct or statements could be misconstrued,” “express appreciation for the wrongfulness of his misconduct,” and his only remorse was “because it resulted in discipline, not because it was inappropriate or because of the impact it had on colleagues or students.” (CR2 p. 147, 41.) Petitioner can now come up with as many theories and arguments he wants in hindsight, but that does not change the fact that he engaged in immoral conduct and the CPC’s decision to dismiss him is supported by the undisputed evidence. 2. Analysis of the Morrison factors supports Petitioner’s dismissal. Petitioner is surprisingly correct that the ultimate question of whether Petitioner has engaged in immoral conduct is whether he is “unfit to teach.” (Morrison v. State Board of Ed. (1969) 1 Cal.3d 214; see also, Fontana, supra, 45 Cal.3d at 220; Bd. of Ed. of Long Beach Unified 2 Petitioner’s attempt at augmenting the record to present new evidence, arising or existing after the CPC closed the record in February 2018, was denied by the Court. Petitioner requested the CPC consider his same motion while knowing the evidence was specifically excluded by the Court. (See, Court Order Re: Motion to Augment Record; Hearing Transcript on Remand (“HTR”) pp. 13:19-21; 17:19-20.) 17 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sch. Dist. v. Jack M. (1977) 19 Cal.3d 691, 697; Haar, supra, 28 Cal. App.4th at 385; Von Durjais v. Bd. of Trustees of Roseland Sch. Dist. (1978) 83 Cal. App.3d 681, 689; Bassett Unified Sch. Dist. v. CPC (1988) 201 Cal.App.3d 1444, 1453-54; Stubblefield, supra, 16 Cal. App.3d at 824-27.) In determining unfitness to teach, the seven Morrison factors are to be considered and they include, (1) the likelihood that the conduct may have adversely affected students or fellow teachers and the degree of such adversity; (2) the proximity or remoteness in time of the conduct; (3) the type of teaching certificate held by the party involved; (4) the extenuating or aggravating circumstances, if any, surrounding the conduct; (5) the praiseworthiness or blameworthiness of the motives resulting in the conduct; (6) the likelihood of the recurrence of the questioned conduct; and (7) the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers. (Lampedusa, supra, 194 Cal. App.4th at 1463, citing Morrison, supra.) However, Petitioner is incorrect in implying that all of the Morrison factors must be considered to determine Petitioner’s fitness to teach. Rather, as noted by the CPC, and supported by case law, “the Morrison factors may be applied to the charges in the aggregate. When a camel's back is broken, the trier of fact need not weigh each straw in its load to see which one could have done the deed. A trier of fact is entitled to consider the totality of the offensive conduct. [Citation omitted].” (CR2 p. 155, 423.) When the totality of the circumstances in this matter are considered in light of the Morrison factors, the only logical and correct conclusion is that made by the CPC twice - Petitioner is unfit to teach. Again, in applying and analyzing the Morrison factors, the CPC properly concluded, Respondent's misconduct and inappropriate language evidence his disregard for the District's primary goals and expectations that come with the teaching profession. His touching and making inappropriate and unprofessional comments, negatively impacted the work and educational environment. Respondent's conduct was detrimental to the District and its students. Respondent was fully to blame for his conduct. He is not a model of good behavior. He cannot be relied upon to act morally and to uphold the responsibilities of a public educator. Respondent has no appreciation for the wrongfulness of his acts and misconduct; as such, if allowed to retain his position, it is likely that he will engage in the same or similar misconduct again. (CR2 p. 157, 429.) The CPC did not ignore the “overwhelming weight of the evidence” in applying the Morrison factors. For as the CPC explained in the decision on remand, yet again, that Student B.P.’s version of the events was more credible than Petitioner’s; Petitioner admitted to a vast 18 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 majority of the allegations including using words during instruction such as booty, bikini body, nipple, nipple line, and the like; and Petitioner’s testimony often contradicted the evidence. Moreover, at no time did Petitioner appear to understand how his conduct or statements could be misconstrued; he did not express any remorse for his conduct; and he is solely to blame for this conduct. Accordingly, under the totality of the circumstances and Morrison factors, the CPC’s decision must be upheld and Petitioner dismissed from employment. 3. Petitioner persistently violated and willfully refused to established rules and regulations. Persistent violation of or a refusal to obey schools or regulations under Education Code section 44932(a)(8) requires that the violation be either “persistent” or “motivated by an attitude of continuous insubordination.” (Oakdale Union Sch. Dist. v. Seaman (1972) 28 Cal.App.3d 77, 81- 82.) A school district has the right to adopt rules governing the conduct of its employees, to require its employees to observe those rules, and to discipline employees for violation of those rules. (Oakdale, supra, 28 Cal.App.3d at 84; San Dieguito Union High Sch. Dist. v. CPC (1985) 174 Cal.App.3d 1176, 1180-1181.) The District has adopted numerous policies for which its employees’ conduct is measured against including Board Policy Nos. 0410, 4119.11, 4911.21, 5151.2, 5137, and 5145.7. Policy No. 4119.21 sets forth the fundamental expectations that District employees “maintain the highest ethical standards, to follow District policies and regulations,” (CR pp. 10-11, 535-536.) District policies also prohibit discrimination and harassment in all educational programs and activities and instead places the focus on creating a positive learning and working environment for students and employees. (CR p. 11.) After reviewing these policies and the facts, the CPC determined Petitioner repeatedly violated all of them and specifically cites to them in the decision. (CR2 pp. 146, {38; 158-159, 431.) The CPC’s decision to affirm Petitioner’s dismissal on grounds of persistent violation of or refusal to obey rules and regulations was correct and must be upheld. IV. CONCLUSION Given the totality of the evidence presented in this case, there is no dispute the District met its burden to establish that cause exists warranting Petitioner’s dismissal from employment pursuant 19 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS D A N N I S W O L I V E R K E L L E Y 11 5 Pi ne AV EN UE , Su lT E 50 0 Lo nG BE ac H, CA 9 0 8 0 2 DWK DMS 3571668v1 ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to Education Code sections 44932 et seq. Petitioner’s, however, has failed in meeting his burn on the Writ of showing the CPC abused its discretion in affirming his dismissal not once but twice. Not only was the CPC's first decisions correct, but its decision on remand is equally correct and confirms that no matter how many arguments Petitioner throws at the wall, none of them stick. Petitioner’s dismissal must be upheld, the Writ denied, and judgment entered in favor of the District. DATED: June 25, 2020 DANNIS WOLIVER KELLEY By: Spt! A Muy JONATHAN A. PEARL INGRID A. MEYERS Attorneys for Real Party In Interest GROSSMONT UNION HIGH SCHOOL DISTRICT 20 GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER’S SUPPLEMENTAL WRIT OF ADMINISTRATIVE MANDAMUS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF SOLANO ) I am employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is: 275 Battery Street, Suite 1150, San Francisco, CA 94111 On the date set forth below I served the foregoing document described as GROSSMONT UNION HIGH SCHOOL DISTRICT'S OPPOSITION TO PETITIONER'S SUPPLEMENTAL PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS on interested parties in this action as follows: John P. Martin Email: martlaww @msn.com P.O. Box 333 Telephone: (619) 807-5299 Lakeside, CA 92040 Attorney for Petitioner Joshua Barney Bob Varma Email: bob.varma@dgs.ca.gov Office of Administrative Hearings Telephone: (916) 263-0550 2349 Gateway Oaks Drive, Suite 200 Facsimile: (916) 263-0554 Sacramento, CA 95833 For Office of Administrative Hearings on behalf of Respondent Commission on Professional Competence O (VIA U.S. MAIL) I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses on the attached service list. I deposited such document with the U.S. Mail at Fairfield, California with postage thereon fully prepaid I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. O (VIA U.S. MAIL/REGISTERED/CERTIFIED) I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses on the attached service list. I deposited such document with the U.S. Mail at Fairfield, California with postage thereon fully prepaid to cover the cost of certified mailing, attaching a registration number for the certified mailing and a postcard complete with the addressee’s name and address for a return receipt as requested. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. a (VIA OVERNIGHT MAIL) I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses on the attached service list. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier (VIA ELECTRONIC SERVICE) [Code Civ. Proc. Sec. 1010.6; CRC 2.251] by electronic mailing a true and correct copy through DANNIS WOLIVER KELLEY’s electronic mail system from ljackson @dwkesq.com to the email address(es) set forth above, or as stated on the attached service list per agreement in accordance with Code of Civil Procedure section 1010.6 and CRC Rule 2.251. The transmission was reported as complete and without error. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 25, 2020 at Fairfield, California. nal nT - _- i” Tr SC amotaas Lilia Jackson 1 PROOF OF SERVICE
