Barney vs Commission On Professional Comptence

Opposition Other

Cal. Super. - 4th Dist.May 4, 2018

1 B 3 4 5 6 7 8 9 10 11 fo 12 208 14 ows Zod X16 17 18 19 20 21 22 23 24 25 26 27 28 DWK DMS 3360474v1 ELECTRONICALLY FILED JONATHAN A. PEARL, State Bar No. 215413 Superior Court of California, INGRID A. MEYERS, State Bar No. 209399 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 County of San Diego 02/22/2019 at 05:22:00 Pi Clerk of the Superior Court By Richard Day, Deputy Clerk GROSSMONT UNION HIGH SCHOOL DISTRICT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO JOSHUA BARNEY, Petitioner, v. 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 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PETITIONER’S AMENDED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS Date: March 8, 2019 Time: 2:00 p.m. Dept: C-74 Judge: Hon. Ronald L. Styn Writ Filed: May 4, 2018 Exempt from filing fees pursuant to Gov. Code, § 6103. 1 MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO AMENDED WRIT D A N N I S W O L I V E R K E L L E Y 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 CONTENTS TABLE OF CONTENTS oooh sates eee este saae sees nessa ens 2 TABLE OF AUTHORITIES ......ooiiiia eects sects seeesreeseveeie ese eesaaeea 3 LL SUMMARY OF ARGUMENT ......oooiiiiiiiiiit ieee certs eevee enna 5 I. STATEMENT OF FACTS... eects sae ees sae seve eens 6 A. Statement of Charges and Hearing Before the CPC. ..........cccccooiiiniiiicniiniienes 6 B. CPC Decision to Dismiss Petitioner on All Grounds Alleged in the SOC. ............ 7 1. Relevant Factual Findings and Credibility Assessments of the CPC.......... 7 2. Decision to Dismiss Petitioner for Immoral Conduct. ..........ccccceeeeriieennnenes 8 3. Decision to Dismiss Petitioner for Unprofessional Conduct. ..................... 8 4. Decision to Dismiss Petitioner for Evident Unfitness for Service. ............. 8 3. Decision to Dismiss Petitioner for Persistent Violation of or Willful Refusal to Obey Rules, Policies and Regulations. ..........cccoceeueeieinneennenns 9 C: Undisputed Evidence Presented at the Hearing Supports the CPC Decision. ........ 9 1. Petitioner’s conduct during the 2016-2017 school year. .......c..cccceeverveeneee 9 2. Notice of Unprofessional Conduct and prior discipline of Petitioner. ...... 11 III. LEGAL ARGUMENT wuss esunsssmnosuss cocasmsssmommsssumonres mss oss soos oss ess wise mss 12 A. Standard of Review on a Writ of Mandamus. ........c..ccoceerieeeeniennenniecnecneeneen. 12 B. CPC Did Not Proceed Without or in Excess of Its Jurisdiction. ........c..ccceceeeuneeee. 13 I. The District complied with section 44938(a) and the CPC properly considered unprofessional conduct as a grounds for dismissal................. 13 2. Education Code section 44944 does not bar the District from presenting evidence of Petitioner’s conduct outside of the four-year TIME IMITATION. ..evteiiiiiiieriie citer eects eee eee 14 C. The CPC’s Decision to Affirm the District’s Recommendation to Dismiss Petitioner is Supported by the Undisputed Evidence. ..........ccoceeeveeiiinninniccnennne. 16 1. Petitioner engaged in immoral conduct. .........c.ccevveeieiiiiniinniceiececen. 16 2. Petitioner engaged in unprofessional conduct. .........c..cccceerveenieeiecneennnen. 17 3. Petitioner’s conduct evidences his unfitness to teach. .........ccoceveerernennne. 18 4. Application of the Morrison factors supports Petitioner’s dismissal........ 18 5. Petitioner persistently violated established rules and regulations. ............ 20 IV. CONCLUSION ....ooiiiiiitieieeie eects eects sees estes sees sere ee estes sree sane enaeenanees 21 PROOF OF SERVICE .......oiiiiiiiee ects see eee sree sees estes sree sane ceases 22 2 MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO AMENDED WRIT D A N N I S W O L I V E R K E L L E Y 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 Atwater Elementary School Dist. v. Cal. Dept. of General Services (2007) 41 CalAth 227... eee eee eters ste e ates abe esse eet ee este sabe eneeeaeens 15 Bevli v. Brisco CLOBG) 211 Call APD: DB00x50.05 mmm ssosss ss suman mss. sss 5s535m.. 55055555 55555518 SAH5HS S555 5 SHH58 SRRHH5:5, 20 Blake v. Comm. on Prof. Competence (1989) 212 CalLAPP.3A S15 ee e e estes sees ste sate esse e ease 14 Board of Education v. Weiland (1960) 179 Cal APP.2d BOB ....cneeeeeieeeeeeeeite eee ete este sete sabe sates sb a sabe esse enneeeseens 16 Crowl v. Comm. on Prof. Competence (190005 225 Cal ARB 332mm mses sommes sss os oss 050 mS VSR 14 Deegan v. City of Mountain View (1999) 72 Cal APP-AN 37 cence eee ee eee este sat s estes sb ee sabe sabe a sees seen 13 Fukuda v. City of Angels (1999) 20 CalAth 80S .....c..eeieieiie eee sete ete e sees sb ae etbe sabe esse ee ssee sabe snbeanseeeseens 13 Morrison v. State Board of Education (1969) 1 Cal.3d 214... eee eee eee eet sates estes sbeebs sabe e sees sb ee esbe esse aseeeseens 18 Oakdale Union Sch. Dist. v. Seaman (1972) 28 CAL APD. 77 eee ee eters ee etter e estes este sabe esee seen 20 Palo Verde v. Unified School Dist. of Riverside County CLIO) OG CAlAP: I DOT « cuminsn.is sums ssosss os ssmans nme oo555550 2555555. 5055555 55555518 SATHTS 55555 50 SHHS58 SRFHFFS, 17 Perez v. Comm. on Prof. Competence (1983) 149 CalLAPP.3A 1167 onics eee steer e esate esse a eee ne a 14 San Diego Unified Sch. Dist. v. Comm. on Prof. Competence (Lampedusa) (2011) 194 CalLAPP.Ath 1454 .....o e eee eae seers eae eee 13,17, 19 San Diego Unified School District v. Comm. on Prof. Competence (Jasperson) (201:3) 214: Cal Appt: | 120, sno mmo ms ams mms sommes mses 13, 20 San Dieguito Union High Sch. Dist. v. Comm. on Prof. Competence (1985) 174 CalLAPP-3A 1176s seers sates eee seen 20 Turner v. Bd. of Trustees (1976) 16 Cal.3d 818... ects tees eee teeta eshte sabe a teases este sabe ene esses ssee eens 5 MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO AMENDED WRIT D A N N I S W O L I V E R K E L L E Y 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 West Valley-Mission Community College Dist. v. Concepcion (1993) 16 CALL APP.AI T7606.......oo ieee eects eee sates estes sate ene enes 13,19 Woodland Joint Unified School Dist. v. Comm. on Prof. Competence (1992) 2 Cal.APP-Ath 1429... ee 14, 18, 19 State Statutes Code of Civil Procedure section 1094.5.........oooiiiiiiiiiiinene cece cece sree sees ne 12 Code of Civil Procedure section 1094.5(C) ...ccovuiieiieiiieieeiiieie sses ee ei e ee esire eee s sere ee savae e ear ae es 12 Education Code SECtiON 44932 ........uoiiiieiiie ects eee eters eee esas 6, 14 Education Code Section 44932(2)(8) ...ceecccuureeeriiiieeeeiiieeeeiitreeeessieae ee ssaee sssseeessssssa asssnssesessssseses 20 Bducation Code SECON AOI uu ux smussss suwsssn sn suns ox5555%.56 4555555 55555 55.59 5555555 555555545 5555555 55555 95.68 5455555 59585 5.58 14 Education Code section 44938(a) ......cooceuvrieiieieieeicicieieee eee ee ee eee ae eee e e 6,13,14,17 Education Code section 44938(D) ....cccoeecuuirieiieieeeeieiieie eee eect eee cece ee ease essere ae ae sees ens 15 Education Code Section 44939 ....... cco eects reece rae eae 7 Bilueation Code SECT ADEA, «um mmmmsssmosmisssssmsssmsnss is m s sms mses esse sss ies Suse 14 Education Code Section 44944(D) .......cceeciieieeiiiiieeeeiitie ee ette ee etre eee srare esas sesrae ee snsae ee ssaeae as 6, 14, 15 Education Code section 44944(b)(2)(B) c.uuuiiieeiiiieieeiieie ects estes eres ess re ee eva eee aae aes 15 Education Code SECtION 44945 .........oi iii eee eee estes sabes sabe e esate esate enaae ens 12 4 MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO AMENDED WRIT 1 3 3 4 5 6 7 8 9 10 11 fo 12 208 14 ows 223 X16 17 18 19 20 21 99 23 24 25 26 27 28 DWK DMS 3360474v1 Real Party in Interest Grossmont Union High School District (“District”) hereby submits this opposition to Petitioner Joshua Barney’s (“Petitioner”) Amended Petition for Writ of Administrative Mandamus (“Writ”) and requests the Writ be denied in its entirety. I. SUMMARY OF ARGUMENT Respondent Commission on Professional Competence’s (“CPC”) Decision affirmed the District’s dismissal of Petitioner. Petitioner alleges that the CPC’s decision “is the worst oppression ... of justice” ever seen and that “the guise of justice was used to rob an outstanding teacher of his profession, and his students of the benefit of such an educator.” (Pet. Memo. P. 1:2-5.) Petitioner fails to acknowledge his repeated admissions to his own misconduct, lack of remorse and failure to comprehend his own wrongdoing. Petitioner’s own admitted actions were the final nails in his coffin. “[O]ur school system is established not to provide jobs for teachers but rather to educate the young.” (Turner v. Bd. of Trustees (1976) 16 Cal.3d 818, 825.) Over the course of four days, the CPC was presented testimonial and documentary evidence painting a clear picture of Petitioner’s deplorable misconduct while a teacher at the District and, in particular, his baffling 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 misconduct was not limited to a single incident or person. Rather, the undisputed evidence established and Petitioner admitted that his misconduct included being suspended and provided a Notice of Unprofessional Conduct (“Notice”) in July 2013, for engaging in sexually harassing and inappropriate and unwelcome conduct towards colleagues, failing to follow directives from administration, and using profanity an engaging in inappropriate interactions with students. The Notice contained very specific directives for Petitioner to stop his unprofessional conduct or face further discipline. Petitioner chose to ignore the prior discipline and Notice and continued his immoral, unprofessional, unacceptable, disrespectful and deplorable conduct in the 2016-2017 school year by sexualizing PE instruction; using words such as booty, tittie, nipple, bikini bottoms; touching female students on their chest, thighs, and buttocks; lifting up Student B.P.’s shirt and “play punching” her; touching Student B.P.’s breasts to see if she was sore; touching Student B.P. close to her vagina through a hole in her pants; and 5 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 discussing Student B.P.’s personal life with her. Petitioner’s conduct made students feel gross, uncomfortable, disgusted, and awkward. During the hearing, even after hearing the evidence against him, Petitioner showed no remorse and failed to comprehend the wrongfulness of his conduct either in 2013 or again in 2016-2017. The District could not ignore the seriousness of Petitioner’s conduct and its persistence. Similarly, the CPC could not plug its ears and look up to the sky as if nothing Petitioner did and admitted happened. The CPC made the correct decision to affirm Petitioner’s dismissal and the decision is supported by the weight of the evidence. The decision is neither arbitrary nor capricious. Furthermore, contrary to Petitioner’s arguments, the CPC was entitled to consider unprofessional conduct as grounds for Petitioner’s dismissal and to accept the July 2013 Notice as notice and evidence of Petitioner’s prior misconduct and habits. The Notice fully complied with the requirements of Education Code section 44938(a) and the four year limitations period in section 44944(b) is not an absolute bar from presenting and admitting the Notice to support Petitioner’s dismissal on all grounds as alleged in the Statement of Charges. Petitioner fails to demonstrate that the CPC abused its discretion in any way. The CPC correctly concluded that Petitioner should be dismissed on all grounds presented in the Statement of Charges. The Writ should be denied and the case dismissed in its entirety. II. STATEMENT OF FACTS A. Statement of Charges and Hearing Before the CPC. Pursuant to Education Code section 44932!, the Notice of Intent to Dismiss and Statement of Charges (“SOC”), dated and served on Petitioner August 11, 2017, recommended that he be dismissed from employment with the District for immoral conduct, unprofessional conduct, evident unfitness for service, and persistent violation of or refusal to obey the school laws of the State or reasonable regulations prescribed for the government of the public schools by the State Board of Education and/or by the District’s Board of Education. (OAH Clerk’s ! Further statutory references are to the Education Code unless noted otherwise. 6 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 Record (“CR”) pp. 6-87.) Once served with the SOC, the District placed Respondent on immediate unpaid suspension pursuant to section 44939. (CR p. 2.) Petitioner timely requested a hearing and raised a number of affirmative defenses. (CR pp. 128-133.) Pursuant to section 44944, there was a four day hearing, January 29-February 1, 2018, before the CPC during which Petitioner and the District were represented by counsel and presented documentary and testimonial evidence. (See, Hearing Transcripts (“HT”) Vol I-1V; CPC Decision, CR p. 534.) On March 5, 2018, after evaluating the evidence and weighing the credibility of witnesses, the CPC issued a 23 page Decision and concluded, “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. CPC Decision to Dismiss Petitioner on All Grounds Alleged in the SOC. The CPC correctly concluded there is sufficient cause to dismiss Petitioner on each and every ground alleged by the District in the SOC. (CR pp. 534-557.) 1. Relevant Factual Findings and Credibility Assessments of the CPC. “[R]egarding the most salient issues, Student B.P.’s statements to Ms. Raimond, Ms. Cuizon, Officer Ehlers and Ms. Mottershaw were consistent. Her oral statements were consistent with her written statements. Most significantly, despite some inconsistencies, the statements of B.P. and N.H. were consistent with Respondent’s statements.” (CR p. 542, {21.) “When he taught bench press, Respondent told the student to bring the bar to the nipple or nipple line.” (CR p. 542, 422.) Respondent told Student B.P. “to bring the bar to your nipple and then back up.” (CR pp. 542-543, 423.) “Respondent admitted he told Student B.P. that she had a strong core.” (CR p. 543, 27.) “Respondent helped Student B.P. squat, stood behind her and placed his hands on her lower hips as she squatted.” (CR p. 544, 30.) “Respondent admitted that, in his class, he used the word “booty” and “you are going to look so amazing this summer in a bikini.” (CR p. 544, {31.) “Respondent took two fingers on his right hand, poked the front of [Student B.P.’s] shoulder, in the upper chest and at her collar bone. ... In Respondent’s opinion, he was qualified to assess Student B.P. because he had worked as a coach for 26 years and worked with a college trainer. However, he acknowledged that he had no formal education or training to assess a student for injury. ... According to Respondent, he assessed Student B.P. rather than send her to the nurse’s office for evaluation because of a discussion that occurred at a staff meeting he attended. Both the nurse and the principal said that too many students were going to the nurse’s office, and the students needed to be checked before being sent to the nurse’s office. Though Ms. Raimond and Mr. Napoleon testified as witnesses, neither confirmed Respondent’s interpretation of this meeting discussion.” (CR p. 543, 25.) “Student B.P.’s version of the events ... was more credible than Respondent’s.” (CR p. 544, 28.) 7 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 Respondent “treated other students in the same manner as he did Student B.P. ... According to Respondent, staff (including Principal Napoleon, Ms. Cuizon, Officer Ehlers and Ms. Raimond) observed him teach students, observed him touch and heard him speak to the students in the manner he described. However, the evidence did not support his testimony, and, in fact, was to the contrary. Principal Napoleon testified that, though sometimes he worked out with the students, he did not hear Respondent use such language in his classes or observe him touch students; he thought his conduct and language were inappropriate.”(CR p. 544, {33.) Based on Student 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 grabbed “thighs” and ... made comments about their bodies and “stuff.”* (CR p. 545, 434.) “Respondent provided evidence that, in 2010 and after his discipline in 2013, he completed “Making Right Choices: Educator Sexual Misconduct Training”. He was unable to articulate what he learned, if anything, about whether he could touch students.” (CR p. 547, {41.) “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. At no time did he appear to understand that his conduct and/or inappropriate statements constituted or may have constituted a violation of the 2013 [Notice] ... Respondent expressed remorse for his misconduct because it resulted in discipline, not because it was inappropriate, unprofessional or because of the impact it had on colleagues or students.” (CR p. 548, 42.) 2. Decision to Dismiss Petitioner for Immoral Conduct. “Despite attending the [sexual misconduct] seminar on two separate occasions, the conduct that occurred during the 2016-2017 school year ... was similar conduct to the conduct that occurred in 2012 and that was prohibited by the directives in the [Notice] and also prohibited by District expectations and policies.” (CR p. 554, 937.)” “At no time has Respondent expressed true remorse for his misconduct in 2012 or 2017. At no time did Respondent accept responsibility for his actions. Instead, he blamed his colleague involved in the 2012 incident and sought to justify his conduct that occurred during the 2016- 2017 school year... There was no evidence presented that Respondent appreciates the wrongfulness of his acts or his bad judgment.” (CR p. 554, 438.) 3. Decision to Dismiss Petitioner for Unprofessional Conduct. “By letter, dated July 2, 2013, the District provided Respondent with a Notice of Unprofessional Conduct ... [and] delineated Respondent’s unprofessional conduct and provided him with specific directives for improvement and directed him to stop his conduct. Respondent’s acts and misconduct during the 2016-2017 school year ... established that he failed to comply with the directives as to how to improve his conduct, in particular, in communications to and about students and colleagues, and to stop his sexually harassing, touching, unprofessional and completely inappropriate behavior.” (CR pp. 554-555, 40.) 4. Decision to Dismiss Petitioner for Evident Unfitness for Service. “In 2013 Respondent was disciplined by the District for sexual harassment of a colleague and making inappropriate comments in the presence of colleagues and students. The District instructed Respondent on how to appropriately interact with teachers, students and colleagues; to not harasses students or touch them in a sexual manner; to be respectful towards students and colleagues; to not make inappropriate and derogatory comments to and about students and colleagues; and to execute his job duties in a professional manner. Nevertheless, Respondent engaged in the same or similar conduct during the 2016 and 2017 school year ... Respondent 8 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 provided no evidence to establish that he has learned from the experience or that his conduct would change in the future if returned to the classroom. ... Respondent’s conduct showed that he has a defect of temperament or an inadequacy that is a fixed character trait, irremediable, and that renders him evidently unfit to teach.” (CR p. 555, {41.) 5s Decision to Dismiss Petitioner for Persistent Violation of or Willful Refusal to Obey Rules, Policies and Regulations. “Respondent knew or should have known of the Governing Board’s policies and expectations as a certificated employee of the District, including Board Policy Nos. 0410, 4119.11, 4119.21, 5131.2, 5137, and 5145.7. ... Having reviewed the foregoing Board policies and the facts, it was determined that Respondent repeatedly violated Board Policy Nos. 0410, 4119.11, 4119.21, 5131.2, 5137 , and 5145.7 .” (CR pp. 555-556, J42.) C. Undisputed Evidence Presented at the Hearing Supports the CPC Decision. 1. Petitioner’s conduct during the 2016-2017 school year. As correctly noted in the Decision, the undisputed testimony and evidence presented at the hearing supports Petitioner’s dismissal. In particular, Student B.P.’s testimony was consistent with what she initially reported to Nurse Lonnie Raimond, then to Vice Principal Dawn Cuizon, then to Officer Ehlers and Detective Mansour, and to District administration. (CR 542, 21.) Petitioner’s conduct Student B.P. felt was not right included the following. e “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.) e “He was just making comments. And then he would begin to, like, grab right here [the top of my chest] and ask me if it was sore.” “My breasts ... he grabbed the, like, right under my butt and was grabbing.” (HT 33:3-16.) e 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.) eo “Healso ... 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.) e “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.) e “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.) e When doing squats Petitioner, “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.) eo When asked how Petitioner’s conduct made her feel, Student B.P. 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 admissions support Student B.P.’s reporting of her interactions with him. e 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.” (HR 595:25-596:1, 598:20-21.) e 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 9 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 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.) e 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.) e 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.” (HT 606:10-607:4.) e As to why he uses such words as “good booty,” “booty,” “bikini bodies,” or “working booties,” Petitioner 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.) e 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.) Additionally, 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 Petitioner 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.) The administrators’ reactions to Petitioner’s admissions must also be noted. 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: Surprise Petitioner was admitting “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, ... when he touched students, it was either for safety and he asked permission so it was really okay.” (HT pp. 463:4-15, 467:23-5.) Petitioner’s arguments that the District’s “shotty” investigation into the allegations made by Student B.P., inconsistent statements from Students B.P. and N.H., and witnesses forgetting dates somehow support setting aside the Decision are not supported by the evidence and were 10 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 rejected by the CPC. While there may have been some confusion on exactly which specific dates Petitioner engaged in misconduct or who was present when, the conduct that was reported by Student B.P., as set forth herein, never changed. Student N.H. also testified that Petitioner would touch students on the leg, thigh, chest or calf when explaining exercises; made comments such as “you can have the best booty ever;” and that she found Petitioner’s conduct “awkward” and “uncomfortable.” (HT 12:13-18, 114:23-115:5, 118:2-18, 123:9-14, 123:24-125:5.) Assistant Superintendent, Human Resources Julie Mottershaw also testified that Student B.P.’s statements “were consistent with everyone she spoke with. They did not change.” (HT 547:2-4.) 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 happen they may confuse dates. 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.) 2 Notice of Unprofessional Conduct and prior discipline of Petitioner. As the CPC correctly notes, and alleged in the SOC, Petitioner’s conduct during the 2016- 2017 school year was not an isolated incident. He “engaged in the type of conduct described herein” during the 2012-2013 school year resulting in the Notice and suspension without pay. (CR 14, q17.) Respondent’s conduct in 2012-2013 was not “primarily involving an adult co- worker” (Pet. Memo. P. 11:26-27). His conduct included using profanity and inappropriate interactions with students, “displaying images of female celebrities” and referencing them to students as “hot” women, and comparing physical attributes in images of professional cheerleaders with male students. (CR p. 15, {18(g) &(h).) It is undisputed that as part of the Notice, the District provided Petitioner with very specific directives on how to improve and correct his conduct during the “ensuing 45-day period” or “the Board of Education may institute additional disciplinary action against you.” (CR pp. 15- 11 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 16, qq18-19.) Petitioner testified he understood there was no “date that [he was] not to continue to comply with the notice” and had no questions about the directives in the Notice. (HT 673:18- 21, 674:21-675:2.) Yet at the hearing, Petitioner also testified that he did not believe his conduct in 2016-2017 violated any of the directives in the Notice. (HT 674:10-14.) Additionally, when asked if he recalled taking a course on “Making Right Choices: Educator Sexual Misconduct,” as part of the directives in the Notice, Petitioner’s first response was, “I don’t remember taking that, but I was shown poof that I did take it.” (HT 629:24-630:3, 639:5-14.) He later testified he did recall taking the course after being disciplined in 2013. (HT 639:17-18.) And when the CPC asked him to explain what he learned in the course is proper touching, Petitioner blundered around and said improper “touching is where the bathing suit covers,” proper touching “how do I describe it ... High fives are fine. I'll just leave it at stuff like - I don’t know how to describe or put it into words.” (HT 640:5-641:1.) Detective Mansour and Ms. Mottershaw also testified, upon reviewing the Notice, Mansour: “There were similar sexual harassment types of acts alleged to have been committed by Mr. Barney while he was employed as a teacher at the ... District ... that it showed prior acts that were maintained within my current investigation.” He further testified that, those “were prior acts similar to the type of behavior also present in my current investigation involving [Student B.P.].” (HT 272:7-273:2.) Mottershaw: “It became very clear to me, based on his personnel file and the incidents in 2013 that there was a definite pattern of behavior [on Respondent’s part], even admitted by Mr. Barney in his interview.” (HT 546:20-547:2.) Based on “the victim’s allegations, Mr. Barney admitting in part to some of the allegations, the pattern of behavior previously, the directives from the prior incident that he had not followed, that it was a liability to have Mr. Barney back in the classroom that he lacked good judgment.” (HT 547:5-13.) III. LEGAL ARGUMENT A. Standard of Review on a Writ of Mandamus. 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 (“acted arbitrarily and capriciously”), which is established if the decision is not supported by the findings, the findings are contrary to the weight of the evidence, or there is a serious error in law. (Code Civ. 12 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 Proc., § 1094.5 (c); see also San Diego Unified Sch. Dist. v. Comm. on Prof. Competence (Lampedusa) (2011) 194 Cal.App.4th 1454, 1461.) Although the trial court is required to exercise its independent judgment on the evidence, the court must afford a strong presumption of correctness concerning the administrative findings. (San Diego Unified School District v. Comm. on Prof. Competence (Jasperson) (2013) 214 Cal.App.4th 1120, 1140; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) The trial court cannot reverse an agency’s determination of the appropriate disciplinary action unless the agency acted arbitrarily or capriciously. (Deegan v. City of Mountain View (1999) 72 Cal. App.4th 37, 46; West Valley-Mission Community College Dist. v. Concepcion (1993) 16 Cal. App.4th 1766, 1778-1779.) Here, Petitioner contends that the CPC abused its discretion and that its decision should be set aside. For the reasons set forth herein, Petitioner’s arguments are without merit. The CPC’s decision is supported by the weight of the evidence, the decision is neither arbitrary nor capricious. B. CPC Did Not Proceed Without or in Excess of Its Jurisdiction. 1. The District complied with section 44938(a) and the CPC properly considered unprofessional conduct as a grounds for dismissal. Petitioner argues the CPC proceeded without jurisdiction because “at no time was he provided with notice as required by” section 44938(a). False. Petitioner received the Notice in July 2013 following his sexual harassment of and inappropriate and unwelcome comments towards a colleague, his failure to follow directives from administration, and his use of profanity and inappropriate interactions with students. In the Notice, the District provided Petitioner with specific directives to follow and informed him, “you are further directed to maintain compliance with the directives contained in this letter at all times in the future. (Emphasis added.)” (CR pp. 14 at 17, 81-87.) Petitioner testified he understood the directives in the Notice and had no questions. Nowhere in the language of section 44938(a) does it state that a 45-day notice expires. Section 44938(a) does not restrict the District’s ability to rely on the Notice with respect to future allegations of unprofessional conduct brought forward in dismissal charges at any time. Section 13 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 44938(a) provides in part, “The governing board of any school district shall not act upon any charges of unprofessional conduct unless at least 45 calendar days prior to the date of the filing, the employee against whom the charge is filed, written notice of the unprofessional conduct.” (Ed. Code § 44938(a).) Thus, section 44938(a) only provides that the employee be given at least 45 days’ notice, within which to correct his alleged unprofessional conduct, before the District may proceed to dismiss him on that ground. (Ed. Code § 44938(a); Woodland Joint Unified School Dist. v. Comm. on Prof. Competence (1992) 2 Cal.App.4th 1429, 1446; Crowl v. Comm. on Prof. Competence (1990) 225 Cal. App.3d 334, 344; Blake v. Comm. on Prof. Competence (1989) 212 Cal. App.3d 515, 518; Perez v. Comm. on Prof. Competence (1983) 149 Cal.App.3d 1167, 1172.) The District complied with the requirements in section 44938(a) when it served Petitioner with the Notice in July 2013 and later filed the SOC in August 11, 2017. The CPC had jurisdiction to consider unprofessional conduct as a grounds to dismiss Petitioner. Furthermore, Petitioner’s interpretation of the Blake case is incorrect. In Blake, the court held that “the portion of section 44938 which pertains to the opportunity to correct behavior is not Jurisdictional but merely an evidentiary consideration,” and had the Legislature intended the requirements in 44938(a) “to be jurisdictional, it would have said so.” (Blake, supra, 212 Cal.Ap.3d at 518.) Lastly, section 44938(a) does not preclude the District from presenting the Notice as evidence to support other grounds for dismissal. For “a particular act or omission may constitute more than one of the causes for his removal under section 44932.” (Id. at 520.) Thus, not only did the District fully comply with section 44938(a), the CPC properly considered the Notice as evidence to support Petitioner’s dismissal on grounds of unprofessional conduct and all other grounds alleged in the SOC supporting cause for his dismissal. 2. Education Code section 44944 does not bar the District from presenting evidence of Petitioner’s conduct outside of the four-year time limitation. Petitioner’s interpretation of section 44944(b) is incorrect. The CPC had every right to consider evidence beyond the limitation period, especially when it is “evidence of records I 14 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 regularly kept by the governing board concerning the employee,” and the evidence shows a pattern and habit of conduct on the part of Petitioner. Section 44944(b) provides, in relevant part, “Evidence of records regularly kept by the governing board concerning the employee may be introduced, but no decision relating to the dismissal ... shall be made based on the charges or evidence of any nature relating to matters occurring more than four years prior to the filing of the notice, ... (Emphasis added.) (Ed. Code §44944(b)(2)(B).) Sections 44938(b) clearly permits the District to introduce evidence showing conduct that occurred more than four years prior to the SOC to support Petitioner’s dismissal. (Atwater Elementary School Dist. v. Cal. Dept. of General Services (2007) 41 Cal.4th 227.) In Atwater, which Petitioner misrepresents, the California Supreme Court held that the “four-year limitation is not absolute” and that the doctrine of equitable estoppel may apply to section 44944(b)’s limitations period. (Id. at 233.) The high Court rejected the Court of Appeal’s literal interpretation of section 44944(b) because applying such an interpretation “would deprive a school district of the ability to dismiss an employee on the same set of facts” and may leave a district “powerless to act against a teacher accused of ... misconduct.” (Id. at 235.) Thus, the District may introduce evidence beyond four years. Denying it this right, and the right to introduce evidence of Petitioner’s similar prior discipline and Notice would be contrary to the language and interpretation of section 44944(b). The District acknowledges that while section 44944(b), permits introducing evidence of Petitioner’s prior discipline from July 2013, section 44944(b) also provides that the CPC’s Decision may not be based on matters arising beyond the four year period. The CPC’s decision was not based solely on Petitioner’s discipline from July 2013 nor did it “heavily rely on the incidents” in making its decision, as Petitioner claims. Rather, it was considered as notice to Petitioner to not engage in further harassing, inappropriate or unprofessional conduct or he will face further discipline and to show a pattern or habit of misconduct on the part of Petitioner. Accordingly, section 44944(b) does not bar the District from presenting evidence of Petitioner’s conduct and discipline in July 2013, including the Notice. The CPC was not 15 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 prohibited from considering the fact that the District provided prior notice to Petitioner, and the facts surrounding Petitioner’s pattern and habit of misconduct. C. The CPC’s Decision to Affirm the District’s Recommendation to Dismiss Petitioner is Supported by the Undisputed Evidence. | Petitioner engaged in immoral conduct. Immoral conduct, for purposes of the Education Code, is “that 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 ... willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude towards good order and the public welfare.” (Board of Education v. Weiland (1960) 179 Cal.App.2d 808, 811.) Here, Petitioner engaged in immoral conduct. In July 2013, Petitioner engaged in conduct resulting in the District issuing the Notice and clear directives for him to cease now and forever any such misconduct and unprofessional conduct as outlined in the Notice. Petitioner chose to ignore the Notice and directives and continued his misconduct in the 2016-2017 school year, as evidenced at the hearing, including his own testimony, established that he repeatedly used the words/phrases nipple, nipple line, booty, and bikini during instruction; he grabbed Student B.P.’s breasts to see if she was “sore;” he placed his hand through a hole in Student B.P.’s jeans am got very close to her vagina; he lifted up Student B.P.’s shirt and play punched her; and he put his hands on top of Student B.P.’s butt crack when instructing her on squats. Student B.P. was not Petitioner’s only target. He apparently commonly touched students when providing instruction instead of modeling proper technique and touched students’ hamstring, leg, thigh, chest and calf. Student found Petitioner’s conduct gross, uncomfortable and awkward. 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 this explanation was neither credible nor believable. As correctly noted by the CPC, at no time, during the hearing, did Petitioner “appear to understand that his conduct or statements could be misconstrued,” “express appreciation for the 16 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 99 CC 1 wrongfulness of his misconduct,” “understand that his conduct and/or inappropriate statements constituted or may have constituted a violation of the 2013 “Plan of Assistance,” or show any “remorse for his misconduct.” (CR p. 548, §42.) The CPC’s Decision to dismiss Petition on grounds of immoral conduct is supported by the undisputed evidence. 2, Petitioner engaged in unprofessional conduct. Again, the CPC was permitted to consider dismissal of Petitioner on grounds of ~N O Y a B A W unprofessional conduct and the District complied with section 44938(a) and correctly concluded 8 || Petitioner engaged in unprofessional conduct. In deciding whether a teacher’s conduct is 9 || unprofessional, such conduct must be considered in context of the unique position of a public 10 || school teacher. A public school teacher is beholden to responsibilities which do not exist in 11 || regard to other callings. (Lampedusa, supra, 194 Cal. App.4th at 1466.) “The example of a 12 || teacher who is continually insubordinate and who refuses to recognize constituted authority may 13 || seriously affect the discipline in a school, impair its efficiency, and teach children lessons they 14 || should not learn. . . . his power as a teacher, and the character for which he stands are matters of 15 || major concern in a teacher’s selection and retention. (Palo Verde v. Unified School Dist. of D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 16 || Riverside County (1970) 9 Cal.App.3d 967, 971.) 17 The evidence shows, Petitioner engaged in behavior that crossed the bounds of decency 18 || justifying his dismissal on grounds of unprofessional conduct. Respondent was given the Notice 19 || in July 2013 not just for his interactions with a co-worker, but because of his harassing, 20 || inappropriate and unprofessional conduct with students. In the Notice, Petitioner received very 21 specific directives not to harass students or touch them in a sexual manner; to be respectful 22 || toward students and colleagues; to not make derogatory or inappropriate comments to and about 23 || students and colleagues; and to execute his job duties in a professional manner. Yet, in 2016- 24 || 2107 Petitioner ignored the Notice and once again engaged in unprofessional conduct by 25 || inappropriately touching students, sexualizing instruction with words such as booty, nipple, bikini 26 || body, and engaged in sexually harassing conduct toward students in direct violation of the Notice 27 || and the fundamental expectations that come with the teaching profession. 28 || // 17 ny MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 Petitioner’s numerous admissions of his conduct and acknowledgment of the directives in the Notice, were no defense to the SOC, but rather emphasized his complete lack of remorse and comprehension of how any of his conduct in July 2013 or 2016-2017 was unprofessional. Petitioner made it very clear his unprofessional conduct would continue supporting his dismissal. 3. Petitioner’s conduct evidences his unfitness to teach. Immoral conduct is defined as, “not clearly fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.” (Woodland, supra, 2 Cal. App.4® at 1445.) “Evident unfitness for service’ connotes a fixed character trait, presumably not remediable merely on receipt of notice that one’s conduct fails to meet the expectations of the employing school district.” (/d.) Despite previous warning to stop sexual harassment, inappropriate touching and comments, unprofessional and completely inappropriate behaviors, Petitioner engaged in similar conduct n 2016-2017 when he aimed his misconduct at female high school students. Again, Petitioner showed no remorse or comprehension that his conduct in 2016-2017 was wrong or that conduct for which he was disciplined in July 2013 was incorrect. As a seasoned teacher, and working “my dream job as a PE teacher,” one cannot imagine how a teacher of Petitioner’s experience, and prior discipline, could have failed to realize the wrongfulness in his conduct in 2016-2017. Petitioner’s conduct supports the CPC’s decision to dismiss. 4. Application of the Morrison factors supports Petitioner’s dismissal. Allegations of immoral conduct, unprofessional conduct and evident unfitness for service also require a determination as to whether Petitioner is “unfit to teach,” as has been established by the courts since the decision in Morrison v. State Board of Education (1969) 1 Cal.3d 214. In Morrison, the court established factors that are to be considered in determining whether a teacher is unfit to teach, including, (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 18 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 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.) The Morrison factors may be considered in the aggregate: Only the “pertinent” factors identified in Morrison need to be examined in the case of an individual teacher’s conduct. (West Valley, supra, 16 Cal. App.4th at 1777.) It is not the District’s burden to establish that Petitioner could have been dismissed for any one of the acts alleged in isolation. For as the Woodland court held, “When a camel’s back is broken, we need not weigh each straw in its load to see which one could have done the deed.” (Woodland, supra, 2 Cal. App.4th at 1457.) When the totality of the circumstances in this matter is considered in light of the Morrison factors, the only logical and correct conclusion is that made by the CPC - Petitioner is unfit to teach. In applying the Morrison factors, the CPC concluded Petitioner’s “misconduct and inappropriate language evidence his disregard for the District’s primary goal and expectations that come with the teaching profession. His pattern and habit of touching, and making inappropriate and unprofessional comments, negatively impacted the work and educational environment. Respondent’s conduct was detrimental to the District and 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 uphold the responsibilities of a public educator. Respondent has no appreciation for 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.” (CR p. 554, 39.) The CPC did not ignore the “overwhelming weight of the evidence” as Petitioner suggests. The CPC explains that Student B.P.’s version of the events was more credible than Petitioner’s; Respondent admitted to a vast 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 Respondent appear to understand how his conduct or statements could be misconstrued, or how his conduct and statements violated the Notice. He did not express any remorse for his conduct. 1" 19 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 Petitioner’s reliance on San Diego Unified School District v. Comm. on Prof. Competence, supra, 214 Cal. App. 4™ 1120, is misplaced. First, Jasperson analyzes a trial court’s erroneous review of a Commission’s decision, not whether the Commission erred itself. Second, the trial court did not give great weight to the Commission’s credibility determinations and a “strong presumption of correctness” to the Commission’s decision, which it was required to do. Here, the CPC made credibility determinations, in particular that Petitioner was not as credible as all of the other witnesses. Third, the trial court’s decision substituted the Commission’s findings and credibility determinations with its own, and provided no detail. Again, here, the CPC made numerous credibility determines and outlined them in detail in the 23 page Decision. Similarly, Bevli v. Brisco (1989) 211 Cal. App.3d 986, does not support Petitioner’s position that the CPC failed to review the evidence in light of the Morrison factors. As noted herein, the CPC applied the Morrison factors and was very clear on this analysis based on the evidence presented at the hearing. Accordingly, under the totality of the circumstances, the CPC’s Decision is correct and Petitioner it unfit to teach. 5s Petitioner persistently violated established rules and regulations. Persistent violation of or a refusal to obey schools or regulations under 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. Comm. on Prof. Competence (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, and ... [that] employee conduct should enhance the integrity of the District and the goals of the educational programs.” (CR pp. 10-11, 535-536.) District policies also prohibit discrimination and harassment all educational 20 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 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 cites to them in the Decision, contrary to Petitioner’s representation that this was not done. The CPC’s decision to affirm Petitioner’s dismissal on grounds of persistent violation of or refusal to obey rules and regulations is correct must be upheld. IV. CONCLUSION For the foregoing reasons, the District respectfully requests that Petitioner’s Amended for Petition for Writ of Mandamus be denied in its entirety and that this matter be dismissed, with prejudice. DATED: February 22, 2019 DANNIS WOLIVER KELLEY By: Spel A Mey JONATHAN A. PEARL ~ INGRID A. MEYERS Attorneys for Real Party in Interest GROSSMONT UNION HIGH SCHOOL DISTRICT 21 MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT D A N N I S W O L I V E R KE LL EY 75 0 B ST RE ET , SU IT E 2 3 1 0 SA N DI EG O, CA 9 2 1 0 1 DWK DMS 3360474v1 ~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 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is: 115 Pine Avenue, Suite 500, Long Beach, CA 90802. On the date set forth below I served the foregoing document described as GROSSMONT UNION HIGH SCHOOL DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PETITIONER’S AMENDED PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS on interested parties in this action as follows: SEE ATTACHED SERVICE LIST O (VIA U.S. MAIL) I caused such document to be placed in the U.S. Mail at Long Beach, California with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. 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 caused such document to be placed in the U.S. Mail at Long Beach, 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 “readily familiar” with the practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. 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 FACSIMILE) I caused such document to be transmitted via facsimile to the addressee from the facsimile machine of DANNIS WOLIVER KELLEY whose phone number is 562.366.8505. The transmission by facsimile was reported as complete and without error. O (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the addressee. O (VIA OVERNIGHT MAIL) I caused such envelope to be deposited at an authorized “drop off” box on that same day with delivery fees fully provided for at 115 Pine Avenue, Suite 500, Long Beach, CA 90802, in the ordinary course of business. (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 tsilva@DWXKesq.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 February 22, 2019 at Long Beach, California. Jat (2 / Tiana Silva ee) MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT : Service List 2 John P. Martin Email: martlaww @msn.com P.O. Box 333 Telephone: (619) 807-5299 3 || Lakeside, CA 92040 Attorney for Petitioner Joshua Barney 4 Alicia G. Boomer Email: Alicia.boomer@dgs.ca.gov 5 Office of Administrative Hearings Telephone: (916) 263-0550 2349 Gateway Oaks Drive, Suite 200 Facsimile: (916) 263-0554 6 || Sacramento, CA 95833 Attorney for Office of Administrative Hearings on behalf of Respondent 7 Commission on Professional Competence 8 9 10 11 no 12 NS TES 13 oho 14 =48 205 15 igs ~ 16 17 18 19 20 21 22 23 24 25 26 27 28 23 DWK DMS MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED WRIT 3360474v1