TODAY'S FRESH START v. LOS ANGELES COUNTY OFFICE OF EDUCATIONLos Angeles County Office of Education and Los Angeles County Board of Education, Answer Brief on the MeritsCal.January 27, 2012Supreme Court Case No. 8195852 IN THE SUPREME COURT SUPREME COURT , OF THE STATE OF CALIFORNIA FILE | JAN 2 7 2012 TODAY’S FRESH START. INC. Frederick K. Ohlrich Clerk Plaintiff, Respondent, and Cross-Appellant, Deputy vs. LOS ANGELES COUNTYOFFICE OF EDUCATION,etal., Defendants, Appellants, and Cross-Respondents. After A Decision By The Court OfAppeal Second Appellate District, Division One 2d Civil Case No. B212966 c/w B214470 Los Angeles County Superior Court Case No. BS 112656 ANSWERBRIEF ON THE MERITS LOS ANGELES COUNTY OFFICE OF EDUCATION Vibiana M. Andrade, State Bar No. 98333 Sung Yon Lee, State Bar No. 219742 9300 Imperial Highway, EC-299 Downey,California 90242 Telephone: (562) 922-6123 // Facsimile: (562) 401-5452 GREINES, MARTIN, STEIN & RICHLAND LLP Timothy T. Coates, State Bar No. 110364 Alison M. Turner, State Bar No. 116210 5900 Wilshire Boulevard, 12th Floor Los Angeles California 90036-3697 4 Telephone: (310) 859-7811 // Facsimile: (310) 276-5261 Attorneys for Defendants, Appellants, and Cross-Respondents LOS ANGELES COUNTY OFFICE OF EDUCATION and LOS COPY ANGELES COUNTY BOARD OF EDUCATION Supreme Court Case No. $195852 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TODAY’S FRESH START,INC., Plaintiff; Respondent, and Cross-Appellant, vs. LOS ANGELES COUNTY OFFICE OF EDUCATION,etal., Defendants, Appellants, and Cross-Respondents. After A Decision By The Court OfAppeal Second Appellate District, Division One 2d Civil Case No. B212966 c/w B214470 Los Angeles County Superior Court Case No. BS 112656 ANSWERBRIEF ON THE MERITS LOS ANGELES COUNTY OFFICE OF EDUCATION Vibiana M. Andrade, State Bar No. 98333 Sung Yon Lee, State Bar No. 219742 9300 Imperial Highway, EC-299 Downey, California 90242 Telephone: (562) 922-6123 // Facsimile: (562) 401-5452 GREINES, MARTIN, STEIN & RICHLAND LLP Timothy T. Coates, State Bar No. 110364 Alison M. Turner, State Bar No. 116210 5900 Wilshire Boulevard, 12th Floor Los Angeles California 90036-3697 Telephone: (310) 859-7811 // Facsimile: (310) 276-5261 Attorneys for Defendants, Appellants, and Cross-Respondents LOS ANGELES COUNTY OFFICE OF EDUCATIONand LOS ANGELES COUNTY BOARD OF EDUCATION TABLE OF CONTENTS INTRODUCTION STATEMENT OF FACTS AND PROCEDURAL HISTORY A. The Parties. B. The Charter. C. LACOEP’s Investigation OfTFS. D. The County Board Begins The Revocation Process. E. The Public Hearing On November 6, 2007, And Subsequent County Board Meetings. F, The Revocation Of TFS’s Charter. G. TFS’s Appeal To The State Board. H. The Petition For Writ OfAdministrative Mandamus. ARGUMENT I. DUE PROCESS DOES NOT REQUIRE AN EVIDENTIARY HEARING BEFORE A NEUTRAL HEARING OFFICER PRIOR TO THE INITIAL DECISION TO REVOKE A CHARTER. A. TFS Failed To Demonstrate Bias On The Part Of The County Board. 1. TFS failed to preserve any argument ofbias based on pecuniary interest by failing to raise it below; the argumentis meritless in any event. 2. Gale’s “not neutral’ remark was not an admission of actual bias. Page 10 11 15 15 17 18 23 TABLE OF CONTENTS (continued) Page 3. LACOE’s overlapping functions do not create an unconstitutional risk of biased decision-making. 26 B. The County Board Conducted A Hearing That Comported With Due Process; An Additional Fact- Finding Hearing Is Unwarranted. 32 1. The cost/benefit analysis weighs against TFS. 33 2. Appeal to the State Board provides an additional safeguard against error. 38 Il. NEITHER THE EDUCATION CODE NOR DUE PROCESS REQUIRES THE FORMAL PRESENTATION OF EVIDENCE AT THE PUBLIC HEARING. 42 CONCLUSION 48 CERTIFICATE OF COMPLIANCE 49 APPENDIX (RELEVANT STATUTES AND REGULATIONS) APP 1 -ii- TABLE OF AUTHORITIES Page(s) Federal Cases Mathewsv. Eldridge, (1976) 424 US. 319 [96 S.Ct. 893, 47 L.Ed.2d 18] 15-17, 32-34, 43 Withrow v. Larkin, (1975) 421 U.S. 35 [95 S.Ct. 1456, 43 L.Ed.2d 712] 23,27 State Cases Bowers v. Bernards, (1984) 150 Cal.App.3d 870 39 California Assn. ofPrivate Special Education Schoolsv. California Department ofEducation, (2006) 141 Cal.App.4th 360 38 Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com., (1970) 11 Cal.App.3d 557 45 Coleman v. Department ofPersonnel Administration, (1991) 52 Cal.3d 1102 16 DepartmentofAlcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., (2006) 40 Cal.4th 1 30 English v. City ofLong Beach, (1950) 35 Cal.2d 155 43-44 Flippin v. Los Angeles City Bd. ofCivil Service Comrs., (2007) 148 Cal.App.4th 272 34 Golden Day Schools Inc. v. State Dept. ofEducation, (2000) 83 Cal.App.4th 695 27-28 Griggs v. Board ofTrustees, (1964) 61 Cal.2d 93 27 -iii- TABLE OF AUTHORITIES (continued) Haas v. County ofSan Bernardino, (2002) 27 Cal.4th 1017 Howitt v. Superior Court, (1992) 3 Cal.App.4th 1575 Inre Do Kyung K., (2001) 88 Cal.App.4th 583 Inre Marriage ofFalcone, (2008) 164 Cal.App.4th 814 La Prade v. Department of Water and Power, (1945) 27 Cal.2d 47 Mohilefv. Janovici, (1996) 51 Cal.App.4th 267 Morongo Band ofMission Indians v. State Water Resources Control Bd, (2009) 45 Cal.4th 731 Nasha L.L.C. v. City ofLos Angeles, (2004) 125 Cal.App.4th 470 Nightlife Partners v City ofBeverly Hills, (2003) 108 Cal.App.4th 81 Oberholzer v. Commission on Judicial Performance, (1999) 20 Cal.4th 371 People v. Peevy, (1998) 17 Cal.4th 1184 Quintero v. City ofSanta Ana, (2004) 114 Cal.App.4th 810 Roddenberry v. Roddenberry, (1996) 44 Cal.App.4th 634 -iV- Page(s) 16, 21, 23 28-29 4] 4] 43-44 1,47 29-30 24 27-28 15-16, 32 19 27-29 39 TABLE OF AUTHORITIES (continued) Page(s) Saleeby v. State Bar, (1985) 39 Cal.3d 547 15 Skelly v. State Personnel Bd., (1975) 15 Cal.3d 194 34 Wells v. One2One Learning Foundation, (2006) 39 Cal.4th 1164 20, 33 Wilson v. State Bd. ofEducation, (1999) 75 Cal.App.4th 1125 20 State Statutes & Codes California Code of Regulations, Title 5 section 11965 35, 47 section 11965, subds. (d)-(f) 22 section 11968.5.2 35, 47 California Rules of Court, rule 8.500(c)(1) 19 Code of Civil Procedure, section 1094 12 section 1094.5 11 Education Code, section 1010 5, 26 section 1700 20 section 35041.5 26 section 47601 38 section 47604, subd. (c) 37 section 47604.3 3, 20, 37 section 47604.4 4 section 47605, subd. (j)(1) 22 section 47607 1-2, 13, 20, 22, 33, 39-40, 42 section 47607, subd. (a)(1) 3 section 47607, subd. (c) 37 TABLE OF AUTHORITIES (continued) Page(s) section 47607, subds. (c), (d) & (g) 31 section 47607, subds.(c)-(e) 22 section 47607, subd. (d) 12 section 47607, subd.(e) 17, 34-35, 40-42 section 47607, subds.(e) & (g) 31 section 47607, subd. (g)(2) 40, 42 section 47607, subd.(i) 21, 33 section 47612 33 section 47612, subd.(a) 20 section 47612, subd.(c) 20, 37 section 47613 21 section 47613, subd.(a) 21 section 47615, subd.(a) 19, 37 section 47630, et. seq. 33 section 47633 18 section 47634.1 18 section 47634.4 18 section 48645 .2 20 Government Code, section 11425.10, et seq. 30 section 11425.10, subd. (a)(4) 30 section 11425.10, subds. (a)(4) & (b) 31 section 54950, et seq. 6 Water Code, section 1126, subd.(a) 31 -vi- TABLE OF AUTHORITIES (continued) Page(s) Other Authorities 2 Davis & Pierce, Administrative Law Treatise (3d ed. 1994) § 9.5, p. 61 Historical and Statutory Notes, 28B West’s Ann. Ed. Code, (2003 ed.) foll. § 58801.6, p. 462 http://www.cde.ca.gov/ds/si/cs/ap/rptresult.asp?name=TOd&Submit California Department of Education, State Numbered Charter Schools in California http://www.cde.ca.gov/be/ag/ag/yr10/agenda20100824.asp State Board of Education Agenda (Aug 24, 2010) http://www.cde.ca.gov. be/mt/ms/documents/finalminutes 082410.doc State Board of Education Final Minutes, Item 5 (Aug. 24, 2010) http://www.todaysfreshstartcharterschool.org Website of Today’s Fresh Start Charter School -vii- 20 22 22 22 20 INTRODUCTION This case arose when the Los Angeles County Board of Education (“County Board”) revoked the charter of Today’s Fresh Start, Inc. (“TFS”), a charter school providing educational services to students in the County. TFS challenged the procedures employedto reach the revocation decision, not its merits, as a violation of due process. TFS contends, amongother things, that due process requires trial-type evidentiary hearing before a neutral hearing officer prior to the public hearing “in the normal course of business”that the controlling statute, Education Code section 47607, requires. Thetrial court agreed with TFS. The Court of Appeal did not. The Court of Appeal’s ruling was correct. “Lawyers and judges have a systematic tendency to overestimate the benefits of trial-type procedures and to underestimate the costs of those procedures’”in the administrative context. (Mohilefv. Janovici (1996) 51 Cal.App.4th 267, 288, quoting 2 Davis & Pierce, Administrative Law Treatise (3d ed. 1994) § 9.5, p. 61.) TFS has attempted to by-pass the weighing ofinterests and cost/benefit analysis normally usedto assess the requirements of due process by accusing the County Board ofbias. Indeed, TFS goesso far as to invent a new theory ofbias just for this Court—purported competition for limited school funds between the County Board and TFS. Butit is too late to assert such a theory whichis necessarily fact-dependent. The theory is meritless in any event, not the least for its inability to explain how an agency which grants and renewsa charter, and does not even operate traditional public schools, is suddenly biased by pecuniary interest when it revokes the charter. Whenthe record in this case is examined,it is plain that, within the parameters of Education Code section 47607, TFS wasafforded a full opportunity to makeits case prior to the decision to revoke. The Education Code, together with recently issued regulations regarding the revocation process, provideall the process that is due a charter school in TFS’s position. There is no constitutional need to read additional procedures into the statute. For these and other reasons discussed in detail below, the Court of Appeal’s judgmentreversing the trial court should be affirmed. STATEMENT OF FACTS AND PROCEDURAL HISTORY A. The Parties. TFS is a countywide charter school in Los Angeles County. (6 CT 1208.)” It is organized as a nonprofit public benefit corporation. (6 CT 1207.) It began serving pupils under county auspices in September 2003. (I AR 1:4.) The Los Angeles County Office of Education (“LACOE”) is a regional education agency. (6 CT 1208.) The County Boardis the governing board of LACOE. (6 CT 1241.) B. The Charter. In 2005, TFS submitted a charter renewal petition to LACOEfor approval by the County Board. (I AR 1:1-59.)” TFS’s charter was renewed on July 1, 2005 for a term offive years. (I AR 1:53; III AR 32:1434.) The charter renewalpetition provided for LACOEoversight of TFS. (See I AR 1:30 [costs for oversight]; see I AR 1:51 [“Pursuant to Education Code Section 47604.3 LACOE mayinvestigate complaints and monitor [TFS’s] operations.”]; see Ed. Code § 47607, subd. (a)(1) [The authority that granted the charter may inspect or observe anypart of the charter ¥ Tn this brief, the Clerk’s Transcriptis referred to as “CT” and the Reporter’s Transcript as “RT,” preceded by volume numberand followed by page number. The Administrative Record is referred to as “AR” preceded by volume numberand followed by tab number and page number. Petitioner TFS’s openingbriefis referred to as “POB.” The petition, once approved,is the charter agreementor contract betweenthe parties. (See 6 CT 1208). 3- school at any time’’].) TFS in turn was required to “respond promptly to requests made by LACOEfor operational and fiscal concerns.” (J AR 1:51.) The charter renewal petition also provided: The charter granted pursuantto this Petition may be revoked by LACOEifthe county finds that [TFS] did any of the following: e Committed a material violation of any of the conditions, standards, or procedures set forth in this Petition. e Failed to pursue any of the student outcomes identified in this Petition. e Failed to meet generally-accepted accounting principles, or engagedin fiscal mismanagement. e Knowingly and willfully violated any provision of law. [{] Prior to revocation, the county will notify [TFS] of any violation (as set forth above) in writing, noting the specific reasons for which the charter may be revoked, and give the school a reasonable opportunity to cure the violation. (I AR 1:52.) C. LACOE?’sInvestigation Of TFS. In June 2007, LACOEinitiated an investigation of TFS, pursuant to Education Code section 47604.4. (See I AR 5:108 [response by TFS’s counselto letter advising of investigation].) LACOE advised TFSthat concerns had beenraised about (1) the legal rights of students, parents, and employees, (2) student attendance procedure, (3) professional development, and (4) California Department of Education (“CDE”) testing procedures. ([bid.) The investigation was based on document review and interviews -4- with staff members and others. (III AR 24:1380.) TFS respondedthatthe planned investigation was unlawful and contrary to the charter. (I AR 5:108, 110.) On June 18, 2007, Darline Robles, County Superintendent of Schools (“Robles”), wrote TFS requesting documents pertaining to its compliance with governance provisions of the Corporations Code. (III AR 32:1434-1435.)?’ On July 19, 2007, LACOEissuedits findings and recommendations for improvements in the four areas of concern it had previously identified. (1 AR 24:1376-1406.) On July 31, 2007, it followed up with a “Corrective Action Plan”thatlisted the corrective action needed with due dates for the various tasks. (III AR 25:1407-1412.) Theletter transmitting the corrective action plan to TFSstated that a failure to effect corrections by their due dates would be grounds for LACOEto recommendrevocation of TFS’s charter. (See IIT AR 41:1571 [warning quoted in subsequent analysis of events by the CDE].) On August 24, 2007, after receiving materials from TFS, Robles wrote again expressing “serious concerns” she shared with LACOEstaff about the governance of TFS andattaching a staff report that analyzed materials provided by TFS and a request for additional information needed to complete the review of TFS’s governance. (III AR 33:1436.) Theletter ? The Superintendent of Schools and head of LACOEis bystatute (Ed. Code, § 1010) the chief executive officer of the County Board. (9 CT 1970; see 8 CT 1698 [referring to “LACOE’s Superintendent”’].) -5- stated, “Whether you are able to provide sufficient evidence that your board is fulfilling its governance responsibilities, holding sufficient meetings to conduct charter school business as needed, complying with the Brown Act,” and demonstrating conclusively that Board membersare protecting public funds and not using their positions improperly to the end ofpersonal enrichment, will determine whether I recommendthat the County Board of Education take action to revoke the Today’s Fresh Start Charter School Charter.” (/bid.) D. The County Board Begins The Revocation Process. The County Board metfor a study session on October 9, 2007. (I AR 14A:168, 15A:187-188.) TFS wasoneofthe topics of discussion. (/bid.) LACOEpresented a two-part written report regarding TFS’s responses to governanceissues andthe corrective action plan. (/bid.) County Board members received three binders of written materials from LACOE. (Jbid.) TFS also received the three binders of materials provided to County Board members. (I AR 15A:188.) At a County Board meeting on October 16, 2007, the attorney for TFS, the chairman of its Board of Directors, and others, addressed the County Board and urgedit not to proceed with the revocation process. (I AR 15B:192-193.) Robles recommendedthat the County Board give notice ofits intent to revoke TFS’s charter, adding that if the County Board “’ The Ralph M. Brown Actis found in Government Code section 54950, et seq. -6- did decide to revoke, TFS would stay open during the appealto the State Board of Education (“State Board’’) and that LACOE would recommend TFS stay open until the end of the school year when alternate placement could be found. (I AR 15B:196-197.) The County Board voted to approve Robles’ recommendation to begin the revocation process based on LACOBP’sreport and confirmation by CDEof improprieties in pupil testing which werenot corrected as required by the corrective action plan. (bid.) A public hearing was set for November 6, 2007, before which time TFS could submit its written response; at the hearing TFS would have the opportunity to make an oral presentation to supplement any documents previously submitted. (I AR 15B:196-198; III AR 34:1468.) Thefinal decision of the County Board would be madeat its December 4, 2007 meeting (the date was later moved to December 11, 2007). (I AR 15B:198, 15D:215.) By letter dated October 17, 2007, LACOE gavenotice to TFS of the County Board’s decision and advised TFSthat it could submit materials to support its oral presentation on November6, 2007. (III AR 34:1468.) E. The Public Hearing On November6, 2007, And Subsequent County Board Meetings. At the public hearing conducted by the County Board on November6, 2007, Jeanette Parker (TFS’s Superintendent and Administrator), Clark Parker (TFS’s Board Chairman), Mary Glarum (TFS’s general counsel), Gayle Windom (a consultant), and Mervyn Dymally (a California Assemblyman) spoke on behalf of TFS. -7- (I AR 15C:203; 8 CT 1693; see also I AR 16B:243-263 [transcript of November 6 meeting].) Six students also spoke on behalf of TFS. (I AR 16B:244-246.) TFS had provided each memberofthe County Board with three binders of “substantial evidence against revocation,” and had distributed additional documentsat the hearing. (8 CT 1693; 1 AR 16B:247, 15C:202-203, 2:60-88, 3:89-100.) On November 20, 2007, speakers on behalf of TFS,including its counsel, again addressed the County Board about the proposed revocation and raised due process concerns, in particular the lack of neutrality on the part of the County Board insofar as LACOEstaffwas both advocating revocation and advising the County Board aboutit; Clark Parker urged there be an impartial adjudicator to make a recommendation to the County Board instead ofLACOEstaff. (I AR 16C:267-270.)” Upon being asked by a County Board memberto speak on the subject of due process, Shari Kim Gale, general counsel for the County Board and LACOE,advised that the hearing before a neutral adjudicatoris the hearing of the appealbefore the State Board as provided by the Education Code. (I AR 16C:271.) [T]hat is the due process stage. It is that stage where there should be no one-sided communications, each side should have independent counsel. And most important, the adjudicatoris the State Board of Ed[ucation], and it is neutral. Parker explainedthat he was relying on general administrative law rather than on Education Codeprovisionspertaining to charter schools. (I AR 16C:270.) -8- In this matter, in this process, you are not neutral. You are the authorizer. (Ibid.) On December4, 2007, Jeanette Parker again addressed the County Board regarding TFS’s compliance and other matters. (I AR 15E:218, 16D:285-286.) LACOEpresented a final report addressing TFS’s responsesto the proposed revocation which concluded, among otherthings, that TFS had failed to meet 47 of 53 items on the corrective action plan. (AR 16D:286.) LACOEadvised the County Boardthat, after review and analysis of TFS’s rebuttal materials, it stood by its recommendation to revoke. (/bid.) In addition to appearances before the County Board, TFS had communicated with the County Board in writing about its responses to the corrective action plan and governanceissues, as well as about whatit deemed were procedural deficiencies in the revocation process. (I AR 2:60- 88, 3:89-100, 7:116-124, 8:126, 9:138-143; IIT AR 23:1342-1350.) F. The Revocation Of TFS’s Charter. On December 11, 2007, speakers again addressed the County Board on behalf of TFS, including Jeanette Parker, who defendedtesting procedures, and Assemblyman Mervyn Dymally, whoaskedthat the school be kept open at least another year. (I AR 15F:226, 16E:296-301.) The County Board voted four to three to revoke TFS’s charter. (I AR 15F:228- 230, 16E:323.) The County Board adopted the factual findings regarding improprieties in pupiltesting, violations of the charter, the Corporations -9. Code, and the Government Code including the Brown Act, and failure to comply fully with the corrective action plan. (I AR 15F:229; see also Ill AR 35:1473-1478 [notification of TFS].) G. —TFS’s Appeal To TheState Board. On January 9, 2008, TFS appealed to State Board, submitting five binders of materials to support for its position. (III AR 41:1566; see III AR 36:1479-1507 [TFS’s letter brief]; 1 CT 20-21.) The appeal wasfirst reviewed bystaff in the Charter Schools Division of CDE. (See II AR 41:1565-1574.) CDE requested LACOEto provide it with all the documents the County Board hadrelied on in making the revocation decision; LACOEprovided seven binders of documentation, including the list of fifty-three items in the corrective action plan that LACOE contended were violations of the law or the charter. (III AR 41:1566.) Subsequently, CDErequested additional information from LACOEasto whichofthe fifty-three violations the County Board found were materialviolations and the evidence supporting the violations, as well as the documents providing TFS notice and opportunity to remedy and a notice ofintent to revoke with the facts supporting the latter. bid.) LACOEresponded,identifying five of the mostsignificant violations, and subsequently TFSreplied to refute LACOEP’s contention that it had complied with the statutory requirements for revocation. (Jbid.) On July 8, 2007, CDE recommendedthe State Board reverse the revocation, having concludedthat only a violation of the Brown Act was -10- supported by substantial evidence and that the County Board hadfailed to provide TFS with notice of that violation and the opportunity to remedyit in a mannerthat complied with the statute. (III AR 40:1562-1563.) Earlier, on May 19, 2008, the State Board’s Advisory Commission on Charter Schools had also considered TFS’s revocation appeal in a meeting at which both sides presented argument. (III AR 40:1563.) The vote of the Commission wasfour to two in favor of recommendingreversal, one vote short of the number needed to support a recommendation, so none was given. (/bid.) On July 10, 2008, eight members of the State Board heard argument on TFS’s revocation appeal; the vote on whether to accept CDE’s recommendation andreverse the revocation was a tie—fourto four—leaving the revocation in place. (III AR 42:1678-1679.) H. The Petition For Writ Of Administrative Mandamus. On December 27, 2007, before appealing to the State Board, TFS filed a petition for writ of administrative mandamus, pursuant to Code of Civil Procedure section 1094.5, in the superior court, naming LACOE and CDEas respondents. (1 CT 11.) An amendedpetition adding the County Board and the State Board as respondents wasfiled on July 21, 2008. (6 CT 1205.) TFSalleged the decision to revoke the charter was invalid because, among otherthings, the County Board had not appointed an independent, impartial decisionmaker. (1 CT 23; 6 CT 1213.) -11- On August 21, 2008, TFSfiled a motion for judgment against LACOEand the County Board pursuant to Code of Civil Procedure section 1094. (8 CT 1686-1706.) It sought reinstatement of the charter on three procedural grounds: the County Board had violated Education Code section 47607, subdivision (d), by failing to provide it with proper notice and opportunity to cure any violation;”the hearing prior to revocation failed to comport with due process because LACOE had submitted no evidenceto support the revocation during the hearing; the hearing violated due process because the County Board was not impartial. (8 CT 1697-1704.) TFS invoked both the Fourteenth Amendmentofthe United States Constitution, and California Constitution, Article I, section 7. (8 CT 1700 & fn. 7.) Thetrial court heard the motion on September 15, 2008 and on September 19, 2008, granted it. (9 CT 1951.) It found that the County Board had substantially complied with the notice requirementofthe Education Code by acting through LACOE,based on evidencethat LACOE employees comprise the staff of the County Board and LACOE’s Superintendent of Schools is the chief executive officer of the County Board. (9 CT 1970-1971; 1 RT J25.) However, thetrial court also found that TFS’s due process rights had been violated in that the evidence supporting revocation had not been presented during the hearing and TFS was entitled to a hearing before an impartial decisionmaker before * TFS alleged notice was defective becauseit was not given by the County Board, the chartering authority, but by LACOE. (8 CT 1697-1699.) -12- revocation. (9 CT 1971-1974.) Noting Education Code section 47607 was silent on the issue of an evidentiary hearing,the trial court also found that “It}]o the extent arguendo that it contemplates merely a hearing before the [County Board], it does not meet the minimum requirements of due process.” (9 CT 1974.) “An evidentiary hearing before a unbiased hearing officer is required.” (Ibid.) The hearing officer could be an employee of LACOEotherwise uninvolved in the revocation processora third party. (Ibid.) The hearing officer’s findings must then be accepted or rejected by the County Board in a public hearing. (/bid.) On October 21, 2008, judgment wasentered requiring the County Board to set aside its December 11, 2007 decision to revoke TFS’s charter and to reinstate the charter “with all rights and privileges... .” (10 CT 2108-2109.) The Court of Appeal reversed. It found the revocation procedure did not violate due process. (Opn. 25-39.) Specifically, noting that TFS had never contendedit was not apprised ofall the evidence against it or that the County Board hadrelied on undisclosed evidence,it held that the lack of a formal introduction of the evidence at the revocation proceeding did not renderit unfair or create an unacceptable risk of erroneous deprivation of a protected interest. (Opn. 27.) Nor did due process require an additional evidentiary hearing before an unbiased hearing officer whose findings would then be presented to the County Board. (Opn. 28-29.) TFS had failed to establish either the probability of bias or actual bias on thepart of -13- the County Board, only “the unexceptional circumstance of general counsel and other LACOEstaff advising the County Board regarding theinitial decision whether to reverse TFS’s charter.” (Opn. 35.) Moreover,the appeal to the State Board provided additional safeguards to charter schools facing revocation. (Opn. 37-39.) This Court granted review. -14- ARGUMENT 1. DUE PROCESS DOES NOT REQUIRE AN EVIDENTIARY HEARING BEFORE A NEUTRAL HEARING OFFICER PRIOR TO THE INITIAL DECISION TO REVOKE A CHARTER. Throughoutthislitigation, TFS has equated due processwitha trial- type hearing before a neutral hearing officer. Anything short of thatis, in its view, a denial of due process. The law is otherwise. “The fundamental requirement of due processis the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ [Citation].” (Mathews v. Eldridge (1976) 424 U.S. 319, 333 [96 S.Ct. 893, 47 L.Ed.2d 18] (‘Mathews’’).) It is well settled that due process “is not a technical conception with a fixed content unrelated to time, place, and circumstances. Dueprocessis flexible and calls for such procedural protections as the particular situation demands.” (/d. at p. 334, internal quotations and citations omitted; see also Saleeby v. State Bar (1985) 39 Cal.3d 547, 563 [““The requirements of due process. . . are not inflexible”].) What process is due depends upon weighingthe various interests involved. (Saleeby v. State Bar, supra, 39 Cal.3d at p. 565; Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 390 [California Constitution].) The federal test for evaluating the scope of a pre-deprivation due process hearing turns on the consideration of three factors: “First, the private interest that will be affected by the official action; second,the risk -[5- of an erroneous deprivation of such interest through the proceduresused, and the probable value, if any, of additional or substitute procedural safeguards; andfinally the Government’s interest, including the function involved andthe fiscal and administrative burdens that the additionalor substitute procedural requirement would entail.” (Mathews, supra, 424 USS. at p. 335; Coleman v. Department ofPersonnel Administration (1991) 52 Cal.3d 1102, 1119.) Courts consider the same three factors for purposes of due process analysis under the California Constitution, as well as an additional fourth factor: “‘the dignitary interest of informing individuals of the nature, grounds and consequencesofthe action and of enabling them to present their side of the story before a responsible governmentalofficial.’ [Citations.]” (Oberholzer v. Commission on Judicial Performance, supra, 20 Cal.4th at pp. 390-391.) “The ultimate balance involves a determination as to when, underour constitutional system,judicial-type procedures must be imposed upon administrative action to assure fairness . . . The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmakingin all circumstances.” (Mathews, supra, 424 U.S.at p. 348.) This court has determined that the Mathewstest does not apply “when the due process claim involves an allegation of biased decisionmakers.” (Haas v. County ofSan Bernardino (2002) 27 Cal.4th ! As the Court ofAppeal noted, TFS did not emphasize the fourth factor. (Opn. 22, fn. 23.) -16- 1017, 1035.) The trial court in this case declined to apply the Mathewstest because TFS convincedit that the County Board was biased. While the statute requires only “a public hearing, in the normal course of business” on the issue of revocation (Ed. Code, § 47607, subd.(e)), the trial court imposed the requirement of an additionalhearing, a preliminary hearing before a neutral hearing officer, purportedly to remedy the alleged bias; then “[t]he Board can sit and review that decision, and it may do so ona partisan basis .. . and then the State Board of Educationsits in review of that. That’s the way I think we go.” (1 RT J24; 9 CT 1974.) The Court of Appeal correctly determined that such a preliminary hearing was constitutionally unnecessary. A. TFS Failed To Demonstrate Bias On The Part Of The County Board. TFS contendsthat actual bias or an unacceptable risk of actual bias tainted the revocation proceedings before the County Board, rendering them a violation of due process. (POB 13-22.) TFS’s purported evidence to support this contention is three-fold: (1) The County Board’s alleged pecuniary interest in revoking TFS’s charter insofar as revocation removed a purported competitor for limited school funds (POB 13-18); (2) LACOE’s function as both prosecutor and advisor to the County Board on the question of revocation (POB 19-21); and (3) general counsel Sheri Kim Gale’s “fnstruction” to the County Board that it was “not neutral” (POB 21-22). -17- TFSfalls short of establishing any bias rendering the revocation procedures unfair. 1. TESfailed to preserve any argument of bias based on pecuniary interest by failing to raise it below; the argumentis meritless in any event. TFSraises as a source ofbias that charter schools andtraditional public schools “must compete for students in order to obtain funding.” (POB 15.) “[T]he more charter schools [the County Board] can permissibly revoke, the more funds becomeavailable for its own schools.” (POB 18.) From this purported pecuniary interest, TFS asks the Court to infer the County Board could not giveit a fair hearing. The Court should decline to do so. TFS did not make this argumentin the trial court. The argumentis dependent on evidence regarding the funding of charter schools and traditional public schools, a complicated issue (see, e.g., Ed. Code, §§ 47633, 47634.1, 47634.4), and one involving whether and the degree to which,if at all, charter schools, such as TFS, may vie with traditional public schools, such as those overseen by the County Board, for “the same limited funds” (POB 2). Becausethe issue was not addressedin thetrial court, the appellate record is devoid of any such evidence. (See Opn. 32 [“There was no evidence ofa financial or personalinterest on the part of the County Board”].) To the extent TFS is attempting to develop an additional factual record in this forum,it falls short, merely relying on journalarticles, such as -18- one written by its own counsel. (POB 15.) Interestingly, accordingtoits citation, that article was issued in August 2008, the same month TFS brought its motion for judgment on the due process issue (8 CT 1686); yet the motion never mentioned anyalleged bias based on pecuniary interest. This Court “normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal.” (Cal. Rules of Court, rule 8.500(c)(1).) Moreover, this Court hasstated, “[I]t is our policy not to review issues that are dependent upon developmentof a factual record whenthoseissues have not been timely raised in the Court of Appealor not reachedin that court, when the latter omission wasnot broughtto the attention of the Court of Appealby petition for rehearing.” (Peoplev. Peevy (1998) 17 Cal.4th 1184, 1205.) The issue here is fact-dependent. It neededto beraised, if at all, in the trial court so that it could be addressedin the Court of Appeal. It is raised here for the first time. The Court should decline to consider the issue of bias based on pecuniary interest for this reason. In addition, as review of the Education Codereveals, the charges of pecuniary interest could not be supported in any event. TFSasserts that “the more charter schools [the County Board] can permissibly revoke, the more funds becomeavailable for its own schools,” in its words, “a zero-sum game.” (POB 15, 18.) The assertion does not withstand scrutiny. As a preliminary matter, charter schools are “part ofthe Public School System” and are deemed to be “under the exclusive control of the officers of the public schools.” (Ed. Code, §§ 47615, subd.(a), -19- 47612, subd. (a); Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1186; see also Wilson v. State Bd. ofEducation (1999) 75 Cal.App.4th 1125, 1136-1142.) Thus, charter schools are the County Board’s “own”schools insofar as the County Board grants or renews the charters and exercises oversight. (Ed. Code, §§ 47607, 47604.3.) Moreover, by statute, the primary function ofLACOE,ofwhich the County Board is the governing board,is not to operate schools but to oversee and coordinate amongschooldistricts in Los Angeles County, including charter schools. (Ed. Code, § 1700; see id. at § 47612, subd. (c) [charter schoolis a “schooldistrict” for purposes of funding and academics].) The schools that the County Board, indeed all county boards, do operate are highly specialized and do not draw on the general student population that TFS draws on.” (See, e.g., Historical and Statutory Notes, 28B West’s Ann. Ed. Code (2003 ed.) foll. § 58801.6, p. 462 [Legislature’s findings and declaration referring to Los Angeles High Schoolfor the Arts “operated” by LACOE];see also, e.g., Ed. Code, § 48645.2 [county boards operate juvenile court schools or contract with school districts to do so].) Hence, the County Board does not compete for students or funds with TFS or any other charter school. Additionally, chartering authorities are compensated for the actual costs of their oversight of the charter schools, typically not to exceed 1 *’ According to its website, (accessed Jan. 18, 2012), TFS offers classes for students in grades K through 8. -20- percent of the charter school’s revenue. (Ed. Code, § 47613, subd. (a).) If anything, chartering authorities have a financial incentive to grant charters, rather than to revoke them. Whendecisionmakers are challenged for financial interest, the standard is whetherthere exists “the objective appearance [of bias] that arises from financial circumstances that would offer a possible temptation to the average person as adjudicator.” (Haas v. County ofSan Bernardino, supra, 27 Cal.4th at p. 1034.) There are no financial circumstances in evidence here to create an objective appearanceofbias on the part of the County Board whenit revoked TFS’s charter.” The sameis true for any other chartering agency, such as a school district which does operate schools offering classes for children in grades K through 8. The Education Code undercuts any notion that revocation takes money from the pockets of the charter school and putsit directly into the pocket of the revoking agency such that the revoking agency would be tempted to revoke for monetary gain. For example, funds remain with the charter schooluntil the appeal to another agency is completed (Ed. Code, § 47607, subd. (i)), and the outcome of any appealis not a foregone conclusion (see § I.B.2, post). And again, schooldistricts are compensated for their oversight. (Ed. Code, § 47613.) ~ Significantly, the trial court determined that the unbiased hearing officer could in fact be a LACOE employee otherwise uninvolvedin the revocation proceedings. (9 CT 1974.) In defending the trial court’s ruling in the Court of Appeal andin seeking its reinstatement here, TFS in essence concedes LACOE’slack of bias based on pecuniary interest, as well as that of its governing board. -21- It must be noted that both statute and regulationstrictly limit any discretion a chartering authority may have with respect to revocation, leavinglittle room for the operation of financial incentive. (Ed. Code, § 47607, subds. (c)-(e); see Cal. Code Regs., tit. 5, § 11965, subds. (d)-(f) [defining in detail the required content of notices of intent to revoke, of revocation, and ofviolation].) Moreover, a charter school can go elsewhere for authorization. (See Ed. Code, § 47605, subd. (j)(1) [if a school district denies petition, petitioner may goto the county board of education, and failing there, may go to the state board].) There is nothing in the statute to prevent a charter school from doing the samein the event of nonrenewalor revocation. For example, after being denied renewal by the County Board, TFS was renewed by the State Board to operate underits oversight. (See State Board of Education Final Minutes, Item 5 (Aug. 24, 2010) [accessed Jan. 18, 2012]. **’ Portions of Education Code section 47607 and the implementing regulations may be found in the Appendixto this brief. Y The State Board’s Agenda with supporting documentsdetailing history of events is at (accessed Jan. 18, 2012). TFS also was granted a charter by the Inglewood Unified School District. (See California Department of Education, State Numbered Charter Schools in California [accessed Jan. 24, 2012].) -22- In sum,it cannot credibly be said that the County Board and TFS(or chartering authorities and charter schools, generally) were competing for “the same business opportunities” (POB 16) or that the County Board “disproportionately represent[ed] one interest group over another (POB 17). The circumstancesofthis case are a far cry from those in Haas v. County of San Bernardino, supra, 27 Cal.4th 1017, where the hearing officer resolving the appeal of a license revocation had a “direct, personal, substantial, pecuniary interest” in reaching a certain conclusion. (Id. at p. 1025.)The County Board granted TFS’s petition and subsequently renewed it. (I AR 1:4, 53; III] AR 32:1434.) That evidenceis in itself wholly inconsistent with any notion of a financial incentive to revoke TFS’s charter. If this Court decides to consider TFS’s claim of bias based on pecuniary interest, it should do so only to reject the claim as unfounded. 2. Gale’s “not neutral” remark was not an admission of actual bias. This Court has stated that “adjudicators challenged for reasons other than financial interest have... been afforded a presumption of impartiality.” (Haas v. County ofSan Bernardino, supra, 27 Cal.4th at p. 1025, citing Withrow v. Larkin (1975) 421 U.S. 35, 47 [95 S.Ct. 1456, 43 2'Tn Haas v. County ofSan Bernardino, the governmentunilaterally selected and paid the hearing officer whose income from future work dependedentirely on government goodwill. (27 Cal.4th at pp. 1020, 1024.) The possible temptation posed by the economicreality of outcome dependent compensation was deemedto offend the Constitution. (/d.at pp. 1027-1032.) -23- L.Ed.2d 712].) To overcome the presumption,a plaintiff asserting a claim of bias must demonstrate with concrete facts an unacceptable probability of actual bias on the part of decisionmakers. (Nasha L.L.C. v. City ofLos Angeles (2004) 125 Cal.App.4th 470, 483.) TFS contends that Gale, general counsel to the County Board and LACOE,instructed the County Board not to be impartial, that is, to be unfair. (POB 21.) Readin context, Gale’s remarks do not establish an unacceptable probability of actual bias on the part of the County Board. At the November 20, 2007, board meeting, TFS had raised due process concerns, asserting that an impartial hearing officer, rather than LACOEstaff, was required to determine the facts and make a recommendation to the County Board. (I AR 16C:267-270.) Asked by a board memberfor her analysis of the issue, Gale responded: Today’s Fresh Start has a fundamental misunderstanding of yourrole as the board andas the authorizer of this charter school. This is your charter school. [§] In this matter the superintendent andstaff are not the authorizer, and in our capacity weall advise the board in making this very important decision. It is not LACOEstaffversus TFS’s staff. The legal burdenis on you, the board ofLACOE,to determine whether there is substantial evidence to revoke yourcharter school. [4] The [Education Code] provides for an appeal to the State Board of Education, and that is the due process stage. It is at that stage where there should be no one-sided communications, each side should have independent counsel. And most important, the adjudicator is the State Board of Ed[ucation], and it is neutral. In this matter, in this process, you are not neutral. Youare the authorizer. [{] Essentially this is the same process weuseto evaluate new petitionsthat cometo this board. We useliterally the same spectrum of -24- expert—technical expert staff, there is a public hearing, there is a report ofstaff, and then there is a recommendation upon whichourboard votes. [§] So with all due respect, we do disagree andstill maintain that our processis entirely legal. (I AR 16C:271; see Opn. 29.) Gale was explaining the respective roles of the County Board and the State Board in the revocation process, and in that context, her statement that the County Board was “not neutral” meansthat it was not an arms-length third-party adjudicator—‘Youare the authorizer.” Thatis, the County Board had been involved with TFS from the start whenit initially authorized TFS’s charter and later renewedit, and so was charged with the responsibility of revoking it. If the decision was adverse to TFS, TFS could appeal to the State Board, at which level the proceedings were “adjudicative,” that is, before neutral decisionmakers who would make the final decision based on evidence presented by the two parties represented by independent counsel. Gale was not conceding biasin any constitutionally significant sense, and the Court ofAppeal correctly determined that “Gale’s statements were not an admission(or a description) of actual bias.” (Opn. 30.) As the Court ofAppeal pointed out, “To say that the County Board was‘biased’ against TFS because it was the authorizing authority is nonsensical, (It would makejustaslittle sense to conclude that the County Board wasbiased infavor of TFS, becauseit had decided to grant TFS’s charterin the first case and subsequently renewedit.)” (Opn. 36.) Gale’s remarks simply do not establish the County Board was incapable of being fair as a fact-finder and decisionmaker. -25- 3. LACOE’s overlapping functions do not create an unconstitutional risk of biased decision-making. TFS contendsit established an unacceptable probability of actual bias with evidence of an “impermissible overlap of prosecutorial and adjudicative roles in this case” and evidence of Gale’s purported dual role as “prosecutor” before the County Board and advisor to the County Board. (POB 18, 20, 22.) The overlap was manifestin the fact that the County Board, which TFS deems“the adjudicative body,”is the governing board of LACOE,which TFS deemsto be “the prosecutorial body.” (Opn. 2; POB 20; 6 CT 1241.) Further, LACOE employees function as the County Board’s staff with the responsibility ofperforming investigations and preparing reports. (See, e.g., Opn. 3-4; 9 CT 1970.) Darline Robles, who recommendedrevocation, was county superintendent of schools and head of LACOE,as well as chief executive officer of the County Board by statute. (Opn. 33; Ed. Code, § 1010.) Gale was general counsel to both LACOE and the County Board. (Opn. 33; see Ed. Code, § 35041.5.) According to TFS,this overlap of roles caused the County Board to give excessive deference to LACOE’s findings. (POB 20.2 However, it is not an exceptional circumstance—muchless evidence of bias—fora local agencyto receive reports from and adopt 4’ TFS claims deference to a point where “certain individuals even admitted that they did notfully examine the evidenceprior to siding with LACOEandvoting in favor of revocation.” (POB 20-21.) It cites the Court of Appeal’s Opinion, page 33, for this “fact.” The citation does not support the assertion. -26- recommendations of staff when there is a decision to be made. Indeed,this Court rejected an argumentsimilar to that made by TFS in Griggs v. Board ofTrustees (1964) 61 Cal.2d 93 (“Griggs”). In Griggs, a teacher challenged the school board’s decision not to rehire her. The court stated it waspermissible to rely primarily on the superintendent, the board’s chief executive officer. (Ud. at p. 97.) “The members of the board admit they were inclined to presumethat the recommendationsoftheir superintendent werecorrect, subject to reevaluation on the basis of what would appearat the hearing, but this does not show they were prejudiced against Mrs. Griggs or that they could not give her a fair hearing.” (/d. at p. 98.) Hence, a hearing officer was unnecessary. (/bid.) As the Griggs court stated, “In an administrative proceeding . . . the combination of adjudicating functions with prosecuting or investigating functions will ordinarily not constitute a denial of due process.” (61 Cal.2d at p. 98; see also Withrow v. Larkin, supra, 421 U.S. at pp. 46-47 [combination of investigative and adjudicative functions insufficient to overcome “a presumption of honesty andintegrity in those serving as adjudicators”].) TFS’s attempt to show this case is somehow different relies on a numberof cases involving counsel who performed dualroles of advocate and advisor before administrative review boards. Those cases are Golden Day Schools Inc. v. State Dept. ofEducation (2000) 83 Cal.App.4th 695 (“Golden Day Schools”); Nightlife Partners v City ofBeverly Hills (2003) 108 Cal.App.4th 81 (“Nightlife Partners”); Quintero v. City ofSanta -27- Ana (2004) 114 Cal.App.4th 810 (“Quintero”), and Howitt v. Superior Court (1992) 3 Cal.App.4th 1575 (‘Howitt’). (POB 19-20.) However, none of the cases stands for the proposition that accepting the recommendations of those who have donethe ground-work ofinvestigation preliminary to a decision is constitutionally impermissible or that purportedly overlapping functions under the circumstances presented here offends due process. e Golden Day Schools arose from the State’s refusal to renew the contract of a nonprofit corporation that was operating child care programs. An individual whoinitiated the decision served as a memberof the panel determining the corporation’s appeal. (83 Cal.App.4th at p. 701.) The reviewing court determined that the circumstance did not pass due process muster insofar as the individual “wasin the position ofjudging the correctness of his own decision.” (/d.at p. 710.) e Nightlife Partners arose in the context of an administrative appeal from a decision to deny the operators of a cabaret a renewed permit. Thecity attorney, who had advised the city in the first instance to deny the permit, then acted as the advisor to the hearing officer on the appeal. (108 Cal.App.4th at pp. 84-85.) The reviewing court found the overlap ofthe role of advocate and decisionmaker wasa violation of due process. (Id. at p. 94.) e Quintero involved procedures on the appeal of a decision to discharge, not the initial decisionitself. (114 Cal.App.4th at p. 812.) -28- Moreover,it is interesting to note that this Court in Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731 (“Morongo”), disapproved of Quintero to the extentits language suggested aper se rule barring an agency’s attorneys from simultaneously exercising advisory and prosecutorial functions. (/d. at p. 740, fn. 2.) It is plain TFS advocates exactly the sort ofper se rule the Morongo court disapproved. e Howitt, too, involved an appeal of a disciplinary action by a deputy sheriff in which the county counsel would advise the appeals board and prepareits decision, while his subordinate would represent oneofthe parties-—the sheriff's department. Again, the proceeding at issue was not a decisionmaking proceeding but an adjudicatory one after the decision had been madeinsofar as the board was “a quasi-independent administrative tribunal established by county ordinance . . . charged with adjudicating certain disputes between the county and county employees.” (3 Cal.App.4th at p. 1578, emphasis added.) All of the foregoing cases concern fairness problems on appeal where purportedly unbiased review boards turned out notto be so;here, in contrast, it is the fairness of the initial adverse decision that is at issue.” Here, the County Boardis not a “tribunal” deciding a dispute between two 14’ A situation comparableto the cases TFS cites would exist if Gale were to advise and represent the County Board on appeal andalso to advise the State Board as to TFS’s revocation; but that is not what happened, and Gale specifically advised there could be no such one-sided communications on the State level. (Opn. 35; I AR 16C:271.) -29- parties, but the authorizing agency deciding whetheror not to revoke a charter it granted. In addressing LACOE’sattempts to investigate complaints and the potential grounds for revocation, and recommending revocation, Gale was not advocating in the sense ofprosecuting one of two sides to a dispute but simply fulfilling her advisory role as general counsel. In a lengthy footnote, TFS faults the Court of Appeal for ignoring the law requiring a fair tribunal with a judge or other decisionmakerfree of bias either for or against a party. (POB 23, fn. 3.) TFS relies on Morongo, supra, 45 Cal.4th at p. 737. Morongo shedslight on what was not required in this case by virtue ofits distinguishable facts. Morongo concerned an adjudicatory proceeding under the Administrative Procedures Act (Gov. Code, § 11425.10, et seq. (‘APA”)), which expressly requires the adjudicative function to be separated from the investigative, prosecutorial, and advocacy function. (Gov. Code, § 11425.10, subd. (a)(4).! The specific issue was whether the attorney prosecuting a license revocation before the state water board, whoalso advised the board on other matters, had to be disqualified. (Morongo, supra, 45 Cal.4th at p. 734." In that setting, there was an actual “prosecution.” (See ibid. [referring to the enforcement team “prosecuting”the license revocation]; id. at p. 735 [the 18’Tn the same lengthy footnote, TFS cites DepartmentofAlcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, another case under the APA,illustrating the separation of adjudicative and prosecutorial functions. 16 The Court determined disqualification was not necessary on the facts of the case. (Morongo, supra, 45 Cal.4th at p. 734.) -30- enforcement team wastreated “‘like any other party,’” and the APArules governing ex parte communicationsstrictly applied].) There is no higher administrative review ofthis type of adjudicatory proceeding. (See Wat. Code, § 1126, subd.(a) [“[i]t is the intent of the Legislature that all issues relating to state water law decided by the board be reviewedinstate courts’’].) In contrast, here the Legislature did not intend the hearing before the County Boardto be a “prosecution”by the plain language of the Education Code—“public hearing, in the normal course of business”—and higher administrative review is part of the statutory scheme. (Ed. Code, § 47607, subds. (e) & (g).) Further, the controlling statute here, unlike the APA,actually contemplates the combination of functions—the chartering authority, implicitly through staff, investigates complaints of potential violations and then holds an informalhearing,also aspart of the fact-finding process, before makingits decision, and that decision is then subject to higher administrative review by an independent agency. (Compare Ed. Code, § 47607, subds. (c), (d) & (g) with Gov. Code, § 11425.10, subds. (a)(4) & (b).) In the same footnote, starting from the premise that the process involved in authorizing a charter is effectively the sameas that involved in -31- revoking a charter,” TFS appears to be saying that a protectible interest only arises after authorization and so the process to revoke should be different. (POB 23, fn. 3.) But TFS does not explain why, and in any event the key question is: What process is due? TFS’s nonsequitur does not answer that question. In fact, TFS received all process that was due, as next discussed. B. The County Board Conducted A Hearing That Comported With Due Process; An Additional Fact- Finding Hearing Is Unwarranted. Because there is no evidenceorallegation sufficient to overcome a presumption of honesty and integrity, the adequacy of procedures in affording due process requires a consideration and weighing of the respective interests involved and an examination ofthe risk of erroneous deprivation, pursuant to Mathews, supra, 424 U.S.at p. 335 and Oberholzer v. Commission on Judicial Performance, supra, 20 Cal.4th at pp. 390-391. The burden that an additional preliminary fact-finding hearing would impose on the revocation processin termsof cost and delay is not justified by any risk of erroneous deprivation underthe statutory schemeas written and as applied in this case. 4’ (See I AR 16C:271 [Gale explaining the similarity of the authorization and revocation processes, each of which entails staff evaluations and recommendations].) -32- 1, The cost/benefit analysis weighs against TFS. A consideration of the Mathews factors demonstrates that TFS received a fair hearing that complied with due process requirements. e TFS’s interest. It is not disputed in this case that a charter schoolhas a property interest in its charter entitling it to due process. (See Opn. 23-24.) Here, TFS is a nonprofit public benefit corporation, and as a charter schoolis eligible for a share of state and local funds for public education. (Ed. Code, § 47612; see also id. at § 47630 et seq.) The safeguards provided by Education Code section 47607 are a recognition of the fact that charter schools have a legitimate interest in the financial stability of their operations. However, that does not meantheir interest is of such weight as to compel an additional layer of fact-finding and adjudication to that providedbythestatute. That there are students, parents, and teachers involved does not lend more weight to the interest than it otherwise has, TFS’s contentions notwithstanding. (POB 31.) Revocation is not necessarily an abrupt termination of a student’s charter school education; absent a violation of law or fiscal mismanagement, the charter school can continue to qualify for funding, pending the appealofthe revocation decision, to minimize disruption. (Ed. Code, § 47607, subd. (i).) If funding is ultimately discontinued, students may return to a mainstream public school, or forthat matter enroll in another charter school or a private school. (See Wells v. One2One Learning Foundation, supra, 39 Cal.4th at p. 1202.) -33- In any event, TFS’s interest in the continued receipt of state funding, even if a legitimate interest, is not weighty enough in andofitselfto mandate an additional hearing before a neutral hearing officer prior to revocation,as the trial court in this case appeared to believe. (See Mathews, supra, 424 U.S.at pp. 342-343 [plaintiff's interest in uninterrupted receipt of a source of income does not require an evidentiary hearing prior to termination].)Rather, the other factors must be considered, and they are determinative that due process does not require such an additional hearing. e Risk of erroneous deprivation. In termsofa hearing, Education Code section 47607, subdivision (e), requires only “a public hearing, in the normal course of business.” That requirement in no way signifies a cursory process which would deprive a charter school of a meaningful opportunity to convince the chartering authority that revocation would be unjustified. Such opportunity wascertainly providedin this case. 18 Thetrial court analogized the circumstancesofthis case to the public employment context. (9 CT 1973.) But even in that context, a trial- type hearing before a neutral hearing officer is not constitutionally mandated before the initial decision to terminate. (See, e.g., Flippin v. Los Angeles City Bd. ofCivil Service Comrs. (2007) 148 Cal.App.4th 272, 281 [there is no authority disqualifying the official whoinitiates discipline against an employee from presiding over the employee’s prediscipline Skelly hearing].) In Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, the court held public employees are entitled to “preremoval safeguards” of “notice of the proposedaction, the reasons therefore, a copy of the charges and materials upon which the action is based, and the right to respond, eitherorally or in writing, to the authority initially imposing the discipline.” (Ud. at p. 215.) -34- First, the statute itself contemplates evidence supporting revocation will be in the handsofboth the chartering authority and the charter school before the public hearing insofar as it requires, as part ofits notice procedure, that the chartering authority provide “notice of facts in support of revocation.” (Ed. Code, § 47607, subd. (e); see also Cal. Code Regs., tit. 5, §§ 11965, 11968.5.2.) Second, by the time of the study session on October9, prior to the notice of intent to revoke, TFS had full access to the information that would be relied upon by the County Board; TFS had been provided with the same three binders of evidence provided to board members. (See I AR 15A:188 [minutes reflect director of TFS had received three binders provided to board members].) By the time of the hearing on November 6, TFS was sufficiently informed about the evidence in support of revocation to be able to present, in its own words, “voluminous documents(close to 1000 documents)” detailing its compliance efforts and position with respect to the specific allegations against it. (8 CT 1693; see I AR 16B:247 [TFS presented three binders of documentation to each board memberregarding governanceissues andthe corrective action plan]; I AR 15C:202-203 [TFS distributed additional documents at hearing]; I AR 2:60-88 [corrective action plan with TFS responses]; I AR 3:89-100 [TFS responses to governance issues].) After the November6 hearing and before the December11 vote, TFS continued providing written responsesto the -35- various charges against it. (I AR 7:116-124, 8:126-127, 9:138-143; III AR 23:1342-1350.) Third, at the November6 hearing, TFS presented “[m]Jany witnesses” against revocation, one ofwhom “explained in great detail why [TFS] had not violated any provisions ofits charter and that there was no cause for revocation.” (8 CT 1693; I AR 16B:250-252.) Indeed, TFS had multiple opportunities to speak on specific issues before the December 11 vote on revocation. (See, e.g., 1 AR 15B:192 [minutes reflecting topics addressed by witnesses at October 16 board meeting]; I AR 16C:267-268 [TFS raised due process concerns at the November 20 board meeting]; I AR 16E:296- 301 [TFS witnesses again addressed the County Board before the voteat the December 11 board meeting].) Fourth, from the outset, as the investigation of TFS got underway, TFS hadthe professional assistance of counsel, a further safeguard against mistake. (I AR 5:108-110 [June 19, 2007 letter from counsel to LACOE challenging LACOE’sright to investigate]; see I AR 15B:192 [minutes of October 16 the County Board meeting indicating counsel askedit to allow continued operation of TFS,stating facts in support of his argument].) At the November6 hearing, additional counsel with “in-depth experience on governmentissues” also addressed the County Board to analyze the allegations against TFS and to demonstrate that TFS had not violated the Brown Act, the Corporations Code, the Government Code,or its charter. (I AR 16B:247-250.) -36- Given these facts, it simply cannot be said that TFS did not have an ample and meaningful opportunity to put LACOE’s evidencein support of revocation to the test. Requiring a preliminary hearing, such asthat the trial court would impose, would add nothing in the way ofprocedural safeguards. In fact, as the Court of Appealcorrectly observed, “[u]nder the trial court’s formulation, even after the initial evidentiary hearing, the final decision whether to revoke the charter would remain with the County Board. ... This still leaves the ultimate decision whether to revoke the charter in the handsofthe chartering authority, which is the very fact of which TFS complains.” (Opn. 37; 1 RT J24.) e The County Board’s interest. Despite a high degree of independence, charter schools are part of the public school system for funding and academics. (Ed. Code, § 47615, subd. (a); see id. at § 47607, subd. (c) [charter may be revoked for failing to meet pupil achievement goals or fiscal mismanagement]; see id. at § 47612, subd.(c) [charter school is a school district for funding purposes].) A chartering authority, such as the County Board, has oversight responsibilities, including, amongothers, the duty to monitor the fiscal condition of the school andits operations and to investigate complaints. (See e.g., Ed. Code, § 47604.3 [duty to investigate complaints and monitor operations].) A chartering authority’s immunity from liability for the acts and obligations of a charter schoolis in fact dependent onthe chartering authority’s compliance with its statutory oversight responsibilities. (Ed. Code, § 47604, subd.(c).) -37- Thus, the County Board had a compelling interest in ensuring that TFS, charged with providing additional educational options to students, did so safely, effectively, and within the law, so as to furtherthe legislative goals in establishing the option of charter schools in the first instance. (See Ed. Code, § 47601 [legislative intent in establishing charter schools to improve pupil learning, expand learning experiences, and hold schools accountable for meeting measurable pupil outcomes, amongother things]; cf. California Assn. ofPrivate Special Education Schools v. California Department ofEducation (2006) 141 Cal.App.4th 360, 374 [“the financial stability of a nonpublic, nonsectarian school providing educational services to disabled children, is a serious matter’ but that interest was outweighed by the government’s interest in ensuring safe and lawful operation of the school].) While adding nothing in the way ofprocedural safeguards, an additional evidentiary hearing before a neutral hearing officer—‘“an entirely new layer of fact finding and adjudication” (Opn. 37)—wouldsubstantially burden the chartering authority in terms of cost and delay, and that burden is unwarranted by due process concerns. 2. Appealto the State Board provides an additional safeguard against error. TFS contends the Court of Appeal erroneously held that the hearing before the chartering authority does not have to be impartial—by which TFS means “fair”—because due process violations can be cured by -38- appellate review. (POB 23-24.) But that is not what the Court ofAppeal held. It agreed appeal would not cure a due process violation, but found no violation occurred. (Opn. 38.) Specifically, it held that “the record does not show circumstances to ‘overcome a presumption of honesty and integrity in those serving as adjudicators’ [citations].”” (Opn. 36.) The function of the appeal in this statutory schemeis to “provide[] an additional safeguard against the risk of erroneous deprivation of [a charter school’s] property interest in its charter.” (Opn. 39.) TFS contends review by the State Boardis not a safeguard because its review is “highly deferential’” and “extremely limited,” since Education Code section 47607calls for a “substantial evidence”standard of review. (POB 25-26.) In so doing,it assumes the Legislature’s word choicereflects thejudicial standard of review. Boththe rules of statutory construction and the facts of what happenedhere do not support that assumption. Substantial evidence is defined as “evidence ofponderable legal significance, evidencethat is reasonable, credible and of solid value.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651, internal quotations andcitations omitted.) The substantial evidencerule of appellate review requires a judgmentto be affirmed if on the basis of the entire record there is substantial evidence, contradicted or uncontradicted, to support a factual determination. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) That standard ofjudicial appellate review cannotbe read into the Education Code. -39- Education Code section 47607 providesin pertinentpart: e “The chartering authority shall not revoke a charter, unless it makes written factual findings supported by substantial evidence.” (Ed. Code, § 47607, subd. (e), emphasis added.) e “The state board may reverse the revocation decision if the state board determinesthat the findings made by the chartering authority under subdivision (e) are not supported by substantial evidence.” (Ud. at subd. (g)(2), emphasis added.) Thetrial court read the phrase, “substantial evidence,” in subdivision (g)(2) as descriptive of the standard of review the State Board should employ, equating it to the substantial evidence standard of review employed by appellate courts. (9 CT 1973; 1 RT J10.) Thatis, the trial court in effect concluded that the State Board would assumethe facts as found bythe chartering authority and would simply apply the substantial evidencetest: is there substantial evidence, contradicted or uncontradicted, to support those findings. Butthere is nothing in subdivision (g)(2) that indicates the State Board may not reweigh the evidenceor that precludes an independent and thorough review of the evidence. What occurredin this case strongly suggests that an independent review may well be intended. ” There was 1’ Asyet there is no regulation regarding the standard of review to be employed by the State Board in the context of revocation decisions. (See 1 RT A34-A35 [counsel for CDE advises that scope of review by State Board is an “open question”].) -40- first a detailed review by CDE whichin no waysuggests that the County Board’s decision was presumedto be correct, as would be the case of a judgment underreview by an appellate court. (See, e.g., Jn re Marriage of Falcone (2008) 164 Cal.App.4th 814, 822.) Indeed, CDE elicited further documentation supporting the County Board’s position before makingits recommendation against the County Board, and rather than deferring to the County Board’s view that, for example, there werefifty three violations of the law or charter supporting revocation, directed LACOEto narrow them down to “material” violations. (III AR 41:1566, 40:1562-1563.) Then there was a review by the State Board’s Advisory Commission which included the opportunity for both sides to present argument. (III AR 40:1563.) Finally there was a hearing before the State Boarditself. (IIT AR 42:1678-1679.) So muchscrutiny at the State level does not suggest deference to the chartering authority’s decision. It is a basic rule of statutory interpretation that similar words or phrasesin statutes in pari materia,i.e., statutes dealing with the same subject matter, be given the sameinterpretation. (See, e.g., Jn re Do Kyung K. (2001) 88 Cal.App.4th 583, 589.) Plainly, the phrase “substantial evidence” appearing in subdivision (e) has nothing to do with an appellate standard of review;it has to do with the decision itself and simply means that facts must be supported by evidence that is reasonable, credible, and of -4]- solid value. The same meaning must be given the same wordsin subdivision (g)(2). It does not make sense and it does not comport with the rules of statutory interpretation that the phrase “substantial evidence” should mean something more and different in subdivision (g)(2}—evidence of solid value and also a standard of review applied by appellate courts—than it means in subdivision (e). Thus, as the record bears out, the administrative appellate process most certainly is an additional safeguard to the rights of charter schools. In sum, the Court of Appeal gotit right. Due process does not require an evidentiary hearing before a neutral hearing officer prior to a chartering authority’s decision whether to revoke. The County Board and LACOEprovided TFSall the process that was due. The Court of Appeal’s judgmenton this point should be affirmed. Il. NEITHER THE EDUCATION CODE NOR DUE PROCESS REQUIRES THE FORMAL PRESENTATION OF EVIDENCE AT THE PUBLIC HEARING. TFS contends that both Education Code section 47607 and due process require the evidence supporting revocation to be formally presented at the public hearing. (POB 27.) Because LACOEdid notdo soat the November 6 public hearing, TFS claimsit was “deprived of the opportunity -42- to be adequately apprised of the facts and be provided with an opportunity to rebut.” (POB 28.) Asa threshold matter, the Education Code does not expressly require the formal presentation of evidence at the public hearing on revocation, as the trial court recognized. (9 CT 1971-1972; see Opn. 27[trial court acknowledgedthe plain language of statute does not require formal presentation of evidenceat the revocation hearing].) TFS attempts to imply such a requirement based onthe fact that the chartering authority may revoke only upon “a showing of substantial evidence”ofviolation. (POB 29.) However, the fact that LACOE must “makeits case” for revocation says nothing about when or how it must present the evidence supporting a recommendation to revoke. Dueprocess requires only the opportunity to be heard ““‘at a meaningful time and in a meaningful manner.’” (Mathews, supra, 424 U.S. at p. 333.) TFS’s claim it was denied that opportunity does not comport with the record as discussed (ante, § I.B.1), and the cases upon which TFS relies for the proposition that due process mandatesthe introduction of evidence at the hearing have no application to the circumstancesofthis case. Those cases are La Prade v. Department of Water and Power (1945) 27 Cal.2d 47 (“La Prade”’) and English v. City ofLong Beach (1950) 35 -43- Cal.2d 155 (“English”) (POB 27-28), and each involves undisclosed evidence relied upon by the respective boards whenthey affirmed decisions to dischargethe plaintiff employees.” In La Prade the board madeits decision without providing the required adjudicatory hearing insofar as no evidence supporting discharge was ever made available to the employee. (See 27 Cal.2d at p. 49 [at the hearing, the representatives of the department which discharged the employee “stood mute”].) An investigative report finding insufficient cause for discharge was never providedto the employee. (/d. at pp. 49-50.) In English there was an evidentiary hearing, but the board approved the action of the city manageron the basis of evidence board membersobtainedlater, outside the hearing, which the employee had no opportunity to refute. (35 Cal.2d at pp. 157, 159.) In contrast, before the hearing in this case, LACOEhad provided both the County Board and TFS with three binders of written materials, including the corrective action plan and TFS’s responses. (I AR 15A:187- 188.) As the Court ofAppeal stated: “TFS did not contendin thetrial court and does not argue on this appeal that TFS was not apprisedofall the evidence againstit, or that either the County Board or the State Boardrelied on evidence not disclosed to TFS during the revocation process.” 2” Both cases also addressed civil service appeals to administrative tribunals pursuant to municipal codes andare irrelevant on that basis alone. -44- (Opn. 27.) Since the cases upon which TFSrelies involve concealment and nondisclosure, they are inapplicable. (Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com. (1970) 11 Cal.App.3d 557, 570.) In fact, the gist of TFS’s complaint is simply that LACOE found too many violations—fifty three allegations ofwrongdoing—increasingtherisk of erroneous deprivation to the point that even CDE neededclarification and askedit to narrow downits charges. (POB 32.)TFS’s apparent theory is that the need to present evidence at a formal evidentiary hearing would have caused LACOEto “distill its allegations” in favor of only those “material” to the revocation, thereby limiting the opportunity of erroneous deprivation. (POB 32-33.) Butthere is no evidencethatall the allegations of wrongdoing were not material to the decision to revoke. To accommodate CDE, LACOE simply identified the five “most significant violations.” (II AR 41:1566.) It is pure speculation that a full-blown evidentiary hearing would have caused the alleged violations to be reduced in number. 2 See III AR 41:1566 regarding CDE’s difficulties with the record: TFS had submitted 5 volumes; upon request of CDE, LACOE submitted 7 volumes. It may be notedthat there were as yet no regulations in place regarding the format and content of the record (the notices in particular) and there had only been twoprior other revocation appeals. (III AR 40:1562.) Clearly, CDE was not as experienced as TFS asserts (POB 32.) -45. Mostsignificantly, TFS cannot pretend confusion orthat it was denied opportunity to respondto the five “mostsignificant allegations” prior to revocation,in light of the record of its detailed responses to every allegation. (See, e.g., 1 AR 2:60-88 [TFS matrix in response to the “Corrective Action Plan”]; I AR 3:89-100 [TFS matrix in response to governanceissues]; see ITI AR 43:1682-1683 [referencing three volumes received by State containing TFS’s written response to intent to revoke charter].)” It is clear that, by the time of the hearing, TFS was informed about the evidence in support of revocation and wasable to present “voluminous documents”of its own, as well as many witnesses detailing its compliance efforts and its position with respect to every allegation against it. Running a school is a complex matter involving a host of obligationsall of which must be addressed by both the operator of a school and the agency charged with oversight. Complexity is not by definition a denial of due process. 22/ Withoutcitation to the record, TFS asserts the County Board was so confused it made noeffort to specify which of the manyallegationsit found sufficient to support revocation, implying there were no findings of fact supporting the revocation decision. (POB 30.) The County Board adopted LACOEF’s findings of fact in support of its recommendation to revoke, incorporating by reference LACOE’s reports. (III AR 35:1475- 1476.) TFS failed to include the reports in the Administrative Record. (Opn.41, fn. 29.) -46- TESasserts that “the Court of Appeal has essentially issued a blank check for revoking entities to avoid setting forth or explaining any details regarding its arguments or facts in support of revocation.” (POB 29.) Not so. Moreover, regulations have now issued which provide detailed guidance as to the form and content of notices and other documentation involved in revocation. (See Appendix 2-4 [Cal. Code Regs.,tit. 5, §§ 11965, 11968.5.2].) The new regulations reinforce the point that the formal presentation of evidenceat the public hearing is unnecessary. “*Procedural informality is the hallmark of administrative proceedings as opposedto judicial proceedings.’ [Citation.].... ‘[I]t is settled that strict rules of evidence do not apply to administrative proceeding[.]’” (Mohilefv. Janovici, supra, 51 Cal.App.4th at p. 291.) An evidentiary hearing at which LACOEformally proffered the documentation supporting revocation andits content (and TFS formally recited the detailed rebuttal it had put on paper) would have added nothing in the way of procedural safeguards against the erroneous deprivation of TFS’s property interest and would have imposeda pointless administrative burden far out of proportion to any speculative benefit. There is no basis on whichto conclude due process requires that the public hearing onthe issue of revocation be turnedinto trial-type of proceeding with the formal presentation of evidence. -47- CONCLUSION Forall the foregoing reasons, the judgmentofthe Court ofAppeal should be affirmed. DATED: January%, 2012 LOS ANGELES COUNTY OFFICE OF EDUCATION Vibiana M. Andrade Sung Yon Lee GREINES, MARTIN, STEIN & RICHLAND LLP Timothy T. Coates Alison M. Turner By: (19Ww Aun Alison M.Turner Attorneys for Defendants, Appellants, and Cross- Respondents LOS ANGELES COUNTY OFFICE OF EDUCATIONand LOS ANGELES COUNTY BOARD OF EDUCATION -48- CERTIFICATE OF COMPLIANCE Pursuant to California Rules of Court, rule 8.520(c)(1), I certify that the attached ANSWER BRIEF ON THE MERITSis proportionately spaced and hasa typeface of 13 points or more. Excluding the caption page, tables of contents, authorities, and appendix signature block andthis certificate, it contains 10,978 words. DATED:January 14, 2012 (Laon WAunn Alison M. Turner -49- APPENDIX | APPENDIX RELEVANT STATUTES AND REGULATIONS Education Code § 47607 (c) A charter may be revoked bythe authority that granted the charter underthis chapter if the authority finds, through a showingofsubstantial evidence, that the charter school did any of the following: [§] (1) Committed a material violation of any of the conditions, standards, or proceduresset forth in the chapter. [§] (2) Failed to meet or pursue any of the pupil outcomesidentified in the charter. [{] (3) Failed to meet generally accepted accounting principles, or engagedin fiscal mismanagement. [{] (4) Violated any provision oflaw. (d) Prior to revocation, the authority that granted the charter shall notify the charter public school of any violation ofthis section and give the school a reasonable opportunity to remedy the violation, unless the authority determines, in writing that the violation constitutes a severe and imminent threat to the health or safety of the pupils. (e) Prior to revoking a charter for failure to remedy a violation pursuant to subdivision (d), and after expiration of the school’s reasonable opportunity to remedy without successfully remedying the violation, the chartering authority shall provide a written Notice of Intent to Revoke and notice of facts in support of revocation to the charter school. No later than 30 days after providing the Notice of Intent to Revoke a charter, the chartering authority shall hold a public hearing, in the normal course of business, on the issue of whether evidenceexists to revoke the charter. No later than 30 days after the public hearing, the chartering authority shall issue a final decision to revoke or decline to revoke the charter. ... The chartering authority shall not revoke a charter, unless it makes written factual findings supported by APP 1 substantial evidence, specific to the charter school, that support its findings. (g)(1) Ifa county office of education is the chartering authority and the county board revokes a charter pursuant to this section, the charter school may appealthe revocation to the state board within 30 days following the decision ofthe chartering authority. (g)(2) The state board may reverse the revocation decision if the state board determinesthat the findings made by the charter authority under subdivision (e) are not supported by substantial evidence. California Code of Regulations,title 5 (effective 12/16/2011) § 11965 (d) “Notice of Intent to Revoke” meansthe written notice of a chartering authority’s decision to pursue revocation of a school’s charter due to the charter school’s failure to remedy one or more violations identified in the Notice(s) of Violation. This Notice shall identify all of the following: [{] (1) All evidence relied upon by the chartering authority determining that the charter school failed to remedy a violation pursuant to this section; (f) “Notice of Violation” means the written notice of a chartering authority’s identification of one or more specific alleged violations by the charter school based on the grounds for revocation specified in Education Code section 47607(c). This notice shall identify all of the following: [§] (1) The charter school’s alleged specific material violation of a condition, standard, or procedureset out in the school’s charter pursuant to Education Code section 47607(c)(1); the specific pupil outcome(s) identified in the school’s charter that the charter schoolallegedly failed to meet or pursue pursuant to Education Code section 47607(c)(2); the charter APP 2 school’s alleged fiscal mismanagementor specific failure to following generally accepted accounting principles pursuant to Education Code section 47607(c)(3); or the specific provision(s) of law that the charter schoolallegedly failed to follow pursuant to Education Code section 47607(c)(4), as appropriate. [§] (2) All evidence relied upon by the chartering authority in determining the charter school engaged in any ofthe acts or omissions identified in subdivision (f)(1) including the date and duration of the alleged violation(s), showing the violation(s) is/are both material and uncured, and that the alleged violation(s) occurred within a reasonable period oftime before a Notice of Violation is issued; .. . § 11968.5.2 (a) At least 72 hours prior to any board meeting in which a chartering authority will consider issuing a Notice of Violation, the chartering authority shall provide the charter school with notice andall relevant documentsrelated to the proposed action... . [§]] (c) Upon receipt of a Notice of Violation, the charter school’s governing body . . if it choosesto respond,shall take the following actions: [{] (1) Submit to the chartering authority a detailed, written response addressing each identified violation which shall include the refutation, remedial action taken, or proposed remedial action by the charter school specific to each alleged violation. The written response shall be due by the end ofthe remedyperiodidentified in the Notice of Violation.[9] (2) Attached to its written response is supporting evidence of the refutation, remedial action, or proposed remedial action,if any, including written reports, statements, and other appropriate documentation. (d) After conclusion of the reasonable opportunity to remedy, the chartering authority shall evaluate the response of the charter school’s governing body as described in the school’s charter responseto the Notice of Violation and any supporting evidence, if submitted, and shall take one of the following APP 3 actions: [{] (1) Ifthe chartering authority has substantial evidence that the charter school has failed to refute to the chartering authority’s satisfaction, or remedy of violation identified in the Notice of Violation, continue revocation of the school’s charter by issuing a Notice of Intent to Revoke to the charter school’s governing body as described in the school’s charter; or [{] (2) Discontinue revocation of the school’s charter... . [{] (f) On the date and time specified in the Notice of Intent to Revoke, the chartering authority shall hold a public hearing concerning revocation. No more than 30 calendar daysafter the public hearing (or 60 calendar days by written mutual agreement with the charter school) the chartering authority shall issue a Final Decision. APP 4 PROOF OF SERVICE STATE OF CALIFORNIA, 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 5900 Wilshire Boulevard, 12th Floor, Los Angeles, California 90036. On JanuaryXb, 2012, I served the foregoing document described as: ANSWERBRIEF ON THE MERITSontheinterested parties in this action by serving: xxxk* SEE ATTACHED SERVICELIST ***** (//) By Envelope- by placing () the original (WV) a true copy thereof enclosed in a sealed envelope addressed to the respective address(es) of the party(ies) stated above and placed the envelope(s) for collection and mailing, following our ordinary business practices: (W/) By Mail: As follows: I am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Underthat practice, it would be deposited with United States Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion ofparty served, service is presumedinvalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. Executed on January Abo, at Los Angeles, California. (W/) (State) I declare under penalty of perjury under the laws of the State of California that the foregoingis true and correct. ha Pauletta L. Herndon Today’s Fresh Start, Inc. vy. Los Angeles County Office ofEducation, etal. Supreme Court Case No. $195852 Service List Michael M. Amir, Esq. Doll Amir & Eley LLP 1888 Century Park East, Suite 1106 Los Angeles, California 90067 Counsel for Plaintiff, Respondent and Cross-Appellant TODAY’S FRESHSTART, INC. Eileen Gray, Esq. California Department of Education Legal Division 1430 N Street, Suite 5319 Sacramento, California 95814 Counsel for Defendants CALIFORNIA STATE DEPARTMENTOFEDUCATION and CALIFORNIA STATE BOARD OFEDUCATION Service Deputy Office of the Attorney General California Departmentof Justice 300 South Spring Street, Suite 1700 Los Angeles, California 90010 Clerk of the Court of Appeal Clerk to: Second Appellate District, Division 1 The Honorable James C. Chalfant 300 South Spring Street Los Angeles Superior Court Floor 2, North Tower 111 North Hill Street Los Angeles, California 90013-1213 Los Angeles, California 90012-3117 [2d Civil Case No. B212966 c/w [Los Angeles County Superior Court B214470] Case No. BS 112656]