TODAY'S FRESH START v. LOS ANGELES COUNTY OFFICE OF EDUCATIONToday’s Fresh Start, Inc., Petition for ReviewCal.August 23, 2011S195852 (Court of Appeal Nos. B212966, B214470) (Los Angeles County Sup. Ct. No. BS112656) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TODAY’S FRESH START, INC., AUL 2201 Plaintiff and Appellant, ~ notype de ade ein Cle ele Frederick A. GIG Clark vs. Deougy LOS ANGELES COUNTY OFFICE OF EDUCATION Defendants and Appellants. After A Decision By The Court Of Appeal Second Appellate District, Division One. PETITION FOR REVIEW DOLL AMIR & ELEY LLP MICHAEL M. AMIR (SBN 204491) MARY TESH GLARUM (SBN 175181) LLOYD VU (SBN 248717) 1888 Century Park East, Suite 1850 Los Angeles, California 90067 Telephone: (310) 557-9100 Facsimile: (310) 557-9101 Attorneys for Plaintiff/Appellant Today’s Fresh Start, Inc. No. S (Court of Appeal Nos. B212966, B214470) (Los Angeles County Sup. Ct. No. BS1 12656) IN THE SUPREME COURT OF THE STATE OF CALIFORNIA TODAY’S FRESH START,INC., Plaintiff and Appellant, VS. LOS ANGELES COUNTY OFFICE OF EDUCATION Defendants and Appellants. After A Decision By The Court Of Appeal Second Appellate District, Division One. PETITION FOR REVIEW DOLL AMIR & ELEY LLP MICHAEL M. AMIR (SBN 204491) MARY TESH GLARUM (SBN 175181) LLOYD VU (SBN 248717) 1888 Century Park East, Suite 1850 Los Angeles, California 90067 Telephone: (310) 557-9100 Facsimile: (310) 557-9101 Attorneys for Plaintiff/Appellant Today’s Fresh Start, Inc. TABLE OF CONTENTS Page I. ISSUE PRESENTED(0...ceececcesscsssesscsccsescssscsssersescsesacssatsesscsseveceeseeee 1 Tl. = INTRODUCTION 00... eececcccccccsesssssscsessssssscsrcarsrasatacscatssssaveaseseesaseceses 1 TW. STATEMENT OF FACTuu...ecececcccccccsssscessecsesecestssstacsesssesesesesesenseceees 4 A. — Background On Charter SChOOIS ......secssseeeeccssseeeesssneeeeennneeesesee 6 B. The Parties 00... cece cssescsssscessscscssesssseeversesasssesesatsesesseessseseees 8 C. The Revocation of Today's Fresh Start's Charter ............0..0.... 8 D. The Due Process Debates Among The Courts Below.............. 10 IV. REASONS FOR GRANTING REVIEW..0....ccccccccscccscssscseseseveseceeeeees 9 A. The Decision Below Deprives Charter Schools OfNeutral AndImpartial Adjudicators..0......ccccccccccccssessssseseseseseeseeeseacees 13 1. The Decision Below Permits Financial Competitor To Adjudicate The Rights Of Their Competitors, And Conflicts With Established Precedent Regarding Pecuniary Bias ........0.cccecececceesescesecssesccecees 14 2. The Decision Below Expresses A High Tolerance of Bias In Revocation Proceedings......0....cceccesscesscscescesssseceeeees 18 B. _ The Decision Below Trivializes The Public Hearing Requirement Under Education Code § 47607 o......eccccccccccscsscesscssececeeccsecescee. 22 VV. CONCLUSION 0... eccccecceccccccessecsecsecarsessacsesassssssscesessessetersecseseecece. 25 TABLE OF AUTHORITIES Page Cases English v. City ofLong Beach (1950) 35 Cal.2d 155 oeeeecccccssessssssssssscscscscscscsesesseseesasssatacessecsceses 20, 21 Golden Day Schools, Inc. v. State Dept. ofEducation (2000) 83 Cal.App.4th 695 ....cccccccssscsssssessessscsssscssessescstsssseatacscavsscecsees 11 Haas v. County ofSan Bernardino (2002) 27 Cal.4th 1017wo.cceeseceeesceseseeees 11, 12, 13, 15, 16, 19 Hackenthanlv. California Medical Assn, (1982) 138 CalApp.3d 435 .o.cccccccccesescssscssseseecesssscarsessesvevatasussavaveveveees 19 Hub City Solid Waste Services, Inc. v. City ofCompton (2010) 186 CalApp.4th 1114 oo.cscecececsecssessetsessetessscsesessesseees 19 La Prade v. Department of Water and Power (1945) 27 Cal.2d 47 ooo. eeeececececcsssesessscscessssssesststesssasavarsessusrsssssacsssssseceseseees 20 Nasha L.L.C. v City ofLos Angeles (2004) 125 CalApp.4th 470 o....ccccccccccscssssssstssssesecsreceetstststessseseseceveseees 11 Quintero v. City ofSanta Ana (2003)114 Cal.App.4th 810 ...ccccccccccscssscssscecssecssesestsrsssssscscseseseseeceees 1] Statutes Education Code § 47600 .......ccccccccccccccsscessssscsesecsssesstessvacsesatecsessssseseceveveceveeees 5 Education Code § 47601 .....cceccsccccccssccscssessssevsceeessacesscsesseasseacarstavsceeeseseceeees 5 Education Code § 47607 o.....cccecccccccsssessesesesseeesteseseseees 1, 3,9, 10, 19, 20, 22 Education Code § 47630 o....ccccccccscecsssscscsssstevecsssesacarsesesstsssesssesaeessesecseeetesees 6 i Other Authorities Michael M. Amir, Charter Fights, The Competing Rights of Charter Schools and Local SchoolDistricts Are Triggering Myriad Legal Disputes, (2008) 31-AUG L.A. Law.24 ...uccceeeeeeeeee 14 Sandra Vergari, Charter Schools: A Significant Precedent In Public Education (2003) 59 N.Y.U. Ann. Surv. Am. L. 495 wo...5,14 9 ill 1. ISSUE PRESENTED Is it constitutional to revoke a charter school’s charter under Education Code § 47607 through a public proceedingthat lacks both an evidentiary hearing and a neutral and impartial decision-maker—particularly whenthe decision-makeris a financial competitor of the charter school? IL. INTRODUCTION It has long been understoodthat the establishment of charter schools constitutes an implicit criticism of and challenge to the existing traditional . public school system. The movementfor charter schools has been fueled by the belief that public schools have failed in certain respects, and thatat least part of the reason they havefailed is because of their monopoly on providing public education. Charter schools thus serve to break and challenge the monopolyoftraditional public schools, offering alternatives that empower parental choice in their children’s education. Furthermore, by placing competitive pressures on traditional public schools, charter schools shock traditional public schools out of complacency and force them to change for the better. Given that charter schools and traditional public schools mustvie for the same limited public funds, charter schools have been competing with public schools on both a policy andfinancial level since their acceptance into the education system. Given what manytermedas an “acrimonious relationship” between charter schools and the current educational establishment, when the revocation of a school’s charter is at issue—andthusit’s effective elimination from competition—it is imperative to provide charter schools with a fair hearing that comports with due process. Indeed, as revocation of a charter school’s charter will directly increase the amount of public funds available to a public school, the potential for abuse is clear and the need for a neutral and impartial adjudicator is apparent. As Governor Schwarzenegger noted whensigning a charter school revocation bill into law, “revocationis a serious matter that causes a disruption in instructional services for the school’s students, the need for a charter schoolto haveits case heard before a more disinterested bodyis clear.” Exactly how disinterested, however, has been unclear. Nevertheless, in this case, the Court of Appeal, in a published opinion, held that despite the institutional bias existing between charter schools and traditional public schools—as they directly compete for students and funds—andfurther despite the lack of neutrality specifically admitted by the schooldistrict itself in this case, traditional public schooldistricts may nevertheless adjudicate the revocation of the charter school’s charter without violating due process. The court further held that a full and fair hearing was not even required for revocation proceedings, holding that a traditional public school district is under no obligation to even present its evidence and arguments in order to give a charter school an adequate opportunity to rebut. The court held that neither due process nor Education Code § 47607 require anything more. This opinion mustnot stand. Asan initial matter, construing both due process and section 47607 in such a restrictive myopic mannereffectively prevents charter schools throughout California from having the benefit of a neutral and impartial adjudicator during revocation proceedings. Further, this holdingis in direct conflict with the precedent established by this Court that where a decision-makerexhibits a significant pecuniary interest in the case at hand, the mere probability of such a bias is simply considered constitutionally unacceptable. Thus, if this published opinion is allowed to stand, it will create confusion amongthe courts and education system alikeas to the permissible amountof bias due process actually permits. Specifically, this opinion will hold that despite this Court’s acknowledgement of the dangers inherentin pecuniary biases, an entity with a direct financialinterest in the revocation itself may nevertheless oversee and determine the revocation of its own competitors without violating due process. Such a result must not cometo pass. Theissue in this case is ideal for review. The facts necessary to resolve the issues are simple and undisputed. There is no question that the charter school here has a substantial property interestin its charter, entitling it to procedural due process. Thereis also no question that the charter school and public school agencyin this case necessarily compete for public funding. Thus, the primary question is whetherthe public school agency can constitutionally adjudicate a hearing involving the revocation ofthe charter school’s charter—thatis, whether an entity mayfairly determinethe fate of its financial competitor. IIE. STATEMENT OF FACT A. Background On Charter Schools A charter school is a publicly funded, nonsectarian, tuition-free school that operates under a charter negotiated between the school’s organizers and a public authorizer. The charter is a performance contract that details the school’s mission, program goals, methods of measuring success, and the types of students it will serve. By their establishment, charter schools provide families with an opportunity to choose an education fortheir children in public schools that are separated from the local public school system. This type of choice is especially geared towards families who believe that the traditional public schools are not well suited for their children but are unable to afford private schools or the ability to relocate to _ more highly regarded schooldistricts. Thus,if families are dissatisfied with the traditional public schools oftheir local schooldistrict, they may seek placementoftheir children in available public charter schools. Thus, “charter schools represent a challenge to the monopoly on public schooling long enjoyed by the traditional ‘educational establishment.’” (Sandra Vergari, Charter Schools: A Significant Precedent In Public Education (2003) 59 N.Y.U. Ann. Surv. Am. L. 495, 497.) Indeed, in enacting the Charter School Act (1992), Education Code § 47600 et.seq., the California Legislature stated: “[i]t is the intent of the Legislature, in enacting this part,... to accomplish ... the following: (g) Provide vigorous competition within the public school system to stimulate continual improvementsin all public schools.” (Educ. Code § 47601(g).) The competition between both charter schools and traditional public schools is apparent. This is particularly true when it comesto public funding. For both public schools and charter schools, funding is determined largely by the average daily attendance (“ADA”) of students. In passing the Charter Schools Act, the legislature intended “that each charter school be provided with operational funding that is equal to the total funding that would be available to a similar school district serving a similar pupil population.” Educ. Code § 47630(a). Thus, because public money follows the student, public schools and charter schools must compete for students in order to obtain funding. B. The Parties. Today’s Fresh Start, Inc. (“Today’s Fresh Start”) is a county-wide charter school serving economically underprivileged areas of Los Angeles County. (Opn. 2.) Los Angeles County Office of Education (“LACOE”)is a regional education agency underthe leadership of Los Angeles County Board of Education (“LACBOE”). (/d.) LACBOE was Today’s Fresh Start’s chartering authority and a signatory to the charter petition agreement betweenthe parties. Ud.) LACBOEinitially granted the charter in 2003 and renewedthe charter in 2005 for a five-year term. (Id.) C. The Revocation of Today’s Fresh Start’s Charter. On or about June of 2007, LACOEbegan expressing concerns about Today’s Fresh Start’s operation. (/d. at 3.) The parties subsequently attempted to work through LACOE’s concerns, but those efforts did not bear fruit. (id. at 3-4.) On or about October of 2007, Dr. Darline Robles, the Superintendent ofLACOE and CEO ofLACBOE, formally recommended to LACBOEthatit revoke Today’s Fresh Start’s charter. (Id. at 4.) LACBOEapproved this recommendation, and revocation proceedings were initiated against Today’s Fresh Start. (Id.at 4-5.) On or about November of 2007, LACBOEheld a public hearing onits intent to revoke Today’s Fresh Start’s charter. (/d. at 5.) While Today’s Fresh Start presented substantial evidence demonstrating why the revocation was improper, LACOEremainednoticeably silent, and in fact presented no evidence or arguments in support ofrevocation at the hearing. (See id. at 5- 6.) One thing that LACBOEdid makeclear at this hearing, however, was that LACBOEwasnota neutralentity. Particularly, when Today’s Fresh Start objected to the proceedings on the grounds that LACBOE wasnot - neutral, LACOE and LACBOE’sgeneral counsel, Ms. Sheri Kim Gale, publicly agreed, and explicitly instructed LACBOEonthis lack of neutrality. (See id. at 6.) Specifically, when one of the LACBOE Board Membersasked Ms.Gale aboutthe issue of impartiality, Ms. Gale stated that there was no need for the revocation to be decided by an impartial body: “In this matter, in this process, you are not neutral.” (See id.) Ms. Gale also stated that Today’s Fresh Start wasnot entitled to an impartial decision- makeruntil it appealed the revocation to the State Board of Education. (See id.) Ms. Gale’s interpretation was expressly adopted by LACBOE.(Seeid.) On December 11, 2007, LACBOEvoted 4 to 3 to revoke Today’s Fresh Start’s charter. (Jd. at 7-8.) Though Today’s Fresh Start would seek further administrative remedies, includingappellate review bythe State Board, and despite the fact that even the California Department of Education (“CDE”) would ultimately side with Today’s Fresh Start—finding that LACBOE’s findings were unclear and not supported by substantial evidence and thus recommending reversal—dueto misunderstandings with the applicable law the revocation was nevertheless ultimately upheld. (See id. at 8-10.) D. The DueProcess Debates Among The Courts Below Onor about December of 2007, Today’s Fresh Start filed a petition for a writ of administrative mandamusin the superior court. (/d. at 10.) During this proceeding, Today’s Fresh Start moved for judgment, arguing that Today’s Fresh Start was deprived of due process. (/d. at 12.) Thetrial court granted the motion. (Id.) First, the trial court found that because LACBOEwasnot a neutral decision-maker,the trial court ruled that Today’s Fresh Start had been deprivedofits right to a fair and impartial tribunal. (Id. at 12-13.) Second, the trial court found that Today’s Fresh Start’s due processrights were also violated by LACOE’sfailureto introduce any evidence supporting the revocation at the hearing, thus depriving Today’s Fresh Start of an adequate opportunity to rebut. (/d. at 12.) LACOEand LACBOEappealed, and the Court of Appeal reversed. (See id. at 42.) In essence, the Court of Appealheld that even though LACBOEmaynotin fact be neutral, Today’s Fresh Start did not present sufficient concrete evidence of bias to overcomethe presumption of honesty and integrity in those serving as adjudicators. (See id. at 36.) The court further noted Today’s FreshStart is afforded additional protection dueto the fact that section 47607 (g) provides for review by the more impartial State Board of Education. (dd. at 37-39.) Finally, the court reasoned that an evidentiary hearingis not required as long as Today’s Fresh Start has been generally apprised ofthe facts in existence against it. Ud. at 25-29.) IV. REASONS FOR GRANTING REVIEW Granting reviewis critical in this case. The Court of Appeal’s publisheddecision has significantly impacted, and will continue to impact, a charter schools’ ability to have their revocation proceedings heard by a neutral and impartial decision-makerin a full and fair manner. First, the Court of Appeal’s opinion restricts charter schools’ rights to truly neutral and impartial decision-makersin the revocation proceedings—indeed, under the Court of Appeal’s holding, not only may an entity with a direct pecuniary interest act as a decision-makerin the revocation proceeding without offending due process, but that decision-maker mayalso be explicitly instructed not to act with neutrality, and according to the Court of Appealdue processisstill satisfied. Second, the Court of Appealestablishes that a revoking entity need not present any evidence or argumentsat the revocation hearing under Education Code § 47607. Instead, the Court of Appealholds that due processis satisfied as long as the charter school hadin its possession the ultimate facts that the revoking entity relied upon, regardless of whether the charter school actually knew such a fact would be used or even the basis of its use. In essence, the revoking entity need only produceall the relevant evidence and leaveit to the charter schoolto sort out the details, including divining the revoking entities arguments determiningforitself what assertionsare still relevant and material. Each of these dueprocess holdings by the Court of Appeal will have deep ramifications for charter schools going forward, as they directly impact 10 a charter school’s ability to remain in business and continueservicingits students and the community. As explained below, review must be granted to ensure that, at a minimum,charter schools are given a full and fair hearing before neutral and unbiased decision-maker, and in particular, a decision- maker wholacksa financial incentive to shut down the very charter schools it is competing against. A. The Decision Below Deprives Charter Schools Of Neutral And Impartial Adjudicators California law is clear that in any administrative action, procedural due process requires that the hearing take place before an impartial adjudicator. (Haas v. County ofSan Bernardino (2002) 27 Cal.4th 1017; Quintero v. City ofSanta Ana (2003)114 Cal.App.4th 810, 814 (“In an administrative action, procedural due processentitles a party to a hearing ‘before a reasonably impartial, noninvolved reviewer....””).) “A fair trial ina fair tribunal is a basic requirement of due process. This is true of administrative adjudicationasit is of courts.” (Golden Day Schools, Inc.v. State Dept. ofEducation (2000) 83 Cal.App.4th 695, 709, internal citations and quotations omitted); Nasha L.L.C. v City ofLos Angeles (2004) 125 Cal.App.4th 470, 483, internal citations and quotations omitted). Thus, in Haas, this Court discussed in detail the due processrights a party has in 11 connection with an administrative evidentiary hearing. Paramountin the discussion wasthe right to an impartial adjudicator. Whendueprocessrequires a hearing, the adjudicator must be impartial. Speaking of administrative hearings, and articulating the procedural requirements demanded by rudimentary due processin thatsetting, the court has said that, ‘ofcourse an impartial decision makeris essential. (27 Cal.4th at 1025 (emphasis added).) Indeed, impartial decision-makers are so vital to a fair hearing that the usual cost-benefit analyses applicable to most due process procedural safeguards do not apply. (Id. at 1035) (“[t]he unfairnessthat results from biased decisionmakersstrikes so deeply at our sense ofjustice that it differs qualitatively from the injury that results from insufficient procedures. In Justice Holmes’ famousphrase, ‘even a dog distinguishes between being stumbled over and being kicked.’”.) 1. The Decision Below Permits Financial Competitor To Adjudicate The Rights Of Their Competitors, And Conflicts With Established Precedent Regarding Pecuniary Bias “Ofall the types ofbias that can affect adjudication, pecuniary interest has long received the most unequivocal condemnation andtheleast forgiving scrutiny.” (/d. at 1025.) “Thus, while adjudicators challenged for reasons other than financial interest have in effect been afforded a presumption ofimpartiality, adjudicators challengedforfinancialinterest 12 have not.”(Id. (citations omitted, emphasis added).) This rule applies in full force to both judicial and administrative hearings. (/d. at 1026-27(“It is sufficiently clear from ourcasesthat those with substantial pecuniary interest in legal proceedings should not adjudicate these disputes.... It has also cometobe the prevailing view that ‘[mJost of the law concerning disqualification because ofinterest applies with equal forceto... administrative adjudicators’”).) As this Court explained, “the adjudicator’s financial interest in the outcomepresents a ‘situation{[] ... in which experience teachesthat the probability of actual bias on the part of the judge or decisionmakeris too high to be constitutionally tolerable.’”” (Id. at 1027.) Thusthe risk of bias caused byfinancial interest need not manifestitself in overtly prejudiced rulings, but instead “[t]he ‘possible temptation’ not to be scrupulously fair, alone andinitself, offends the Constitution.” (Id. at 1030 (citations omitted).) The possible temptation to be unfair clearly exists in the charter school revocation context. As discussed above, charter schools such as Today’s Fresh Start and public schoolinstitutions such as LACBOE must necessarily compete for students in order to obtain funding. As described by one author, “[c]harter schools present not only a policy challenge to the authority of the traditional education establishmentbut also a financial 13 challenge. Students wholeavea traditional public school to attend a charter school are followedby per pupil funding that would otherwise go to the traditional public school.” (Sandra Vergari, Charter Schools: A Significant Precedent In Public Education (2003) 59 N.Y.U. Ann. Surv. Am. L. 495, 499.) Thus, the financial tension betweencharter schools and public schools have been well-known and documented; because each school must compete for students in orderto obtain funding, there essentially exists a zero-sum game betweencharter schools and public schools. See Michael M. Amir, Charter Fights, The Competing Rights ofCharter Schools and Local School Districts Are Triggering Myriad Legal Disputes, (2008) 31-AUG L.A. Law. 24, 27 (“While this funding system can promote competition among charter andtraditional school districts to attract students and teachers, it can also create a tension between the two groups. After all, a local school districtis not only a charter school’s competition but also frequently its chartering authority.”). Indeed, considering that public schools stand to lose millions whenstudents switch to charter schools, the desire of public schools to limit charter schools is apparent. (See id. (“The loss of funding can furtherstrain local districts because schools have fixed costs that do not decrease commensurately with the loss of each student. In 2006, for example, the Los Angeles Unified SchoolDistrict lost an estimated $114 million after losing 14 20,000 students, but saved only $40 million from no longer having to serve those students.”).) Given this direct competition between charter schools and public schools, and the potential for millions of dollars in public fundsat stake, there can be no doubtthat public school agencies such as LACOE and LACBOEhavea direct pecuniary interest in the revocation of charter schools such as Today’s Fresh Start. Simply put, the more charter schools LACBOEcan permissibly revoke, the more funds becomeavailable forits ownschools. Clearly, this presents a situation where the likelihoodofbiasis very real. Given that schooldistricts stand to gain potentially millions of dollars as a direct consequenceofa revoking a charter school’s charter, the probability of bias is constitutionally unacceptable. (See Haas, 27 Cal. 4th at 1033 (“an adjudicator’s financial stake in the outcomeof a dispute, create exceptional situations ‘in whichthe probability or likelihood of the existence of actual bias is so great that disqualification ofa judicial officer is required to preserve the integrity of the legal system, even without proofthat the judicial officer is actually biased towards a party.’”).) Thus, not only does the Court of Appeal’s opinion deprive charter schools such as Today’s Fresh Start of neutral and impartial adjudicators, the court’s opinion alsolies in direct conflict with the principles this Court set 15 forth in Haas. Though the Court ofAppeal did not specifically consider the ramifications of financial bias in its decision, the simplereality is that charter schools and public schooldistricts do compete on both a policy and financial level. As a result of this reality, this opinion will inevitably stand as an example that public school agencies may permissibly eliminate the competing charter schools in revocation proceedings without running afoul of due process. Further, this opinion may stand for the proposition that, in certain situations, decision-makers may have a substantial pecuniary interest in a proceeding but maystill nevertheless adjudicate that proceeding without violating due process, an idea currently in conflict with this Court’s opinion in Haas. Therefore, review is necessary to clarify the rights regarding revocation charter schools may have going forward, particularly when chartering authorities have a pecuniary interest in revocation. 2. The Decision Below Expresses A High Tolerance Of Bias In Revocation Proceedings Pecuniary bias is not the only bias that the Court of Appeal condoned in charter school revocation proceedings. The Court of Appealalso expressed a high tolerance for other forms of biases as well, further inhibiting charter schools’ ability to obtain a neutral and impartial decision- maker. 16 For example,it is undisputed that several members within LACOE had manyoverlapping functions within LACBOE.(See Opn.at 33.) Indeed, the Superintendent of LACOE,and the individual who recommendedrevocation, is also the CEO ofLACBOE.(Seeid.) Similarly, the general counsel for LACOE, Ms. Sheri Gale, also advised LACBOE. (See id.) As such,there can be no surprise that LACBOE expressed deference to LACOE’sfindings. Indeed, LACBOE members whovoted on Today’s Fresh Start’s revocation even admitted having deference to LACOEP’s findings, deference to the point where certain individuals even admitted that they did not fully go through the evidence before siding with LACOEandvoting in favor of revocation. (See id.) Further, and moreastonishingly, the Court of Appeal found nothing wrong with the fact that LACOE general counsel Ms. Gale specifically instructed LACBOEthatit was not to be impartial. Particularly, when LACBOEasked Ms. Gale whether it was required to act impartial, and whetherit should provide Today’s Fresh Start with a neutral decision-maker, Ms. Gale’s answerwasclear: The [Education Code] provides for an appealto the State Board of Education, and that is the due processstage. It is at 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,andit is neutral. In this matter, in this process, you are not neutral. 17 (Id. at 29 (emphasis added).) Notably,in the decision below the Court ofAppeal dismissed most of these concernsofbias by noting the presumption of honesty and integrity among adjudicators. (Jd. at 32.) Importantly however, the Court of Appeal did not take into accounttheinstitutional and pecuniary bias inherentin allowing a financial competitor to determine the fate of another competitor. Further, though there may be a presumption of honesty, integrity, and impartiality among adjudicators, where an adjudicatoris specifically instructed by its own counselnot to be neutral, such a presumption must surely be rebutted. Indeed,it can hardly be surprising that an entity would act in accordance with its attorney’s advice, and thus,in this situation, allow neutrality to fall by the wayside. Thus, considering that the Court of Appeal’s analysis allows even a decision-maker specifically instructed not to be neutral to nevertheless be considered an impartial decision-maker,it is clear that the Court of Appeal has established a very permissive view of biases with respect to revocation proceedings. Given the strong policy in favor of obtaining an unbiased decision-maker, and given that the Court of Appeal’s opinion will significantly affect a charter school’s ability to disqualify biased decision- makers going forward, it is necessary for this Court to grant review to 18 determinethe true extent of permissible biases in charter school revocation proceedings. Therefore, considering that the decision below notonly finds financial competitors acceptable as revocation proceeding decision-makers, but also finds permissible decision-makers whoare explicitly instructed not to be neutral, this Court must grant review to clarify the rights of charter schools to impartial decision-makers going forward.’ ' Notably, the Court of Appeal appearsto partially rely on the fact that there is a subsequent impartial appellate review with the State Board of Education under Education Code § 47607(g). (Opn. 37-39.) However,this Court in Haas squarely rejected the notion that due processviolations can be cured by review, de novo or otherwise. Particularly, in Haas, the county contended that any possibility of bias on the part of the hearing officer was cured when the Board conducted an independentreview of the decision. (27 Cal. 4th at 1034.) The Haas court rejected that argument, holding that the trial court procedure may not“be deemedconstitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioneris entitled to a neutral and detachedjudgein thefirst instance.” (Id., emphasis original.) (See also, Hackenthanlv. California Medical Assn, (1982) 138 Cal.App.3d 435, 445-446 (rejecting argument that independent review cured any prejudice due to the involvementofbiased adjudicators at a lowerlevel).) Furthermore, the insufficiency of this appellate review is demonstrated by the fact that the appellate review under section 47607(g) only provides that the State Board of Education “may” reverse a revocation only if it finds that the chartering authority’s findings are not supported by “substantial evidence.” See Educ. Code § 47607(g)(1). See also Hub City Solid Waste Services, Inc. v. City ofCompton (2010) 186 Cal.App.4th 1114, 1128-1129 (noting “highly deferential” standard provided in “substantial evidence”review.). Finally, it is unclear whether the State Board appellate review under section 47607 may adjudicate anything other than whether the decision 19 B. The Decision Below Trivializes The Public Hearing Requirement Under Education Code § 47607. Finally, the Court of Appeal’s opinion substantially limits and trivializes the value of any public revocation hearings owedto charter schools under Education Code § 47607. Before revocation can occur, a public hearing must beheld in the ordinary course of business. Educ. Code § 47607. Ordinarily, evidence mustbe presented at a hearing in order to support a subsequent administrative action or decision; allowing an administrative body to issue decisions based on evidencethe parties were not apprised ofgenerally violates due process. (See English v. City ofLong Beach (1950) 35 Cal.2d 155, 158 (“The action of such an administrative board exercising adjudicatory functions when based upon information of whichthe parties were not apprised and which they had no opportunity to controvert amounts to a denial of a hearing.”); see also, La Pradev. Department of Water and Power (1945) 27 Cal.2d 47, 51-52 (administrative agency mustbase decision on evidence properly introduced at hearing).) Therationale for requiring presentation at the hearingis clear: “A hearing below was supported by substantial evidence. Indeed, section 47607(g) makes no mention of any additional adjudicatory capabilities, nor is it apparentthat appellate review under section 47607(g) may properly address and adjudicate due process violations. In light of the holding in Haas, due process concemsare unlikely to be cured in any event. 20 requires that the party be apprised of the evidence against him so that he may have an opportunity to refute, test, and explainit, and the requirement of a hearing necessarily contemplates a decision in light of the evidence there introduced.” (English, 35 Cal.2d at 159.) However, the Court of Appeal’s opinion in this case substantially limits the right of charter schools to be adequately apprised of the facts and be provided an opportunity to rebut. Particularly, in this case, LACOE presented absolutely no evidence or arguments at the revocation hearing whatsoever. (See Opn. 25-26.) Indeed, after Today’s Fresh Start presented its position on the revocation, LACOEsimply remainedsilent. (See id.) However, despite the lack of any kind of presentation or opposition, LACBOEnevertheless voted for revocation. (See id.) In holding that due process wasnot violated, the Court of Appeal explained that Today’s Fresh Start technically had the necessary evidencein its possession, as LACOEproducedall the relevant documentation to Today’s Fresh Start, including the facts ultimately relied upon by LACBOE. (See id. 27.) Thus, the Court of Appeal holds that as long as the necessary evidence has been produced,a charter school has been apprised of the case againstit; the burden is therefore on the charter schoolto sort through the evidence, determine which violations a revoking entity mayrely on, and 21 address those issues on its own. (See id.) This holding is problematic for many reasons. Asaninitial matter, this construction appears to contradictthe very wordsofthe statute. Specifically, the statute calls for “a public hearing, in the normal course of business, on theissue ofwhether evidence exists to revoke the charter.” Educ. Code § 47607(e). Thus, it appears the appropriate inquiry for the hearing should be whether affirmative evidence exists to revoke, placing the burden on LACOEto makeits case, not the other wayaround. Furthermore, by its opinion, the Court of Appeal hasessentially issued a blank check for revoking entities to avoid setting forth or explaining any details regarding its arguments orfactsin support of revocation. Instead, the revoking entity need only produce the informationto the charter school and leave it to the charter school to connect the dots. Such a holding not only fails to ensure a fair hearing, but in fact encouragesthe obfuscation of relevant facts. Just because a party maybe in possession ofthe facts does notentail that a party is in fact adequately aware of the case againstit such that the party canfairly and adequately address and rebutthe issues. This is particularly true where, as here, the revoking entity essentially threw the proverbial kitchen sink at the charter schoolandrefused to state which if any 22 of those issues were relevant, material, or even cured by thetime ofthe hearing. Specifically, in this case LACOEclaimedfifty-three allegations of wrongdoing against Today’s Fresh Start, and produced hundredsofpages of evidencein its possession. LACOE madenoeffort to explain whatit believed were the material violations justifying revocation, and evenin voting to revoke, LACBOE madenoeffort to specify which of the many allegations it foundto be sufficient to support revocation. Indeed, as noted by the CDE during appellate review with the State Board, the CDE was unableto ascertain which of the purported violations were seen by LACBOE as material to the revocation decision. (See id. at 8-9.) Andin fact, during the State Board appellate review, LACBOEactually abandonedall butfive of the purportedviolations, demonstrating that the bulk ofthe allegations and evidence submitted to Today’s FreshStart served only to cloud thetrue, material issues. Thus,it is clear that the Court of Appeal’s holding posessignificant dangersto charter school revocation going forward. First, it explicitly excuses revokingentities from presenting the primary facts or arguments supporting revocation—indeed, as long as the revokingentity produced enough evidenceto coverits bases beforehand,it is under no obligation to actually explain its evidence or the evidence’s materiality to revocation. 23 Second,this ruling may in fact actually promote abuse, as the more allegations and evidenceasserted by the revokingentity, the more the revoking entity obfuscates the true material issues, and the harderit will be for the charter schoolto actually determinethe relevant points to address. Indeed, it may encourage the revoking entity to bury a charter schoolin accusations and evidence, and discouragethe actual analysis and debate of relevant and material arguments for and against revocation. As such, the charter school will be effectively denied its opportunity to refute, test, and explain. As a result, review should be grantedto clear this dispute and afford charter schools a full and fair opportunity to address revocation. //// //// ///] 24 V. CONCLUSION Thepetition for review should be granted. The decision below not only presents significant barriers to charter schools obtaining neutral and ‘impartial decision-makers going forward, but also hinders a charter school’s ability to obtain a full and fair proceeding by adequately being apprised of the case against it and having the opportunity to controvert and explain it. Dated: August 22, 2011 DOLL AMIR & ELEY LLP By; . MICHAEL M. AMIR MARY TESH GLARUM LLOYD VU Attorneys for Plaintiff TODAY’S FRESH START, INC. 25 CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 14(c)(1)) The text of this brief consists of 5,256 words as counted by the Microsoft Office WordPerfect 2003 word processing program used to generate thisbrief. Dated: August 22, 2011 DOLL AMIR & ELEY LLP By; MICHAEL M. AMIR MARY TESH GLARUM LLOYD VU Attorneys for Plaintiff TODAY’S FRESH START, INC. 26 ADDENDUM Ca e CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE TODAY’S FRESH START, INC., B212966, B214470 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BS112656) Vv. LOS ANGELES COUNTY OFFICE OF re EDUCATIONetal., es Defendants and Appellants. APPEAL from a judgmentofthe Superior Court of Los Angeles County, JamesC. Chalfant, Judge. Reversed. Doll Amir & Eley, Michael M. Amir, Mary Tesh Glarum, and Hemmy So for Plaintiff and Appellant. Los Angeles County Office of Education, Vibiana M. Andrade, Sung Yon Lee; Greines, Martin, Stein & Richland, Timothy T. Coates and Alison M. Tumerfor Defendants and Appellants. The school board ofLos Angeles County revoked the charterof a charter school. Before filing the administrative appealto the state board of education, the charter school filed a petition for writ of administrative mandamusin the superiorcourt, and filed an amendedpetition after the appeal to the state board of education endedin a tie vote. The trial court granted the writ, concluding that the charter school’s due process rights were violated during the revocation proceeding. The judgment required the county school board to set aside its revocation decision andreinstate the charter. The county school board and the county office of education appeal from the judgment, andthe charter school appeals from thetrial court’s denial of an award ofattorney’s fees. We conclude that no due process violation occurred, and we reverse the judgment. BACKGROUND Today’s Fresh Start, Inc. (TFS) is a charter school serving Los Angeles County, and is organizedas a not-for-profit corporation. The Los Angeles County Office of Education (LACOE)is a regional educational agency. The Los Angeles County Board of Education (County Board)is the governing board ofLACOE. The County Board was the chartering authority for TFS and a signatory to the charter agreement. The County Board initially granted TFS’s charter petition in 2003, and renewedthe charter in 2005 fora five-year term. TFS’s charter renewal petition provided that LACOE would oversee TFS, investigating complaints and monitoring the school’s operations pursuant to Education Code section 47604.3.! TFS agreedto “respond promptly to requests made by LACOE for operational and fiscal concerns.” The charter renewalpetition also provided: “The charter granted pursuantto this Petition may be revoked by LACOEifthe county finds that [TFS] did any of the following: « Committed a material violation of any ofthe conditions, standards, or procedures set forth in this Petition. e Failed to pursue any of the student outcomes identified in this Petition. @ Failed to meet generally-accepted ' Unless otherwise indicated, all subsequentstatutory referencesare to the Education Code. accounting principles, or engagedin fiscal mismanagement. e Knowingly and willfully violated any provision of law.2 [{] Prior to revocation, the county will notify [TFS] of any violation (as set forth above) in writing, noting the specific reasons for which the charter may be revoked, and givethe school a reasonable opportunity to cure the violation.” I. Charter revocation and appeal In June 2007, LACOEadvised TFSthatit planned to investigate concerns raised about TFS,including, but not limited to, four areas: The legalrights of students, parents, and employees; student attendance procedures; professional development; and applicable California Department of Education (CDE) procedures for testing. TFS respondedthat the planned investigation violated section 47604.4> and was contrary to the charter. Darline Robles, the county superintendent of schools‘ and the head ofLACOE,wrote to TFS on June 18, 2007, requesting documents regarding the governance of TFS (information about TFS board members, minutes of board meetings, and other information). On July 19, 2007, LACOEsent to TFS a “Report ofFindings and Recommendations,” which called for improvement in each ofthe four identified areas. A “Corrective Action Plan” dated July 31, 2007 listed required actions with due dates for completion. On August 24, 2007, Superintendent Robles wrote to TFS, enclosing a staff memorandum analyzing the governance materials sent to LACOE,and stating, “[s]taff express serious concernsregarding the governance of [TFS] andI share their concems.” An attachment requested additional materials to allow LACOEto complete the review of ? The Education Code permits charter revocation for a violation of law whetheror not the violation was knowing orwillful. (§ 47607, subd. (c)(4).) 3 Section 47604.4, subdivision (a) provides: “[A] county superintendent of schools may, based upon written complaints by parents or other information that justifies the investigation, monitor the operations of a charter school located within that county and conductan investigation into the operations of that charter school... .” 4 As the county superintendent of schools and the head of LACOE, Robles was by statute the ex officio secretary and executive officer of the County Board. (§ 1010.) 3 the governance and determine that TFS’s “boardis fulfilling its governance responsibilities, holding sufficient meetings to conduct charter school business as needed, complying with the Brown Act [Gov. Code, § 54950 et seq.], and demonstrating conclusively that Board members are protecting public funds and not using their positions improperly to the end of personal enrichment,” so that Superintendent Robles could decide whether to recommendthat the County. Board take action to revoke TFS’s charter. On October 9, 2007, the County Board held a “Board Meeting/Study Session”at which TFS was oneofseveral topics. The minutes of the meeting reflect that Dr. Lupe Delgado ofLACOE’s Charter School Office led a discussion of a LACOEstaff analysis ofTFS’s governancestructure and processes and TFS’s responseto the corrective action plan. The County Board members were provided “{c]omprehensive materials,” and TFS had also received the three binders of material provided to County Board members. A public hearing on TFS was addedto the calendar for the November 6, 2007 County Board meeting. At a County Board meeting on October 16, 2007, six individuals addressed the County Board on behalf of TFS. Superintendent Robles recommendedthat the County Board give notice ofits intent to revoke TFS’s charter, adding that ifthe issues could not be resolved and the County Board did decide to revoke, the school would stay open during the appeal process to the State Board of Education (State Board),5 and LACOE would recommendthat TFS stay openuntil the end of the school year. The County Board voted® to approve Superintendent Robles’s recommendation to begin the revocation process. TFS hadthe option to provide a written response, and at the November6, 2007 public hearing, TFS could makean oral presentation to supplement any documentary response. The final decision of the County Board would be madeat the December4, 2007 meeting (this date was later moved to December11, 2007). An 5 The State Board is the governing and policy making body for the CDE. (State Bd. ofEducation v. Honig (1993) 13 Cal.App.4th 720, 729.) 6 Five members voted to approve the recommendation, and two abstained. October 17, 2007 letter from the County Boardinformed TFS ofthe County Board decision, and advised TFS thatit could submit written materials to support its oral presentation on November6, 2007. | November6, 2007 public hearing and subsequent County Board meetings At the November6, 2007 public hearing, six ofseven County Board members were present, with member Sophia Waugh absent. Six TFS students addressed the County Board in support of TFS. Counsel for TES provided the County Board with handouts, andfive individuals, including TFS’s Executive Director Dr. Jeanette Parker, Board Chair Dr. Clark Parker, General Counsel Mary Tesh Glarum, and Assemblyman Mervyn Dymally spoke on behalf of TFS. At the County Board’s November 20, 2007 meeting, TFS’s counsel expressed concerns that LACOE’s revocation procedures violated due process. LACOE’sstaffwas both advocating that TFS’s charter be revoked and also advising the County Board regarding the revocation, in addition to LACOE’s having a preexisting relationship with the County Board. Stating, “I believe that the procedure that has been employedis unfair,” counsel objected that TFS had not had an opportunity to respond to the LACOE presentation scheduled that day. TFS’s Board Chair, Dr. Clark Parker, urged the County Board to “send it out, to hold the hearing with an administrative law judge that will do fact-finding,” because due process required an “impartial adjudicator” to make findings of fact and make a recommendation to the County Board, and “(staff cannotdo that.” In response to a County Board member’s question, Dr. Clark Parker explained that he was relying on general administrative law’ rather than the charter schoolstatute in the Education Code. Dr. Clark Parker objected to the introduction of any evidenceafter the 7 The statute cited was Government Codesection 27721, which provides: “When a State law orlocal ordinance provides that a hearing beheldorthat findings of fact or conclusions of law be made by any county board, agency, commission, or committee, the county hearing officer may be authorized by ordinanceor resolution to conduct the hearing; to issue subpoenas;to receive evidence; to administer oaths; to rule on questions of law and the admissibility of evidence; and to prepare a recordofthe proceedings.” On this appeal, TFS does not arguethatthis statute applies to charter revocation proceedings. 5 public hearing. TFS’s executive director made a brief appeal to the County Boardto see things from TFS’s perspective. Dr. Delgado from LACOE’s Charter School Office gave a chronology of the events surroundingthe charter revocation process, and asked for any specific items the County Board would liketo see in the final report on TFS. In response to a board member’s request for an analysis ofthe “legal situation,” Shari Kim Gale, general counsel for the County Board and LACOE,explained that the County Board was the authorizer ofTFS’s charter. Superintendent Robles and LACOE were not the authorizers but the advisers to the County Board, and the County Board’s job was to decide whether to revokethe charter. If the County Board decided to revoke, the Education Code provided that TFS could then appealto the State Board. “Andthatis 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 adjudicatoris the State Board of Ed[ucation], andit is neutral. In this matter, in this process, you are not neutral. You are the authorizer. [{] Essentially this is the same process we use to evaluate new petitions that come to this board. Weuseliterally the same spectrum of expert—technicalexpert staff, there is a public hearing, thereis a report ofstaff, and then there is a recommendation upon which our board votes. [{] So with all.due respect, we do disagree andstill maintain that our processis entirely legal.” At the County Board meeting on December4, 2007, Dr. Jeanette Parker spoke on behalf ofTFS. Dr. Delgado presented LACOE’s final report, which concluded that TFS had notcorrected its noncompliance with testing procedures, had not explained how it wouldrectify irregularities in its governance, and hadfailed to meet 47ofthe 53 items on the corrective action plan. “After review andanalysis of TFS’s rebuttal materials and presentations, LACOEstands byits original recommendation that substantial evidence exists ofviolations ofthe charter, failure to meet or pursue pupil outcomesas set out in the charter,i.e. testing irregularities, and violations of the law. TFS... has hada reasonable opportunity to correct, and has not done so.” TES had submitted a response to the report that afternoon, which TFShad prepared within 24 hours of receiving the final report. December11, 2007 vote to revoke At the December 11, 2007 County Board meeting, with all seven County Board members present, six speakers addressed the County Board on TFS’s behalf. Dr. Jeanette Parker defended TFS’stesting procedures. TES’s fiscal coordinator assured the County Board that TFS had promptly complied with reporting responsibilities. TFS’s general counsel emphasized TFS’s performance andthe schools’ importancein their communities, asking the County Boardto considerthe children as well as the roughly 700 pages of documents sent by TFS. Assemblyman Mervyn Dymally asked the County Board to give TFSat least another year. Dr. Clark Parker asked that County Board member Waughabstain from voting because she was absent from the November6, 2007 hearing (citing Gov. Code, § 115178), complained that LACOEhadnot met with TFSto resolvethe disputes betweenthe parties, and argued that the revocation process was flawed. A TFS board member and parenttestified that TFS had achieved test scores abovethat of the Inglewood public schools. Before the County Board voted on the revocation, Superintendent Robles explained that LACOEhad suggested meetings with TFS, but TFS hadresisted LACOE’sinvestigation. Dr. Clark Parker rejoined that TFS had not been contacted “to be includedin the process,” and had refused to schedule interviews unless LACOE would consult TFS regarding how to conduct the investigation. Superintendent Robles responded that the authority to investigate was independent of any procedure for dispute resolution. After further discussion of differences regarding procedure and a lawsuitfiled by TFS,° the County Board voted four to three to approve the recommendationto revoke 8 The Administrative Procedures Act, in Government Code section 11517, subdivision (b)(2) provides: “No member of the agency who did not hear the evidence shall vote on the decision.” Government Codesection 11500 defines “‘agency””as “the state boards, commissions, and officers to which this chapter is made applicable by law.” (Italics added.) 9 TFS hadfiled ailawsuit on July 13, 2007 in Los Angeles Superior Court for breach of contract and declaratory relief, to clarify LACOE’s authority to investigate the 7 TFS’s charter, with direction to Superintendent Robles to urge the State Boardin the appellate process to permit currently enrolled TFS students to finish out the year. The County Board adopted factual findings regarding improprieties in student testing, material violations of the charter, the Brown Act, and the Corporations Code, and TFS’s failure to correct numerousprovisionsofthe corrective action plan, in violation of section 47607, subdivisions (c)(1), (c)(2), and (c)(4). Appeal to State Board On January 9, 2008, TFS filed an appeal to the State Board of “the decision (by a vote of4 to 3) ofits chartering authority, [LACOE] andthe [County Board] to revoke [TFS]’s charter ....” The appeal argued that the revocation was improper becauseit was “in direct retaliation for [TFS]’s decision to seek court assistance after LACOE repeatedly oversteppedits statutory role as a chartering authority.” The process employed violated due process (“[mlostsignificantly,” Waugh failed to abstain from voting on the revocation although she was no presentat the public hearing, and the County Board was notimpartial), and the revocation was not based on substantial evidence. . A report from the Charter Schools Division of the CDE recommendedthatthe State Board reverse the revocation decision. The report noted that the State Board had “not adopted any regulations regarding revocation appeals and,therefore, the [State - Board] is primarily guided by the language ofthe statute,” which required that revocation decisions be supported by “‘substantial evidence.’”!9 The analysis and recommendations from the Charter Schools Division, based on five binders of materials from TFS and alleged charter violations. The case was pending when TFSfiled its amended writ petition on July 21, 2008. 10 Thereport cited section 47607, subdivision (f)(4), which applies to revocation appeals whenthechartering authority is a local schooldistrict. The provision applicable on TFS’s appeal, subdivision (g)(2), applies when the chartering authority is a county board of education. Both subdivisions, however, state: “The state board may reverse the revocation decision if the state board determinesthat the findings madebythe chartering authority undersubdivision (e) are not supported by substantial evidence.” seven binders from LACOE,!! concludedthat the County Board’s revocation ofTFS’s charter “was notsupported by specific factual findings ofviolations of law and the charter, and that the findings were not supported by substantial evidence. Further, the [County Board] did not provide full due process to [TFS] prior to revoking the charter,”!2 Only onebasis for revocation, a violation of the Brown Act, was supported by substantial evidence, but the County Board hadfailed to comply with the statutory requirement (§ 47607, subd. (d)) that it provide notice and an opportunity to remedythe violation. The Charter Schools Division staff recommendedthat the revocation be reversed. The CDEreport was presented to the State Board without a recommendation from the Advisory Commission on Charter Schools (ACCS).!3 ACCShad considered the revocation appealatits meeting on May 19, 2008, at which it heard argumentfrom both TFS and LACOEregarding the alleged violations and whether the County Board had provided TFS with proper notice and opportunity to remedy. After lengthy discussion, ACCShad voted four to two to recommendreversalofthe revocation; this was insufficient for a recommendationto the State Board, becausefive votes were the minimum required for the commission to adopt a recommendation. 1l fierits initial review, the CDE found the record of revocation “unclear and/or incomplete” and wrote LACOEon March 19, 2008 asking for specific information identifying the five most significant violations, and evidence of the violations and of notice to TFS and opportunity to cure. LACOE submitted a response on April 16, 2008 (which does not appear in the administrative record attrial and on appeal), and TFS replied to the response on April 18, 2008. 12 The CDE’sconclusionthat full due process had not been provided was based on a finding that the County Board had not given TFSnotice of the violations and a reasonable opportunity to cure, as required by section 47607, subdivision (d). The CDE declined to address TFS’s other allegations of due process violations, except to note that there wasinsufficient evidence from which to conclude that board member Waugh’s absence from the public hearing on November6, 2007 violated due process. 13 The ACCSis an advisory body whoserole “include[s] advice on ‘all aspects of the State Board’s duties under the Charter Schools Act of 1992.’” (California School Bads. Assn. v. State Bd. ofEducation (2010) 186 Cal.App.4th 1298, 1330.) 9 . At a hearing on July 10, 2008, eight members ofthe State Board heard argument on TFS’s appeal ofthecharter revocation. The CDE describedits review of the revocation materials provided to it by TFS and the County Board,as set outin its report, and answered questions from the State Board members. There were speakers in support of TFS andin support of the County Board and LACOE. Board membersdiscussed the closeness of the vote to revoke by the County Board and the Charter Schools Division, the adequacy ofnotice to TFS, whether both sides could work out an alternative together, the possibility ofpostponing a vote and encouraging CDE to work with both sides, whether substantial evidence existed for revocation, and whether the State Board had the authority to act other than voting yes or no on the revocation. On a motionto accept the CDE’s recommendationthat the revocation of TFS’s charter be reversed, four State Board membersvoted to accept, and four members voted to rej ect the recommendation. The State Board president stated, “Motionfails to carry a majority, and so the revocation is upheld.” Ii. Petition for writ of administrative mandamus On December 27, 2007—16 daysafter the County Board voted on December 11, 2007 to revoke TFS’s charter—TFS filed a petition for writ of administrative mandamus in Superior Court pursuant to Code of Civil Procedure section 1094.5,14 naming LACOE and CDEas respondents. The petition argued that the revocation was invalid because County Board member Waugh, whovotedin favorof revocation, had not been presentat the November6, 2007 public hearing, and TFSdid not receive a fair hearing because (amongother contentions) the County Board did not appoint an independent, impartial decision maker. Thepetition also argued that requiring TFS to exhaustits administrative ‘4 Code of Civil Procedure section 1094.5, subdivision (a) provides: “Where the writ is issued for the purposeofinquiring into the validity of any final administrative orderor decision madeas the result ofa proceeding in which by law a hearing is required to be given, evidence is required to be taken, anddiscretion in the determination offacts is vested in the inferior tribunal, corporation, board,or officer, the case shall be heard by the court sitting without'a jury. . . .” Subdivision (b) provides: “The inquiry in such a case shall extend to the question[] . .. whether there was a fair trial.” 10 remedies (an appealto the State Board) would be inequitable, because CDE would not consider TFS’s dueprocess objections, and any hearing before the State Board would not take place until May or June 2008. TFS requested a stay ofthe revocation decision and an order compelling CDE to continueto fund TFS. On January 4, 2008, TFSfiled an ex parte application for a stay of the revocation order to allow TFSto continue to operatepending the outcomeofthe writ proceeding. Atthe hearing, the court noted that withouta completed appealto the State Board, the revocation decision was notfinal, leaving the court without jurisdiction over TFS’s request for invalidation of the revocation decision. On January 16, 2008,thetrial court granted the stay only to the extent the revocation decision terminated funding for TFS before the end of the 2008 school year. The parties subsequently stipulated that funding would continue pending the resolution of the writ proceeding.}5 At a status conference on July 15, 2008, after the State Boardtie vote on July 10, 2008 failed to adopt a motion to reverse the charter revocation,the parties stipulated that TFS had exhausted its administrative remedies. On July 21, 2008, TFS filed an amended petition, adding the County Board and the State Board as respondents. The amended petition argued that with the State Board’s four-to-four vote, TFS had exhaustedits administrative remedies. In addition to a stay of the revocation decision, a writ requiring the County Boardto reverse the revocation decision, and a writ compelling invalidation of Waugh’svote, the amendedpetition sought a peremptory writ of mandamus requiring the State Board “to cast a valid vote and reverse the [County Board] revocation decision.” 15 Section 47607, subdivision (i), provides: “During the pendency of an appeal filed under this section, a charter school, whose revocation proceedings are based on paragraph(1) or (2) of subdivision (c), shall continue to qualify as a charter schoolfor funding andforall other purposesofthis part, and may continue to hold all existing grants, resources, andfacilities, in order to ensure that the education of pupils enrolled in the schoolis not disrupted.” TFS’s revocation proceedings were based on subdivision (c), paragraphs(1), (2), and (4). 1] On August 21, 2008, TFS filed a motion forjudgment under Code of Civil Procedure section 1094,!® seeking reversal of the charter revocation and reinstatement of the charter on three grounds: the County Board violated section 47607, subdivision (d), by failing to provide TFS with notice and an opportunity tocure; the County Board deprived TFS of dueprocess at the November6, 2007 public hearing before revocation, because the County Board was not an impartial decision maker; and LACOEfailed to introduce any evidence at the November6, 2007 public hearing to support revocation. Before the trial court, TFS did not raise the issue whetherthe revocation decision was supported by substantial evidence. Correspondingly, that issue is not before us on appeal. Thetrial court held a hearing on September 15, 2008 and granted the motion for judgment on September 19, 2008.!7 Stating that it was undisputed that TFS hadboth a liberty and property interest in its charter, the court concludedthat the revocation procedure violated due process. First, section 47607, subdivision (e) and due process required thatall the evidence supporting revocation beintroduced at the public hearing. “The final decision must be from the evidence introduced during the public hearing... . The evidence mustbe introduced atthe hearing; only then can [the County Board] make a final decision aboutit.” Second, although section 47607, subdivision (e) required only a public hearing held by the County Board in the normal course of business and did not require an 16 Code of Civil Procedure section 1094 provides: “Ifa petition for writ of mandate . . . presents notriable issue of fact or is based solely on an administrative record, the matter may be determinedby the court by noticed motion of any party for a Judgmenton the preemptory writ.” 17 The court adoptedits tentative ruling, which concludedthat the County Board substantially complied with the notice requirementin section 47607, subdivision (d). The court also stated that TFS “is entitled to judgment and a writ setting aside the decision - and remanding to [the County Board] for further proceedings. ... Where there have been defects in the manner in which an agency conducts the hearing,the proper remedyis to remand for a new hearing.” Further, the court ruled that motionsto compel the depositions of County Board member Waugh and two LACOEemployees were moot. 12 adversarial proceeding before a neutral hearing officer or other third party,thetrial court nevertheless concluded that due process required a separate evidentiary hearing. The County Board was not an impartial decision maker, and “[t]o the extent arguendothat [section 47607, subdivision(e)] contemplates merely a hearing before the [County Board], it does not meet the minimum requirements of due process.” Due process required “[a]n evidentiary hearing before a[n] unbiased hearing officer.” The court suggested that the hearingofficer could be a LACOE employee uninvolvedin the revocation process, or a third party, “either ofwhich would satisfy due process. The hearing officer’s findings then musteither be accepted or rejected by the [County Board] in a public hearing.” Further, the court also concluded that due process was notsatisfied by the statute’s provision for an appealto the State Board, because the State Board’s review was limited to determining whether the County Board’s findings were supported by substantial evidence. The court enteredjudgment for TFS on October 21, 2008, remandingto the County Board to set aside its revocation decision and to reinstate TFS’s charter. The judgmentalso provided that LACOEand the County Board “shall pay petitioner the reasonable attorney’s fees [TFS] has incurred in this proceeding in the amountof$0 pursuant to California Code of Civil Procedure [section] 1021.5 and California Government Code section 800.” LACOEandthe County Board appeal from the judgment, and TFSappeals from thetrial court’s order denying attorney fees. DISCUSSION “Code of Civil Procedure section 1094.5 governs judicial review by administrative mandate ofanyfinal decision or order rendered by an administrative agency. (Code Civ. Proc., § 1094.5.) If the decision of an administrative agency substantially affects a fundamental vested right, such asthe right to disability benefits, then the trial court must not only examine the administrative record for errors of law, but must also exercise its independent judgment onthe evidence. [Citations.] In the appellate court, the appropriate standard ofreviewis the substantial evidencetest. [Citations.] Therefore, wherethe trial court is required to exercise its independent judgmentin an administrative 13 mandamusproceeding, the appellate court reviews the record to determine whetherthe trial court’s judgmentis supported by substantial evidence. [Citations.] [J] Questions of law, on the other hand, are subject to a de novo standard ofreview. [Citations.] The properinterpretation ofa statute, and its application to undisputed facts, presents a question of law that the appellate court reviews independently. [Citations.]” (Dobosv. Voluntary Plan Administrators, Inc. (2008) 166 Cal.App.4th 678, 683.) Thelegal questions before usin this appeal—whether TFS exhaustedits administrative remedies, and whetherthe charter revocation procedure before the County Boardviolated TFS’s due process rights—are subject to de novoreview. (Citizensfor Open Governmentv. City ofLodi (2006) 144 Cal.App.4th 865, 873; Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1169.) Statutory background . The Charter Schools Act of 1992, section 47600et seq., provides for the establishment andoperation ofcharter schools, allowing “teachers, parents, pupils, and community membersto establish . . . schools that operate independently from the existing schooldistrict structure.” (§ 47601.) Amendments to the statute in 2002 added a provision allowing a county board of education to approve a charterfor a countywide charter school, which must operate at “one or more sites within the geographic boundaries of the county.” (§ 47605.6, subd. (a)(1).) Section 47607, subdivision (a)(1), providesthat a charter granted by a county board of education may be granted one or more subsequent renewals ofa period of five years each, with criteria for renewal specified in subdivision (b). Subdivision (c) provides: “A charter may be revokedbythe authority that granted the charter underthis chapterif the authority finds, through a showingofsubstantial evidence, that the charter school did any of the following: [9] (1) Committed a material violation of any of the conditions, standards, or procedures set forth in the charter. [{] (2) Failed to meet or pursue any of the pupil outcomesidentified in the charter. [{] (3) Failed to meet generally accepted accountingprinciples, or engagedin fiscal mismanagement. [{] (4) Violated any provision of law.” 14 Further amendmentsto the Charter Schools Actin 2006,effective January 1, 2007, added protections for charter schools during the revocation process. Section 47607, subdivision (d) requires that the authority that granted the charter, prior to revocation, give the charter schoolnotice of any violation and a reasonable opportunity to remedy. Section 47607, subdivision (e), directly at issue on this appeal, provides: “Prior to revoking a charterfor failure to remedy a violation pursuant to subdivision (d), and after expiration of the school’s reasonable opportunity to remedy withoutsuccessfully remedying the violation, the chartering authority shall provide a written notice ofintent to revoke and notice of facts in support of revocation to the charter school. Nolater than 30 days after providing the notice ofintent to revoke a charter, the chartering authority shall hold a public hearing, in the normal course of business, on the issue of whether evidence exists to revoke the charter. Nolater than 30 days after the public hearing,the chartering authority shall issue a final decision to revokeor decline to revoke the charter.... The chartering authority shall not revoke a charter, unless it makes written factual findings supported by substantial evidénce, specific to the charter school, that support its findings.” Subdivision (g)(1) provides for an appeal to the State Board if the County Board revokes the charter: “If a county office of education is the chartering authority and the county board revokes a charter pursuantto this section, the charter school may appeal the revocation to the state board within 30 days following the decision ofthe chartering authority.” Subdivision (g)(2) provides: “The state board mayreverse the revocation decision if the state board determinesthatthe findings madebythe chartering authority under subdivision (e) are not supported by substantial evidence.”8 I. TFS exhausted its administrative remedies. . Code of Civil Procedure section 1094.5, subdivision (a), provides that in a writ proceeding thetrial court may review “any final administrative orderor decision.” “[T]he failure to exhaust administrative remedies prevents [a party] from seekingrelief '8 The statute provides for different appeal procedures when the chartering authority is a local schooldistrict. (See §47607, subd. (f).) 15S through administrative mandamus (CodeCiv. Proc., § 1094.5), which provides judicial- review offinal administrative proceedings.” (Unnamed Physician v. Board ofTrustees (2001) 93 Cal.App.4th 607, 619.) TFS was therefore required to exhaustallits administrative remedies—including the appeal to the State Board—and was required to obtain a final order or decision, before seekingrelief in superior court. LACOEandthe County Board arguethatthe tie vote by the State Board did notconstitute a final administrative order. Without a final order, LACOE andthe County Board argue that TFSfailed to exhaust its administrative remedies, andthetrial court therefore did not have jurisdiction. “In brief, the rule is that where an administrative remedy is providedbystatute, reliefmust be sought from the administrative body andthis remedy exhausted before the courts will act.” (Abelleira v. District Court ofAppeal (1941) 17 Cal.2d 280, 292.) “The tule is a jurisdictional prerequisite in the sense that it ‘is not a matter ofjudicial discretion, but is a fundamentalrule ofprocedure laid down bycourts oflast resort, followed underthe doctrine ofstare decisis, and binding upon all courts.’ [Citations.]” (Citizensfor Open Governmentv. City ofLodi, supra, 144 Cal.App.4th at p. 874.) “The doctrine prevents courts from interfering with the subject matter of another tribunal.” (lbid.) “Consideration ofwhether exhaustion of administrative remedies has occurred depends onthe procedures applicable to the public agency in question.” (Jd. at p. 876.) TFSdid everythingit could to seek relief from the administrative body by filing and pursuingits appealofthe charter revocation to the State Board, pursuantto section 47607, subdivision (g). The State Board, with eight memberspresent, tied four to four on the recommendation by CDEto reversethe revocation of TFS’s charter. LACOE and the County Board pointout that the State Board is composed of 10 members (§ 33000) and cites section 33010, which provides: “The concurrence of six membersofthe board shall be necessary to the validity of any ofits acts.” LACOEandthe County Board arguethat the tie vote resulted in no actionat all, so that there was nofinal administrative decision on the charter revocation. TFS arguesthat the tie vote left the revocation in place, and thus constituted a final decision. 16 Whether the State Board’s tie vote constitutes a final decision leavingin place the charter revocation is not a simple question. The State Board certainly believed it had taken an action,stating that the tie vote on the motion to reverse the revocation ofTFS’s charter meant that “the revocationis upheld.”!9 Nevertheless,“[t]ie votes mean different _ things in different contexts.” (Vedanta Society ofSo. California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 521 (Vedanta).) In the context.of a judicial appeal from the decision of a lower court, a tie vote leaves the lower court decision intact. (Ibid) In the context of an administrative appeal, however, a tie may not have the sameeffect. ““[A]s a generalrule an even division among members of an administrative agency results in no action.’ [Citation.]” (Clark v. City ofHermosa Beach, supra, 48 Cal.App.4th at p. 1176.) In support of their argument that TFS did not exhaust its administrative remedies because the State Board’s tie vote was not a final administrative decision, LACOE and the County Board cite Woodland Hills Residents Assn., Inc. v. City Council (1975) 44 Cal.App.3d 825, Clark v. City ofHermosa Beach, supra, 48 Cal.App.4th 1152, Lopez v. Imperial County Sheriff's Office (2008) 165 Cal.App.4th 1, and Vedanta, supra, 84 | Cal.App.4th 517. They point out that these cases concludedthata tie vote on an appeal to an administrative agency that constitutes no action does notaffirm or uphold the decision being appealed. In each ofthe abovecases, however, the statutes governing the administrative appeals in issue required specific factual findings. In WoodlandHills, at p. 837, neither agency reviewingthe appeal from theinitial approvalofthe subdivision made expressfindings of fact, which violated the requirementofthe applicable section of the Business and Professions Codethat the agencies not approvea tentative subdivision map withoutfirst making an expressfinding that the proposed subdivision was consistent with the general plan. “A tie vote under the circumstances here, where such a finding of consistency was a legal prerequisite of approval, did not constitute approvalaction.” (/d. '9 The motion voted on was “to reverse the revocation and [{] .. . [{] [slupport CDE’s recommendation,” After the tie vote, the State Board president stated: “Motion fails to carry a majority, and so the revocation is upheld.” 17 at p. 838.) In Clark v. City of.Hermosa Beach, supra, 48 Cal.App.4th at p. 1175, the city council hearing the appeal of the approval of a conditional use permit by the city planning commission was required by the municipal code to “hear[] the matter de novo, take[] additional evidenceat a public hearing, and decide[] whetherit should grant or deny the permit.” The municipal code also required that the action ofthe city council deciding. the appeal “‘shall be by three (3) affirmative votes.’” The council vote (after the disqualification of one member) was a two-to-twotie. (/d. at pp. 1175-1176.) The code coealso provided““‘[t]ie votes shall be lost motions and may be reconsidered.’” Underthese statutes, the tie vote wasinsufficientto affirm the approvalofthe conditional use permit. (Id. at p. 1176, fn. 24.) In Lopez v. Imperial County Sheriff's Office, supra, 165 Cal-App.4th at p. 5, the board reviewing the appellants’ appealoftheir termination by the sheriff's office was required, by county ordinance, to “file . . . its findings as to each cause and factualallegation”with its decision affirming, revoking or modifying the decision, and was required to review independently the facts and law. The board’stie vote resulted in no action until the board conducted another vote. (Jbid.) In Vedanta, supra, 84 Cal.App.4th at pp. 527-529,the appeal was governed bythe California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). Underthe facts ofthat appeal, CEQA required the decisionmaking body on appeal ofthe certification of an environmental impact report to make findings and to provide an affirmative explanation, orat least to adopt the findings made by theplanning commission. A tie vote did not constitute affirmative action or adoptthe findingsofthe planning commission, and the statute required “not only de novo review by a board of supervisors, but de novofact finding as well.” (Jd. at pp. 527-529.) Significantly, in none of these cases did the court of appeal concludethat the appellant had failed to exhaust administrative remedies. Instead, each case concluded that the decision onthe appeal did not comply with the applicable law, becausethetie vote by the agency reviewing the appeal meantthat the agency failed to make the findings required bythestatutesin issue. i 18 Here, the statute governing an appealto the State Board providesthatthe State Board mayreverse a decision by a county board of education to revoke a charter “ifthe state board determinesthat thefindings made by the chartering authority . . . are not supported by substantial evidence.” (§ 47607, subd. (g)(2),italics added.)2 This does not require the State Board to make independentfactualfindings. The State Boardis merely directed to review the chartering authority’s (in this case, the County Board’s) “written factual findings supported by substantial evidence” (§ 47607, subd.(e)) and determine whether the County Board’s findingsare in fact “supported by substantial evidence.” That language does not contemplate independent factualfindings by the State Board. The State Board is required only to determine whether the County Board correctly performedits function.2! 20 Similar language appears elsewherein the statute. Where a local schooldistrict is the chartering authority and revokesthe charter, the charter school may appealthe revocation to the county board of education. (§ 47607, subd. (f)(1).) The county board may reversethe local schooldistrict’s revocation “if the county board determinesthat the findings madebythe chartering authority . . . are not supported by substantial evidence. The school district may appealthe reversalto the state board.” (§ 47607, subd. (f)(2).) If the county board does notissue a decision on an appeal within 90 days,or if the county board upholds the revocation, “the charter school may appeal the revocation to the state board.” (§ 47607, subd. (f)(3).) The State Board may uphold a revocation decision on a charter authorized by a schooldistrictif it “determines that the findings made by the chartering authority . . . are supported by substantial evidence,” and may reverse the revocationifthe findings ofthe chartering authority “are not supported by substantial evidence.” (§ 47607, subd. (f)(4).) Section 47607, subdivision (c) provides “{a] charter may be revoked by the authority that granted the charter,” but the statute is silent as to procedures for any appeal of the revocation of a charter granted by the State Board, which is authorized by section 47605.8 to approvea charterfor a state charter school. Section 47604.5 providesthat the State Board may revoke a charter “whetheror notit is the authority that granted the charter,”ifthe State Board finds gross financial mismanagement, illegal use of charter school funds, or substantial departure from successful educational practices. 21 TACOEandthe County Boardpointout that CDE’s counsel described the State Board’s scopeofreview as “an open question” regarding “a relatively new statute,” and, as TFS’s counsel stated in a declaration and the CDE acknowledged, the CDEandState Board havenotissued any regulations orpolicies regarding revocation appeals. The lack 19 Section 47607 requires no independentfact finding by the State Board on appeal. Wetherefore conclude that the State Board four-to-four vote—on a motionto accept the CDE’s recommendation that the revocation ofTFS’s charter be reversed—amountedto a final decision by the board failing to adopt the motion, denying the appeal, and upholding the revocation.?2 TFS thus exhausted its administrative remedies. Our conclusion that TFS exhausted its administrative remedies makesit unnecessary to address TFS’s argumentthat the parties’ stipulation at a July 15, 2008 status conference that administrative remedies had been exhausted, waived any argument by LACOEandthe County Board that TFS had notobtained a final decision from the State Board (and therefore that it had not exhausted its administrative remedies). We note, however, that “[T]he requirement of exhaustion is a Jurisdictional prerequisite, not a matter ofjudicial discretion. . . . [§] [and] cannot be overcome bystipulation between the parties or by admission.” (California Aviation Council v. County ofAmador (1988) 200 Cal.App.3d 337, 341 & fn. 3.) II. The revocation proceduredid not violate due process. Thetrial court ruled that due process required two procedures not employed when the County Board revoked TFS’s charter: first, all the evidence in support of revocation had to be introducedat the public hearing before the County Board, and second, “an evidentiary hearing before an unbiased hearing officer” was required before the County Board could vote on whether to revoke TFS’s charter. The court also concluded that these violations of due process were not cured by the statute’s provision of an appeal ofp y P. pp the revocation to the State Board. of case law or regulation regarding the application of section 47607 doesnot, however, obscurethat the plain language ofsubdivision (g)(2) requires only that the State Board review the County Board’s revocation findings for substantial evidence. 22 Section 33010 providesthat the concurrence of a majority (6 often) is required for the validity ofthe State Board’s acts. Even viewing the four-to-four vote on the motion to accept the CDE’s recommendation as an invalid act, the result ofthe failure to adopt the motionis that the revocation was left in place. 20 Section 47607 does not require either a formal presentation of all the evidenceat the public hearing on revocation, or a separate evidentiary hearing before a neutral decision maker. Thestatute requires the County Board,as the “chartering authority,” to “hold a public hearing, in the normal course of business, on the issue ofwhether evidence exists to revoke the charter.” The statute also requires the County Board to issueits decision within 30 days, and “[t]he chartering authority shall not revoke a charter, unless it makes written factual findings supported by substantial evidence, specific to the charter school, that support its findings.” (§ 47607, subd. (e).) As to the appealto the State Board,the statute provides only that the State Board “may reverse the [County Board’s] revocation decision if the state board determinesthat the findings madebythe chartering authority under subdivision (€) are not supported by substantial evidence.” (§ 47607, subd. (g)(2).) There are no regulations providing moredetail on the procedures to be employedin a charter revocation or a revocation appeal. We have found no appellate cases addressing the constitutionality of the charter school revocation procedures in " section 46707, subdivision (e), or the appeal process in section 47607, subdivision (g), which was enacted in 2006. Whetherthe statute complies with due processis a question of first impression. “Because the [County Board and LACOE’s] contention[s] regarding procedural matters present[] a pure question of law involving the application of the due process clause, we review thetrial court’s decision de novo.” (Mohilefv. Janovici (1996) 51 Cal.App.4th 267, 285.) TFS’s motion for judgmentargued that the revocation procedure violatedits due processrightto a fair hearing, invoking both the federal and California due process clauses (U.S. Const. 14 Amend., Cal. Const., art. I, § 7, subd. (a).) “Procedural due process imposes constraints on governmentaldecisions which depriveindividuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause ofthe Fifth - or Fourteenth Amendment.” (Mathewsv. Eldridge (1976) 424 U.S. 319, 332 (96 S.Ct. 893, 47 L.Ed.2d 18].) “‘(D)ue processis flexible and calls for such procedural protections as the particular situation demands.’ (Citation.]” (Jd. at p. 334.) To 2] determine whether administrative procedures are constitutionally sufficient in specific . circumstances “generally requires consideration ofthree distinct factors: First, the private interest that will be affected by theofficial action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value,if any, of additional or substitute procedural safeguards; andfinally, the Government’s interest, including the function involved andthefiscal and administrative burdensthat the additional or substitute procedural requirement would entail.” (Jd. at p. 335.) “Under the California Constitution, the extent to which due processis available depends on a weighing ofprivate and governmental interests involved. The required procedural safeguardsare thosethat will, without unduly burdening the government, maximize the accuracyofthe resulting decision andrespectthe dignity of the individual subjected to the decisionmaking process. Specifically, determination ofthe dictates of due process generally requires consideration of four factors: the private interest that will be affected by the individual action; the risk of an erroneous deprivation ofthis interest through the procedures used dnd the probable value,if any, of additionalor substitute safeguards; 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; and the governmentinterest, includingthe function involved and the fiscal and administrative burdensthat the additionalor substitute procedural requirements would entail. [Citations.]’ [Citations.]” (Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 390-391.) In this case, the federal and state due processclauses have a similar scope, and like the parties, we rely on decisions construing both the federal and thestate provisions. (See Mohilefv. Janovici, supra, 51 Cal.App.4th atp. 285,fn. 16.)?3 23 The California factors require the governmentto treat the individual with dignity and respect; otherwise they are substantially identical to the federaltest. (Anderson v. Superior Court (1989) 213 Cal.App.3d 1321, 1329-1330.) TFS does not emphasize this factor, and we would reach the sameresult undereither federal or California due process law. 22 A. TFShasa property interestin its charter. - Property interests that are entitled to due process protection “extend well beyond actual ownershipofreal estate, chattels, or money.” “The Fourteenth Amendment’s proceduralprotection of property is a safeguard ofthe security ofinterests that a person has already acquired in specific benefits.” (Board ofRegents v. Roth (1972) 408 U.S. 564, 572, 576 [92 S.Ct. 2701, 33 L.Ed.2d 548].) Such property interests include an interest in the continued receipt of welfare benefits and interests in continued employment(wherea clearly implied promise of continued employmentexists). (Ud. at p. 576.) “To havea property interest in a benefit, a person clearly must have more than an abstract needor desire for it. He must have more than a unilateral expectation ofit. He must, instead, have a legitimate claim of entitlementto it. It is a purpose ofthe © ancientinstitution ofproperty to protect those claims upon which peoplerely in their daily lives, reliance that must not be arbitrarily undermined.” (Id. at p. 577.) Such property rights “are created and their dimensionsare defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” (Ibid.; see Bostean v. Los Angeles Unified SchoolDist. (1998) 63 Cal.App.4th 95, 109 [“‘such an interest is created if the procedural requirements are intended to be a significant substantiverestriction on . . . decision making.’”].) In California Assn. ofPrivate Special Education Schoolsv. Department of Education (2006) 141 Cal.App.4th 360, the plaintiffs were an individual school that had been certified by the CDEto provide educationalservices to disabled children, and a nonprofit corporation representing schools that had beencertified by the CDE. Some of the schools hadtheir certifications suspended or revoked without prior notice or hearing. (id. at p. 365.) The relevantstatutes provided only fora petition for review after the school received a suspension or revocation notice, withouta hearing prior to revocation. (/d. at pp. 366-367.) In reviewingthe plaintiffs’ facial due process challengeto the statute and an accompanying regulation, the appellate court concluded: “the private 23 interest at issue, the financialstability of a nonpublic, nonsectarian school providing educational services to disabled children, is a serious matter.” (id. at pp. 371, 374.) Charter schools are part ofthe public school system,andareentitled to “full and fair funding” appropriated from public education funds. (§§ 47615, subds. (a)(1), (a)(3), 47612, subd. (a).) TFS’s property interest in its charter was created and defined bythe Education Code sections outlining the establishmentand operation ofcharter schools, including the revocation proceduresin section 47607. TFS, a not-for-profit corporation, obtained its charter when the County Board grantedits charter petition in 2003, and the County Board renewedthe charter for a five-year term in 2005. When revocation proceedings began in 2007 and throughout the revocation process, TFS had a legitimate claim of entitlement to the continuation of its charter. TFS therefore had a protectable property interest in its charter and in the financialstability of its business, and was entitled to due process protections in the administrative revocation process.?4 B. The revocation proceedings do not present an unacceptable risk of erroneous deprivation. “Having decided that the due process clause applied . .. we must now determine what process was due. ‘Dueprocessprinciples require reasonable notice and opportunity to be heard before governmental deprivation ofa significant property interest.’ [Citations.] ‘However, there is no precise mannerofhearing which mustbeafforded; rather the particular interests at issue must be consideredin determining what kind of hearing is appropriate. A formal hearing, with full rights of confrontation and cross- examination is not necessarily required.’ [Citation.] ‘“Due process”is an elusive concept. Its exact boundaries are undefinable, andits content varies according to specific 24 Thetrial court also concluded that TFS hada liberty interestin its charter. The Fourteenth Amendment’s guarantee ofliberty “denotes not merely freedom from bodily restraint but also the rightofthe individualto contract ....” (Board ofRegents v. Roth, supra, 408 U.S. at p. 572; see Golden Day Schools, Inc. v. State Dept. ofEducation (2000) 83 Cal.App.4th 695, 709-710 [liberty interest of nonprofit corporation operating child care programs was, implicated by three-year debarmentfrom further contracts with department].) 24 factual contexts.’ [Citations.}” (Mohilefv. Janovici, supra, 51 Cal.App.4th at p. 286.) “The ultimate balance involves a determination as to when, underourconstitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness. ... The judicial modelofan evidentiary hearing is neither a required, nor even the mosteffective, method of decisionmakingin all circumstances.” (Mathewsv. Eldridge, supra, 424 U.S.at p. 348.) The statute governing the revocation hearing provides: “Prior to revoking a charter for failure to remedya violation pursuant to subdivision (d) [the notice provision], and after expiration of the school’s reasonable opportunity to remedy without successfully remedying the violation, the chartering authority shall provide a written notice ofintent to revokeandnoticeof facts in support of revocationto the charter school. Nolater than 30 daysafter 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 ofwhether evidence exists to revoke the charter. Nolater than 30 days after the public hearing, the chartering’ authority shall issue a final decision to revokeor decline to revoke the charter, unless the chartering authority and the charter school agree to extend the issuance of the decision by an additional 30 days. The chartering authority shall not revoke a charter, unless it makes written factual findings supported by substantial evidence, specific to the charter school, that support its findings.” (§ 47607, subd.(e).) 1. Dueprocess does not require the formalintroduction of evidence at the public hearing. At the November6, 2007 public hearing on the revocation of TFS’s charter, the County Board did not formally introduce the evidencerelied upon in support of revocation. Thetrial court concludedthat although the statute did not require that the evidence in support of revocation be introducedat the hearing: “the statute implicitly contemplates the presentation of evidence. ... The final decision must be from the evidence introduced during the public hearing. It would makelittle statutory (or due process) sense for the agency to have but not disclose evidence supporting revocation at the public hearing, receive evidence from the charter school, and thenissue a final 25 decision disclosing forthe first time its evidence supporting revocation. The evidence must be introduced at the hearing; only then can the [County Board] makea final decision aboutit.” Weagree that it would violate due process for an administrative agency to conduct a hearing while failing to disclose evidenceto the party beforeit, and then to make a decision in whichit reveals the undisclosed evidenceforthefirst time. “The action of such an administrative board exercising adjudicatory functions when based upon information ofwhich the parties were not apprised and which they had no opportunity to controvert amounts to a denialofa hearing. [Citations] Administrative tribunals which are required to make a determinationafter a hearing cannotact upon their own information, and nothing can be considered as evidencethat was notintroducedat a hearing ofwhich the parties had notice or at which they were present. [Citation.]” (English v. City ofLong Beach (1950) 35 Cal.2d 155, 158 (English).) When “information [is] received without the knowledgeofthe parties and at a time and place other than that appointed for the hearing,”arid “the boardsecretly obtains information andbasesits determination thereon,”the parties affected are denied a fair hearing. (Id. at p. 159.) “Administrative tribunals exercising quasi judicial powers whichare required to make a determination after a hearing cannotact on their own information. Nothing may be treated as evidence which has not beenintroduced as such; inasmuch as a hearing requires that the party be apprised of the evidence against him in orderthat he may refute, test, and explain it.” (La Prade v. DepartmentofWater & Power (1945) 27 Cal.2d 47, 51-52 (La Prade).) Thetrial court cited Vollstedt v. City ofStockton (1990) 220 Cal-App.3d 265. In that case, an employee was demoted, andafter a two-day hearing a civil service commission concludedthat the demotion was improper and forwarded a recommendation to the city manager. The city managerrejected the recommendation based in part on a discussion with the city personnel director and a report prepared by the personnel department. (/d. at pp. 270-271.) This violated the employee’s due process right to a hearing. “he right of a hearing before an administrative tribunal would be meaninglessif the tribunal were permitted to base its determination upon information 26 received without the knowledgeofthe parties.’” (dd. at pp. 274-275, 276, quoting English, at p. 159.) English, LaPrade, and Vollstedt each involved an appeal from an initial decision to discharge an employee,and each appeal was decidedin part based upon undisclosed information. (English, supra, 35 Cal.2d at p. 157; La Prade, 27 Cal.2d at pp. 49-50; Vollstedt, supra, 220 Cal.App.3d at pp. 274-275.) . This basic principle of due process wasnotviolated in this case. TFS did not contendin the trial court and does not argue on this appeal that TFS was not apprised of all the evidenceagainstit, or that either the County Board or. the State Board relied on evidence not disclosed to TFS during the revocation process. Unless evidence received by the administrative board making the decision was not disclosed, due processis not violated. (Candlestick Properties, Inc. v. San Francisco Bay Conservation etc. Com. (1970) 11 Cal.App.3d 557, 570 [English does not apply where there was no concealment].) The lack of a formal introduction of evidence did not renderthe revocation process unfair. Weconcludethat the lack of a formal introduction of theevidenceat the revocation proceeding does not create an unacceptable risk of an erroneous deprivation of a protected interest. (Mathews v. Eldridge, supra, 424 U.S.at p. 336.) “‘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 proceedings[.]’” (Mohilefv. Janovici, supra, 51 Cal.App.4th at p. 291 .) The probable value ofthe ‘additional . . . procedural safeguard[]” (Eldridge, at p. 335) represented by a formalpresentation of evidenceis not significant, and the “fiscal and administrative burdens”(ibid.) placed on the governmentis similarly minimal. Wenote in addition that the requirementof formal presentation would necessarily apply to both parties; each would be burdened andbenefited in equal measure. Wealso reject TFS’s contentionthat the lack of a formal presentation of evidence. at the hearing violates the statute. As we stated above and as thetrial court acknowledged, the plain language ofsection 47607, subdivision (e) does not require a formalpresentation of evidenceat the revocation hearing. 27 TFSalso arguesthatthe lack ofa formal presentation of evidenceat the County Board hearing led to CDE’s recommendationthat:the State Board reverse the revocation. That contention is not supported by the portions of the CDE report cited by TFS, which merely state that the record ofthe revocation was unclear and incomplete and not supported by specific factual findings, andthe findings were not supported by substantial evidence.?5 Weconcludethat due process does not require the formal presentation of evidence at the public hearing. 2. Due process does not require an additional evidentiary hearing. In determining that an additional evidentiary hearing was necessary, the court quoted Gale’s statementthat the County Board “wasnot the neutral decision-maker,” and rejected the County Board’s argumentbased onthe factors in Mathewsv. Eldridge, © supra, 424 U.S. 319, because“this test has no application to . . . biased decision-makers,” and “[d]Jue process always requiresa level playing field of a fair hearing before a neutral or unbiased decision-maker where an adjudicative decision is made.” Thetrial court concludedthat section 47607, which was “silent on the issue of an evidentiary hearing,” did not meet the minimum requirementsof due process: “An evidentiary hearing before a(n] unbiasedhearingofficer is required. The hearing officer may be an employee of LACOEwhowas uninvolvedin the investigation and prosecution ofthe tevocation, or maybe a third party, either ofwhich would satisfy due process. The hearingofficer’s findings then musteither be acceptedor rejected by the [County Board]in a public hearing.” . Although TFSarguesthatthetrial court did not conclude that due process mandated an additional hearing before revocation, that is exactly whatthe trial court required: an additional, preliminary evidentiary hearing before a designated “unbiased” 25 Thetrial court denied TFS’s requestfor judicial notice ofthe May 19, 2008 analysis and the July 2008 agendaofthe State Board. Both items, however, appear in the administrative record admitted into evidencein the trial court, and which has been lodged with this court. 28 hearing officer, with findings that would then be presented in a public hearing before the County Board for acceptanceorrejection. This evidentiary hearing is not required by section 47607, and we concludethatit is not required by due process, as wewill explain. a. TFS did not show bias by the County Board. TFS argues that“it cannot be disputed that [the County Board] was biased,” citing the remarks of the general counsel for the County Board and LACOE. Those remarks bear repeating in their entirety. Ms. Gale, the general counsel to the County Board and LACOE,stated: “[i]n this matter the superintendent and staff [LACOE]are not the authorizer, and in our capacity weall advise the board in making this very important decision. It is not LACOE[’s] staff versus TFS’s staff. The legal burden is on you,the board ofLACOE,to determine whetherthere is substantial evidence to revoke your charter school. [{{]] 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], andit is neutral. In this matter, in this process, you are not neutral. You are the authorizer. [J Essentially this is the same process weuseto evaluate new petitions that come to this board. We use literally the same spectrum of expert—technical expert staff, there is a public hearing, there is a report of staff, and then there is a recommendation upon which our boardvotes. [{] So with all due respect, we do disagree andstill maintain that our processis entirely legal.” Paraphrased and summarized, Gale’s remarks explained that the County Board, the authorizer of the charter, was charged by section 47607 with the revocation decision. LACOEwould advise the County Board on the revocation, just as it made recommendations to the County Board on newcharter petitions. The statute also provided for an appeal to the State Board, which required independentcounsel for both sides and disclosure of all communications. The County Board,as the entity initially granting the charter, was “not neutral.” 4 29 Thetrial court cited Gale’s statements as evidence ofbias by the County Board and did not apply the Mathewsv. Eldridge, supra, 424 U.S. 319 test, which “has no application to the issue ofbiased decision-makers.” The court therefore required an additional evidentiary hearing without balancing the benefits and burdensofsuch a procedure. Gale’s statements were not an admission (or a description) of actual bias, which must be shown exceptin situations where theallegation regards a financialor personal interest ofthe adjudicator, in which case even a probability of bias will suffice to make the administrative procedure unfair. “A ‘fair trial in a fair tribunalis a basic requirement of due process.’ [Citation.] This applies to administrative agencies which adjudicate as well as to courts. [Citation.]” (Withrow v. Larkin (1975) 421 U.S. 35, 46-47 [95 S.Ct. 1456, 43 L.Ed.2d 712].) To attempt to “‘prevent even the probability of unfairness.’ . . . various situations have beenidentified in which experienceteachesthat the probability of actual bias on the part of the judge or decisionmakeris too high to be constitutionally intolerable. Amongthese cases are those in which the adjudicator has a pecuniary interest in the outcome and in which he hasbeenthetarget ofpersonal abuse or criticism from the party before him.” (Jd. at p. 47, citations & fins. omitted.) In Haas v. County ofSan Bernardino (2002) 27 Cal.4th 1017, the California Supreme Court concluded that due process required the disqualification of a temporary hearing officer “when the governmentunilaterally selects and pays the officer on an ad hocbasis andtheofficer’s income from future adjudicative work dependsentirely on the government’s goodwill.” (/d. at p. 1024.) The Court noted that “adjudicators challenged for reasons other than financial interest have in effect been afforded a presumption of . impartiality,”citing Withrow v. Larkin, supra, 41 U.S.at p. 47, but“adjudicators challenged for financial interest have not.” (Jd. at p. 1025.) In the faceofthe pecuniary interest involved, actual bias need not be shown;the objective appearanceofbias sufficed. “The appearanceofbias that has constitutional significanceis not a party’s subjective, unilateral perception;it is the objective appearancethat arises from financial circumstancesthat would offer a possible temptation to the average person as 30 adjudicator.” (Id. at p. 1034.) Independentreview bythe board ofthe hearing officer’s decision and the administrative record did not cure the possibility of bias. Thetrial court procedure may not “‘be deemedconstitutionally acceptable simply becausethe State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detachedjudgein thefirst instance.’ [Citation.]” (Ibid.) The Court declinedto consider the Mathews v. Eldridge, supra, 424 U.S. 319 balancingtest, which applied only whenprocedural safeguards were insufficient, not “when the due process claim involves an allegation of biased decisionmakers.” (/d. at p. 1035.) “The requirements of due processare flexible, especially where administrative procedure is concerned, but they are strict in condemningtherisk ofbias that arises when an adjudicator’s future income from judging depends on the goodwill of frequentlitigants who pay the adjudicator’s fee.” (Ia. at p. 1037.) , “The standard of impartiality required at an administrative hearingis less exacting than that required in a judicial proceeding. [Citation.]” (Gai v. City ofSelma (1998) 68 Cal.App.4th 213, 219-220.) “[A] party seeking to show bias or prejudice on the part of an administrative decision maker [must] prove the same with concrete facts: ‘“Bias and prejudice are never implied and mustbe established by clear averments.” [Citation.]’” (Id. at p. 220.) While the “‘probability or likelihood ofactual bias’” was the standardto be employed whenpersonalorfinancial interest was involved, wherethe plaintiff failed to establish a pecuniary or personalinterest on the part of the officer plaintiff sought to disqualify, a showingofactual bias was required. (/d. at pp. 228-229.) In the administrative setting, therefore, in the absence evidenceoffinancial or personalinterest, “in order to prevail on a claim ofbias violating fair hearing requirements, [plaintiffs] must establish “an unacceptable probability of actual bias on the part of those who have: actual decisionmaking powerovertheir claims,”’” with specific facts. (Nasha v. City of Los Angeles (2004) 125 Cal.App.4th 470, 483.) Such facts were shown when a member of the planning commission reviewing an appeal of a decision on a developmentproject wrote a newsletter article attacking the project during the pendencyofthe appeal. The 31 article “g[ave] rise to an unacceptable probability of actual bias,” and the plaintiff was entitled to a new hearing before an impartial panel. (/d. at pp. 483, 486.) There was no evidenceofa financial or personalinterest on the part ofthe County Board, nor did TFS show “concrete facts” giving rise to an unacceptable probability of actual bias. Thetrial court identified only Gale’s statementthat the County Board was “not neutral”in declining to considerthe balancingtest in Mathewsv. Eldridge, supra, 424 U.S. 319, which the court determined did not apply “to the issue of biased decisionmakers.” This was toofar a stretch. - | Although whenfinancial or personalbias is alleged, a litigant need only make a showingofa “probability of actual bias” to succeed on a dueprocess claim, “ft}he contention that the combinationofinvestigative and adjudicative functions necessarily creates an unconstitutionalrisk of bias in administrative adjudication has a much more difficult burden ofpersuasion to carry. It must overcome apresumption ofhonesty and integrity in those serving as adjudicators; and it must convincethat, undera realistic appraisal of psychological tendencies and human weakness,conferring investigative and adjudicative powers on the sameindividuals poses such a risk ofactual bias or prejudgmentthat the practice must be forbiddenifthe guarantee of dueprocessis to be adequately implemented.” (Withrow v. Larkin, supra, 421 U.S.at p. 47.) The Supreme Court foundit “notsurprising, therefore, to find that ‘the case law, both federal andstate, generally rejects the idea that the combination [of] judging [and] investigating functions is a denial of due process ....’ [Citation.]” (/d. at p. 52.) The Court rejected “the bald proposition. . . that agency members whoparticipate in an investigation are disqualified from adjudicating. The incredible variety of administrative mechanismsin this country will not yield to any single organizingprinciple.” (/bid.) When “there was no more evidenceof biasorthe risk of bias or prejudgmentthan inheredin the very fact that the Board had investigated and would now adjudicate,” and “[t]he processesutilized by the Board . . . do not in themselves contain an unacceptablerisk of bias,” no constitutional violation occurred. (Jd. at pp. 54-55.) 32 TFS arguesthatit “presented ample evidence that [the County Board] was biased.” In addition to Gale’s statementrelied upon by thetrial court, TFS points to Gale’s presence (“to provide information and respond to questions”) with other LACOE staff membersat the October 9, 2007 presentation to the County Board, at which Superintendant Roblesindicated that she believed the only option was“to go forward with her recommendation to revoke”at the October 16, 2007 County Board meeting. At the December 28, 2007 meeting of the County Board, Gale explained that based on the evidence received, LACOEwasrequired to complete the investigation into TFS, and at the same meeting explained the grounds on which LACOE was seeking revocation. TFS complains that at the same time, Gale advised the County Board on procedural rules and explained the legal situation and the Education Codeatthe request of board members. TFSalso contends that Superintendent Robles “wore numeroushats throughout the revocation process,”participating in the investigation ofTFS, recommendingthat the Board give TFSnoticeofintent to revoke, and recommendingthat the County Board revoke TFS’s charter. In essence, TFS complains that because Gale was general counsel to LACOEandto the County Board, and Superintendent Robles was county superintendent of schools, the head ofLACOE,and the County Board’s chief executive officer and secretary, there existed “overlapping functions”of “advocates and advisors to the [County] Board” and the County Board wasinclined to “give extreme deference to staff[] recommendationsregarding revocation,” constituting a “clear bias in favor of LACOEstaff.” Neither Gale nor Superintendent Robles was a memberofthe County Board entitled to vote on the revocation.2® To claim that their participation created an appearance of bias throughoutthe revocation proceedings, TFSrelies on cases involving counsel performing dualroles before administrative review boards. 26 TFS’s only assignmentof “personal[] bias[]” as to a County Board member voting on the revocationrelates to a County Board member whovoted for revocation and then defended the revocation decision before the State Board at the hearing on TFS’s appeal. Defendinga vote after the fact, in an appearance before the board charged with’ deciding the appeal, is not indicative of personalbiasin the casting ofthe vote. 33 In Quintero v. City ofSanta Ana (2003) 114 Cal.App.4th810, a detention officer was dischargedbythecity police department, andfiled an appeal with the city personnel board. (Id. at p. 812.) The city attorney, who hadacted as a legal adviser to the board, could not simultaneously advise the board andrepresentthe city on the appeal without creating “the probability of actual bias . . . [and] the appearance ofunfaimessis sufficient to invalidate the hearing.” (Jd. at pp. 815~816.) In Nightlife Partners, Ltd. v. City ofBeverly Hills (2003) 108 Cal.App.4th 81, the court found a due processviolation whena city attorney took “an active and significant part in the renewal application process” for a cabaret’s permit, and then “also appeared and participated in the administrative review ofthe denial of that application by advising and assisting” a city employeeacting as a hearing officer. (/d. at p. 90.) “There was a clear appearanceofunfaimess andbias,” becausethe city attorney’s participation “was the equivalentoftrial counsel acting as an appellate court’s adviser during the appellate court’s review of the propriety of a lower court’s judgment in favorofthat counsel’s client.” (Id. at p. 94.) In Howitt v. Superior Court (1992) 3 Cal.App.4th 1575,after a county deputy sheriff was disciplined, he challenged the discipline before a quasi-independent administrative tribunal established to resolve disputes between the county and county employees. During a contested hearing, the sheriff's department was represented by county counsel, and county counselalso advised the appeals board. (/d. at p. 1578.) Because the employment appeals board was cast as a “‘supposedly neutral decision maker’ . . . the attorney’s dual role as both advocate for a party and adviserto the tribunal. . . does violenceto [the] constitutional ideal” of due process.” (Jd. at p. 1586.) Morongo BandofMission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, concerned an administrative hearing governed by the APA beforethestate water resources boardto revoke a water license. The holdersofthe licensepetitioned the boardto disqualify the entire group of counsel prosecutingthe license revocation because at least one member of the group concurrently was acting in an advisory capacity to the board in a separate matter. (/d. at pp. 734, 735, fn. 1.) The California Supreme Court 34 concludedthat in the absenceofany evidence ofactual prejudice, the potential for unfairness when an attorney acted as a prosecutor before the board andalso acted as an adviser to the board “in an unrelated matteris too slight and speculative to achieve constitutional significance,” in part because there was no evidencethatthe attorney acted in both capacities “in this or any othersingle adjudicative proceeding.” (Id. at pp. 737, 740.) The court also disapproved of Quintero v. City ofSanta Ana, supra, 114° Cal.App.4th at p. 817, to the extentthat it “contains language suggesting the existence of a per se rule barring agency attorneys from simultaneously exercising advisory and prosecutorial functions, even in unrelated proceedings.” (Morongo Band ofMission Indians, at p. 740, fn. 2.) . These cases do not support a conclusion that an unacceptable appearanceofbias, let alone actualbias, existed in the revocation proceeding before the County Board. The cases finding due processviolationsdid not involvetheinitial adverse decisions, but addressed appeals ofthose adverse decisions before purportedly neutral review boards,in which the same counsel simultaneously advised the board and represented one of the parties. (See Hongsathavij v. Queen ofAngels etc. Medical Center (1998) 62 Cal.App.4th 1123, 1142 [no bias or probability of bias “since noneofthe people involved in the process had any overlapping memberships in both the adjudicatory body and the reviewing appeal board].”) The equivalent in this case would be for Gale to represent the County Board before the State Board, andto simultaneously advise the State Board, on TFS’s appeal from the County Board’s revocation decision. Gale’s remarks specifically advised the County Board that such overlapping of functions was prohibited on the appeal to the State Board (“[iJt is at that stage [that] there should be no one-sided communications, each side should have independent counsel’’). There is no evidence of such improperinterference in the State Board’s review of TFS’s appeal. Whattookplace at the revocation hearing was the unexceptional circumstance of general counsel and other LACOEstaff advising the County Board regardingtheinitial decision whether to reverse TFS’s charter. It cannotbesaid to violate due process for the County Board, the governing board of LACOE,to rely on LACOEstaff to investigate 35 and make recommendations regarding revocation ofTFS’s charter. At the State Board appeal, the CDE performedsimilar functions for the State Board (whichis the CDE’s governing and policy-making body) by reviewing the entire record, corresponding with TFS and LACOE,andpreparingan analysis which recommendedreversal ofthe revocation, without (understandably) any objection from TFS. The County Boardwasinvolved with TFS’s charter from thestart, grantingit in 2003 and renewingit in 2005, and then in 2007 deciding to revoke the charter. This is entirely consistent with section 47607, subdivision (c), which contemplates that “the authority that granted the charter” may also revoke the charter. The statementthat the County Board was “not neutral,” seized upon by TFSand relied uponby thetrial court, is both accurate and constitutionally acceptable. The County Board was “not neutral” because it had initially authorized TFS’s charter, and later renewedit. To say that the County Board was “biased” against TFS because it was the authorizing authority is nonsensical. (It would makejustaslittle sense to concludethatthe County Board was biased infavor of TFS, becauseit had decided to grant TFS’s charter in the first case and subsequently renewedit.) The participation of Superintendant Roblesalso did notcreate an unacceptable appearance of bias. Again, she was simply doingherjob, and the County Board was entitled to consider the recommendations of Superintendent Robles and LACOEstaff. In ' Griggs v. Board ofTrustees (1964) 61 Cal.2d 93, the California Supreme Court rejected the contention that school board members were prejudiced against a teacher who requested a public hearing after the board notified her that it intended to terminate her employment, pursuantto an accusation filed by the school superintendent. “The members of the board admitthey wereinclined to presumethat the recommendationsof their superintendentwere correct, subject to reevaluation on the basis of what would appear at the hearing, but this does not show they wereprejudiced against [the teacher] or that they could not give her a fair hearing.” (/d. at p. 98.) Weconclude that the record does not show circumstances to “overcome a presumption ofhonesty and integrity in those serving as adjudicators.” (Withrowv. 36 Larkin, supra, 421 U.S. at p. 47.) The County Board was nota biased decision maker, and wetherefore balancethe interests involved under Mathewsv. Eldridge, supra, 424 U.S.at p. 335. Thetrial court’s imposition ofan evidentiary hearing as an additional proceduralsafeguard actually provideslittle additional protection to a charter school’s interest in its charter. Under thetrial court’s formulation, even after theinitial evidentiary hearing, the final decision whetherto revoke the charter would remain with the County Board, whichthetrial court charged with accepting orrejecting the recommendationofthe hearing officer. This still leaves the ultimate decision whetherto revoke the charter in the handsofthe chartering authority, which is the very fact ofwhich TFS complains. Many of the arguments TFS makesonthis appeal regarding biased decisionmaking could be used to challenge the County Board’s vote on the hearing officer’s recommendation. Most importantly, there can be no question that the government’s interests would be greatly burdened by an additional hearing, which would entail an entirely new layer of fact finding and adjudication, with the attendant cost and further delay in revocation proceedings. Due process does not require an evidentiary hearing preliminary to the revocation procedures in section 47607, subdivisions (c), (d), and (e). We decline to add anotherlevel of adjudication to the statute. | b. The appealto the State Board provides an additional safeguard. Section 47607, subdivision (g)(1) provides: “If a 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.” Section 47607, subdivision (g)(2) provides: “The state board may reverse the revocation decision if the state board determinesthat the findings madeby the chartering authority under subdivision (e) are not supported by substantial evidence.” After concluding that the revocation proceeding before the County Boardviolated TFS’s due processrights and that an evidentiary hearing was required, the trial court stated: “The [State Board] could notact as the neutralfact-finder on appeal from [the County Board’s] decision; its review is not de novo,butratheris limited to 37 determining whether [the county Board’s] findings are supported by substantial evidence. In such a circumstance,[the County Board] cannot look to the [State Board] as the impartial decision-makerfor revocation.” | In Haas v. County ofSan Bernardino, supra, 27 Cal.4th 1017, the California Supreme Court rejected the proposition that the possibility of financial bias on the part of a hearing officer “is cured when the Board independently reviews the administrative record anddecides whetherto accept or reject the officer’s recommendation. ... [N]o court has relied on this argument to uphold a decision reached by an adjudicator found to have suffered from a constitutionally significant risk of bias. Indeed, several courts have expressly rejected the argument.” (Jd. at p. 1034.) As we state above, however, there was no evidence ofactual bias or unacceptablerisk ofbias in the County Board’s revocation ofTFS’s charter. While we agree that an appealto the StateBoard would not — cure a due process violation at the County Board level, the revocation proceedings did ‘not violate TFS’s due processrights. The Education Code does not charge the State Board with making independent factual findings on appealfrom a revocation decision. Instead, section 47607, subdivision (g)(2) charges the State Board with determining whether“the findings made by the chartering authority under subdivision (e) are . .. supported by substantial evidence.” That is the same standardsection 47607, subdivision (€) requires the County Boardto apply in deciding whetherto revoke a charterit has authorized: “The chartering authority shall not revoke a charter, unless it makes written factual findings supported by substantial evidence, specific to the charter school, that support its findings.” The plain languageofthe statute contemplates that the County Board and the State Board are to apply the samestandard. On TFS’s appealto the State Board, the CDE in this case conducted an independent reviewofthe entire record, requested and received additional material from LACOE,assessed whether substantial evidence supported each groundfor revocation, with no indication of deference to the County Board, and recommendedthatthe State ! 38 Board reverse the County Board’s revocation decision.2”7 TFS does notargue that the State Board was not impartial. Further, TFS does not point to anything in the administrative record to show that the State Board applied the highly deferential standard ~ employed in appellatejudicial review for substantial evidence. (See Hub City Solid Waste Services, Inc. v. City ofCompton (2010) 186 Cal-App.4th 1114, 1128-1129 [under substantial evidence standard of appellate judicial review, reviewing court must view evidencein light most favorableto prevailing party, drawing all reasonable inferences and resolvingall conflicts in its favor].) Thestatute’s provision for an appeal to the State Board undersection 47607, subdivisions (g)(1) and (g)(2), provides an additional safeguard against the erroneous deprivation of TFS’s property interest in its charter. The existing administrative procedures,as provided for in the statute, do not violate due process. c. There was substantial compliance with the notice requirement. As an alternate groundfor affirmanceofthe judgment,?8 TFS argues that the County Boardfailed to comply with section 47607, subdivision (d), which provides: “Prior to revocation, the authority that granted the charter shall notify the charter public school of any violation of this section and give the school a reasonable opportunity to remedy the violation ....” The trial court concluded that the County Board “substantially complied with section 47607[, subdivision] (d) by delegating the issue of notice to LACOE. This makesparticular sense because LACOE’s employeesare [the 27 Further, ACCSandthe State Board held hearings at which both sides appeared, although no requirement of further hearings on appeal appearsin section 47607, subdivision (g){1). 28 TFS did not cross-appealon this ground, but Code ofCivil Procedure section 906 provides: “The respondent . . . may, without appealing from such judgment, request the reviewing court to and it may review any of the [judgmentor order appealed from] for the purpose of determining whetheror not the appellant was prejudiced by theerroror errors upon whichherelies for reversal .. . .” “The purpose. . . is to allow a respondent to assert a legal theory which mayresult in affirmance of the judgment.” (California State Employees’ Assn. v. State Personnel Bd (1986) 178 Cal.App.3d 372, 382, fn. 7.) 39 County Board’s] staff[.] Dr. Robles, whosentthe July 19, 2007 letter, is both the Superintendent of Schools and the chief executive officer of [the County Board], and the partiesin the charter expressed confusion abouta division of authority between LACOE and [the County Board]. ... This substantial compliancealso comports with the requirements of due process. [Citation.]” Thetrial court also concluded that TFS “shows no prejudice or confusion from thenotice.” TFS argues that to comply with the statue the notice must have comefrom the County Board, not from LACOE,pointing outthat section 47607, subdivision (d) requires notice from “the authoritythat granted the charter” (here, the County Board). (The statute, however, also refers to “a county office of education” as a “chartering authority”in subdivision (g)(1), and as the trial court noted, TFSin its charter petition referred to LACOEastheentity that could revokethe charter.) On appeal, TFS does not challengethetrial court’s finding that TFS did not show any prejudice or confusion. “Only if the manner in which an agencyfailed to follow the law is shown to be prejudicial, or is presumptively prejudicial, as when the departmentor the board fails to comply with mandatory procedures, must the decision beset aside... .” (Sierra Club v. State Bd. ofForestry (1994) 7 Cal.4th 1215, 1236.) The Supreme Court presumedprejudice because,in “failing to proceed in the manner prescribed by” CEQA, the forestry board frustrated the purposeofthe statute, making “any meaningful assessmentofthe potentially significant environment impacts oftimber harvesting and the developmentofsite-specific mitigation measures impossible. “In these circumstances, prejudice is presumed.” (Id. at p. 1237.) The receipt of notice from LACOEinstead of the County Board substantially complied with the mandatory notice and did notfrustrate the purpose of the statute, so we donot presumethat TFS was prejudiced. Further, TFS does not show howthereceipt of notice from LACOEratherthan the County Board was prejudicial. 40 The form in which TFSreceivednotice is therefore not an alternate ground for affirmanceofthe judgment reversing the revocation ofTFS’s charter.29 Iif. TFSis noteligible for attorney fees. TFS filed an appeal from thetrial court’s judgment awarding TFS zeroin attorney fees pursuantto Code ofCivil Procedure section 1021.5, and Government Code section 800. Code of Civil Procedure section 1021.5 provides that undercertain circumstances “a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcementof an important right affecting the public interest . . . .”. Government Code section 800, subdivision(a) providesthat a complainant may collect attorney’s fees from a public entity “if he or she prevails”in a civil action to review the determination of an administrative proceeding undera provision ofstate law,“if it is shown thatthe award, finding, or other determination of the proceeding was theresult of arbitrary or capricious action or conductby a public entity ....” Because wereversethéjudgment, TFSis neither a successful party under Code of Civil Procedure section 1021.5, nor a prevailing party under Government Codesection 800, subdivision (a). TFS is not eligible for attorney’s fees undereitherstatute. 9 As a secondalternate groundfor affirmance, TFS arguesthat the County Board failed to make adequate factual findings under section 47607, subdivision (e) becauseit “tubber-stamped’” LACOE’s findings, and incorporated LACOE reports that were not sufficiently specific. TFS does not provide recordcitations to those reports, and they are not included in the administrative record before thetrial court and before us onthis . appeal. Further, TFS did notraise this issue in its motion for judgmentin thetrial court. Wetherefore decline to consider this issue. 4] DISPOSITION Thejudgmentis reversed. Appellants Los Angeles County Office ofEducation and Los Angeles County Board ofEducation are awarded their costs on appeal. CERTIFIED FOR PUBLICATION. JOHNSON,J. Weconcur: MALLANO,P.J. CHANEY,J. 42 o O O O N N D O o O K R W D P B = N M N M N M Y D K M D O — m S e o w e w e d o h h u l l PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES Tam employedin the County of Los Angeles, State of California. I am overthe ageof 18 and nota party to the within action; my business address is 1888 Century Park East,Suite 1850, Los Angeles, California 90067. On August 22, 2011, I served the foregoing document(s) described as PETITION FOR REVIEWontheparties in this action by serving: SEE ATTACHED SERVICE LIST (X) By Envelope- by placing (_) the original ( X ) a true copy thereof enclosed in sealedenvelopes addressed as above and delivering such envelopes. () By Mail: I am “readily familiar” with this firm’s practice of collection andprocessing correspondence for mailing. Under that practice it would be deposited with theU.S. postal service on that same day with postage thereon fully prepaid at Los Angeles,California in the ordinary courseof business. I am awarethat on motion of the partyserved, service is presumed invalid if postal cancellation date or postage meter date is morethan one day after date of deposit for mailing in affidavit. () By Personal Service: I caused such envelope to be delivered by handto the officesof the addressee(s) by delivering such envelope to First Legal Messengerservicefor personaldelivery. (X) By Overnite Express: I caused the envelope(s) to be delivered to the OverniteExpress office for delivery on the next-business-day basisto the offices of the addressee(s). () By Facsimile Transmission: On , | caused the above-nameddocumentto be transmitted by facsimile transmission to the offices of the addressee(s) atthe facsimile number(s) so indicated above. The transmission was reported as complete andwithouterror. Executed on August 22, 2011, at Los Angeles, California. (X) STATE I declare under penalty of perjury under the lawsofthe State of Californiathat the aboveis true andcorrect. \ plese a E. Chefig \ o O O N O O O O N l U l U D A r D L U l U C U O U C U L D N NR O R O PR O D R PR O R O | S | ow e o o e S U R S U l m SERVICE LIST Timothy T. Coates, Esq. Alison M. Turner, Esq. Greines, Martin, Stein & Richland LLP 5900 Wilshire Blvd., 12th Floor Los Angeles, CA 90036-3697 T: (310) 859-7811 F: (310) 276-5261 Attorney for Defendants LACOE and LACBOE (1 copy) Vibiana M. Andrade, Esq. Sung Yon Lee, Esq. Deputy General Counsel Los Angeles County Office of Education 9300 Imperial Highway Downey, CA 90242 Attorney for Defendant LACOE (1 copy) Clerk to: 2"! District Court of Appeal Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 (1 copy) Clerk to: Supreme Court of California San Francisco Office 350 McAllister Street San Francisco, CA 94012 (Original & 13 copies) Eileen Gray, Esq. California Department of Education Legal Div. 1430 N Street, No. 5319 Sacramento, CA 95814-2720 (1 copy) Clerk to: The Hon. James C. Chalfant Los Angeles County Superior Court 111 North Hill Street Los Angeles, CA 90012-3117 (1 copy) Service Deputy: Office of the Attorney General California Departmentof Justice 300 South Spring Street, Ste. 1700 Los Angeles, CA 90010 (1 copy)
