Sweetwater Union H.S. Dist. v.
Commission on Professional competence
Filed 3/2/12 Sweetwater Union H.S. Dist. v. Commission on
Professional competence CA4/1CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
SWEETWATER
UNION HIGH SCHOOL
DISTRICT,
Plaintiff and Appellant,
v.
COMMISSION ON PROFESSIONAL
COMPETENCE,
Defendant and Respondent;
RUBEN ELIZALDE,
Real Party in
Interest and Respondent.
D058832
(Super. Ct. No. 37-2010-00074677-
CU-PT-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Jay M. Bloom, Judge.
Affirmed.
Ruben
Elizalde, a math teacher with the Sweetwater
Union High School
District (the District), appealed his notice of
termination to the Commission on Professional Competence (the Commission). The Commission determined that there was insufficient
evidence to establish Elizalde was unfit to teach under Education Code section
44932, subdivision (a)(5). (Undesignated
statutory references are to the Education Code.) The District then filed a petition for writ
of mandate with the Superior Court
of San Diego County
seeking to set aside the Commission's decision.
The court denied the petition.
The District appeals, arguing there is
trial court's findings. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
A. Elizalde's
Employment with the District
Elizalde
holds teaching credentials in math and social studies and an administrative
credential. He has been a teacher in the
District since 1987, and began teaching math at Bonita Vista High School (BVHS)
in 2001. He also served as a summer
school administrator for the District.
The
District evaluated Elizalde's performance in 2001, 2003, 2005, and 2007. At each of these evaluations, it rated him
"satisfactory" (the highest ranking) in all categories. In 2001, the evaluator noted that Elizalde
"buil[t] positive relationships with his students, which allow[ed] for the
maximum in teaching and learning."
The evaluator in 2003, however, noted that "Elizalde [] allowed student
behaviors at times to frustrate him to a point that has caused him to act
unprofessional in some isolated occasions."
B. The
Misconduct
2006-2007 School Year
Bettina
Batista became the principal of BVHS in early 2006. According to one of Elizalde's students,
during the 2006-2007 school year, Elizalde made statements about Batista to the
class. Those statements included blaming
Batista when things went wrong, calling her a slut, and stating that she had
slept her way into the position as principal.
The student did not report the statements at the time because she did
not think they were significant. The
next year, the student told another teacher about Elizalde's comments and was
later summoned to Batista's office to make a written statement about what
occurred. Another student heard Elizalde
say that Batista did not deserve to be the principal of BVHS. This student also wrote a statement in 2008
about Elizalde's comments.
In November 2006, Elizalde yelled
at a female student because she had her cell phone out in class. When the student's brother approached
Elizalde about the incident, Elizalde said, "I don't have to explain shit
to you. Get the hell out of my classroom
or [I'll] kick you out myself."
Elizalde admitted making these statements and acknowledged that they
were inappropriate. Elizalde claimed
that he mistakenly used that language out of frustration.
Events in 2008 and 2009
In October
2008, BVHS assistant principal, Fernando Delgado, advised Elizalde that he
would evaluate him that year. Elizalde
informed Delgado that it was not time for his evaluation because he was
promised a five-year evaluation plan.
Delgado told Elizalde that he would think about it and check with the
person who may have promised the extended plan.
Later, Delgado informed Elizalde that he wanted to proceed with the
normal evaluation schedule because he was unfamiliar with Elizalde's teaching
style and practices. In response,
Elizalde stated, "That's bullshit."
There were no students present when the conversation took place.
Elizalde
thought Delgado might reconsider his decision, so he sent Delgado a five-year
evaluation participation form to sign.
Delgado viewed this as an act of defiance and prepared a letter of
reprimand. Elizalde agreed to meet with
Delgado regarding the letter and arranged for Lou Russo, another BVHS teacher,
to act as his union representative at the meeting. Batista, however, informed Elizalde that his
request to have Russo attend the meeting was denied because Russo was not a SEA
site-elected representative. Elizalde
checked with the union president who informed him that Russo was an appropriate
representative.
When Elizalde arrived at the
meeting with Russo, Batista informed Elizalde that he could not have Russo with
him and cancelled the meeting. Elizalde
was upset about the cancellation, and Batista described the situation as
"extremely tense." According
to Batista, a student overheard or witnessed her exchange with Elizalde. Elizalde continued his efforts to have Russo
at the meeting and advised Batista that another teacher had offered to cover
Russo's class during the meeting.
Batista responded that Russo could not attend the meeting because she
did not consent to the class coverage.
On one occasion, Elizalde
approached an administrative assistant about Russo's class coverage. According to the administrative assistant,
Elizalde yelled at her and she was embarrassed because there were other people
around, including two secretaries and a student aide.
In January 2009, Batista sent
Elizalde an e-mail about Elizalde's negative reaction to his second semester
teaching assignment and asked to meet with him.
Elizalde responded by stating, "[N]othing to meet about. thanks."
Batista then informed Elizalde that some of his colleagues were troubled
by his behavior and offered to take his assignment to " 'keep the peace.' " Elizalde thought his response was respectful
and not defiant. Batista, however,
characterized the response as dismissive.
The next day, Batista went to
Elizalde's classroom to discuss his teaching assignment. She waited at the door while students were
leaving. Elizalde noticed Batista
standing at the door and walked past her to leave the classroom. Elizalde and Batista had differing
characterizations of the events that occurred after Elizalde left the
classroom, but in general, a confrontation ensued and Elizalde grabbed the arm
of an assistant walking by to be a witness.
According to Batista, she directed
Elizalde to go back into the classroom and he complied. However, Elizalde darted back out, grabbed
the door and shut it. The door hit
Batista's arm and she accused Elizalde of hitting her with it. Elizalde denied closing or slamming the door
on Batista, and stated that he did not see it hit her.
C. Notice
of Dismissal
In January
2009, the District placed Elizalde on administrative leave and informed him
that he was not allowed to enter any District facility without prior
approval. In April, the District served
Elizalde with a notice of its intention to dismiss him as an employee and
statement of charges, alleging evident unfitness for service under section
44932, subdivision (a)(5).
D. The
Hearing and Commission's Decision
Elizalde
requested a hearing before the Commission to contest the dismissal charges. The Commission held an
a three-person panel. The District and
Elizalde each had the opportunity to call witnesses and to present documentary
evidence. The Commission issued its
decision in December 2009, unanimously finding that cause did not exist to
dismiss Elizalde from his teaching position.
In reaching its decision, the
Commission expressed its concern, stating:
"The Commission was very troubled by [Elizalde's] conduct. The statements he made to and in the presence
of students were highly inappropriate and reflected extremely poor
judgment. His attitude toward school
administration, and in particular Batista, was defiant and disrespectful. Overall, his behavior was repeatedly
unprofessional and reflected a significant
. . However, the evidence as a whole,
including all of the matters just noted, was insufficient to establish [Elizalde's]
unfitness to teach." The Commission
also noted that Elizalde's "misconduct, in terms of extent, severity, and
recency, primarily involved his relationship with school administration, and
did not in a serious way adversely affect students."
E. The
District's Petition for Writ of Mandate
The
District filed a petition for writ of mandate challenging the Commission's
decision. The District alleged the
Commission abused its discretion and that the weight of the evidence did not
support a dismissal of the charges against Elizalde. Elizalde opposed the petition as the real
party in interest.
The trial
court upheld the Commission's decision, concluding that "the record
show[ed] two incidents involving students that occurred two years ago, that
were addressed and that ha[d] not been repeated. In October 2008 and January 2009, Elizalde
and the school administrators had several difficult encounters. There are different explanations for the
conduct. The court is mindful that the
record shows Elizalde ha[d] been disrespectful towards administrators and at
times [] conducted himself in an unprofessional manner. Nonetheless, while the court takes a dim view
of Elizalde's conduct, the evidence presented [was] insufficient . . . to
conclude that he [was] evidently unfit for service, which requires more than a
showing of unprofessional conduct."
DISCUSSION
I. Standard
of Review
A trial court reviewing the
decision of an administrative agency exercises its independent judgment in
reviewing the evidence and that an "abuse of discretion is established if
the court determines that the findings are not supported by the weight of the
evidence." (Code Civ. Proc., §
1094.5, subd. (c).) Under the
independent review standard, the trial court may weigh the credibility of
witnesses. (Pittsburg Unified School Dist. v. Commission on Professional Competence
(1983) 146 Cal.App.3d 964, 977 (Pittsburg).)
"After the superior court
makes an independent judgment upon the record of an administrative proceeding
[the] scope of review on appeal is limited." (San
Dieguito Union High School Dist. v. Commission on Professional Competence
(1985) 174 Cal.App.3d 1176, 1180.) We
must sustain the trial court's findings if they are supported by substantial
evidence. (Pittsburg, supra, 146
Cal.App.3d at p. 978.) In reviewing the
evidence, we resolve all conflicts in favor of the party prevailing at the
trial court level and must give that party the benefit of every reasonable
inference in support of the judgment.
"When more than one inference can be reasonably deduced from the
facts, the appellate court cannot substitute its deductions for those of the
superior court." (
Cal.App.4th 369, 378.) Our inquiry
"begins and ends with the determination as to whether there is substantial
evidence, contradicted or uncontradicted, which will support the finding of
fact." (Perez v. Commission on Professional Competence (1983) 149
Cal.App.3d 1167, 1176.)
II. Evident
Unfitness for Service
The
District asserts the trial court's conclusion that the evidence did not
establish Elizalde was evidently unfit for service must be reversed because it
was not supported by the record. We
disagree.
A. Legal
Principles
Section
44932, subdivision (a)(5), provides that a permanent employee of a public
school district may be dismissed for evident unfitness for service. In the context of a teacher, " 'evident unfitness for
service' . . . means 'clearly not fit, not adapted to or unsuitable for
teaching, ordinarily by reason of temperamental defects or inadequacies.' Unlike 'unprofessional conduct,' 'evident
unfitness for service' connotes a fixed character trait, presumably not
remediable merely on receipt of notice that one's conduct fails to meet the
expectations of the employing school district." (Woodland
Joint Unified School Dist. v. Commission on Professional Competence (1992)
2 Cal.App.4th 1429, 1444, fn. omitted (Woodland).)
In Morrison v. State Board of Education (1969) 1 Cal.3d 214 (
factors relevant to a determination of a teacher's unfitness to teach as
follows: (1) "the likelihood that
the conduct may have adversely affected students or fellow teachers [and] the
degree of such adversity anticipated," (2) "the proximity or remoteness
in time of the conduct," (3) "the type of teaching certificate held
by the party involved," (4) "the extenuating or aggravating
circumstances, if any, surrounding the conduct," (5) "the
praiseworthiness or blameworthiness of the motives resulting in the
conduct," (6) "the likelihood of the recurrence of the questioned
conduct," and (7) "the extent to which disciplinary action may
inflict an adverse impact or chilling effect upon the constitutional rights of
the teacher involved or other teachers."
(Id. at p. 229, fns.
omitted.) "These factors are
relevant to the extent that they assist the board in determining whether the
teacher's fitness to teach, i.e., in determining whether the teacher's future
classroom performance and overall impact on his students are likely to meet the
[school district's] standards." (
B. Application
of Morrison Factors
1. Adverse Affect
on Students, Teachers and Administrators
In regard
to the impact of Elizalde's conduct on students and teachers, the trial court
determined that while the incidents in 2006 and 2007 involved students, they
were resolved and there was no showing that the conduct persisted beyond the
2007 school year. The trial court also
found that there was "an insufficient showing to conclude that students or
teachers had been adversely affected" by Elizalde's conduct in 2008 and
2009.
The District argues that both the
Commission and the trial court erred in focusing on the impact of Elizalde's
behavior on students, rather than on BVHS staff and administrators. Even assuming that we should consider the
impact of Elizalde's conduct on staff and administrators, substantial evidence
supports the trial court's conclusion that although Elizalde conducted himself
in an unprofessional manner, his conduct did not render him unfit for
service. The incidents in 2008 and 2009
showed clear lack of respect for Batista and Delgado, but there was no evidence
indicating that the conduct had an adverse affect such that it impacted
Elizalde's or any other teacher's or administrator's classroom performance and
overall ability to teach students. (
determining the affect on the teacher's future classroom performance and
overall impact on students].) Likewise,
although we agree with the District that Elizalde's conduct negatively impacted
his relationship with Batista, this impairment is not sufficient to deem Elizalde
unfit for service.
Relying on San Diego Unified School Dist. v. Commission on Professional Competence
(2011) 194 Cal.App.4th 1454, 1463 (San
Diego Unified), the District also asserts that Elizalde's conduct had a
substantial impact on students because Elizalde was a poor role model. Contrary to the District's suggestion,
Elizalde's conduct is not akin to the teacher in San Diego Unified. In that
case, the teacher posted an ad on a website soliciting sex. (Id. at
p. 1458.) The ad contained obscene text
and photographs of the teacher that were viewed by a parent and an
educator. (Ibid.) Here, although
Elizalde may have made inappropriate statements about Batista to his students,
his conduct did not rise to the level of obscenity of the teacher in
evidence that Elizalde's inappropriate statements to students persisted after
2007. (See post, Part II.B.2.)
2. Proximity or Remoteness in Time of the
Conduct
The next
factor we must consider is the proximity or remoteness in time of Elizalde's
conduct to the charges against him. The
District characterizes Elizalde's conduct as an ongoing pattern of misconduct
from 2003 to 2009. We do not agree with
this characterization. As the trial
court noted, the incidents directly involving students occurred in 2006 and
2007 and there was no showing that Elizalde made any further inappropriate
statements to students after 2007, which was two years before any charges were
filed against him. More than a year
later, Elizalde exhibited unprofessional and disrespectful behavior with
administrators. However, as we have
already discussed, that behavior did not have an adverse affect on students or
teachers. As such, this factor does not
weigh in favor of the District.
3. Type of
Teaching Certificate Held by Teacher
Elizalde holds teaching credentials
in math and social studies and an administrative credential. Neither the trial court nor the Commission
made a finding concerning this factor and we find nothing in the record demonstrating
that Elizalde's behavior was inconsistent with his ability to teach students in
accordance with his credentials.
4. Extenuating or
Aggravating Circumstances Surrounding the Conduct
As the
trial court noted, "[t]here [was] evidence Elizalde and administrators
disagreed and/or had different interpretations as to his rights under the
collective bargaining agreement regarding his evaluation timing and right to a
witness." While we do not find
Elizalde's highly unprofessional conduct excusable, these may be extenuating
circumstances explaining his behavior.
Regardless, however, even if the conduct was unexplained, the District
has not shown it was anything more than unprofessional, which is not enough to
render a teacher unfit for service. (See
Woodland, supra, 2 Cal.App.4th at pp. 1444-1445.)
5.
Praiseworthiness or Blameworthiness of the Motive
The
District asserts that Elizalde had a blameworthy motive of animosity toward
administrators. Elizalde, on the other
hand, asserts that he had a praiseworthy motive of protesting perceived
violations of his right to a representative of his choosing at meetings with
administrators. As with the extenuating
circumstances factor, even if Elizalde had blameworthy motives for his conduct,
the District has simply shown unprofessional conduct that does not rise to the
level of evident unfitness for service.
(See Woodland,
6. Likelihood of
Recurrence of the Conduct
Concerning
the likelihood of recurrence, the trial court concluded: "Elizalde made some bad choices as to
statements made to students, but it appears that was addressed and has not
occurred since 2007. . . . Elizalde's
offensive outburst to the Vice Principal when he found out he would have an
evaluation, while improper and arguably without remorse, does not necessarily
show escalating verbal aggressiveness.
The evidence as to the door incident is conflicting as to whether it was
an accident or an intentional act of violence."
There is nothing in the record
indicating that Elizalde continued his improper conduct around students after
2007 or that his behavior with administrators was escalating. Rather, viewed in the light most favorable to
Elizalde, the evidence indicated that Elizalde attempted to avoid further
confrontation by informing Batista that there was nothing to talk about
concerning his new teaching assignment and that the incident with the door was
an accident. Thus, the evidence is
insufficient to establish a likelihood of recurrence.
7. Chilling Effect
on Constitutional Rights of Teachers
The last
action would have any adverse impact or chilling effect on the
"send[] a chilling message to other [union] members not to speak-up or
challenge District administrators' interpretations of their rights under the
collective bargaining agreement."
Other than evidence regarding Elizalde's attempts to have Russo attend
meetings as his union representative, there was no other evidence presented
concerning the impact of discipline on the rights of teachers. Further, neither the Commission nor the trial
court made findings regarding the chilling effect on teachers. Having found that there was substantial
evidence supporting the trial court's decision based on the other
express an opinion regarding the impact that discipline would have on the
constitutional rights of teachers.
C. Defect
in Temperament
If an
analysis of the Morrison criteria
indicates a teacher is unfit for service, "the next step is to determine
whether the 'unfitness' is 'evident'; i.e., whether the offensive conduct is
caused by a defect in temperament."
(Woodland,
evidence to establish Elizalde's conduct rendered him unfit for service, we
need not consider whether his conduct was caused by a defect in temperament.
D. Conclusion
Although we
conclude there was not a sufficient showing that Elizalde was unfit to teach,
we certainly do not condone his behavior.
In our view, he acted in a highly unprofessional and disrespectful
manner that was not productive for either him or administrators. We urge Elizalde to reconsider his behavior
and to be mindful of his conduct in the future because if the conduct was more
frequent or exaggerated, it could amount to unfitness to teach.
DISPOSITION
The judgment is affirmed.
Respondent is entitled to costs on appeal.
McINTYRE,
J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
