Richart v. Miracosta Community College
Dist.
Filed 4/22/13 Richart v. Miracosta Community College Dist.
CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEA, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
VICTORIA MUNOZ RICHART,
Plaintiff and Respondent,
v.
MIRACOSTA COMMUNITY COLLEGE
DISTRICT,
Defendant and Appellant.
D061865
(Super.
Ct. No. 37-2011-00083862-CU-OE-CTL)
APPEAL from a judgment of the Superior
Court of
County, Jacqueline M. Stern, Judge. Affirmed.
In this
anti-SLAPP case, we largely agree with the trial court that plaintiff and
respondent Victoria Munoz Richart's complaint against defendant and appellant
MiraCosta Community College District (District) is not subject to a motion to
strike under the anti-SLAPP statute, Code of Civil Procedure
section 425.16. The fact Richart's
employment as a District administrator ended in 2010 following public
controversy in 2006 and 2007 about her leadership does not bring the wrongful
termination causes of action she is now asserting within the scope of the
anti-SLAPP statute. The record shows
Richart's wrongful termination causes of action against District are based on
District's failure in 2009 and 2010 to perform duties imposed on it by the
state and federal Constitutions, her contract with District or statute, and not
on any exercise by District of any right protected under the petition and free
speech provisions of the state and federal
Constitutions. Thus,
Richart's wrongful termination claims do not allege causes of action which
arise "from any act in furtherance" of "right of petition or
free speech" within the meaning of the anti-SLAPP statute.
As we
also explain, with respect to Richart's claims she has been stigmatized by
District's conduct in terminating her employment, the record is clear that her
claims are based in substantial part on public statements individual members of
District's board of trustee's (Board) made beginning in 2006. Thus, we conclude Richart's stigmatization claims
are within the scope of the anti-SLAPP statute.
However, we conclude that, with respect to those claims, Richart has
provided sufficient evidence of likely success on the merits.
Finally,
we conclude that Richart's retaliation claims, her claim she was subjected to a
violent threat, and her declaratory
relief cause of action are not within the scope of section 425.16.
In sum, because the claims Richart asserts are
either outside the scope of the anti-SLAPP statute or Richart has shown a
likelihood of success with respect to covered claims, we affirm the trial
court's order denying District's motion to strike.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Tenure
as College President and Settlement
The circumstances giving rise to Richart's
complaint were, in many material respects, summarized in our opinion in
(2009) 180 Cal.App.4th 471 (Page). In Page,
we held that a settlement agreement Richart and District entered into during
the controversy, which arose when she reported wrongdoing by other District
employees and administrators, was invalid because it provided Richart with
compensation which exceeded the limits set forth in Government Code sections
53260 and 53261.
title="">[2] These provisions limit what District may provide
by way of a compromise of an employee's claims.
As summarized in Page, the circumstances which led to the settlement were as
follows:
"In 2004, District hired Richart as the
superintendent and president of [MiraCosta
College]. She received high ratings in 2005 and 2006
performance evaluations. In July 2006,
District renewed Richart's employment for an additional four-year term, from July 1, 2006, to June 20, 2010.
Her employment agreement provided for an annual salary of approximately
$227,200 with specified increases, health insurance, and other benefits. Her employment agreement also contained a
provision mandated under section 53260 detailing the maximum cash settlement
she 'may' receive 'if this Employment Agreement is
terminated . . . .'
[Fn. omitted.]
"In the summer of 2006, in response to a
whistleblower's report, Richart initiated an investigation of alleged financial
mismanagement within the college's horticulture department. She reported the matter to the district
attorney, and the employee responsible for the day-to-day operations of that
department was eventually charged with and pleaded guilty to fraud. At the end of November 2006, a secret vote by
some college faculty members unhappy with Richart's actions resulted in a
resolution of no confidence against her.
"By early 2007, the investigation and
Richart's role in it had become increasingly controversial, resulting in
complaints by the academic senate's president and council about Richart's
general leadership. The Board's president,
however, issued a letter indicating the Board's support for Richart. Large numbers of college employees began
attending Board meetings to complain about the report and Richart's
investigation. On February 1, 2007,
three trustees, Gloria Carranza, Jackie Simon and Judy Stratton, issued a
'minority response' that addressed and criticized the Board's responses to
various concerns raised by the academic senate, in part accusing the Board
majority of ignoring those and other faculty member concerns.
"Richart met the next day with Board
president Charles Adams, former Board president Rudy Fernandez and District's
general counsel to discuss the minority report and prepare a letter regarding
the minority trustees' comments. In her February 2, 2007 letter, Richart
expressed her belief that the minority response was a public negative
evaluation that undermined her office and the Board's ability to work together
for the good of the college, and constituted a violation of her due process
rights. She expressed her belief that it
might be in her best interest to publicly reveal past misconduct at the college
that had occurred before her arrival. At
the same time, Board president Adams wrote to the trustees stating that the minority
trustees had violated Richart's due process and privacy rights, and informing
them that opinions about Richart's performance had to be disclosed in closed
session where it was on the agenda for evaluations. He instructed the trustees not to make any
public evaluation statements about Richart.
"Later that month, during a public hearing,
trustee Stratton read out loud portions of Richart's February 2, 2007 letter. She spoke negatively about Richart's letter
and its content, and berated her in public.
Trustee Carranza also spoke about Richart, reporting information from
another letter Richart wrote to the Board in October 2006 and expressing 'fear
and intimidation' as a result of Richart's February 2007 letter. Carranza stated she felt Richart's letter
'was threatening a public official . . . .' Another Board member responded that the
minority trustees' actions in evaluating Richart in public and sending their
response to the college's academic senate were legally improper and put the
District at grave litigation risk.
Following the hearing, trustee Stratton provided Richart's October 2006
and February 2007 letters to the attorney for the academic senate president.
"Eventually, Richart retained attorney Robert
Ottilie to evaluate her claims against the individual trustees. District's vice-president of business and
administrative services, Jim Austin, met on at least two occasions with
District's claims adjuster, who indicated she believed Richart's claims
presented a significant threat of litigation to District. The adjuster appointed legal counsel and
agreed to mediate the dispute in front of retired Superior Court Judge David
Moon. On June 8, 2007, Richart and Ottilie met with Austin,
District's general counsel, and retired Judge Moon to present the facts of her
claims. Based on his meetings, the
discussions with Judge Moon and the claims adjuster's analysis, Austin
believed there was a substantial threat of litigation and risk of liability to
District if Richart were to proceed with litigation. He recommended that the matter be set for the
Board's consideration at a closed session.
"On June
14, 2007, Attorney Ottilie sent a letter to District's legal
counsel proposing that they discuss resolution of claims Richart believed she
possessed arising from the trustees' individual and collective conduct. [Fn. omitted.] Thereafter the Board issued a meeting agenda
for June 19, 2007, announcing that a special Board meeting/closed session would
be held by the Board under the following notice: 'Conference with Legal
Counsel—Anticipated Litigation: Significant exposure to litigation pursuant to
subdivision (b) of Section 54956.9: One case.'
"On June 19, 2007, the Board adjourned to
a closed session, during which the Board and Richart, with the assistance of
Judge Moon, reached a settlement in which Richart agreed to step down as
president and serve as a consultant for the next 18 months. Judge Moon never
entered the boardroom; groups of Board members in numbers less than a quorum
left the room to meet with Judge Moon.
The settlement agreement was drafted by District's counsel and signed by
each trustee, including the minority trustees.
In part the settlement and release agreement states: 'A dispute has occurred between the parties
regarding Richart's employment with the college. Richart through her legal counsel filed a
letter to explore and/or resolve claims. . . . The parties wish to settle their
dispute.' Under the agreement, District
would for 18 months pay Richart her monthly salary at her contract rate as well
as 'step and CPI increases,' 'existing expenses' of $3,150 per month, health
benefits, and contributions to the state retirement system. The agreement also required District to pay
Richart $43,500 in personal attorney fees 'incurred to date related to her
employment and potential claims against the COLLEGE,' and $650,000 'for
damages' upon the agreement's execution.
In exchange, Richart agreed to 'step down' on June 30, 2007.
The agreement includes a mutual general release of all claims, as well
as a Civil Code section 1542 waiver."
(Page, supra, 180 Cal.App.4th at pp. 479-482.)
Under the
terms of the settlement agreement, Richart continued working as a consultant to
District through December 31, 2008. For
its part, District appointed a new president and superintendent.
B. Taxpayer
Challenge of Settlement and Employment Status
As we noted, after the settlement agreement was
executed, a taxpayer and resident of District, Leon Page, sued District and
Richart, alleging the settlement agreement was void because it provided Richart
with compensation which exceeded the limits set forth in Government Code
sections 53260 and 53261. Page also
alleged that in entering into the settlement, District violated the open
meeting requirements of The Ralph M. Brown Act (Gov. Code, § 54950.5 et seq.;
Brown Act). By way of demurrer and
motion for summary adjudication, District prevailed in the trial court. On appeal, however, we agreed with Page that
the settlement exceeded the compensation limits of Government Code sections
53260 and 53261, and he had alleged a viable Brown Act claim. (Page,
On December 17, 2009, shortly after our opinion in
Page was filed, the Board voted to
not renew Richart's employment contract.
Between March 31, 2010, and December 1, 2010,
Richart sent District correspondence in which she expressed her willingness to
return to her job as president and superintendent. District did not respond to her offers.
On August 12, 2010, following issuance of our
remittitur in Page, the trial court
entered a judgment in favor of Page in which it invalidated the settlement
agreement and determined Richart and District were each required to return the
consideration each had received and both were relieved of any obligations they
had undertaken.
title="">[3] In what she characterizes as an act of good
faith, Richart began sending District monthly checks in the amount of $5,000.
In December 2010, District notified Richart the
health benefits it provided to her would be terminated.
C. Current
Proceedings
1. Complaint
In January 2011, after receiving notice from
District that her health benefits would be terminated, Richart filed a
complaint against District and the three minority members of the Board. Richart alleges that under the terms of her
expectation she would serve as president and superintendent of MiraCosta
College through 2014. She bases this
allegation on the fact that at the time she was recruited in 2004, District
asked her for a 10-year commitment; under the terms of her contract she was to
receive an annual review, and if the review was satisfactory, her contract
would be renewed each year for a new four-year period.
Richart
alleges the defendants violated her due process rights under the United States
and California Constitutions, committed a breach of contract, violated the
whistleblower provisions of Labor Code section 1102.5 et seq. and Government
Code section 12653, and threatened her in violation of Civil Code section
52.1.
Richart essentially asserts four theories of
substantive liability: (1) in her first, second and fifth causes of action,
Richart alleges that although due process and her employment contract obligated
District to provide her with an annual review and continue her employment if
the review was satisfactory, her employment was terminated without providing
her the required annual review; (2) in her third and fourth causes of action,
Richart alleges District's actions and the individual defendants' statements
have stigmatized her and prevented her from obtaining any employment
commensurate with her position at District; (3) in her sixth, seventh and
eighth causes of action, Richart alleges she was terminated in retaliation for
investigating the thefts reported to her and reporting the results of the
investigation to the district attorney; and (4) in her ninth cause of action,
Richart alleges she was subject to violent threats within the meaning of Civil
Code section 52.1.
In addition to her substantive causes of action,
Richart also alleged a cause of action for declaratory
relief in which she asked the trial court to determine her obligations and
District's obligations with respect to the consideration each received under
the terms of the invalid settlement agreement.
In particular, she alleged that under the Page judgment she owed District $775,000, but that this amount
should be offset by whatever amount the court determines District owed her in unpaid
salary and benefits.
After filing the complaint, Richart also stopped
making $5,000 monthly good-faith payments to District.
2.
District responded in two ways to Richart's
complaint. First, by way of a levy of
execution on the Page judgment,
District attempted to collect from Richart the money it paid her under the
settlement agreement. Richart objected
to the levy, and the trial court sustained her objection. The trial court found the
not a money judgment but contemplated further proceedings to determine the
respective rights of the parties.
Second, District filed a motion to strike under
section 425.16.
title="">[4] As we indicated, the trial court found
Richart's claims against District are not within the scope of the anti-SLAPP
statute because the trial court found the claims do not arise from the exercise
of District's petitioning or free speech rights. Although the trial court found the statements
made by the three minority Board members in 2006 and 2007 were protected
activity within the meaning of section 425.16, the trial court found District's
termination of employment in 2010 was not protected by the anti-SLAPP
statute. District filed a timely notice
of appeal.
DISCUSSION
I
The
procedure governing motions to strike is well established. "'[S]ection 425.16 requires that a court
engage in a two-step process when determining whether a defendant's anti-SLAPP
motion should be granted. First, the
court decides whether the defendant has made a threshold showing that the
challenged cause of action is one "arising from" protected
activity. [Citation.] If the court finds such a showing has been
made, it then must consider whether the plaintiff has demonstrated a
probability of prevailing on the claim.'
[Citation.]" (
467, 477, quoting City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 76.)
The scope
of actions covered by the statute is now also fairly well defined. "'[T]he mere fact that an action was
filed after protected activity took place does not mean the action arose from
that activity for the purposes of the anti-SLAPP statute. [Citation.]
Moreover, that a cause of action arguably may have been
"triggered" by protected activity does not entail that it is one
arising from such. [Citation.] In the anti-SLAPP context, the critical
consideration is whether the cause of action is based on the defendant's protected
Church Cases, supra, 45 Cal.4th
at p. 477, quoting Navellier v. Sletten
(2002) 29 Cal.4th 82, 89.)
In
dispute arose between a local Episcopal parish and the Protestant Episcopal
Church in the United States of America (the national church). The local parish and its members objected to
the ordination by the national church of an openly gay bishop in New Hampshire
and voted to disaffiliate the parish from the national church. In response, the local Episcopal diocese and
the national church brought an action to recover church property from the local
parish and various individuals associated with the parish. In particular, the diocese and the national
church sought to recover the church building and land on which the building
sits.
Among
other matters, the local parish and the individuals brought an anti-SLAPP
motion, which the trial court granted.
The Court of Appeal reversed, and on review, the Supreme Court affirmed
the Court of Appeal: "In filing
this action, the Los Angeles Diocese sought to resolve a property dispute. The
property dispute is based on the fact that both sides claim ownership of the
same property. This dispute, and not any
protected activity, is 'the gravamen of principal thrust' of the action. [Citation.]
The additional fact that protected
activity may lurk in the background -- and may explain why the rift between the
parties arose in the first place -- does not transform a property dispute into
a SLAPP suit." (
italics added.)
In
determining whether the gravamen or thrust of an action is within the scope of
the statute, the trial court considers "the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or defense is
based." (§ 425.16, subd.
(b)(2); see also Wang v. Wal-Mart Real
Estate Business Trust (2007) 153 Cal.App.4th 790, 801 (Wang).)
"On
appeal, we review de novo the trial court's ruling on the motion to
strike. [Citation.] Whether section 425.16 applies to a
particular complaint amounts to a legal question subject to this de novo
standard of review.
[Citation.]" (
supra, 153 Cal.App.4th at p. 801.)
II
The
principal dispute between the parties on appeal is not over the principles
which govern application of motions to strike under the anti-SLAPP
statute. The parties largely agree on
the applicable law. They disagree
vigorously, however, with respect as to how we should interpret the claims
asserted in Richart's complaint. Because
of this dispute, and because we conclude that some of the claims are covered by
the statute and some are not, we consider the causes of action set forth in the
complaint separately.
A.
In her first, second and fifth causes of action,
Richart asserts what we characterize as wrongful termination claims. The first and second causes of action allege
that under the United States and California Constitutions, Richart had a due
process right to a review before her employment was terminated. In the fifth cause of action, Richart alleges
that her right to a review before her employment was terminated arises out of
her employment contract, which she contends obligated District to extend her
employment each year upon completion of a satisfactory review.
The gravamen of each of these claims against
District is its failure to reinstate Richart to her position as president and
superintendent of the college following our decision in Page and thereafter give her the annual review called for in the
renewal provisions of her employment contract.
With respect to District's liability for these alleged failures in 2009
and 2010, the 2006 and 2007 free speech activities of the three individual
defendants certainly were a factual predicate.
In the absence of those activities, Richart would not have entered into
the settlement agreement, the settlement would not have been challenged and it
would not have been found invalid.
However, as in Episcopal
Church Cases, the fact that as a historical matter free speech activities
created the context for a particular dispute does not bring a cause of action
within the scope of the anti-SLAPP statute.
A cause of action falls within the scope of the anti-SLAPP statute only
when it alleges the defendant's free speech activities are themselves
actionable. (See Episcopal Church Cases, supra,
45 Cal.4th at pp. 477-478.) With respect
to District's alleged liability for its failure in 2009 and 2010 to reinstate
Richart and provide her with a review, Richart is not relying on District's
exercise of any free speech activity.
The actionable conduct—the thrust or gravamen of Richart's wrongful termination causes of action against
District—is District's failure in 2009 and 2010 to perform duties allegedly
required by Richart's contract and the state and federal Constitutions.
As in the trial court, District essentially argues
Richart cannot pursue her theory she was terminated in 2009 or 2010. District argues the 2010 judgment
invalidating its settlement with Richart did not operate to reinstate Richart
as an employee and thus Richart could not have been terminated after the
terminated in 2007 when the free speech activities of the individual defendants
made it impossible for her to fulfill her duties as president and
superintendent. Because a constructive
termination in 2007 caused by the minority trustees' statements would be more
directly connected to free speech activities, District contends we must
interpret her complaint as falling within the scope of section 425.16. We are not persuaded by this argument.
While District's view of the impact of the trial
court's 2010 judgment may ultimately prevail, at this point, Richart is free to
pursue her theory she was not terminated until 2009 or 2010. In this regard, we note that in December
2009, the Board adopted a resolution stating District would not renew Richart's
employment contract. As Richart
contends, this is evidence that in 2009 District itself believed that in the
absence of the settlement agreement, Richart was still an employee. Suffice it to say, the actual date of
Richart's termination is not something that we can resolve on this record. Rather, at this point, we must take Richart's
allegations as she asserts them, to wit:
She was terminated at some point in 2009 or 2010.
In short, Richart's allegations she was terminated
in violation of her constitutional and contract rights are not subject to an
anti-SLAPP motion to strike.
B. Stigmatization
Claims
1. Arising
Out of Free Speech Activities
In her third and fourth causes of action, Richart
alleges her termination by District and the negative statements minority
members made about her have stigmatized her in the educational community and
have made it impossible for her to find alternative employment.
In her
declaration submitted in opposition to District's motion to strike, Richart
stated "[t]here were a multitude of statements leading up to my
termination by the MiraCosta Trustees in 2010.
These have stigmatized me and when combined with the termination, have
made it, so far, impossible for me to find any comparable educational
positions, or even lower level educational jobs." Richart's declaration goes on to quote from
16 public statements allegedly made by the minority members of the Board
criticizing her performance and conduct.
In light of Richart's own description of the
factual basis of her stigmatization claims, it is clear the statements Richart
relies on are not mere evidence of some other tort, but are in fact the
tortious conduct which she contends gives rise to District's liability. (Cf. Wang,
It is also plain the statements about Richart's performance as the
administrator of a large public institution were made with respect to a matter
of considerable public interest within the meaning of section 425.16,
subdivision (e)(3). Thus, unlike the
wrongful termination claims, Richart's stigmatization claims do arise from free
speech activities within the scope of section 425.16. (See Tuchscher
Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106
Cal.App.4th 1219, 1233 [statements of officials of public entity encouraging
competitor to challenge existing agreement with public entity which are basis
for contract actions against public entity are covered by section 425.16].)
Accordingly, we must consider whether in opposing
the motion to strike, Richart established a probability of success on the merits
of her stigmatization claims.
(§ 425.16, subd. (b)(1).)
2.
"'We decide the second step of the anti-SLAPP
analysis on consideration of "the pleadings and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based." [Citation.] Looking at those affidavits, "[w]e do
not weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence
favorable to the plaintiff and assess the defendant's evidence only to
determine if it defeats the plaintiff's submission as a matter of
law." [Citation.] [¶]
That is the setting in which we determine whether plaintiff has met the
required showing, a showing that is "not high." [Citation.]
In the words of the Supreme Court, plaintiff needs to show only a
"minimum level of legal sufficiency and triability." [Citation.]
In the words of other courts, plaintiff needs to show only a case of
"minimal merit." [Citations.]'
"While plaintiff's burden may not be 'high,'
he must demonstrate that his claim is legally sufficient. [Citation.]
And he must show that it is supported by a sufficient prima facie
showing, one made with 'competent and admissible evidence.' [Citations.]" (Hecimovich
v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450,
468-469.)
Richart's declaration in opposition to the motion
to strike shows that indeed she was subjected to a number of highly critical
statements which questioned her character and competence and which, taken
together with her later termination, might have damaged her reputation. In particular, she relies on statements
accusing her of threatening Board members and vandalism of a Board member's
home. Richart's declaration further sets
forth her unsuccessful efforts to obtain similar employment elsewhere.
Contrary to District's argument, these accusations
of threats and vandalism do involve moral turpitude and thus are sufficient to
support a stigmatization claim. (See
Dist. (9th Cir. 1984) 743 F.2d 1310, 1317.)
Thus, given Richart's minimal burden, the record shows a probability of
success on the merits of the stigmatization claims sufficient to defeat
District's motion.
C. Retaliation
In her
sixth, seventh and eighth causes of action, Richart alleges she was terminated
in retaliation for her role in investigating and reporting the wrongdoing that
occurred in the college's horticultural department. Like her wrongful termination claims, our
resolution of these causes of actions depends on when in fact Richart was
terminated. If, as Richart
contends, she was terminated in 2009 and 2010, the free speech activities of
the minority trustees in 2006 and 2007, while relevant in suggesting a
retaliatory motive for her later termination, are no more than evidence which
supports her retaliation claims and do not bring those claims within the
protection provided by section 425.16.
(See Gallimore v. State Farm Fire
& Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1399.) As we determined with respect to Richart's
wrongful termination causes of action, nothing in the record precludes Richart
from pursuing her theory she was terminated in 2009 and 2010. Thus, Richart's retaliation claims are not
subject to section 425.16
D.
In her ninth cause of action, Richart alleges that
following her reports to the Board and the district attorney about wrongdoing
at the college, she was the victim of a death threat in violation of Civil Code
section 52.1. In support of this
allegation, in her declaration in opposition to the motion to strike, Richart
quoted the threat, which was sent to her office and included this
statement: "DO US ALL A FAVOR AND
JUST LEAVE! IF YOU DON'T YOU MAY NOT
LIVE TO REGRET IT! WE KNOW THE CAR YOU
DRIVE. WE KNOW WHERE YOU LIVE. YOU ARE NOT WANTED! JUST LEAVE!"
The references to Richart's car and residence take
this statement outside the realm of public hyperbole that might occur in a
highly charged controversy. Such serious
and targeted threats of violence, even in a public controversy, are not
protected by the free speech or petitioning provisions of the state or federal
Constitutions. (See Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.) Thus, Richart's Civil Code section 52.1 cause
of action was not subject to an anti-SLAPP motion to strike. (Siam
v. Kizilbash, supra, at p. 1570.)
E. Declaratory
Relief
In her declaratory relief
cause of action, Richart simply requests a determination of the parties'
respective rights following entry of the Page
judgment. Nothing in that claim
implicates any free speech or petitioning activities of either District or any
members of the Board and thus it is not subject to section 425.16.
DISPOSITION
The order denying District's motion
to strike is affirmed. Richart to
recover her costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
McDONALD,
J.
O'ROURKE,
J.
name="_ftn1" title="">[1] All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
name="_ftn2" title="">[2] Government Code section 53260 provides: "(a) All contracts of employment between
an employee and a local agency employer shall include a provision which
provides that regardless of the term of the contract, if the contract is
terminated, the maximum cash settlement that an employee may receive shall be
an amount equal to the monthly salary of the employee multiplied by the number
of months left on the unexpired term of the contract. However, if the unexpired term of the
contract is greater than 18 months, the maximum cash settlement shall be an
amount equal to the monthly salary of the employee multiplied by 18.
"(b)(1)
Notwithstanding subdivision (a), if a local agency employer, including an
administrator appointed by the Superintendent, terminates its contract of
employment with its district superintendent of schools that local agency
employer may not provide a cash or noncash settlement to its superintendent in
an amount greater than the superintendent's monthly salary multiplied by zero
to six if the local agency employer believes, and subsequently confirms,
pursuant to an independent audit, that the superintendent has engaged in fraud,
misappropriation of funds, or other illegal fiscal practices. The amount of the cash settlement described
in this paragraph shall be determined by an administrative law judge after a
hearing.
"(2)
This subdivision applies only to a contract for employment negotiated on or
after the effective date of the act that added this subdivision.
"(c)
The cash settlement formula described in subdivisions (a) and (b) are maximum
ceiling on the amounts that may be paid by a local agency employer to an
employee and is not a target or example of the amount of the cash settlement to
be paid by a local agency employer to an employee in all contract termination
cases."
Government Code
section 53261 provides: "The cash settlement specified in Section
53260 shall not include any other noncash items except health benefits, which
may be continued for the same duration of time as covered in the settlement,
pursuant to the same time limitations as provided in Section 53260, or until
the employee finds other employment, whichever occurs first."
