Majority
Opinion
Introduction
The Education Code sets forth procedures to be followed when a school district seeks to dismiss a teacher. When the school district gives written notice of its intention to dismiss a teacher, the teacher may make a written request or “demand” for a hearing before the Commission on Professional Competence (see Ed. Code, § 44944, subd. (b))[1] to contest the dismissal. Section 44944, subdivision (a), provides that when a teacher makes such a request, “the hearing shall be commenced within 60 days from the date of the employee’s demand for a hearing . ...” In some instances both the teacher and the school district desire to have more than 60 days to prepare their presentations of evidence to the commission. Fourteen years ago in Powers v. Commission on Professional Competence (1984) 157 Cal.App.3d 560 , 569, [ 204 Cal.Rptr. 185 ], this court held that the parties could “ ‘stipulate that the necessary ceremonial has been observed’ ” and that such a stipulation would satisfy the 60-day requirement of section 44944, subdivision (a). This has been the law for at least the past 14 years. In the present case appellant entered into such a stipulation within the 60-day period. After the 60 days elapsed, he then contended that the commission had no jurisdiction to hold the hearing and to render its decision ordering his dismissal. In the published portion of this opinion, we reaffirm our holding in Powers that the parties may “stipulate that the necessary ceremonial has been observed” and may thereby satisfy the 60-day requirement of section 44944, subdivision (a).
Appellant was a teacher at Highland High School in Kern County. The Commission on Professional Competence for the Kern High School District ordered appellant dismissed from employment with the district for dishonesty (§ 44932, subd. (a)(3)) and for evident unfitness for service (§ 44932, subd. (a)(5)). Appellant petitioned the superior court for review of the commission’s decision. (§ 44945.) The superior court reviewed the matter and affirmed the decision of the commission. Appellant now appeals from that superior court judgment.
Appellant was represented by counsel at his hearing before the commission, but represented himself in the superior court proceeding and again
1 All future references are to the Education Code unless otherwise stated.
Facts
The district’s second amended accusation gave appellant notice of seven incidents or sets of incidents alleged by the district to constitute cause for dismissal on grounds of dishonesty (§ 44932, subd. (a)(3)), evident unfitness for service (§ 44932, subd. (a)(5)), and persistent violation of or refusal to obey school laws or reasonable regulations (§ 44932, subd. (a)(7)). Only four of these are pertinent to this appeal. We will refer to these as the writing proficiency exemption matter, the missing files matter, the false evaluation matter and the unauthorized purchases matter. As to these four matters, the facts found to be true by the superior court were virtually identical to the facts found to be true by the commission. They are amply supported by substantial evidence and are as follows.[3]
The Writing Proficiency Exemption Matter
The district administers a writing proficiency examination, a test which is a graduation requirement. In the latter part of April 1992, appellant asked
2 Appellant’s name appears on the vexatious litigant prefiling orders list compiled and disseminated by the Judicial Council of California. (See Code Civ. Proc., § 391.7. subd. (d).) According to the list, the prefiling order was made in In re Marriage of Wilmot (Super. Ct. Kern County, No. 525300) on May 10, 1993, and pertains only to filings related to that action. The case presently before us is not action No. 525300. We therefore treat the present appeal no differently than we would if appellant’s name did not appear on the list.
3 The factual account which follows is taken from the superior court’s statement of decision. In view of appellant’s oft-repeated but erroneous assertion that the superior court “set aside” any commission finding not restated by the superior court in the exact same language used by the commission (addressed in an unpublished portion of this opinion), we expressly note that the account which follows has been edited slightly for purposes of style and grammar. It contains no substantive change from the superior court’s own account of these events as stated in the superior court’s statement of decision. We should also note here that the following factual account does not include various procedural facts pertinent to appellant's contention that the Commission on Professional Competence did not have jurisdiction to render any decision at all. We will address that contention, and the procedural facts pertinent to it, in part I of this opinion, post.
After mid-April 1992 appellant could not use his computer terminal to enter writing proficiency grades or exemption codes.[4] On May 4, 1992, appellant attempted to change the student’s writing proficiency score by using a computer terminal assigned to special education secretary Marti Sheldon. Appellant started to use Sheldon’s computer without her permission and was still working at that computer when Sheldon returned from her break. Appellant misrepresented to her the purpose for his unprecedented visit and continued his task. He was unable, however, to make the change because Sheldon’s computer did not have the necessary capability. The next day appellant continued his efforts to change the student’s writing proficiency score. He obtained an extra set of keys usually kept outside of the office of Registrar Judy Etchechury, unlocked the registrar’s office and entered it. Registrar Etchechury was taking her usual morning break at a location away from her office, as was her custom. Etchechury had already used her password to access the computer system, and her computer was still on when she left the office. Once inside the registrar’s office, appellant was able to gain access to the student’s records. Appellant replaced the student’s failing writing proficiency grade with an exemption code.
District officials became aware of the student’s unauthorized and improper writing proficiency exemption and corrected it. Appellant’s action caused the school administration to become involved in a controversy with the student’s mother about the reasons for the removal of the exemption.
The Missing Files Matter
On May 5, 1992, Mr. James went into appellant’s classroom to retrieve the student’s school files. Appellant was the student’s “independent study”
4 This was because district officials had reduced his computer capability after he had “dropped” a midterm Highland High graduate from the Highland computer records in February or March of 1992.
Within minutes of leaving the above described June meeting, appellant spoke to Daryl Larsen, a police investigator employed by the district. Appellant told Larsen that Larsen should look in the back of Dr. Scott’s car to find the student’s missing files. Appellant undertook this action with the intent to embarrass the school principal, Dr. Scott, and to place blame on her for the “missing” files.
The False Evaluation Matter
Appellant met with Dr. Scott and assistant vice-principal Swank on October 25, 1991, for a preevaluation conference. Appellant was told that Ms. Swank would prepare his 1991-1992, evaluation. On June 2, 1992, Ms. Swank gave appellant an evaluation she had prepared. The evaluation included a rating of appellant in each of five categories and a “Narrative Summary Evaluation.” Swank assigned a “Satisfactory” rating, defined by the district as “Meets expectations of the Kern High School District,” to appellant in each of the five categories. The “Narrative Summary Evaluation” stated: “Mr. Wilmot works well with students on an individual basis. Due to concerns that have recently come up, I am requesting to further evaluate Mr. Wilmot during the 1992-[19]93 school year.” Swank discussed this evaluation with appellant. Appellant took the written evaluation with him, and told Swank he would return it with his own written comments. On June 16 appellant returned a different “evaluation” to Ms. Swank. The one he returned did not have a “Satisfactory” rating in each of the five rating categories. Instead it had the higher rating of “Commendable” in two of the five categories, and the highest rating of “Exemplary” in the other three categories. The “Narrative Summary Evaluation” portion of the “evaluation” did not include the above-quoted two sentences Swank had written. Instead,
During June of 1992 appellant had a job interview with Ms. Jennine Thompson, the principal of another high school in the district. During the job interview, appellant presented the altered, self-prepared “evaluation” to Thompson and represented it to be a legitimate evaluation by Ms. Swank. He intended for Thompson to rely on this “evaluation.”
Appellant had applied for a merit salary increment (i.e., a raise) on March 5, 1992. His application had been denied by Dr. Scott. On June 16, 1992, appellant filed with the district superintendent an appeal of Dr. Scott’s denial of the salary increment. In support of his appeal to the superintendent,
5 The “evaluation” returned by appellant to Swank was entered into evidence at the commission hearing and thus was also reviewed by the superior court. Its “Narrative Summary Evaluation” stated: “Charles Wilmot has been head teacher in Independent Studies (IS) at Highland for the past six years. He continues to maintain a well organized, academically sound (continueously [sr'c] updating curriculum), and strongly student centered IS. The overall excellence in different IS areas has earned him two Commendable and three Exemplary ratings. He is unsurpassed in the record keeping of IS students; has again maintained the highest ADA in the district; has a very obvious and real concern in working with all IS students; and closely monitors their progress. He has high expectations of the students and reviews each subject in detail with these high standards in mind. Mr. Wilmot’s counseling skills are quite evident in working in every aspect with all students and his caring personal approach is one reason for his student’s success. Mr. Wilmot is the person to contact with any questions in regard to IS. He has an indepth knowledge of the total operations of IS. In his tenure with IS, his organizational skills have been tapped on numerous occasions by his director, and he has presented workshops for other districts on how to implement IS in their district. This year he has been contacted by the office of the atheletic [jv'c] commissioner in regard to legalities of IS students participating in sports, and was contacted by West High’s dean in regard to IS curriculum matters. After a review of IS files in September. George Pinheiro. IS Director noted that when he and Diane Fletcher, Resource Teacher, left Highland they were, ‘in a state of near euphoria’. Mr. Wilmot works hard to keep IS from becoming an isolated program with forgotten students. He constantly keeps Highland’s administration, counseling, attendance, registar, [sz'c] and security informed of the status of all IS students. Independent Studies was relocated (third time in two years) to RC12. Mr. Wilmot transformed the former Industrial Arts office into an attractive and very functional learning environment for IS. He coordinated the major aspects of the relocation with AP. Dave Yanney and Bill Ennis. Maintenance Supervisor using his own time several weeks before the beginning of school. Mr. Wilmot is always willing to help out whenever needed. He was very instrumental on several occasions in helping to control dangerous and potentially dangerous situations on campus and at atheletic [sic] events, even at a football game at Shafter. Mr. Wilmot has trained all certificated and classified employees in Highland's IS in the various and diversified aspects and duties inherent to IS. He delegates clear and concise directives to his IS staff. Mr. Wilmot is an outstanding teacher and his expertise in IS, along with a truly deep caring for students, makes him an asset to Highland’s staff and the Kern High School District.”
The Unauthorized Purchases Matter
During the five-year period that preceded the 1991-1992 school year, prior approval from district administrators was required for the purchase by district employees of equipment or supplies. If the purchase was for the independent studies program, then authorization had to be obtained from the district’s special programs administrator, Mr. George Pinheiro, or his designee. If the purchase was for a program administered at the school site, then approval had to be obtained from a designated local administrator. Appellant was aware of this policy. On June 1 and June 15, 1992, appellant made unauthorized purchases of equipment and supplies at a local retail store called BizMart. The total cost of the items in the June 1 purchase was $316.72. The total cost of the items in the second purchase was $2,795.20. Items in the second purchase included a photocopier and a word processor. Appellant placed the purchased items in a warehouse owned by a friend. He did not inform any other district employee about his purchase or about the storage arrangements. At some point appellant took the copier and word processor to his home, where he used these items. With the exception of some supplies, all of the items purchased at BizMart were returned to the district after they were discovered by a district police officer. The district refused to pay BizMart for the items purchased by appellant and was able to return most of the items to BizMart. Appellant intended to deceive district authorities for as long as he could, and intended to use the equipment and supplies for his 1992-1993 class assignment.
Just as the commission had done, the court concluded that appellant’s above described actions constituted acts of dishonesty within the meaning of section 44932, subdivision (a)(3), and that these same acts of dishonesty demonstrated evident unfitness for service within the meaning of section 44932, subdivision (a)(5), and an “unfitness to teach when measured by the factors first enunciated by the Supreme Court in Morrison v. State Board of Education (1969) 1 Cal.3d 214 [ 82 Cal.Rptr. 175 , 461 P.2d 375 ],”[6] Just as the commission had done, the court further concluded that appellant’s demonstrated dishonesty and evident unfitness for service constituted cause for dismissal from his employment with the district. The court further stated: “Petitioner’s misconduct was serious and pervasive, affecting the educational structure in different ways. He falsified student records (Allen matter);
6 We will address the significance of the finding of unfitness to teach, and of the Morrison case, in an unpublished portion of this opinion.
Judicial Review of Commission Decisions
“The decision of the Commission on Professional Competence may, on petition of either the governing board or the employee, be reviewed by a court of competent jurisdiction in the same manner as a decision made by a hearing officer under Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.” (§ 44945.) That is, “[¡judicial review may be had by filing a petition for writ of mandate in accordance with the provisions of the Code of Civil Procedure, subject, however, to the statutes relating to the particular agency.” (Gov. Code, § 11523; see also Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309 , 313-314 [ 142 Cal.Rptr. 439 , 572 P.2d 53 ], and Pittsburg Unified School Dist. v. Commission on Professional Competence (1983) 146 Cal.App.3d 964 , 976 [ 194 Cal.Rptr. 672 ].) The petition is filed “in superior court.” (Pasadena Unified Sch. Dist., supra, 20 Cal.3d at p. 313.) “The court, on review, shall exercise its independent judgment on the evidence.” (§ 44945.) The superior court’s review of the petition for writ of mandate is governed by Code of Civil Procedure section 1094.5. (Pasadena Unified Sch. Dist., supra, 20 Cal.3d at p. 314; Pittsburg Unified School Dist., supra, 146 Cal.App.3d at p. 976.) That standard of review is as follows:
“(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.
“(c) Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, 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.)
After the superior court has rendered its judgment, however, and the losing party has appealed, a different standard of review applies to the appellate court.
“Where a superior court is required to make such an independent judgment upon the record of an administrative proceeding, the scope of review on appeal is limited. An appellate court must sustain the superior court’s findings if substantial evidence supports them. (Moran v. Board of Medical Examiners (1948) 32 Cal.2d 301 , 308-309 [ 196 P.2d 20 ]; Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67 , 71-73 [ 64 Cal.Rptr. 785 , 435 P.2d 553 ]; Bixby v. Pierno (1971) 4 Cal.3d 130 , 143, fn. 10 [ 93 Cal.Rptr. 234 , 481 P.2d 242 ]; Harlow v. Carleson (1976) 16 Cal.3d 731 , 739 [ 129 Cal.Rptr. 298 , 548 P.2d 698 ].) In reviewing the evidence, an appellate court must resolve all conflicts in favor of the party prevailing in the superior court 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. (Moran v. Board of Medical Examiners, supra, 32 Cal.2d at p. 308.)” (Pasadena Unified Sch. Dist. v. Commission on Professional Competence, supra, 20 Cal.3d at p. 314.)
“Evidence is substantial if any reasonable trier of fact could have considered it reasonable, credible and of solid value.” (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040 , 1052 [ 236 Cal.Rptr. 526 ]; Lam v. Bureau of Security & Investigative Services (1995) 34 Cal.App.4th 29 , 36 [ 40 Cal.Rptr.2d 137 ].) An appellate court will reverse a trial court’s decision not only when the trial court’s decision is not supported by substantial evidence, but also when the trial court’s decision is based on an erroneous conclusion of law. (Magit v. Board of Medical Examiners (1961) 57 Cal.2d 74 [ 17 Cal.Rptr. 488 , 366 P.2d 816 ].) An appellate court will also reverse the trial court judgment if the trial court has failed to make a necessary factual determination. (Allegretti v. Board of Osteopathic Examiners (1956) 145 Cal.App.2d 435 [ 302 P.2d 694 ]; Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652 [ 53 Cal.Rptr.2d 4 ].)
Appellant’s Contentions
An appellate court once commented on a difficult issue of law by observing that “[t]hose who have tried to extract a coherent set of rules from cases
I
Appellant contends: (1) “the trial court made an erroneous conclusion of law in determining that the Commission acted within its jurisdiction,” (2) “the Commission and the trial court’s failure to consider all evidence on the issue of unfitness to reach requires reversal of the trial court’s judgment and issuing of the writ,” (3) “as a matter of law the trial court was required to issue the writ of mandate after determining that findings made by the Commission were not supported by the weight of the evidence,” (4) “as a matter of law the accusation fails to state sufficient facts to constitute a cause of action for unfitness to teach pursuant to the Supreme Court’s holding in Morrison” (referring to Morrison v. State Board of Education (1969) 1 Cal.3d 214 [ 82 Cal.Rptr. 175 , 461 P.2d 375 ]), (5) “there is no substantial evidence from which essential inferences can be drawn from the trial court’s findings requiring reversal of its judgment and the writ to issue,” (6) “the trial court’s substitution of its own findings for those of the Commission results in reversible error per se,” and (7) “the trial court erred as a matter of law by failing to make findings on material issues and issuing an inadequate statement of decision, thus, violating sections 632 and 634 of Code of Civil Procedure and California Rule of Court 232, requiring reversal per se.”
Section 44944, subdivision (a), states in part that “. . . if a hearing is requested by the employee, the hearing shall be commenced within 60 days from the date of the employee’s demand for a hearing.” Appellant’s first argument is that this 60-day time period “is jurisdictional” and that “if the hearing is not conducted by a Commission within 60 days from the date of the employee’s demand, the Commission has no jurisdiction to conduct the hearing . . . .” Although appellant’s argument is not clearly articulated, he appears to contend that under no circumstance can the hearing take place more than 60 days after the employee has demanded the hearing unless the commission has begun to take evidence within 60 days of the employee’s demand for a hearing. Appellant is mistaken.
We see at least two reasons why appellant is incorrect in his contention that the commission does not have jurisdiction to conduct a hearing if no
First and foremost, the very subsection of the very statute upon which appellant relies says otherwise. Subdivision (a) of section 44944 also provides that “[i]f any continuance is granted pursuant to Section 11524 of the Government Code, the time limitation for commencement of the hearing as provided in this subdivision shall be extended for a period of time equal to such continuance.” The statute therefore expressly contemplates that in some instances the “commencement of the hearing” will take place more than 60 days after an employee has requested a hearing.
Second, even if we liberally construe appellant’s argument as a contention that in this particular case the commission lacked jurisdiction to hold a hearing because no continuance was granted and no evidence was presented within the 60 days, the argument still fails. The argument fails because appellant’s hearing “commenced within 60 days” within the meaning of section 44944, subdivision (a). The procedural facts pertinent to this issue have never been in dispute. They are as follows. On May 10, 1993, the district’s board of trustees adopted a written statement of charges alleging that cause existed for appellant’s dismissal. On May 12 appellant was personally served with a notice of intent to dismiss. On May 14 appellant demanded a hearing. An accusation was filed on July 7 and was served on appellant’s legal representative at that time, Attorney Richard J. Papst. On July 7 Mr. Papst, on behalf of appellant, and Attorney Frank J. Fekete, on behalf of the district, entered into a stipulation stating that “[t]he hearing in this matter shall commence on July 9, 1993 before an Administrative Law Judge of the Office of Administrative Hearings,” that “[t]he hearing shall be opened for jurisdictional purposes only on that date and no appearance by the parties or their counsel is required,” that “[t]he hearing shall be reconvened on September 7, 1993,” that “[t]he jurisdiction of Commission to proceed is established as of July 9, 1993,” and that “[t]he parties agree that the terms of this Stipulation satisfy the jurisdictional and other requirements of Education Code Section 44944.”[7]
7 At the hearing before the commission, the evidence as to appellant’s actions was largely undisputed. One factual dispute, however, was whether Mr. Papst was authorized to represent appellant and therefore to enter into any stipulation on behalf of appellant. Appellant said Papst was not authorized to represent him. The district called Papst as a witness. Papst testified about his meetings with appellant, his settlement negotiations with the district on behalf of appellant, his September 7, 1993, appearance before the commission on behalf of appellant (also documented in the September 7 transcript of proceedings), and the May 7, 1993, letter he wrote to the district on behalf of appellant after meeting with appellant. The letter was entered into evidence and began: “Dear Mr. Fillbrandt: I am the attorney currently *1143 designated by California Teachers Association (CTA) to represent Mr. Wilmot in any potential adverse disciplinary or dismissal actions.” Mr. Fillbrandt was an associate superintendent for the district. Both the commission and the superior court concluded that Mr. Papst was indeed acting on behalf of appellant when Papst signed the stipulation. On this appeal, appellant makes no contention that this finding was not supported by substantial evidence. He makes no mention of Papst’s testimony. Rather, he appears to contend that even if Papst was authorized to act on his behalf, the stipulation is not valid because the law does not permit such a stipulation. Appellant asserts in his opening brief that with regard to the commission’s jurisdiction “the facts are not in dispute” and “the question of jurisdiction involves only an interpretation of the pertinent sections” of law. Appellant’s jurisdictional argument on this appeal could perhaps be phrased, in the vernacular, as: “I don’t care if I agreed in writing that ‘jurisdiction of the Commission to proceed is established as of July 9, 1993’ and ‘the terms of this Stipulation satisfy the jurisdictional and other requirements of Education Code Section 44944’—the jurisdiction of the Commission to proceed was not established as of July 9, 1993, and the Commission had no jurisdiction to act after July 13, 1993.”
8 In its entirety, the stipulation between appellant and the district stated: “It Is Hereby Stipulated by and Between the Parties through their attorneys as follows: “1. The hearing in this matter shall commence on July 2, 1993 before an Administrative Law Judge of the Office of Administrative Hearings. The hearing shall be opened for jurisdictional purposes only on that date and no appearances by the parties or their counsel is required. The hearing shall be reconvened on September 7, 1993, at 10 a.m. in Bakersfield, California, and continue through September 9, 1992, or until completed. The pleadings, notices and other statutory documents filed in this action as of the date of this Stipulation may be deemed to have been offered into evidence by Petitioner Kern High School District subject to the right of Respondent Charles Wilmot to offer objections to the substance of those documents at the reconvening of the hearing on September 7, 1993. “2. The parties waive the appointment or appearance of their respective appointees to the Commission at this time and will make such appointments not later than seven calendar days prior to the reconvening of the hearing on September 7, 1993, as specified in Education Code Section 44944. “3. Respondent Charles Wilmot specifically waives his right to appear in person at the commencement of the hearing, reserving fully his right to be present and represented when the hearing reconvenes on September 7, 1993 and any subsequent date. Each party declares that the commencement of the hearing by the act of the filing of this Stipulation is in its best interests and that this Stipulation constitutes a motion by each party that the hearing be commenced, continued and reconvened as specified in this Stipulation. “4. For all other purposes, including discovery, the rights of the parties shall be determined as though the hearing will commence on September 7, 1993, except that the jurisdiction of the Commission to proceed is established as of July 9, 1993. The parties agree that the terms of this Stipulation satisfy the jurisdictional and other requirements of Education Code Section 44944. “5. Upon reconvening, or for any purposes in the interim, this matter may be heard by any Administrative Law Judge of the Office of the Administrative Hearings.”
In agreeing to the July 9 stipulation, both appellant and the district apparently relied on this court’s opinion in Powers v. Commission on Professional Competence, supra, 157 Cal.App.3d 560 . In Powers, the administrative law judge continued the hearing on his own motion after the first witness had been called and had been asked six foundational questions. This occurred within 60 days of the teacher’s request for a hearing. The teacher unsuccessfully objected to the continuance. The hearing reconvened more than three months later. After the hearing was ultimately completed and the commission found cause for dismissal on grounds of unprofessional conduct and insubordination, the teacher sought judicial review. The trial court found there had been no commencement of the hearing within 60 days. It relied on a Court of Appeal opinion holding that a civil case had not been brought to “trial” within five years when prospective jurors were sworn and seated and
Appellant simply ignores the above quoted language of Powers. He does not attempt to present any argument as to why Powers’ s assertion that a party can “stipulate that the necessary ceremonial has been observed” does not apply here. Nor does he ask us to rethink and overrule our Powers decision. Furthermore, the Powers case was decided 14 years ago and the Legislature has not seen fit to amend section 44944 to outlaw commencement of a hearing by stipulation. Neither appellant nor any other employee is in any way disadvantaged by the practice. An employee who does not wish to enter into such a stipulation may simply refuse to do so.
Appellant calls our attention to two pre-Powers cases, Reeves v. Superior Court (1973) 36 Cal.App.3d 291 [ 111 Cal.Rptr. 390 ], and Governing Board v. Felt (1976) 55 Cal.App.3d 156 [ 127 Cal.Rptr. 381 ], as support for his argument that the 60-day time limit of section 44944 “is jurisdictional.” These cases do not help appellant because the issue in appellant’s case is not whether section 44944 has to be complied with. It does have to be complied with. The issue is whether it was complied with. The commission and the superior court both cited Powers and ruled that the statute was complied with. In this opinion we do the same.
Reeves came about after the Legislature in 1971 changed the procedures involved in teacher dismissals. Prior to the 1971 legislation, teacher dismissal hearings were heard in the first instance in the superior court. The
In Governing Board, v. Felt, supra, 55 Cal.App.3d 156 , the school district mailed the teacher notice of her dismissal hearing 11 days prior to the scheduled date of the hearing. The teacher’s “agent” received it three days after it was mailed and eight days before the scheduled hearing date. The notice had been addressed with the correct street address but with the wrong suite number (“Suite 304” instead of the correct “Suite 312”) at that street address. The “agent” also had to pay “20 cents postage due” for the notice. (Governing Board, supra, 55 Cal.App.3d at p. 159.) An applicable provision of the Administrative Procedures Act provided then, as it does now, that “[t]he agency shall deliver or mail a notice of the hearing to all parties at least 10 days prior to the hearing.” (Gov. Code, § 11509.) The scheduled hearing date was 53 days after the date on which the teacher had made her request for a hearing. On the hearing date the teacher’s counsel “announced to the commission that he was specially appearing to object to the notice.” (55 Cal.App.3d at p. 160.) “Over objection of counsel for the district that [the teacher] had known of the date of the hearing for some time prior to the notice being sent, the commission determined that the date of the hearing should be continued.” (55 Cal.App.3d at p. 160.) Although the opinion does
The appellate court in Governing Board agreed with the trial court that Government Code section 11509 had been satisfied notwithstanding the incorrect suite number and the inadequate postage. “[Tjhere is compliance with the statute when the notice is deposited in the mail and reaches the teacher as effectively and speedily as one correctly addressed with adequate postage.” (55 Cal.App.3d at p. 164.) The appellate court disagreed, however, with the superior court’s conclusion that the time limitation for commencement of the dismissal hearing (then found in former § 13413 and today found in § 44944, subd. (a)) was not mandatory or jurisdictional. The Governing Board court quoted Reeves's statement that “ ‘this time limit appears to be jurisdictional’ ” and added “[tjhe language of Reeves is consistent with the pattern of the California cases.” (55 Cal.App.3d at p. 162.) The Governing Board court held: “We thus conclude that the command of Education Code section 13413 that a hearing on the accusation against a permanent teacher must commence within 60 days of the teacher’s demand for it is mandatory so that the Commission on Professional Competence cannot proceed upon the accusation unless the hearing is commenced within the statutory period or delay is excused.” (55 Cal.App.3d at p. 163.) The Governing Board opinion contains no explanation of the source of its “or delay is excused” language. The opinion merely goes on to state “[tjhere remains the issue of whether the delay in the case at bench was excusable” (55 Cal.App.3d at p. 163), but then never explicitly addresses that issue. Because the opinion addresses the 60-day limit issue first and then addresses the Government Code section 11509 issue, it appears that the court may have impliedly concluded that the delay beyond the 60 days was “excusable” because the district’s compliance with Government Code section 11509 meant that the commission had erred in continuing the hearing from its original, timely hearing date. In other words the commission, and not the district, was
In sum, neither Reeves v. Superior Court, supra, 36 Cal.App.3d 291 , nor Governing Board v. Felt, supra, 55 Cal.App.3d 156 , addresses the issue of whether the parties may stipulate to the commencement of a dismissal hearing. That issue is controlled by Powers v. Commission on Professional Competence, supra, 157 Cal.App.3d 560 , and the superior court was correct in concluding that the parties properly could do so and that they did do so.
II.-VII.[9]
Disposition
The judgment is affirmed. Costs to the district.
Vartabedian, J., and Harris, 1, concurred.
A petition for a rehearing was denied July 14, 1998, and appellant’s petition for review by the Supreme Court was denied September 30, 1998.
* See footnote, ante, page 1130.
Cases cited
- Powers v. Commission on Professional Competence 157 Cal.App.3d 560 at 569 p. 1132, p. 1144, p. 1148
- Morrison v. State Board of Education 1 Cal.3d 214 p. 1137, p. 1140
- Pasadena Unified School District v. Commission On Professional Competence 20 Cal.3d 309 at 313-314 p. 1138
- Pittsburg Unified School District v. Commission on Professional Competence 146 Cal.App.3d 964 at 976 p. 1138
- Moran v. Board of Medical Examiners 32 Cal.2d 301 at 308-309 p. 1139
- Yakov v. Board of Medical Examiners 68 Cal.2d 67 at 71-73 p. 1139
- Bixby v. Pierno 4 Cal.3d 130 at 143 p. 1139
- Harlow v. Carleson 16 Cal.3d 731 at 739 p. 1139
- Kearl v. Board of Medical Quality Assurance 189 Cal.App.3d 1040 at 1052 p. 1139
- Lam v. Bureau of Security & Investigative Services 34 Cal.App.4th 29 at 36 p. 1139
- Magit v. Board of Medical Examiners 57 Cal.2d 74 p. 1139
- Allegretti v. Board of Osteopathic Examiners 145 Cal.App.2d 435 p. 1139
- Barber v. Long Beach Civil Service Commission 45 Cal.App.4th 652 p. 1139
- Omaha Indemnity Co. v. Superior Court 209 Cal.App.3d 1266 at 1272 p. 1140
- Abelleira v. District Court of Appeal 17 Cal.2d 280 at 288 p. 1144
- Larson v. State Personnel Board 28 Cal.App.4th 265 at 273-274 p. 1144
- Summers v. Superior Court 53 Cal.2d 295 at 298 p. 1144
- Sullivan v. Delta Air Lines, Inc. 15 Cal.4th 288 at 307 p. 1144
- Hartman v. Santamarina 30 Cal.3d 762 p. 1145
- Reeves v. Superior Court 36 Cal.App.3d 291 p. 1145, p. 1148
- Governing Board of the Palos Verdes Peninsula Unified School District v. Felt 55 Cal.App.3d 156 p. 1145, p. 1146, p. 1148