APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed.
The opinion of the court was delivered by: McINTYRE, J.
CERTIFIED FOR PUBLICATION
In this case we hold that Education Code section 87485 (undesignated statutory references are to the Education Code) renders "null and void" the "last chance agreement" (Agreement) under which community college faculty member Sam H. Farahani waived his statutory due process rights relating to faculty discipline. The San Diego Community College District (District) terminated Farahani after he allegedly violated his Agreement with the District. The trial court granted Farahani's petition for writ of mandate (Code Civ. Proc., § 1085), ruling that the Agreement violated the Education Code and Farahani's due process rights. The court issued a peremptory writ of mandate under Code of Civil Procedure section 1085 directing the District to: (1) reinstate Farahani with full back pay, interest and benefits and (2) require its governing board to determine whether Farahani should be terminated, "all in compliance with the requirements of the Education Code, including appropriate notice and opportunity to be heard." The District appeals.
In addition to concluding that Farahani's purported waiver of the right to a hearing in the Agreement and attached General and Special Release and Settlement Agreement (Release) were unenforceable under section 87485, we also reject the District's claim that Farahani's petition was barred by laches, unclean hands, and the failure to exhaust administrative remedies. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Farahani was a tenured professor of international relations and public policy at Mesa College. He had worked for the District for 18 years prior to his termination in June 2006.
Beginning in 1994, the District received complaints from female students and staff about what they described as unwanted sexual and social advances. In October 2000, after investigating some of these complaints, the District gave Farahani a written reprimand advising him that continued misconduct would result in discipline up to and including termination.
On September 20, 2004, the District sent Farahani written "Notice of Pre-Disciplinary Hearing: Suspension." The notice cited the basis for the recommended one-year suspension without pay as "a continuing pattern of inappropriate behavior toward students and employees over several years." The notice informed Farahani that he had "the right to respond to the proposed discipline either orally or in writing or both."
The matter did not proceed to the hearing stage. In November 2004, the attorney for the American Federation of Teachers Guild, California Federation of Teachers Local 1931 (Union) presented Farahani with the Agreement, and told him that the District would suspend him for a year without pay unless he signed it. Among other things, the Agreement and Release provided that Farahani: (1) accept a reduction of pay equivalent to one month's salary and (2) for a period of 18 months agree to refrain from conduct that constituted sexual harassment, "including any verbal, physical or visual conduct" on campus, and from "personal contacts and/or communications" with students off campus. The Agreement stated that if Farahani failed to comply with its provisions, he could be "terminated at the Chancellor's discretion, without the issuance of charges under the Education Code or District policies and without right of appeal . . . ." The Release included the following provision: "Farahani waives any and all appeal rights he may otherwise have to challenge the discipline or otherwise pursue any appeal relating to the pre-disciplinary notice."
District faculty members are covered by the collective bargaining agreement between the District's trustees and the Union. Article XIV, section 14.2 of the collective bargaining agreement provides that "All faculty are eligible for a hearing prior to any disciplinary action involving loss of pay." When encouraging Farahani to sign the Agreement, the Union attorney told Farahani that although the Agreement was "probably . . . not legal," it would be best to "[g]ive your 18 months and get it over with." Although Farahani believed that the charges were baseless, he stated he was "compelled" to sign "by two bad options."
While the Agreement was in effect, the District received new complaints about Farahani from female employees. Constance M. Carroll, the chancellor, concluded that Farahani's conduct towards these women "constituted unwanted social advances which could create an uncomfortable work environment and/or conduct which could be considered sexual harassment." She terminated Farahani effective June 9, 2006, pursuant to the Agreement. The termination letter stated, "Since you are being terminated from employment because of a violation of the [Agreement], you do not have a right of appeal."
Farahani wrote members of the District's governing board, requesting reinstatement and an opportunity to meet. He received no response. Farahani's attorney wrote Carroll on July 14, 2006, demanding Farahani's reinstatement plus backpay and benefits. The District's response reiterated that "Mr. Farahani was not entitled to the issuance of formal charges or right to appeal his termination under the provisions of the [Agreement]."
Farahani filed his petition for writ of mandate on ...