APPEAL from a judgment of the Superior Court of Sacramento County, Patrick Marlette, Judge. Affirmed. (Super. Ct. No. 34-2008-00008231-WM- GDS).
The opinion of the court was delivered by: Nicholson , Acting P. J.
CERTIFIED FOR PUBLICATION
Rejecting statutory terms, such as "immorality," "unprofessional conduct," or "moral turpitude" as overly broad to use as grounds for discipline of public school teachers, the California Supreme Court created its own seven-part test to assess whether a misbehaving teacher is fit to teach. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 224-225 (Morrison).)*fn1 We must apply that test here.
Plaintiff Shirley Marie Broney is an elementary school teacher. Between 1987 and 2002, she was convicted of three drunken driving offenses. Defendant California Commission on Teacher Credentialing (the Commission) took note, held a hearing, found plaintiff was unfit to teach, and suspended her teaching credential for 60 days. It stayed that suspension subject to plaintiff successfully completing a three-year probation.
Plaintiff petitioned for extraordinary relief from the Commission‟s decision, but the trial court denied her petition. It found her latest conviction rendered her unfit to teach per se. It also determined upon weighing the evidence under the Morrison test that the Commission‟s discipline was not arbitrary or unreasonable.
Plaintiff appeals, claiming the trial court erred by applying a per se rule. She also asserts no substantial evidence could support the Commission‟s decision. We agree with plaintiff that the trial court applied the wrong test. However, its error was not prejudicial. It is not reasonably probable that the court would have reached a different result had it applied the Morrison test to the issue of fitness to teach instead of a per se test, as its analysis of the Commission‟s discipline under the Morrison test demonstrates plaintiff was unfit to teach. We thus affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Plaintiff was convicted in 1987 at the age of 21 of one count of driving under the influence. (Veh. Code, § 23152, subd. (a).)*fn2 Plaintiff did not have a teaching credential at that time. The incident happened at night on a weekend. It was not near school property and no children were involved. This conviction was expunged in 1992 under Penal Code section 1203.4.
In 1997, plaintiff was convicted of driving under the influence and driving with a blood-alcohol content of .08 percent or greater. (§ 23152, subds. (a), (b).) Plaintiff had just begun her student teaching at the time. This incident also happened at night on a weekend. It was not near school property and no children were involved.
The trial court placed plaintiff on probation for three years. It also ordered her to complete a 90-day first offender drinking driver program. Plaintiff also attended Alcoholics Anonymous as part of this program. This conviction was expunged in 2007 under Penal Code section 1203.4.
On November 4, 2001, at approximately 1:50 a.m., Huntington Beach police arrested plaintiff on suspicion of driving under the influence. This incident did not involve children or occur on or near school property. It occurred on a weekend at night after plaintiff had been to a bar with friends. As plaintiff and her friends walked toward a parking garage, a police officer stopped and spoke with them. After speaking with the officer, plaintiff‟s friends took a taxi, but plaintiff continued to the garage and entered her car. The officer arrested her for driving her vehicle in the parking garage. Plaintiff failed all of the field sobriety tests given her.
In August 2002, plaintiff pleaded guilty to driving under the influence with a prior (§ 23152, subd. (a)), and driving with a blood-alcohol content of .08 percent or greater (§ 23152, subd. (b)). She also admitted an enhancement under section 23578 of driving with a blood-alcohol level of .20 percent or greater. She stated in her plea that her blood-alcohol level was .25 percent at the time of her arrest.
The court sentenced plaintiff to 30 days in jail, which it allowed her to fulfill at home and at work in the classroom by wearing an ankle bracelet. The court also placed plaintiff on probation for three years, and it ordered her to complete an 18-month multiple offender alcohol education program. Plaintiff again attended Alcoholics Anonymous as part of this program. This conviction was expunged in November 2006 under Penal Code section 1203.4.
Plaintiff first applied to the Commission in 1995 for character and identification clearance. In this application, plaintiff disclosed to the Commission her 1987 conviction.
In 1997, shortly after her second DUI conviction, plaintiff applied to the Commission for a teaching credential. In this application, plaintiff disclosed her 1997 conviction and sentence.
The Commission granted plaintiff her credential effective May 30, 1997. The credential authorized plaintiff to teach multiple subject matter classes in a self-contained classroom in grades 12 and below. This credential was valid until June 1, 2002. Subsequently, the Commission renewed plaintiff‟s credential effective June 1, 2002, until June 1, 2007. Plaintiff also holds a cross-cultural, language and academic development certificate authorizing her to teach limited-English-proficient students.
At the time of her third arrest and conviction in 2001-2002, plaintiff was employed by the Westminster School District in Orange County as a 5th grade teacher. She had worked for the District since 1999.
3. Commission's Disciplinary Accusation, Hearing and Decision
Nearly two years after her 2002 conviction, plaintiff was notified by letter dated June 14, 2004, that the Commission had begun an investigation into her fitness to hold a credential as a result of her three DUI convictions. Ultimately, the Commission found cause to recommend a 60-day suspension of her credential. On November 8, 2004, plaintiff requested an administrative hearing to challenge the recommendation.
Another two years passed until November 1, 2006, when plaintiff was served with an accusation issued by the Commission‟s executive director. The accusation alleged plaintiff‟s 2001 arrest and 2002 conviction constituted unprofessional conduct and subjected her to discipline. It asked for plaintiff‟s credential to be suspended for a minimum of 60 days.
a. Evidence Presented at Hearing
The matter was heard by Administrative Law Judge (ALJ) Joseph D. Montoya on June 11, 2007. The Commission‟s evidence of unprofessional conduct and unfitness to teach consisted solely of police and government reports attesting to plaintiff‟s three prior convictions and documentation of her credentials.
Plaintiff‟s case consisted of her testimony, the testimony and report of a licensed substance abuse counselor, Dan Cronin, and the testimony and evaluations of plaintiff‟s school principal, Linda Reed. In her testimony, plaintiff admitted her three DUI convictions.*fn3 She denied being an alcoholic, missing school because of drinking, working with a hangover, or showing up to school drunk. She acknowledged she had "made some really bad choices," and stated she "will never, ever drink and drive again because I have too much to lose."
On cross-examination, plaintiff agreed that maintaining the integrity of the teaching profession was important, and that teachers acted as role models. She stated only two other people knew of her 2002 conviction; a fellow teacher and her principal. She stated she drinks on occasion, such as having a glass of wine when she goes out to dinner at a nice ...