APPEAL from a judgment of the Superior Court of Los Angeles County, James C. Chalfant, Judge. (Los Angeles County Super. Ct. No. BS112656)
The opinion of the court was delivered by: Johnson, J.
CERTIFIED FOR PUBLICATION
The school board of Los Angeles County revoked the charter of a charter school. Before filing the administrative appeal to the state board of education, the charter school filed a petition for writ of administrative mandamus in the superior court, and filed an amended petition after the appeal to the state board of education ended in a tie vote. The trial court granted the writ, concluding that the charter school's due process rights were violated during the revocation proceeding. The judgment required the county school board to set aside its revocation decision and reinstate the charter. The county school board and the county office of education appeal from the judgment, and the charter school appeals from the trial court's denial of an award of attorney's fees. We conclude that no due process violation occurred, and we reverse the judgment.
Today's Fresh Start, Inc. (TFS) is a charter school serving Los Angeles County, and is organized as a not-for-profit corporation. The Los Angeles County Office of Education (LACOE) is a regional educational agency. The Los Angeles County Board of Education (County Board) is the governing board of LACOE. The County Board was the chartering authority for TFS and a signatory to the charter agreement. The County Board initially granted TFS's charter petition in 2003, and renewed the charter in 2005 for a five-year term.
TFS's charter renewal petition provided that LACOE would oversee TFS, investigating complaints and monitoring the school's operations pursuant to Education Code section 47604.3.*fn1 TFS agreed to "respond promptly to requests made by LACOE for operational and fiscal concerns." The charter renewal petition also provided: "The charter granted pursuant to this Petition may be revoked by LACOE if the county finds that [TFS] did any of the following: ● Committed a material violation of any of the conditions, standards, or procedures set forth in this Petition. ● Failed to pursue any of the student outcomes identified in this Petition. ● Failed to meet generally-accepted accounting principles, or engaged in fiscal mismanagement. ● Knowingly and willfully violated any provision of law.*fn2 [¶] Prior to revocation, the county will notify [TFS] of any violation (as set forth above) in writing, noting the specific reasons for which the charter may be revoked, and give the school a reasonable opportunity to cure the violation."
I. Charter revocation and appeal
In June 2007, LACOE advised TFS that it planned to investigate
concerns raised about TFS, including, but not limited to, four areas:
The legal rights of students, parents, and employees; student
attendance procedures; professional development; and applicable
California Department of Education (CDE) procedures for testing. TFS
responded that the planned investigation violated section 47604.4*fn3
and was contrary to the charter. Darline Robles, the
county superintendent of schools*fn4 and the head of
LACOE, wrote to TFS on June 18, 2007, requesting documents regarding
the governance of TFS (information about TFS board members, minutes of
board meetings, and other information).
On July 19, 2007, LACOE sent to TFS a "Report of Findings and Recommendations," which called for improvement in each of the four identified areas. A "Corrective Action Plan" dated July 31, 2007 listed required actions with due dates for completion. On August 24, 2007, Superintendent Robles wrote to TFS, enclosing a staff memorandum analyzing the governance materials sent to LACOE, and stating, "[s]taff express serious concerns regarding the governance of [TFS] and I share their concerns." An attachment requested additional materials to allow LACOE to complete the review of the governance and determine that TFS's "board is fulfilling its governance responsibilities, holding sufficient meetings to conduct charter school business as needed, complying with the Brown Act [Gov. Code, § 54950 et seq.], and demonstrating conclusively that Board members are protecting public funds and not using their positions improperly to the end of personal enrichment," so that Superintendent Robles could decide whether to recommend that the County Board take action to revoke TFS's charter.
On October 9, 2007, the County Board held a "Board Meeting/Study Session" at which TFS was one of several topics. The minutes of the meeting reflect that Dr. Lupe Delgado of LACOE's Charter School Office led a discussion of a LACOE staff analysis of TFS's governance structure and processes and TFS's response to the corrective action plan. The County Board members were provided "[c]omprehensive materials," and TFS had also received the three binders of material provided to County Board members. A public hearing on TFS was added to the calendar for the November 6, 2007 County Board meeting.
At a County Board meeting on October 16, 2007, six individuals
addressed the County Board on behalf of TFS. Superintendent Robles
recommended that the County Board give notice of its intent to revoke
TFS's charter, adding that if the issues could not be resolved and the
County Board did decide to revoke, the school would stay open during
the appeal process to the State Board of Education (State Board),*fn5
and LACOE would recommend that TFS stay open until the
end of the school year. The County Board voted*fn6 to
approve Superintendent Robles's recommendation to begin the revocation
process. TFS had the option to provide a written response, and at the
November 6, 2007 public hearing, TFS could make an oral presentation
to supplement any documentary response. The final decision of the
County Board would be made at the December 4, 2007 meeting (this date
was later moved to December 11, 2007). An October 17, 2007 letter
from the County Board informed TFS of the County Board decision, and
advised TFS that it could submit written materials to support its oral
presentation on November 6, 2007.
November 6, 2007 public hearing and subsequent County Board meetings
At the November 6, 2007 public hearing, six of seven County Board members were present, with member Sophia Waugh absent. Six TFS students addressed the County Board in support of TFS. Counsel for TFS provided the County Board with handouts, and five individuals, including TFS's Executive Director Dr. Jeanette Parker, Board Chair Dr. Clark Parker, General Counsel Mary Tesh Glarum, and Assemblyman Mervyn Dymally spoke on behalf of TFS.
At the County Board's November 20, 2007 meeting, TFS's counsel expressed concerns that LACOE's revocation procedures violated due process. LACOE's staff was both advocating that TFS's charter be revoked and also advising the County Board regarding the revocation, in addition to LACOE's having a pre-existing relationship with the County Board. Stating, "I believe that the procedure that has been employed is unfair," counsel objected that TFS had not had an opportunity to respond to the LACOE presentation scheduled that day. TFS's Board Chair, Dr. Clark Parker, urged the County Board to "send it out, to hold the hearing with an administrative law judge that will do fact-finding," because due process required an "impartial adjudicator" to make findings of fact and make a recommendation to the County Board, and "[s]taff cannot do that." In response to a County Board member's question, Dr. Clark Parker explained that he was relying on general administrative law*fn7 rather than the charter school statute in the Education Code. Dr. Clark Parker objected to the introduction of any evidence after the public hearing. TFS's executive director made a brief appeal to the County Board to see things from TFS's perspective. Dr. Delgado from LACOE's Charter School Office gave a chronology of the events surrounding the charter revocation process, and asked for any specific items the County Board would like to see in the final report on TFS.
In response to a board member's request for an analysis of the "legal situation," Shari Kim Gale, general counsel for the County Board and LACOE, explained that the County Board was the authorizer of TFS's charter. Superintendent Robles and LACOE were not the authorizers but the advisers to the County Board, and the County Board's job was to decide whether to revoke the charter. If the County Board decided to revoke, the Education Code provided that TFS could then appeal to the State Board. "And that is the due process stage. It is at that stage where there should be no one-sided communications, each side should have independent counsel. And most important, the adjudicator is the State Board of Ed[ucation], and it is neutral. In this matter, in this process, you are not neutral. You are the authorizer. [¶] Essentially this is the same process we use to evaluate new petitions that come to this board. We use literally the same spectrum of expert--technical expert staff, there is a public hearing, there is a report of staff, and then there is a recommendation upon which our board votes. [¶] So with all due respect, we do disagree and still maintain that our process is entirely legal."
At the County Board meeting on December 4, 2007, Dr. Jeanette Parker spoke on behalf of TFS. Dr. Delgado presented LACOE's final report, which concluded that TFS had not corrected its noncompliance with testing procedures, had not explained how it would rectify irregularities in its governance, and had failed to meet 47 of the 53 items on the corrective action plan. "After review and analysis of TFS's rebuttal materials and presentations, LACOE stands by its original recommendation that substantial evidence exists of violations of the charter, failure to meet or pursue pupil outcomes as set out in the charter, i.e. testing irregularities, and violations of the law. TFS . . . has had a reasonable opportunity to correct, and has not done so." TFS had submitted a response to the report that afternoon, which TFS had prepared within 24 hours of receiving the final report.
December 11, 2007 vote to revoke
At the December 11, 2007 County Board meeting, with all seven County Board members present, six speakers addressed the County Board on TFS's behalf. Dr. Jeanette Parker defended TFS's testing procedures. TFS's fiscal coordinator assured the County Board that TFS had promptly complied with reporting responsibilities. TFS's general counsel emphasized TFS's performance and the schools' importance in their communities, asking the County Board to consider the children as well as the roughly 700 pages of documents sent by TFS. Assemblyman Mervyn Dymally asked the County Board to give TFS at least another year.
Dr. Clark Parker asked that County Board member Waugh abstain from voting because she was absent from the November 6, 2007 hearing (citing Gov. Code, § 11517*fn8 ),complained that LACOE had not met with TFS to resolve the disputes between the parties, and argued that the revocation process was flawed. A TFS board member and parent testified that TFS had achieved test scores above that of the Inglewood public schools.
Before the County Board voted on the revocation, Superintendent
Robles explained that LACOE had suggested meetings with TFS, but TFS
had resisted LACOE's investigation. Dr. Clark Parker rejoined that
TFS had not been contacted "to be included in the process," and had
refused to schedule interviews unless LACOE would consult TFS
regarding how to conduct the investigation. Superintendent Robles
responded that the authority to investigate was independent of any
procedure for dispute resolution. After further discussion of
differences regarding procedure and a lawsuit filed by TFS,*fn9
the County Board voted four to three to approve the
recommendation to revoke TFS's charter, with direction to
Superintendent Robles to urge the State Board in the appellate process
to permit currently enrolled TFS students to finish out the year. The
County Board adopted factual findings regarding improprieties in
student testing, material violations of the charter, the Brown Act,
and the Corporations Code, and TFS's failure to correct numerous
provisions of the corrective action plan, in violation of section
47607, subdivisions (c)(1), (c)(2), and (c)(4).
On January 9, 2008, TFS filed an appeal to the State Board of "the decision (by a vote of 4 to 3) of its chartering authority, [LACOE] and the [County Board] to revoke [TFS]'s charter . . . ." The appeal argued that the revocation was improper because it was "in direct retaliation for [TFS]'s decision to seek court assistance after LACOE repeatedly overstepped its statutory role as a chartering authority." The process employed violated due process ("[m]ost significantly," Waugh failed to abstain from voting on the revocation although she was no present at the public hearing, and the County Board was not impartial), and the revocation was not based on substantial evidence.
A report from the Charter Schools Division of the CDE recommended that the State Board reverse the revocation decision. The report noted that the State Board had "not adopted any regulations regarding revocation appeals and, therefore, the [State Board] is primarily guided by the language of the statute," which required that revocation decisions be supported by "'substantial evidence.'"*fn10 The analysis and recommendations from the Charter Schools Division, based on five binders of materials from TFS and seven binders from LACOE,*fn11 concluded that the County Board's revocation of TFS's charter "was not supported by specific factual findings of violations of law and the charter, and that the findings were not supported by substantial evidence. Further, the [County Board] did not provide full due process to [TFS] prior to revoking the charter."*fn12 Only one basis for revocation, a violation of the Brown Act, was supported by substantial evidence, but the County Board had failed to comply with the statutory requirement (§ 47607, subd. (d)) that it provide notice and an opportunity to remedy the violation. The Charter Schools Division staff recommended that the revocation be reversed.
The CDE report was presented to the State Board without a recommendation from the Advisory Commission on Charter Schools (ACCS).*fn13 ACCS had considered the revocation appeal at its meeting on May 19, 2008, at which it heard argument from both TFS and LACOE regarding the alleged violations and whether the County Board had provided TFS with proper notice and opportunity to remedy. After lengthy discussion, ACCS had voted four to two to recommend reversal of the revocation; this was insufficient for a recommendation to the State Board, because five votes were the minimum required for the commission to adopt a recommendation.
At a hearing on July 10, 2008, eight members of the State Board heard argument on TFS's appeal of the charter revocation. The CDE described its review of the revocation materials provided to it by TFS and the County Board, as set out in its report, and answered questions from the State Board members. There were speakers in support of TFS and in support of the County Board and LACOE. Board members discussed the closeness of the vote to revoke by the County Board and the Charter Schools Division, the adequacy of notice to TFS, whether both sides could work out an alternative together, the possibility of postponing a vote and encouraging CDE to work with both sides, whether substantial evidence existed for revocation, and whether the State Board had the authority to act other than voting yes or no on the revocation. On a motion to accept the CDE's recommendation that the revocation of TFS's charter be reversed, four State Board members voted to accept, and four members voted to reject the recommendation. The State Board president stated, "Motion fails to carry a majority, and so the revocation is upheld."
II. Petition for writ of administrative mandamus
On December 27, 2007--16 days after the County Board voted on December 11, 2007 to revoke TFS's charter--TFS filed a petition for writ of administrative mandamus in Superior Court pursuant to Code of Civil Procedure section 1094.5,*fn14 naming LACOE and CDE as respondents. The petition argued that the revocation was invalid because County Board member Waugh, who voted in favor of revocation, had not been present at the November 6, 2007 public hearing, and TFS did not receive a fair hearing because (among other contentions) the County Board did not appoint an independent, impartial decision maker. The petition also argued that requiring TFS to exhaust its administrative remedies (an appeal to the State Board) would be inequitable, because CDE would not consider TFS's due process objections, and any hearing before the State Board would not take place until May or June 2008. TFS requested a stay of the revocation decision and an order compelling CDE to continue to fund TFS.
On January 4, 2008, TFS filed an ex parte application for a stay of the revocation order to allow TFS to continue to operate pending the outcome of the writ proceeding. At the hearing, the court noted that without a completed appeal to the State Board, the revocation decision was not final, leaving the court without jurisdiction over TFS's request for invalidation of the revocation decision. On January 16, 2008, the trial court granted the stay only to the extent the revocation decision terminated funding for TFS before the end of the 2008 school year. The parties subsequently stipulated that funding would continue pending the resolution of the writ proceeding.*fn15
At a status conference on July 15, 2008, after the State Board tie vote on July 10, 2008 failed to adopt a motion to reverse the charter revocation, the parties stipulated that TFS had exhausted its administrative remedies. On July 21, 2008, TFS filed an amended petition, adding the County Board and the State Board as respondents. The amended petition argued that with the State Board's four-to-four vote, TFS had exhausted its administrative remedies. In addition to a stay of the revocation decision, a writ requiring the County Board to reverse the revocation decision, and a writ compelling invalidation of Waugh's vote, the amended petition sought a peremptory writ of mandamus requiring the State Board "to cast a valid vote and reverse the [County Board] revocation decision."
On August 21, 2008, TFS filed a motion for judgment under Code of Civil Procedure section 1094,*fn16 seeking reversal of the charter revocation and reinstatement of the charter on three grounds: the County Board violated section 47607, subdivision (d), by failing to provide TFS with notice and an opportunity to cure; the County Board deprived TFS of due process at the November 6, 2007 public hearing before revocation, because the County Board was not an impartial decision maker; and LACOE failed to introduce any evidence at the November 6, 2007 public hearing to support revocation.
Before the trial court, TFS did not raise the issue whether the revocation decision was supported by substantial evidence. Correspondingly, that issue is not before us on appeal.
The trial court held a hearing on September 15, 2008 and granted the motion for judgment on September 19, 2008.*fn17 Stating that it was undisputed that TFS had both a liberty and property interest in its charter, the court concluded that the revocation procedure violated due process. First, section 47607, subdivision (e) and due process required that all the evidence supporting revocation be introduced at the public hearing. "The final decision must be from the evidence introduced during the public hearing. . . . The evidence must be introduced at the hearing; only then can [the County Board] make a final decision about it."
Second, although section 47607, subdivision (e) required only a public hearing held by the County Board in the normal course of business and did not require an adversarial proceeding before a neutral hearing officer or other third party, the trial court nevertheless concluded that due process required a separate evidentiary hearing. The County Board was not an impartial decision maker, and "[t]o the extent arguendo that [section 47607, subdivision (e)] contemplates merely a hearing before the [County Board], it does not meet the minimum requirements of due process." Due process required "[a]n evidentiary hearing before a[n] unbiased hearing officer." The court suggested that the hearing officer could be a LACOE employee uninvolved in the revocation process, or a third party, "either of which would satisfy due process. The hearing officer's findings then must either be accepted or rejected by the [County Board] in a public hearing." Further, the court ...