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David Boliou v. Stockton Unified School District et al

June 25, 2012

DAVID BOLIOU, PLAINTIFF AND RESPONDENT,
v.
STOCKTON UNIFIED SCHOOL DISTRICT ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from a judgment of the Superior Court of San Joaquin County, Lesley D. Holland, Judge. (Super. Ct. No. 39201000251588CUWMSTK)

The opinion of the court was delivered by: Robie , J.

CERTIFIED FOR PUBLICATION

Affirmed.

Defendant Stockton Unified School District filed an accusation against tenured teacher plaintiff David Boliou (Boliou) specifying conduct it claimed merited Boliou's dismissal. Boliou denied the conduct and demanded a hearing, which the school district scheduled. After the school district and Boliou vigorously litigated the case for 18 months and the school district received some unfavorable rulings, the school district attempted to dismiss the charges before the hearing on the merits of the charges. At the hearing, the Commission on Professional Competence (commission) granted the school district's motion to dismiss the charges over Boliou's objection that he wanted a ruling that he should not be dismissed from his employment. Such a ruling would have entitled him to reasonable attorney fees and costs. Boliou took two writ petitions to the trial court. The trial court issued a writ of administrative mandate to order the commission to modify its dismissal order to include a determination that Boliou should not be dismissed and issued a writ of administrative mandate to order the school district to pay Boliou's reasonable attorney fees and costs.

The issue we must resolve here is whether the trial court erred in issuing these writs. The answer is "no" based on the plain language of the relevant statutes. Specifically, if a teacher demands a hearing on disciplinary charges (Ed. Code,*fn1 § 44941) and the governing board of the school district (governing board) exercises its option to schedule a hearing instead of rescinding the charges (§ 44943), "the hearing shall be commenced . . ." (§ 44944, subd. (a)). The hearing must be conducted by the commission (§ 44944, subd. (b)), and "the commission shall prepare a written decision containing . . . a disposition that shall be, solely, one of the following: [¶] (A) That the employee should be dismissed. [¶] (B) That the employee should be suspended for a specific period of time without pay. [¶] (C) That the employee should not be dismissed or suspended" (id., subd. (c)(1)). "If the [commission] determines that the employee should not be dismissed or suspended, the governing board shall pay the expenses of the hearing . . . and reasonable attorney's fees incurred by the employee. (Id., subd. (e)(2).)

Based on the statutory language quoted above, we affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Boliou began teaching mathematics at Franklin High School in the school district in 1990. In November 2008, one of his students alleged he had covered her mouth with duct tape as punishment for excessively talking in his classroom. In response to the allegation, the school district filed an accusation in February 2009 against Boliou recommending he be dismissed based on three charges: (1) immoral or unprofessional conduct; (2) evident unfitness for service; and (3) persistent violations of school laws and/or district rules and regulations. Boliou denied the charges and demanded a hearing before the commission. The school district requested the hearing be set. The Office of Administrative Hearings set a hearing to begin on January 19, 2010.

Discovery commenced with disputes over such issues as whether Boliou was entitled to the names of the students who claimed to have witnessed the duct tape incident and whether the school district's discovery requests were timely. There were also disputes that went up to the trial court regarding whether Boliou was compelled to answer certain deposition questions.

A prehearing conference and mandatory settlement conference in front of Administrative Law Judge (ALJ) Dian Vorters was held in December 2009. Among other things, ALJ Vorters denied Boliou's motion to dismiss the unprofessional conduct charge and the persistent violation charge.

The hearing before the commission was convened on January 21, 2010. Outside the presence of the other two commission members, the ALJ who was presiding over the hearing, Marilyn Woollard, considered Boliou's in limine evidentiary motions, which included a motion to exclude evidence or testimony regarding a 1998 notice of unprofessional conduct and a motion to reconsider ALJ Vorters's decision denying dismissal of the unprofessional conduct charge. ALJ Woollard took the matter under submission and continued the hearing. Two days later, ALJ Woollard issued an order dismissing the unprofessional conduct charge because the school district failed to provide Boliou sufficient advance notice of the charge. The school district's motion to reconsider Woollard's order was denied and so was its writ petition to the trial court requesting that ALJ Woollard be ordered to reinstate the unprofessional conduct charge.

The school district served Boliou on July 7, 2010, with an amended notice of hearing stating the hearing before the commission would commence July 19, 2010. However, the governing board voted to rescind the remaining charges against Boliou on July 13, 2010. The governing board then sent a letter to ALJ Woollard asking that the case be removed from calendar and the case not proceed to hearing. Boliou objected because he wanted a decision from the commission stating, "he shall not be dismissed." ALJ Woollard construed the governing board's letter as a motion to dismiss the case and set a hearing "to address the [school district's] motion to dismiss in light of the [governing board's] action rescinding the charges against [Boliou]."

At the hearing on July 19, 2010, two of the three commission members appeared in person (including ALJ Woollard) and one appeared telephonically. Boliou argued the governing board had the opportunity to rescind its action when Boliou asked for a hearing but the board chose not to and instead "chose to schedule . . . administrative litigation between the parties all the way through . . . an interim action before a Superior Court judge to try to get Judge Woollard's prior order overturned, which was rejected by the Superior Court." Boliou asked for a ruling on the merits, noting that "basically what you have is on the date scheduled for hearing, [the school district] is standing up and resting" "[a]nd in light of that, Mr. Boliou doesn't need to present anything because [the school district] didn't make out a prima facie case against him." The school district argued the commission could not make any findings of fact because there had been no facts presented and asked for a dismissal of the action.

After taking the matter under submission, on July 26, 2010, the commission issued a dismissal order granting the school district's motion to dismiss the remaining charges against Boliou but with prejudice. The commission explained the dismissal was with prejudice because the school district had "ample opportunity to assess and weigh the viability of these charges," having been on notice to proceed with these (remaining) charges since January 2010 but waited to rescind the charges until July 2010 -- two business days before the start of the hearing. However, the commission specified its dismissal order did not constitute a decision because it was not authorized to issue a decision where the governing ...


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