The opinion of the court was delivered by: Raye , P. J.
Bietz v. Westwood U. Sch. Dist.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The trial court sustained the Westwood Unified School District's (District) demurrer without leave to amend, finding that the District's Board policy 2121, patterned on Government Code section 53260's mandatory provisions, provides the exclusive administrative remedy for termination of Superintendent Henry Beitz's contract for illegal practices. The ruling, in effect, means that section 53260, and therefore policy 2121, bar litigation of a claim for damages as a matter of law if the District terminates a superintendent's contract because it believes the superintendent has engaged in fraud, misappropriation of funds, or other illegal fiscal practices and its belief is confirmed by an independent audit. (Gov. Code, § 53260, subd. (b)(1).)*fn1
We asked for supplemental briefing on the threshold and dispositive issue in the case: whether Government Code section 53260, which is entitled "Maximum cash settlement provisions in contracts of employment; Settlement on termination of contract of district superintendent of schools" and refers, by its terms, to "settlements" (Deering's Ann. Gov. Code, § 53260 (2004 ed.)), applies at all to a lawsuit brought pursuant to various provisions of the Education Code and does not involve a settlement.*fn2 (See, e.g., Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.4th 471 (Page).) The District argues that the term "settlement," as used in section 53260, subdivision (a) and construed by the court in Page, has an entirely different meaning as used in subdivision (b). We disagree and accordingly reverse.
On appeal of a judgment of dismissal following the sustaining of a demurrer without leave to amend, we must assume the truth of the facts alleged by the plaintiff, including exhibits attached to the complaint. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Satten v. Webb (2002) 99 Cal.App.4th 365, 374-375.) We can also consider matters subject to judicial notice. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Our recitation of the facts, therefore, is based upon the pleadings and requests for judicial notice.
The District hired Bietz in 2000 to serve as its superintendent for a four-year term and extended the term of the contract in 2004 and again in 2008. In 2001 the District chartered the Westwood Charter School (WCS). Bietz alleges that the District thereafter "failed to comply with its statutorily required oversight of WCS." In or about 2004 Bietz also became the superintendent of WCS while maintaining his position as superintendent of the District. According to the complaint, both boards approved this arrangement, in which he headed a school he was charged with overseeing as a superintendent of the District.
At issue is the 2008 employment agreement. Two paragraphs are pertinent. Paragraph g provides: "This contract is subject to all applicable laws and regulations of the State of California. The State Board of Education, and the Governing Board of the Westwood Unified School District. [Sic.] Said laws, rules and regulations are hereby made a part of the terms and conditions of this contract as though herein set forth." Paragraph h states: "It is further understood and agreed that the Governing Board must comply with the provisions of State Law relating to termination of a superintendent's contract."
In December 2008 the Lassen County Office of Education entered into a contract with the Fiscal Crisis & Management Assistance Team (FCMAT) to provide an Assembly Bill No. 139 extraordinary audit to determine if the District and/or WCS was in violation of statutes governing conflicts of interest (§§ 1090-1099) or employment (§§ 1126-1127). After an extensive investigation, FCMAT issued a report with detailed findings, including violations of various Government Code sections. The trial court took judicial notice of the report.
FCMAT found that Bietz's simultaneous employment as superintendent of the District and of WCS, as well as his receiving payments for consulting services provided to Westwood Charter School Services, Inc., was a three-way compensation scheme in violation of conflict of interest laws. FCMAT also found that Bietz failed to list this conflict of interest on his form 700 statement of economic interest, which is required to be filed with the state pursuant to sections 1126 and 87300 through 87313.
Bietz alleges that FCMAT's report "wrongly took issue" with his simultaneous service. The Attorney General thereafter initiated criminal proceedings for conflict of interest against Bietz. In March 2009 the District approved Bietz's request for a one-year leave of absence as superintendent of the District. About a year later, he ...