Opinion
F072993
10-12-2017
RIVERBANK UNIFIED SCHOOL DISTRICT, Plaintiff and Respondent, v. COMMISSION ON PROFESSIONAL COMPETENCE, Defendant and Respondent; JERRY PIEF, Real Party in Interest and Appellant.
Law Offices of Ernest H. Tuttle, IV, Ernest H. Tuttle, IV; Altshuler Berzon, Michael Rubin and Peder J. Thoreen for Real Party in Interest and Appellant. Lozano Smith, Sloan R. Simmons, Megan E. Macy and Gabriela D. Flowers for Plaintiff and Respondent Riverbank Unified School District. No appearance for Defendant and Respondent Commission on Professional Competence.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 2013713)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge. Law Offices of Ernest H. Tuttle, IV, Ernest H. Tuttle, IV; Altshuler Berzon, Michael Rubin and Peder J. Thoreen for Real Party in Interest and Appellant. Lozano Smith, Sloan R. Simmons, Megan E. Macy and Gabriela D. Flowers for Plaintiff and Respondent Riverbank Unified School District. No appearance for Defendant and Respondent Commission on Professional Competence.
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This case arose when two sixth grade girls complained that a middle school special education teacher inappropriately touched them. The alleged touchings consisted of the teacher touching the girls' shoulders to redirect their attention to their schoolwork, placing his hand over their hands to operate a computer mouse, and touching one of the girl's breast. The teacher admitted touching each girl on the shoulder and on the hand, but denied touching the girl's breast. The school district believed the girls' version of events, determined all of the touchings were inappropriate, and dismissed the teacher for immoral conduct pursuant to Education Code section 44932, subdivision (a)(1).
The teacher appealed to the Commission on Professional Competence (Commission), which held an evidentiary hearing and found (1) the admitted touchings of the girls' hands and shoulders were not inappropriate and (2) the allegation that the teacher repeatedly touched one of the girl's breast was not credible. The Commission concluded the statutory grounds for dismissal were not met and ordered reinstatement.
The school district challenged the Commission's decision by filing a petition for writ of administrative mandamus in the superior court. Contrary to the Commission's evaluation of the evidence, the superior court found (1) the girls' testimony was credible, (2) the disputed touchings of the girl's breast had occurred, (3) all of the touchings were inappropriate, and (4) the touchings constituted immoral conduct and were part of the evidence demonstrating the teacher was unfit for duty. The court granted the writ, overturning the Commission's decision and confirming the dismissal of the teacher.
We conclude the touchings of the girls' hands and shoulders, which occurred without evidence the teacher knew of the girls' subjective uncomfortable feelings, were not inappropriate touchings constituting immoral conduct. Consequently, the superior court erred in overturning the Commission's determination and concluding those particular touchings were inappropriate and immoral. As to the analysis of the credibility of the testimony presented to the Commission, the trial court violated Government Code section 11425.50, subdivision (b) by failing to "give great weight" to the finding that the teacher credibly testified he did not touch the girls' breasts. (San Diego Unified School Dist. v. Commission on Professional Competence (2013) 214 Cal.App.4th 1120, 1146-1148 (Jesperson) [superior court did not give sufficient weight to Commission's credibility determinations about alleged inappropriate touchings].) We further conclude the credible evidence in the record does not provide substantial evidence supporting the trial court's finding that the Commission's decision was not supported by the weight of the evidence.
We therefore reverse the judgment of dismissal.
FACTS
In 2013, Jerry Pief (Teacher) was a permanent certified employee of Riverbank Unified School District (School District) and assigned as a resource specialist program teacher at Cardozo Middle School. Teacher had been employed by School District for approximately 25 years and had served as a wrestling coach from 1988 to 2005. He held a master's degree in special education and a master's degree in fine and dramatic arts.
For the 2013-2014 school year, Teacher was to work three periods per day in the middle school's resource room—one period for each of the middle school's three grade levels (6th, 7th & 8th). The remaining four academic periods of the day, he rotated through the general education classrooms to work with resource students. November 2010
In November 2010, an incident occurred that resulted in School District issuing Teacher a 45-day notice of unprofessional conduct. Teacher stated he was sitting at one of the tables with a student on his left. They were seated in chairs with triangular legs with a complete roll of iron on the floor, as compared to chairs with four separate legs. The student was rocking in his chair, using the table to kick himself back and using his right hand on Teacher's left shoulder to keep himself from falling while rocking backwards. Teacher asked the student more than three, but less than eight, times to stop. The student did not stop and, as he was rocking, he placed his hand on Teacher's shoulder one more time. Teacher took the student's hand away and turned his palm up, a technique called a reverse wrist lock in wrestling. The student lost his balance, fell to the floor and stayed there for a short while. Teacher asked the student if he was injured, but he was not hurt.
As soon as the class period was over, Teacher went to principal Alice Solis and reported himself. Teacher explained his decision by stating he should not have put the student on the ground, which was inappropriate action on his part. Solis described her interview with the student by stating the student did not take it seriously, an "oh, yeah, I just kind of fell kind of thing."
As a result of the incident, School District sent Teacher a 45-day notice of unprofessional conduct dated November 24, 2010. The notice stated Teacher's action constituted unprofessional conduct—specifically, "inappropriate corporal punishment" that violated the Education Code and one of School District's administrative regulations. The notice stated Teacher was to eliminate the unprofessional conduct within the next 45 days. Breaking Up a Fight
Teacher also testified to having contact with students in 2011 or 2012 when he broke up a fight in the hallway. Teacher stated there was no other adult present and he felt it was his duty to break up the fight, which he described as follows: "There was a ring of students around two girls fighting that w[as] about four or five students deep with cameras. They had their smart phones out and they were encouraging physical harm."
Teacher made his way between the students surrounding the combatants, inserted himself between the combatants, took control of a single arm of each by grabbing a wrist, took them out of the circle and towards the office. Teacher was not reprimanded for the manner in which he stopped the fight. He was asked to write a statement, which he did. August 2013
The 2013-2014 school year began at the middle school on Wednesday, August 7, 2013. Teacher worked with sixth grade students in the resource classroom during the seventh period, which lasted about 45 minutes. Four sixth grade students, two females and two males, were "pulled out" to receive resource services during the seventh period. For purposes of this opinion, we will refer to the students as Girl 1, Girl 2, Boy 1 and Boy 2.
The girls did not attend Teacher's class until the second week of school. The girls had specific learning disabilities and were required to receive instruction through the resource specialist program outside the general education setting. As sixth graders, the girls were new to the middle school. Both spoke Spanish and English. The girls were friends, ate lunch together and played at recess together.
On Thursdays, the two male students would meet initially with Teacher and then attend speech services if the speech therapist sent for them. Between August 7, 2013, and August 29, 2013, Boy 1 attended speech services only once.
The resource classroom was equipped with four computers, which were placed close together on long tables in one row. Four chairs were placed in front of the computers. The room also had a whiteboard at the front of the room and four large work tables.
Initially, Teacher had the students work on mathematics, using math programs on the computers to improve their math fluency. Teacher familiarized the students with the computers by having the student sit in front of a computer, while he showed them the location of particular keys, the mouse and the cursor. He used the mouse to move the cursor and showed the students which programs to use. Typically, the students sat in front of their computer and Teacher moved his hand onto the mouse to open the appropriate window. Each computer had a mouse that used a rollerball mechanism, which sometimes was difficult for the student to operate. At times, Teacher had to wiggle the mouse to get it to work. He did not ask the girls to move their hands before taking control of the mouse and, as a result, he sometimes had contact with their hands when he moved their mouse. Also, Teacher sometimes placed his hand on top of the student's hand to move the mouse.
During the three weeks that Girl 1 and Girl 2 attended Teacher's seventh period class, they occasionally would be off task, often because they were talking to each other. Teacher usually would first ask them to turn back to the computer or the task. If they ignored Teacher, he tapped on their shoulders to get their attention and again asked them to go back to the task. If the girls were seated at a table, he tapped on the table to get their attention. Teacher used the same physical redirection and tapping techniques with all of his students as needed. On at least one occasion, Teacher pushed Girl 2's shoulder to get her to face the computer and work on the assigned program. The last day the girls attended Teacher's class was August 29, 2013. Reporting Touching and Interviews
On Friday, August 30, 2013, at approximately 11:00 a.m., the girls went to the main office at the middle school and spoke to the secretary of the principal because Principal Kevin Bizzini was not in his office. The girls told the secretary that the Teacher had touched them. Girl 1 stated Teacher put his hand on her shoulder and then moved it on to her breast. Girl 2 stated Teacher put his hand on her hand and shoulder.
When Bizzini returned to his office and learned of the report, he called the girls to his office. Initially, Bizzini met with both girls, asking them what had occurred. Then he interviewed with them individually and took notes. Girl 1 told Bizzini that Teacher placed his hand on her shoulder or neck area first and then let his hand fall across her chest. She demonstrated how Teacher let his hand brush against her chest, but did not demonstrate any type of grab. Girl 1 stated Teacher would touch her almost every day in class and it was worse on Thursdays when the two boys were attending speech services. She also stated Teacher would put the boys to work so they would be distracted and then he would touch her and Girl 2. She stated Teacher touched them at both the computer stations and the tables in the middle of the room. At the computer stations, he would sit between them and touch them. Girl 1 also reported that Teacher had stroked her hair. Bizzini directed Girl 1 to write a statement about what had occurred.
Girl 2 told Bizzini that Teacher squeezed or grabbed her shoulder to get her attention back to the computer. She stated she had a bruise on her shoulder and it hurt when Teacher touched her shoulder. Girl 2 stated Teacher touched their hands as they tried to use the computer mouse, which made her uncomfortable. Girl 2 also stated she saw Teacher's hand fall across Girl 1's chest about seven times. Girl 2 denied that Teacher had touched her chest. Bizzini also directed Girl 2 to write a statement about what occurred in Teacher's classroom. Girl 2 wrote that Teacher toucher her and Girl 1 when the boys were not in the classroom and that she and Girl 2 were scared to be alone with Teacher.
Bizzini interviewed the two boys after completing his interviews of the girls. Bizzini obtained information from Boy 2 and then spoke with Boy 1 alone. Boy 2 stated he did not know or recall seeing anything inappropriate occurring in the classroom. He stated the girls talked a lot, had to be separated and, when they were late to class, Teacher made them write sentences. Boy 2 stated he saw Teacher pat students on the back or shoulders, usually when he was praising the student for doing a good job. He had not seen Teacher touch the girls in a different way from the way he touched him or Boy 1.
Boy 1 also stated the girls talked a lot. He stated, the previous week while they were in their general education class, the girls asked him not to leave the resource classroom to attend speech class. Girl 1 told him that Teacher had touched Girl 2 "weird." The girls indicated to Boy 1 that they were scared to be in the room alone with Teacher. Boy 1 stated he never saw Teacher touch the girls.
After finishing the interviews, Bizzini telephoned Marcus Wirowek, School District's human resources director, and informed him of the alleged misconduct. Wirowek duties included investigating complaints about employee misconduct. Wirowek was hired by School District in September 2012 and had no prior experience working for a school district or with children. Wirowek told Bizzini he would come to the middle school and investigate the matter. Wirowek and Bizzini decided to contact the parents of the girls and to interview them again.
Later during the afternoon of August 30, 2013, Wirowek conducted interviews of Girl 1 with her mother and Girl 2 with her father. Bizzini, his secretary and the secretary of the district superintendent also attended the interviews. The principal's secretary interpreted Spanish as needed. The other secretary took notes of the questions asked and the responses given. The interviews were summarized in the Commission's written decision and the details need not be repeated here. Some of the details given in the interview were consistent with the earlier statements made by the girls and some details were contradictory.
After the interviews, Wirowek spoke with Bizzini and then the superintendent. Bizzini thought he was required to contact Child Protective Services (CPS) about the girls' allegation. At approximately 3:40 p.m., Bizzini faxed a report to CPS stating Girl 1 had reported Teacher touched her several times on the chest. He also spoke with CPS by telephone and was instructed to contact law enforcement. Based on these instructions, Wirowek telephoned the Stanislaus County Sheriff's Department and described the statements made by the girls. Subsequently, Deputy Joe Knittel arrived at the middle school. At approximately 5:00 p.m., the deputy met with Wirowek and discussed the matter. Wirowek provided the deputy with contact information for the girls and copies of their written statements.
Also on the afternoon of August 30, 2013, after the interviews with the girls, Wirowek met with Teacher and told him of the allegations. Wirowek informed Teacher he would discuss the matter in more detail the following week. It was decided to remove the girls from Teacher's class and put them in a physical education class while the investigation was pending. Psychologist Interviews
Nelarie Romo was hired as a psychologist by School District in the fall of 2012. Her duties included conducting individual and group therapy for students. On September 4, 2013, Romo interviewed the girls and Boy 1. The interviews were summarized in the Commission's written decision, a description we do not repeat here.
While Girl 1 was being interviewed by Romo, Girl 2 and Boy 1 sat with an intern in the waiting room. As they waited, one of the students flicked the intern's hair. The intern asked who had done it. Girl 2 had flicked the intern's hair, but Girl 2 lied to the intern and blamed Boy 1. Law Enforcement Investigation
A detective from the Sheriff's Department arranged for Girl 1 to be interviewed on September 16, 2013, and arranged for Girl 2 to be interviewed on September 19, 2013. The interviews were conducted by Kelley Dominguez, who worked for the Family Justice Center and had specialized training in interviewing children. In addition, the detective interviewed Boy 1, Boy 2 and a female student who was friends with Girl 1 and Girl 2.
Boy 1 told the detective the girls got into trouble because they talked a lot and he never witnessed Teacher touching either girl. Boy 1 demonstrated how Teacher would place a hand on his shoulder when he said "good job." Boy 1 stated that at some point Girl 1 told him in a dramatic way that she was afraid of Teacher because he was touching Girl 2 on the back area. Later Girl 2 told him that she felt creeped out that Teacher was touching them. The girls also told him that Teacher rubbed their arms. Boy 1 informed the detective he did not get along with the girls and sometimes they lied. As an example, Boy 1 stated the girls would tell him his shoe was untied when it was not.
Boy 2 told the detective he never witnessed Teacher touching the girls inappropriately. He stated there were times when the students would get a problem correct and Teacher would tap them on the shoulder. He also stated the girls told him that they were scared something was going to happened with Teacher.
On October 2, 2013, the detective interviewed the female student who was friends with Girl 1 and Girl 2. The student told the detective that, approximately three weeks earlier, during lunch time, both the girls had told her in the presence of other girls that Teacher touched their legs and chest area.
The detective completed his report and sent it to the district attorney. Teacher was never arrested or detained. No criminal charges were filed against Teacher. Dismissal of Teacher
On December 10, 2013, the superintendent of School District signed a document designed to inform Teacher of School District's intent to dismiss him and to place him on immediate unpaid suspension pending the outcome of disciplinary proceedings. The document also included a statement of the charges against Teacher. School District's Governing Board approved the document. It was served on Teacher on December 13, 2013.
A few days later, Teacher demanded a hearing before the Commission to determine if there was cause to dismiss him. The superintendent signed and filed an accusation against Teacher that incorporated the statement of charges previously prepared and served. The matter then was set for a hearing before the Commission.
In September 2014, a hearing before the Commission was held over a three-day period. The Commission had three members and was presided over by an administrative law judge from the Office of Administrative Hearings. The matter was submitted for a decision in November 2014. The Commission issued its written decision in February 2015, which included an order directing the accusation against Teacher be dismissed. The Commission determined touching the girls on their shoulders and hands was not inappropriate and found Teacher credibly denied touching the breast of Girl 1.
PROCEEDINGS
In March 2015, School District challenged the Commission's decision by filing a verified petition for a writ of administrative mandate under Code of Civil Procedure section 1094.5. School District also submitted an ex parte application for a temporary stay of the Commission's order, which the superior court granted.
Responding to the petition, the Office of Administrative Hearings filed a notice of nonappearance on behalf of the Commission. The notice stated (1) the Office of Administrative Hearings was an impartial quasi-judicial tribunal with complete authority to render the challenged ruling; (2) the petitioner and the real party in interest were capable of litigating the matter; and (3) the Commission would not be an active participant in the lawsuit.
In April 2015, Teacher answered the petition. Teacher admitted touching each girl (1) on the shoulder to redirect their attention to their schoolwork and (2) on their hands to operate a computer mouse. Teacher also admitted flicking Girl 1's braid. He denied the other types of touching alleged in the petition.
In August 2015, after the administrative record was lodged and the parties submitted briefs, the superior court held a hearing on the writ petition. The court took the matter under submission at the conclusion of the hearing.
In October 2015, the superior court filed a nine-page statement of decision. First, the court concluded the administrative law judge's ruling allowing Teacher to be present while the girls testified before the Commission was discretionary and not an abuse of discretion. Second, the court concluded the administrative law judge "erred in her ruling on disallowing [School] District to present its character evidence." Third, the court addressed some aspects of the credibility of the girl's testimony. The court stated it had extensively reviewed the record and was satisfied the girls "testified truthfully, had no motive to lie, and were convincingly consistent with their reportage and testimony regarding inappropriate touching, regardless of variances in timeframes and other details." Fourth, the court found Teacher's conduct in August 2013 was "factually and legally classifiable as 'immoral conduct,' particularly the touching of [Girl 1's] breast." Fifth, the court considered criteria identified in Morrison v. State Board of Education (1969) 1 Cal.3d 214 (Morrison) "in evaluating whether the conduct at issue demonstrates unfitness to teach." Based on its evaluation, the court found Teacher unfit for duty.
In November 2015, the superior court decreed that its statement of decision would be its final ruling. The court implemented the decision by filing a judgment and issuing a writ of mandate. The writ directed the Commission to (1) vacate its order dismissing School District's accusation against Teacher and (2) order the immediate termination of Teacher's employment at School District based on the finding of immoral conduct and evident unfitness for duty. The judgment stated the court reserved "jurisdiction to hear and determine a motion for attorneys' fees pursuant to rule 3.1702 of the California Rules of Court."
DISCUSSION
I. JUDICIAL REVIEW
A. Superior Court Review
Judicial review of a decision by the Commission involving the dismissal of a certificated teacher is governed by provisions in the Education Code, the Code of Civil Procedure and the Government Code and decisions of the appellate courts.
1. Commission Decisions
We start with the provisions that address Commission decisions and proceed to those provisions covering a wide range of administrative decisions. Education Code section 44945 provides:
"The decision reached in a dismissal or suspension proceeding ... may, on petition of either the governing board or the employee, be
reviewed by a court of competent jurisdiction in the same manner as a decision made by a hearing officer under Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. The court, on review, shall exercise its independent judgment on the evidence."
The Chapter 5 referenced in this section governs administrative adjudications after a formal hearing. One of its provisions, Government Code section 11523, states: "Judicial review may be had by filing a petition for writ of mandate in accordance with the provisions of the Code of Civil Procedure, subject, however, to the statutes relating to the particular agency." Thus, when the statutory thread starting in Education Code section 44945 is followed to Chapter 5 and through Government Code section 11523, it leads to Code of Civil Procedure section 1094.5, the provision that governs administrative mandamus.
For purposes of this opinion, "Chapter 5" and Chapter 4.5" refer to Government Code sections 11500 through 11529 and Government Code sections 11400 through 11475.70, respectively. Both chapters are part of California's Administrative Procedure Act (Gov. Code, §§ 11340-11529).
Two points are established by the foregoing statutory provisions. First, judicial review of the Commission's decision in a teacher dismissal proceeding is initiated by filing a petition for writ of administrative mandamus. Second, the judicial review is conducted in the same manner as review of an administrative adjudication after a formal hearing.
2. Administrative Mandamus
The parties agree that the appropriate mechanism for initiating judicial review of the Commission's decision was a petition for writ of administrative mandamus. We agree. The provisions in Code of Civil Procedure section 1094.5 governing the inquiry of a court into the validity of certain final administrative decisions apply in this case.
Pursuant to subdivision (b) of Code of Civil Procedure section 1094.5, the judicial review of a decision by the Commission in a teacher dismissal proceeding "shall extend to the questions whether the [Commission] has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion." (Code Civ. Proc., § 1094.5, subd. (b).) An abuse of discretion can occur three different ways: (1) "the [Commission] has not proceeded in the manner required by law," (2) the "decision is not supported by the findings," or (3) "the findings are not supported by the evidence." (Ibid.)
In this appeal, the main issue raised is whether the Commission's findings are supported by the evidence. A judicial inquiry into the sufficiency of the evidence supporting the administrative decision is subject to one of two statutory standards, depending upon whether the court is authorized to exercise its independent judgment on the evidence. Here, the parties recognize that Education Code section 44945 provides: "The court, on review, shall exercise its independent judgment on the evidence." Consequently, they do not dispute that "the court [was] authorized by law to exercise its independent judgment on the evidence" as that phrase is used in Code of Civil Procedure section 1094.5, subdivision (c). As a result, an "abuse of discretion is established if the [superior] court determines that the findings are not supported by the weight of the evidence." (Code Civ. Proc., § 1094.5, subd. (c), italics added.)
The "weight of the evidence" standard is different from the "substantial evidence" standard that superior courts apply in cases where they are not authorized to exercise independent judgment on the evidence. (Code Civ. Proc., § 1094.5, subd. (c).)
To summarize, in this administrative mandamus proceeding the superior court's review of the sufficiency of the evidence before the Commission required it to determine whether the Commission's findings were supported by the weight of the evidence. (Code Civ. Proc., § 1094.5, subd. (c).) Also, in making the determination, the court was required to exercise its independent judgment on the evidence. (Ed. Code, § 44945.)
3. Administrative Adjudication Bill of Rights
Education Code section 44945 and Code of Civil Procedure section 1094.5 are not the only statutory provisions governing a superior court's review of a Commission decision in a teacher dismissal proceeding. Education Code section 44945 states the Commission's decision is reviewed in the same manner as a decision made by a hearing officer under Chapter 5. Government Code section 11501, subdivision (c) is a provision in Chapter 5 and it states: "Chapter 4.5 (commencing with Section 11400) applies to an adjudicative proceeding required to be conducted under this chapter, unless the statutes relating to the proceeding provide otherwise." Pursuant to this text, we conclude Chapter 4.5 applies to the Commission's proceeding addressing Teacher's dismissal. The litigants have cited and we have located no statute that "provide[s] otherwise." (Gov. Code, § 11501, subd. (c).) Furthermore, a provision in Chapter 4.5 was applied to a decision by the Commission in Jesperson, supra, 214 Cal.App.4th at pages 1147 through 1148.
This statement is supported by Government Code section 11501, subdivision (a), which provides that Chapter 5 "applies to any agency as determined by the statutes relating to that agency." Here, the "statutes relating to" the Commission include Education Code section 44945.
The conclusion that Chapter 4.5's requirements apply to the Commission's decision is significant for purposes of this appeal because that chapter contains the Administrative Adjudication Bill of Rights (Gov. Code, §§ 11425.10-11425.60), which was enacted in 1995 (Stats. 1995, ch. 938, § 21) as part of a major revision of the Administrative Procedure Act. (See California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 589.) The statutory provision of particular relevance to this appeal is Government Code section 11425.50, subdivision (b), which addresses witness credibility:
"If the factual basis for [an administrative tribunal's] decision includes a determination based substantially on the credibility of a witness, the
statement shall identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination, and on judicial review the court shall give great weight to the determination to the extent the determination identifies the observed demeanor, manner, or attitude of the witness that supports it."
This provision imposes obligations on both the administrative tribunal and the court reviewing the tribunal's decision. The administrative tribunal is conditionally obligated to identify in its written decision specific things it observed about a witness's demeanor, manner or attitude. This conditional obligation arises when (1) a determination in the decision is based substantially on the credibility of a witness and (2) the tribunal based its credibility findings on observations of the witness's demeanor, manner or attitude. In turn, the reviewing court is obligated to give great weight to the tribunal's credibility determination when the tribunal's written decision supports that determination by identifying things it observed about the witness's demeanor, manner or attitude.
4. Appellate Decisions/Strong Presumption of Correctness
The judicial review required by the foregoing provisions of Education Code, the Code of Civil Procedure and the Government Code is explained and supplemented by principles set forth in appellate decisions. We note that cases decided before the Administrative Adjudication Bill of Rights was enacted in 1995 necessarily do not fully describe the rules of judicial review applicable to post-1995 decisions of the Commission. Moreover, some decisions issued after 1995 rely entirely on earlier cases when describing the rules of judicial review. (E.g., San Diego Unified School Dist. v. Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 1461-1462 [standard of review] (Lampedusa).) Those decisions (1) do not mention the Administrative Adjudication Bill of Rights and (2) usually omit any reference to the strong presumption of correctness reaffirmed by the California Supreme Court in Fukuda v. City of Angels (1999) 20 Cal.4th 805, at pages 817 through 818 (Fukuda). (Cf. Jesperson, supra, 214 Cal.App.4th at pp. 1140-1142 [standard of review] to Lampedusa, supra, 194 Cal.App.4th at pp. 1461-1462 [standard of review].)
Thus, the starting point for a superior court's review of the sufficiency of the evidence supporting the Commission's findings is the strong presumption of correctness given those findings. (Jesperson, supra, 214 Cal.App.4th at pp. 1140-1141.) This rebuttable presumption places the burden on the party filing the writ petition to prove the Commission's decision was not supported by the weight of the evidence. (Id. at p. 1141.) This burden requires the petitioner to support its challenge affirmatively, competently and convincingly. (Ibid.) Our Supreme Court has reiterated that under the presumption, "'rarely, if ever, will a board determination be disturbed unless the petitioner is able to show a jurisdictional excess, a serious error law, or an abuse of discretion on the facts.'" (Fukuda, supra, 20 Cal.4th at p. 814; see Code Civ. Proc., § 1094.5, subd. (b).) In Fukuda, the Supreme Court (1) noted the trial court was required to review an administrative decision by exercising independent judgment and (2) concluded the lower court's findings and decision were infected by two errors. (Fukuda, supra, 20 Cal.4th at p. 824.) First, the trial court placed the burden of proof on the city, not the dismissed employee who filed the petition for administrative mandamus. (Ibid.) Second, the trial court failed to accord a presumption of correctness to the administrative findings. (Ibid.)
In Jesperson, the court addressed how the strong presumption of correctness related to Education Code section 44945's requirement that the superior court exercise its independent judgment on the evidence. It concluded superior courts are obligated to make their own findings after giving due respect to the agency's findings. "'[T]here is no inconsistency in a rule requiring that a trial court begin its review with a presumption of the correctness of administrative findings and, then, after affording the respect due to these findings, exercise independent judgment in making its own findings.' (Fukuda, supra, 20 Cal.4th at pp. 818-819.)" (Jesperson, supra, 214 Cal.App.4th at p. 1141.) Similarly, when the finding in question relates to witness credibility, the superior "court is entitled to substitute is own credibility determinations [citations], but it cannot ignore its statutory obligation to defer to the Commission's considered credibility findings in doing so." (Id. at p. 1148.)
B. Appellate Review
The second layer of judicial review of a Commission decision in a teacher dismissal proceeding is appellate review of the superior court's review of the Commission's decision. When scrutinizing the superior court's decision, the appellate court must determine whether the superior court gave due respect to the agency's findings and whether the court then proceeded to exercise its independent judgment. If the superior court complied with these legal obligations, the appellate court will sustain the superior court's findings if they are supported by substantial evidence. (Jesperson, supra, 214 Cal.App.4th at p. 1141.) When applying the substantial evidence standard, appellate courts resolve all conflicts in favor of the party prevailing at the superior court level and give that party the benefit of every reasonable inference. (Id. at pp. 1141-1142.) Evidence is substantial when it is relevant and a reasonable mind might accept it as adequate to support a conclusion. (Id. at p. 1142.) As often stated, an appellate court's inquiry under the substantial evidence standard of review begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact. (Ibid.)
Our application of the substantial evidence standard to the superior court's findings (instead of the Commission's findings) in this legal context is not the typical application of that standard. Pursuant to Code of Civil Procedure section 1094.5, subdivision (c), the superior court is required to make a finding about the weight of the evidence supporting the Commission's findings. As a result, appellate courts review a finding about findings. This dual level of findings is illustrated in Jesperson, where the Fourth District (1) concluded the teacher had carried the heavy burden imposed on appeal by the substantial evidence rule and (2) described its conclusion in a heading stating, "The Evidence Does Not Show the Commission's Findings Are Contrary to the Weight of the Evidence." (Jesperson, supra, 214 Cal.App.4th at p. 1145.) In other words, substantial evidence did not support the superior court's finding that the Commission's findings were contrary to the weight of the evidence. Based on this and other errors, the Fourth District reversed the judgment and directed the superior court to deny the school district's petition, which effectively upheld the Commission's decision to reinstate the teacher in that inappropriate touching case. (Id. at p. 1153.) II. ADMITTED TOUCHINGS
We begin our analysis of the immoral conduct alleged by dividing the touchings into two categories. The first category is contact Teacher admitted occurred, was nonsexual in nature, and consisted of Teacher (1) touching each girl on the shoulder to redirect her attention to her schoolwork, (2) touching the hands of the girls to operate a computer mouse, and (3) "flicking" the braid of Girl 1 on a single occasion. The second category is contact Teacher denied—the alleged touching of each girl on the chest or breast. The latter category is addressed in the part III, post.
A. Commission's Findings
1. Hands and Shoulders
The classroom computers each had a mouse with a rollerball mechanism to control the cursor. The four students in the seventh period all had difficulty using the mouse. At times, Teacher had to wiggle the mouse to get it to work. Teacher did not ask the girls to move their hands before he took control of the mouse. Consequently, there were times when Teacher made contact with the hands of the girls when he moved their mouse. There also were times Teacher placed his hand on top of the students' hands to move the mouse.
Occasionally, during their class with Teacher, the girls would be off task. Typically, this involved them talking to each other. In most instances, Teacher would attempt to redirect the girls by asking them to turn back to the computer or the task. If they ignored the request, Teacher tapped on their shoulders to get their attention and again asked them to go back to the task. On one occasion, Teacher pushed Girl 2's shoulder with his hand in an effort to direct her to face the computer screen and work on the assigned task. He described the contact has a "gentle push." The push caused Girl 2 pain because she had bruised her shoulder while playing with her father. However, Girl 2 did not inform Teacher that he had caused her pain.
Paragraph 136 of the Commission's decision addressed Teacher's touching the hands and shoulders of the girls and whether those touchings were inappropriate. The paragraph stated: "Neither [girl] ever told [Teacher] that they did not want to be touched. The evidence established that it was not inappropriate nor was it a violation of the [School] District's policies for [Teacher] to touch [the girls] on their shoulders or hands to redirect their attention or assist them with instructional matters."
2. Flicking the Braid
Paragraph 21 of the Commission's decision sets forth its finding about the touching of Girl 1's hair:
"On one occasion [Teacher] walked passed [Girl 1] on his way to the computers and 'flicked' [her] hair, which was in a braid. [Teacher] testified that he did so because he was 'having a good day' and because her braid was 'well done.' [Girl 2] saw [Teacher] flick [Girl 1's] hair and said 'Ew.' [Teacher] put up his hands and said 'okay.' In hindsight, [Teacher] realized that flicking [Girl 1's] braid may have been unwelcome."
Paragraph 139 of the Commission's decision addressed School District's allegation that Teacher "stroked" Girl 1's hair. The decision stated Bizzini, the principal at the middle school in 2013, made notes of his interviews with the girls and his notes stated Girl 1 reported Teacher "stroked" her hair. In subsequent interviews and at the Commission's hearing, Girl 1 did not mention that Teacher stroked or touched her hair. The Commission stated its conclusions as follows:
"The evidence established that [Teacher] flicked [Girl 1's] hair as he walked passed her on the way to the computers. Notably, [Girl 2] was not afraid to respond to the gesture by stating 'Ew.' [Teacher] immediately acknowledged how [Girl 2] felt about his actions when he put up his hands and stated 'okay.' Although [Teacher] flicked [Girl 1's] hair in jest, in hindsight he understood that this was not appropriate as [it] could have been construed by [Girl 1] as unwelcome."
The Commission concluded the evidence did not establish Teacher inappropriately touched either girl. The Commission stated Teacher touched their shoulders to redirect their attention and School District had not proven its allegation that Teacher stroked Girl 1's hair.
Based on its factual findings, the Commission determined School District had not proven by a preponderance of the evidence that Teacher engaged in immoral conduct, was unfit for service, or persistently violated or refused to obey reasonable regulations. (See Ed. Code, § 44932, subd. (a)(1), (5), (7).) As a result, the Commission concluded Teacher "shall not be dismissed as a resource specialist program teacher."
B. Superior Court's Approach to When Touchings are Inappropriate
The superior court's statement of decision set forth the court's finding that "the conduct of which [Teacher] is accused and it having occurred in August 2013 is factually and legally classifiable as 'immoral conduct,' particularly the touching of [Girl 1's] breast." This finding demonstrates the superior court accepted one or more of School District's theories that touching the hands and shoulders of the girls was inappropriate.
The statement of decision did not explicitly identify the test used to determine the touchings of the hands and shoulders were inappropriate. Consequently, we rely on inferences drawn from the court's explicit findings of facts related to those touchings. The superior court established the context for those findings by describing School District's allegations relating to the fear experienced by the girls, which included the allegation that Teacher "touched [Girl 1] on the hand, shoulder, and breast multiple times, which made [her] scared of [Teacher]" and Teacher "touched [Girl 2] on the hand and shoulder numerous times in a manner that made her fearful." The court found the allegations were true, stating "the record reflects the girls were fearful of [Teacher]" and "both students harbored fear of [Teacher]." The court did not find Teacher was aware of their fear or, alternately, that an objectively reasonable person in Teacher's position would have recognized the girls' fear. Also, the court accepted the Commission's finding that the girls never told Teacher they did not want to be touched.
These allegations imply touching a student's hand or shoulder is inappropriate when it causes the student to experience fear. This implication is consistent with School District's election not to accuse Teacher of inappropriate contact with another of his seventh period students, a boy who Teacher also touched on the shoulder to redirect his attention.
Based on the School District's allegations about fear, and the testimony of Wirowek, the briefing filed in the superior court, and the superior court's explicit findings relating to fear, we interpret the statement of decision as follows. The court determined an otherwise appropriate touching of a student became inappropriate when it caused the student to experience fear.
During the hearing, Wirowek answered a question about whether he believed Girl 2 was inappropriately touched. Wirowek answered, "Based off her statement, no, I do not believe that she was inappropriately touched by [Teacher]." Wirowek agreed that the conduct of touching the shoulder and hand, in and of itself, was not offensive, but when the conduct makes the student afraid or scared it is inappropriate.
Wirowek also was asked, "If a teacher gave a student a high five and they felt uncomfortable with that same touching, would that violate the board policies?" Wirowek answered, "No." When asked why a touching that caused fear in the student did not violate the board policies, Wirowek stated, "I would consider a high five appropriate, if you will." When asked to explain the difference between a high five that caused student fear and the touchings of the hands and shoulders experienced by Girl 2, Wirowek stated that her fear arose from seeing another student touched inappropriately and the concern she would be touched in the same way.
C. Appellate Briefing Regarding Inappropriate Touching
1. Initial Briefing
The briefing initially presented by the parties to this court did not explicitly define the term "inappropriate touching" or explicitly identify a test for distinguishing between appropriate and inappropriate touching. Despite the absence of a definition or test, we interpreted the briefing as presenting a dispute about whether Teacher's touchings of the hands and shoulders of the girls were inappropriate touchings constituting immoral conduct. This interpretation disagrees with Teacher's suggestion that School District has conceded Teacher's touchings of the hands and shoulders of the girls were appropriate. Consequently, an issue raised in this appeal is whether Teacher's contact with the hands and shoulders of the girls constituted inappropriate touchings.
2. Request for Supplemental Briefing
To aid our evaluation of whether the touchings of the hands and shoulders were inappropriate, we directed counsel to submit supplemental letter briefs answering four questions. (See Gov. Code, § 68081.) First, we asked counsel to set forth the test they contended this court should adopt to distinguish between a touching of a student by a teacher that is appropriate and a touching that is inappropriate. Second, we asked whether the proposed test was contained in any statute, state regulation, or regulation prescribed by the governing board of School District (Ed. Code, § 44932, subd. (a)(8)) and, if so, we directed the parties to identify the specific language that created the test. The third question addressed the situation created by a "no" answer to the second question by asking whether the proposed test was otherwise made known in a manner that provided Teacher and other employees with fair warning. The fourth question directed counsel to set forth the arguments that supported their proposed test and raised certain points for them to address in their arguments. As an example, if student fear or discomfort was an element of the proposed test, we directed counsel to "state whether the student's reaction is analyzed under a subjective or objective standard" and to "discuss the implications of using that standard."
3. School District's Supplemental Brief
School District's supplemental brief urged this court to "adopt a test which hinges upon the application of common sense and good judgment under the totality of the circumstances." School District worded the test for evaluating whether a teacher's touching of a student was appropriate or inappropriate as follows:
"Whether under the totality of the circumstances, considering both context and impact, an employee's facially innocent touching of a student is inappropriate in purpose or effect."
We note that this proposal is circular in that it uses the term "inappropriate" to describe what is "inappropriate."
School District then set forth several contextual factors and argued evaluating the impact calls for "analyzing both the subjective and objective impacts of the touchings on the student(s)." In School District's view, considering both the subjective impact of the touching on the student and the impact from a reasonable pupil perspective would account for the totality of the circumstances and protect teachers from termination for a truly innocent touching of a student.
School District contends its proposed test is derived from the first sentence of the third paragraph of Board Policy 4119.21, 4219.21 and 4319.21. The policy sets forth professional standards for School District's personnel and we quote its third and fifth paragraphs in their entirety:
"The Board expects all employees to exercise good judgment and maintain professional standards and boundaries when interacting with students both on and off school property. Inappropriate employee conduct shall include, but not be limited to, engaging in harassing or discriminatory behavior; engaging in inappropriate socialization or fraternization with a student; soliciting, encouraging, or establishing an inappropriate written, verbal, or physical relationship with a student; furnishing tobacco, alcohol, or other
illegal or unauthorized substances to a student; engaging in child abuse. [¶] ... [¶] Any employee who is found to have engaged in inappropriate conduct with a student in violation of law or this policy shall be subject to disciplinary action." (Italics added.)
School District also relies on School District Administrative Regulation 5145.7, which states sexual harassment includes unwelcome physical conduct of a sexual nature and lists touching of another individual's body or clothes in a sexual way as a type of prohibited conduct.
4. Teacher's Supplemental Brief
Teacher's supplemental brief, which we directed to be filed a week after School District submitted its filing, proposed the following test for determining when physical contact between a teacher and a student is inappropriate in the context of a charge of immoral conduct:
"Physical conduct between a teacher and a student is inappropriate in the context of a charge of immoral conduct when it is (a) objectively unreasonable and (b) carried out with the specific intent to further an objectively unreasonable and immoral purpose."
Teacher asserts that no statute, state regulation, School District regulation or School District policy (1) set forth any test distinguishing between appropriate and inappropriate touching of a student and (2) provided him with fair warning that the test proposed by School District would be applied in a termination proceeding. Teacher's position impliedly asserts the specific intent element in his proposed test provides adequate notice or a fair warning about what is appropriate and what is inappropriate. In particular, when that specific intent element is satisfied, the teacher knows (or should have known under the objective standard) the touching in question was wrong and could constitute "immoral conduct" under Education Code section 44932, subdivision (a)(1).
Education Code section 44932 sets forth the causes that justify dismissing a permanent employee of a public school district. It is a general provision and neither allows nor prohibits physical contact between a teacher and a student. The statutory causes for dismissal relevant to this appeal are (1) immoral or unprofessional conduct, (2) evident unfitness for service, and (3) persistent violation of or refusal to obey reasonable regulations prescribed by the governing board of the school district. (Ed. Code, § 44932, subd. (a)(1), (5), (7).) Here, School District contends Teacher's conduct satisfied these three statutory grounds for dismissal.
D. Analysis of Test for Inappropriate Touching
1. Potential Sources
Our search for a test that distinguishes between appropriate and inappropriate touchings considered Education Code sections 49001 (corporal punishment), 44807 (immunity for teachers who assert physical control over a student to the same degree that a parent is legally privileged to exercise control), and 44932 (causes for dismissal of a permanent teacher). We reviewed the Rules of Conduct for Professional Educators contained in sections 80331 through 80339.6 of title 5 of the California Code of Regulations and found nothing on point, which explains why the parties did not cite those rules. We also considered (1) School District Administrative Regulation 5144, which addresses student discipline; (2) School District Administrative Regulation 5145.7, which addresses sexual harassment; (3) School District Administrative Regulation 5137 regarding the creation of a positive school climate; (4) School District Board Policy 4119.21, 4219.21 and 4319.21, which sets forth professional standards for School District's personnel; (5) the directive contained in a 45-day notice of unprofessional conduct issued to Teacher in November 2010; and (6) the oral instructions given to Teacher by principal Solis in November 2010.
None of these potential sources provide a useful definition of "inappropriate" or a test with sufficient detail to be helpful in determining when touching a student's hands or shoulders becomes inappropriate. School District's supplemental briefing cites Board Policy 4119.21, 4219.21 and 4319.21 as the source for its proposed test, but that policy simply refers to the "exercise good judgment" and the maintenance of "professional standards and boundaries when interacting with students." The policy uses but does not define the term "inappropriate." For instance it states inappropriate employee conduct includes "engaging in inappropriate socialization or fraternization with a student" and "establishing an inappropriate written, verbal, or physical relationship with a student." These general statements of policy lack criteria for determining the point at which an appropriate touching of a student's hand or shoulder becomes inappropriate.
Similarly, published California decisions addressing the dismissal of a teacher have not adopted a test for determining when a potentially appropriate touching is inappropriate. The case law does provide examples of appropriate touchings, such as tying the shoe of a second or third grader while facing the student. (Jesperson, supra, 214 Cal.App.4th at p. 1133.)
In summary, none of the potential sources we examined provides a clear description of when touching the hands or shoulders of a student would be deemed inappropriate. Before adopting a test for purposes of this appeal, we will address whether the trial court used a legally correct test when it determined Teacher's touchings of the hands and shoulders of the girls were inappropriate.
2. Test Adopted by the Superior Court
The superior court determined an otherwise appropriate touching of a student became inappropriate when it caused the student to experience fear. (See pt. II.B, ante.) As background, for considering whether this test is legally correct, we note the Commission impliedly rejected a test based solely on the existence of student fear. The Commission concluded another element must be present—specifically, the teacher must be aware of the student's feelings. Addressing that additional element, the Commission found neither girl ever told Teacher that she did not want to be touched. After making this finding, the Commission concluded Teacher had not acted inappropriately or violated any of School District's policies by touching the girls on their hands or shoulders to redirect their attention or assist them with instructional matters. The Commission's inclusion of teacher awareness as an element addressed the due process concerns that arise from a test based on the uncommunicated subjective reaction of a student. In Morrison, supra, 1 Cal.3d at page 231, the Supreme Court addressed a teacher's due process rights as follows:
"Civil as well as criminal statutes must be sufficiently clear as to give fair warning of the conduct prohibited, and they must provide a standard or guide against which conduct can be uniformly judged by courts and administrative agencies. [Citations.] The knowledge that he has erred is of little value to the teacher when gained only upon the imposition of a disciplinary penalty that jeopardizes or eliminates his livelihood." (Id. at p. 231, fn. omitted.)
We conclude the test for inappropriate touching in the context of a teacher dismissal under Education Code section 44932 must take into account our Supreme Court's concern with fair warning. We further conclude the test adopted by the superior court is legally incorrect under the principles set forth in Morrison because it did not require Teacher to be aware of the student's subjective feelings about being touched on the hands and shoulders.
3. Test Adopted in this Appeal
We agree with the basic elements of Teacher's proposed test for when physical contact between a teacher and a student becomes inappropriate. A touching is inappropriate when it is (1) objectively unreasonable and (2) the teacher intends to further an immoral or an objectively unreasonable purpose. This test recognizes the practical reality that some touching can and will occur in the classroom and that the Legislature has provided legal protections to teachers to guard against unwarranted termination, while ensuring that students are protected from physical abuse or other inappropriate touchings. Touching may be objectively unreasonable if, for example, it inflicts unnecessary physical pain, is sexually abusive, or is sufficiently severe and pervasive to create an abusive learning environment.
The evidence in the record is insufficient to support a finding that Teacher's touchings of the hands and shoulders of the girls was objectively unreasonable because: (1) the touchings furthered a legitimate educational purpose; (2) a reasonable person would have considered the touchings to be a reasonable means to accomplish that purpose; and (3) neither girl communicated any negative emotion related to these touchings. In the absence of communication, Teacher had no notice the girls believed his touching of their hands and shoulders were frightening or offensive. By comparison, when Teacher flicked Girl 1's braid, Girl 2 immediately said, "Ew." This statement put Teacher on notice that the conduct was unwelcome. Upon receiving this information and knowing the touching did nothing to further an educational purpose, Teacher was put on notice that flicking a student's braid in the future would be offensive. Teacher made the same deduction, which he confirmed when he responded to Girl 2's comment by putting up his hands and saying "okay." These actions communicated that he understood her point and would not repeat the conduct.
The terms offensive and unwelcome are used to mean something more than the annoyance experienced by a student who was doing something other than his or her schoolwork and was directed away from that more pleasant activity and back to his or her studies.
As to the second element of the test—teacher intent—the purpose behind Teacher's touching the hands and shoulders of the girls was neither immoral nor objectively unreasonable as the touchings redirected the girls to their schoolwork. Consequently, we conclude that the weight of the evidence supports the Commission's determination that the touchings of the hands and shoulders were not inappropriate. It was error for the superior court to determine otherwise. (See Jesperson, supra, 214 Cal.App.4th at p. 1149 [patting student on back outside her clothing did not constitute a touching that was inappropriate or immoral].) Stated another way, "there is no substantial, credible, or reliable evidence to support a finding that the touching [of the girls' hands and shoulders] was so offensive, inappropriate or immoral that it rendered him unfit to teach." (Id. at p. 1150.) III. DISPUTED TOUCHINGS
Our conclusion that Teacher did not inappropriately touch the girls when he touched their hands and shoulders leaves the alleged touchings of the breasts of the girls as the remaining ground supporting the determination that Teacher engaged in immoral conduct related to his fitness to teach. No one contends repeated, intentional touchings of the breast of a sixth grade girl is appropriate physical contact between a teacher and student. Consequently, the dispute in this appeal is narrowed to whether those touchings occurred. This section briefly summarizes the testimony, allegations and findings regarding the disputed touchings and establishes the context for our discussion of the credibility determinations underlying the respective findings as to whether Teacher touched the breast of one or both of the girls.
A. Girl 2
1. Testimony
The least controversial question about the alleged touchings is raised by Girl 1's testimony that Teacher touched the breast of Girl 2. Girl 2 denied any such touchings occurred, testifying before the Commission that Teacher never touched her anywhere other than the hand and shoulder. Teacher's testimony as to how he touched Girl 2 agreed with Girl 2's testimony in that Teacher admitted touching her hand and shoulder and denied touching her breast.
Consequently, the only source of the claim that Teacher touched Girl 2's breast is the testimony of Girl 1. She testified Teacher touched Girl 2 just like he touched her—specifically, she saw Teacher put his hand on Girl 2's shoulder and slide it downward towards Girl 2's breast. Girl 1 could not recall how many times she saw Teacher touch Girl 2. When asked if she was 100 percent sure that she saw Teacher touch Girl 2 on the breast, Girl 1 answered, "Yes."
2. Allegations and Findings
When School District prepared the charges attached to its formal accusation, it had to decide whether to believe Girl 1's assertions that Teacher touched Girl 2's breast or, alternatively, whether to believe the statements of Girl 2 and Teacher that he did not touch Girl 2's breast. School District chose the latter alternative and alleged Teacher touched Girl 1's breast with his hand and did not allege he touched Girl 2's breast. Later, School District took the same position when it filed its petition for writ of administrative mandamus. The petition alleged Teacher "inappropriately touched female students in a manner that made them uncomfortable and afraid, including touching one female student multiple times on her breast." The female student referred to in this allegation is Girl 1.
The Commission and the superior court reached the same conclusion as the School District and did not credit the statements by Girl 1 asserting Teacher had touched Girl 2's breast. Both the Commission and the superior court found that Teacher did not touch Girl 2's breast.
3. Summary
The testimony by Girl 1 that she saw Teacher touch Girl 2's breast and she was 100 percent sure of what she saw are significant for purposes of this appeal. Those statements were contradicted by Girl 2 and were not believed by the School District, the Commission or the superior court. Consequently, those statements undermine Girl 1's credibility as a witness.
B. Girl 1
Both girls testified that Teacher touched the breast of Girl 1. Teacher denied touching her breast. The allegations in School District's accusation and its petition asserted Teacher touched Girl 1's breast multiple times. The Commission explicitly found Teacher "did not intentionally touch [Girl 1] on the breast." The Commission stated Teacher testified credibly and disbelieved the contrary version of events presented by the girls. The superior court reached the opposite determination as to witness credibility, believing the testimony of the girls and disbelieving the version of events presented by Teacher.
The credibility determinations are critical to deciding whether Teacher touched Girl 1's breast and, as a result, engaged in immoral conduct for purposes of Education Code section 44932, subdivision (a)(1). Therefore, we proceed to the rules of law that apply to the credibility findings made by the Commission, the credibility findings made by the superior court, and our review of those findings. IV. THE COMMISSION'S CREDIBILITY FINDINGS
Part I.A.3 of this opinion describes a provision in the Administrative Adjudication Bill of Rights addressing witness credibility. Government Code section 11425.50, subdivision (b) requires superior courts to give great weight to the Commission's determinations of witness credibility, provided certain conditions have been satisfied. Here, the parties disagree about whether the provision applied because they disagree about whether the statutory conditions were satisfied.
A. Contentions of the Parties
Teacher argues the superior court did not comply with Government Code section 11425.50, subdivision (b) and erred by failing to give "great weight" to the Commission's finding that his testimony was credible. Teacher cites paragraph 135 of the Commission's written decision, which stated Teacher "credibly denied that he inappropriately touched [either girl]. [Teacher] did not seek to portray [either girl] in a negative light, nor did he appear to harbor any animosity towards the girls." Teacher interprets the last sentence as the Commission's explicit identification of his observed attitude and argues the identification "triggered the high level of deference required by Government Code §11425.50(b)."
In response, School District contends statutory requirement does not apply in this case because deference is compelled only "to the extent the [credibility] determination identifies the observed demeanor, manner, or attitude of the witness that supports it." (Gov. Code, § 11425.50, subd. (b).) School District argues the Commission's decision did not mention or reference the girls' demeanor, attitude, or manner in finding the girls' testimony was not credible. As to Teacher's credibility, School District contends Teacher mistakenly claims the statement about his apparent lack of animosity was based on his observed demeanor, attitude of manner.
B. Cases Applying the Great Weight Requirement
The question presented is whether the contents of the Commission's decision triggered the statutory requirement for giving great weight to the Commission's credibility determination. Before analyzing the text of the Commission's decision, we review some of the cases in which an appellate court determined the administrative agency's decision complied with the statutory requirement for a statement identifying "any specific evidence of the observed demeanor, manner, or attitude of the witness that supports [its credibility] determination." (Gov. Code, § 11425.50, subd. (b).) These cases illustrate the type of language that satisfies the statutory requirement.
1. Jesperson
In Jesperson, supra, 214 Cal.App.4th 1120, a teacher was dismissed from employment for inappropriately touching a student. (Id. at p. 1123.) The Commission directed reinstatement of the teacher, after determining the school district had not proven unfitness to teach or immoral conduct. (Ibid.) The school district filed a petition for writ of mandate, which the superior court granted. (Ibid.) On appeal, the Fourth District reversed the judgment and directed the superior court to deny the school district's petition for writ of mandate, which effectively upheld the Commission's decision to reinstate the teacher. (Id. at p. 1153.)
In Jesperson, the teacher argued the superior court failed to give great weight to the Commission's credibility determinations. (Jesperson, supra, 214 Cal.App.4th at p. 1144.) The teacher argued "the Commission identified specific evidence of the observed demeanor and manner of the witnesses in assessing their credibility" and, therefore, the court was required by Government Code section 11425.50, subdivision (b) to give great weight to the credibility determinations. (Jesperson, supra, at p. 1144.) The Commission's decision stated that the student's "'demeanor while describing the touching at the administrative hearing was without significant emotion.'" (Id. at p. 1138.) As to the student's mother, the Commission "found her demeanor suggested she was 'perhaps overdramatizing the events....'" (Ibid.) The Commission also addressed the credibility of a special education aide who testified she never observed any kind of inappropriate touching while she was in the classroom. The Commission found the aide was "'very credible'" and relaxed. (Ibid.) It also stated she "'seemed to be attempting to answer every question in a direct and truthful manner to the best of her recollection.'" (Ibid.) The Fourth District's opinion does not describe anything in the Commission's decision about the teacher's demeanor, manner or attitude during his testimony.
The Fourth District concluded the recitations in the Commission's decision about the student, the student's mother and the special education aide were sufficient to comply with the requirements of Government Code section 11425.50, subdivision (b). (Jesperson, supra, 214 Cal.App.4th at p. 1148.) As a result, the statute required the superior court to give great weight to the Commission's credibility determinations. (Gov. Code, § 11425.50, subd. (b).) The superior court's failure to comply with the statute was a ground for the Fourth District's reversal of the judgment with directions that the school district's petition be denied. The fact that the Commission's decision did not refer to the demeanor or attitude of the teacher while he testified was not discussed. Thus, Jesperson implies that the great weight requirement is triggered even though the Commission's decision does not specify observations about the demeanor, manner or attitude of all of the witnesses who offered conflicting testimony on a disputed fact.
2. Kifle-Thompson
In Kifle-Thompson v. State Bd. of Chiropractic Examiners (2012) 208 Cal.App.4th 518 (Kifle-Thompson), an accusation brought before the State Board of Chiropractic Examiners (Board) sought to revoke a chiropractor's license based on seven misdemeanor convictions for insurance fraud. (Id. at p. 521.) The accusation was tried before an administrative law judge, who issued a proposed decision in favor of the chiropractor. (Id. at p. 522.) The Board decided not to adopt the administrative law judge's proposed decision and issued a final decision revoking the license. (Id. at pp. 522-523.) The chiropractor filed a petition for writ of administrative mandamus, which the superior court denied. (Id. at p. 523.) The First District affirmed the denial of the petition. (Id. at p. 535.)
The First District noted the Board's decision on the disciplinary action was subject to the Administrative Procedure Act. (Kifle-Thompson, supra, 208 Cal.App.4th at p. 534.) As a result, the requirements in Government Code section 11425.50 applied to the Board's decision. The court noted the Board's decision stated the chiropractor's conduct during the hearing indicated a "'lack of candor, insight and honesty,'" and referred to her repeated inability to recall significant events. (Kifle-Thompson, supra, at p. 534.) The court concluded these statements in the Board's decision complied with the requirement in subdivision (b) of Government Code section 11425.50 for an identification of the observed demeanor, manner or attitude of the witness supporting the Board's credibility determination. (Kifle-Thompson, supra, at p. 534, fn. 8.)
3. Other Cases
Other cases show an administrative decision's failure to identify the observed demeanor, manner or attitude of a witness results in the agency's credibility determination not being given great weight. For example, in Patterson Flying Service v. California Department of Pesticide Regulation (2008) 161 Cal.App.4th 411 (Patterson), a county agricultural commission fined a flying service for improper aerial application of pesticides. (Id. at p. 417.) The flying service appealed to the Director of the Department of Pesticide Regulation, who upheld the penalty. (Ibid.) The flying service then filed a petition for an administrative mandamus writ, which the superior court denied. (Ibid.) On appeal, this court affirmed the superior court's judgment. (Id. at p. 433.)
In Patterson, the property holder next to the field where pesticides were being applied testified that spray suddenly drifted onto her shortly after she had taken her dog outside. (Patterson, supra, 161 Cal.App.4th at p. 430.) The flying service argued the hearing office committed error because he did not state the basis on which he ascribed credibility to the property holder's testimony. (Ibid.) This court concluded no error occurred, noting the failure to identify any evidence of demeanor, manner or attitude supporting a credibility determination simply meant the hearing officer's determination of credibility was not entitled to the great weight prescribed by Government Code section 11425.50, subdivision (b). (Patterson, supra, at p. 430.)
Other courts have reached the same conclusion about the consequences that flow from the absence of description of evidence relating to a witnesses demeanor, manner or attitude. In California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th 575, the Third District concluded the administrative law judge's credibility findings were not to be given special weight because the decision never identified an observed demeanor, manner or attitude of the witnesses. (Id. at p. 596.) In Rodriguez v. City of Santa Cruz (2014) 227 Cal.App.4th 1443, the administrative law judge did not identify any evidence of demeanor, manner or attitude supporting the finding that the testimony of an applicant for a disability retirement was not credible. (Id. at p. 1453, fn. 2.) Consequently, the Sixth District concluded the superior court was not required to give great weight to the administrative law judge's credibility finding.
C. Identification of Teacher's Demeanor and Attitude
Here, the Commission's written decision did not explicitly identify evidence relating to the demeanor, manner or attitude of the two girls when they testified. In contrast, the decision found Teacher's denial of inappropriate touching was credible and explicitly stated Teacher "did not seek to portray [either girl] in a negative light, nor did he appear to harbor any animosity towards the girls." We conclude this statement about how Teacher appeared refers to his demeanor and attitude in a way that supports the Commission's determination that his testimony was credible. Therefore, the Commission fulfilled the obligation imposed upon administrative tribunals by Government Code section 11425.50, subdivision (b). It follows that the superior court was obligated by Government Code section 11425.50, subdivision (b) to give great weight to that credibility determination.
D. Court Did Not Give Credibility Determinations Great Weight
The next step of the analysis is to determine whether the superior court complied with its statutory obligation to give great weight to the Commission's determination that Teacher's testimony was credible. As explained below, we conclude the contents of the superior court's statement of decision demonstrate the court did not comply with Government Code section 11425.50, subdivision (b).
1. Not Explicit
The statement of decision did not cite Government Code section 11425.50 or make any reference to its requirements. Also, the statement of decision did not mention the Commission's finding that Teacher's testimony was credible and, did not describe the weight it gave that finding. Thus, the statement of decision did not explicitly (1) acknowledge the existence of the statutory obligation to give great weight to the Commission's credibility determination or (2) state the court had given great weight to the credibility determination.
2. Not Reasonably Inferred
A general rule of appellate practice is that the superior court's judgment is presumed correct and all intendment and presumptions are indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Thus, if a written decision is silent on a specific point, the appellate court usually infers the superior court applied the correct rule of law and decided the particular issue correctly, provided that such inferences are reasonable under the circumstances. Stated from the opposite perspective, the presumption does not require appellate courts to draw unreasonable inferences. Under this principle, we consider whether it is reasonable to infer the superior court complied with the "great weight" requirement in Government Code section 11425.50, subdivision (b).
The statement of decision focused on the testimony of the girls, did not describe the content of Teacher's testimony before the Commission, and did not mention the Commission's identification of the observed demeanor and attitude of Teacher (i.e., the contents of the Commission's decision that triggered the great weight requirement). Furthermore, none of the cases cited in the statement of decision discussed the great weight requirement. Lampedusa, supra, 194 Cal.App.4th 1454 and Governing Board v. Haar (1994) 28 Cal.App.4th 369, do not mention Government Code section 11425.50 or the requirement that credibility findings be given great weight in certain circumstances. Instead, both cases addressed credibility simply by stating: "Under the independent review standard, the trial court may weigh the credibility of witnesses." (Lampedusa, supra, at p. 1461; Governing Board v. Haar, supra, at p. 377.) This statement of law is incomplete because it does not describe the requirement imposed by Government Code section 11425.50. Based on the language used in the statement of decision and the cases cited, we conclude there is no reasonable basis for inferring the superior court complied with Government Code section 11425.50, subdivision (b).
In summary, Teacher has demonstrated the superior court committed legal error in its review of the Commission's decision by ignoring its statutory obligation to give great weight to the Commission's considered credibility findings. This error also occurred in Jesperson, supra, 214 Cal.App.4th 1120 at pages 1146 through 1148. In both cases, the superior court's decision "did not afford the respect due those findings." (Id. at p. 1148.) V. STRONG PRESUMPTION OF CORRECTNESS
A. Contentions of the Parties
Teacher presents an additional argument about the superior court's failure to give due deference to the Commission's decision. This argument involves the general principle that a strong presumption of correctness applies to the Commission's findings. (See pt. I.A.4, ante.) Teacher contends "the trial court for the most part disregarded those findings entirely." In response, School District argues the superior court accurately represented Teacher's arguments about the existence of a strong presumption of correctness and (impliedly) determined the presumption did not apply because the Commission's decision was not supported by the weight of the evidence.
B. Interpreting the Court's Decision
1. Not Explicit
The statement of decision did not explicitly acknowledge the strong presumption of correctness applied to the Commission's findings. Similarly, it did not expressly state the strong presumption had been overcome. Thus, the question of whether the superior court gave due respect to the Commission's findings must be resolved based on the reasonable inferences that can be drawn from the decision.
2. Reasonable Inferences
The statement of decision did not cite Fukuda, the Supreme Court case that describes the application of the strong presumption of correctness in writ proceedings where the trial court exercises independent judgment on the evidence. Instead, the decision cited cases that do not refer to the strong presumption. Thus, the case law referred to does not support an inference that the court recognized and applied the strong presumption of correctness. Nonetheless, the section of the decision describing the parties' contentions explicitly mentioned Teacher's argument that "there is a strong presumption of correctness accorded to administrative findings and that the Commission's decision should not be overturned absent a finding that it is against the weight of the evidence." This reference provides a reasonable basis for inferring the superior court was aware of the presumption and applied it. Therefore, we conclude Teacher had not demonstrated superior court error with respect to the application of the strong presumption. VI. MOTIVE TO LIE
A. Commission's Analysis of Motive
Paragraph 124 of the Commission's decision concluded the significant inconsistencies and contradictions in the girls' versions of events affected their credibility, which caused their statements that Teacher inappropriately touched them to be unreliable. Paragraph 134 of the decision addressed School District's argument that the inconsistencies were explained by the girls' learning challenges. The Commission stated the learning challenges might explain confusion about timing, such as seconds versus minutes, but it did not explain the progressive changes in their version of events about when the touchings started, how many times it occurred, where it occurred, who was present, the manner in which it occurred, and exactly where Teacher touched Girl 1. The Commission also stated the girls' learning challenges did not explain the direct contradiction in the girls' statements about whether Teacher touched Girl 2's breast.
Paragraphs 125 and 126 of the Commission's decision addressed additional factors relating to the girls' credibility:
"Both girls had reasons why they did not want to be in [Teacher's] class. [Girl 1] and [Girl 2] were new to [the middle school]. Both girls were assessed and determined to have severe difficulties learning math. [Girl 1] was nervous about being in [Teacher's] class prior to meeting him. Shortly after attending [Teacher's] class, [Girl 1] decided that she did not like [Teacher] because he would not allow the students to play the math games that she preferred. At times [Girl 1] and [Girl 2] had to be redirected by [Teacher] because they talked to each other. [Girl 1] felt that [Teacher] had 'scolded' her and [Girl 2]. When [Girl 1] and [Girl 2] arrived late to class, [Teacher] made them write sentences. [Girl 1] also believed that she did not need to be in [Teacher's] class. [¶] Initially when [Teacher] touched [Girl 1] on the shoulder, she was not uncomfortable. It was not until [Girl 2] informed her that [Teacher] had also touched her shoulder that they decided that they were uncomfortable."
In summary, Girl 2 was not comfortable being touched on the hand and shoulder by Teacher. Girl 1 came to share that view after they talked about it. Neither girl liked the rigors of Teacher's classroom. To put an end to the otherwise appropriate touching of their hands and shoulders, the girls decided to report the touchings to the school administration. We note that choosing to report the touchings was a proper course of action as it would lead to Teacher being informed the girls were not comfortable being touched on the hands and shoulders and would lead to a resolution.
The difficult question presented to School District, the Commission, the superior court and now this court is whether the girls embellished the type of touchings that had occurred in order to achieve their goal—namely, to stop the touchings of their hands and shoulders and to get away from a teacher who made them uncomfortable. If only the touchings of the hands and shoulders had been reported, a likely result would have been Teacher would have stopped touching their hands and shoulders, but the girls would have remained in the resource class with Teacher.
B. Superior Court's Determinations
The superior court viewed the evidence differently from the Commission. The court's statement of decision addressed the disputed facts as follows: "Having extensively reviewed the record, the Court is satisfied that [the girls] testified truthfully, had no motive to lie, and were convincingly consistent in their reportage and testimony regarding inappropriate touching, regardless of variances in timeframes and other details." Earlier, the decision stated School "District correctly and convincingly argues that the weight of the evidence demonstrates both girls lacked any obvious motive to lie."
C. Analyzing Motives
1. Taint Created by Wrong Test for Inappropriate Touching
The superior court's use of the term "inappropriate touching" in its determination as to the consistency in the girls' "reportage and testimony regarding inappropriate touching" is tainted by (1) its application of the wrong test for determining whether a touching was inappropriate and (2) its determination the touchings of the hands and shoulders were inappropriate. The consistency in the testimony about Teacher touching the girls' hands and shoulders is not consistency about "inappropriate touching." Consistency in testimony about inappropriate touching should have focused on the alleged touching of the girls' breasts—the category of touching that Teacher contested. Furthermore, the evaluation of the girls' motive would have considered whether they had a motive to lie about (i.e., embellish) the extent of the touchings.
Similarly, the superior court's reference to a propensity to touching is tainted by the application of the wrong test and the conclusion that touching the girls' hands and shoulders was an inappropriate touching. The history of touching consists primarily of Teacher's admitted touchings of the hands and shoulders. Otherwise, the history of inappropriate touchings complied over Teacher's 25-year career consists only of the November 2010 incident and the alleged touchings of Girl 1's breast.
2. Finding of No Motive
The superior court's finding that the girls' had no motive to lie is not supported by the evidence for a number of reasons. First is the contradiction created by Girl 1's testimony that Teacher touched Girl 2's breast and Girl 2's testimony that Teacher did not touch her breast and what that contradiction implies. Girl 1 gave testimony on this point and confirmed she was 100 percent sure. It follows that she must have had a reason (i.e., a motive) for giving this testimony. Evidence regarding motive to lie was relevant to the analysis. Neither School District nor the superior court has presented a rationale that considers motives why Girl 1 might have lied about Teacher touching Girl 2's breast and why her reason or reasons for such lying would not have been relevant to whether she embellished the touchings she experienced.
Second, the finding of "no motive" by the superior court is contradicted by the evidence presented to the Commission about such motives. The evidence shows the girls were uncomfortable with the touching of their hands and shoulders and were afraid of Teacher. Girl 1 disliked being in the special education class. The evidence showed there were reasons to embellish or lie about the extent of the touchings that occurred. In the short term, the girls achieved the goal of getting away from the special education class. After reporting the touchings, they were moved out of Teacher's class and into a physical education class with other sixth graders pending the investigation.
Third, an analysis of whether Girl 2 lied about Teacher touching Girl 1's breast should consider (1) her friendship with and loyalty to Girl 1 and (2) the evaluation of the testimony presented by the general education teacher who taught the girls' sixth grade class. The general education teacher stated Girl 2 lacked confidence, lacked motivation, behaved aggressively, had difficulty being redirected, rarely cooperated with others, inconsistently displayed situation appropriate behavior and inconsistently got along with peers. The teacher also stated Girl 2 sometimes was a bully, used foul language and was defiant outside the classroom, such as not following the yard duty teacher's directions. The teacher noted that at the beginning of the year Girl 2 could unlock her locker but later stated she was unable to do so, and staff felt like she was pretending to be unable to unlock her locker so she could share a locker with a friend.
3. Summary
The finding that the girls had no motive to lie about the inappropriate touchings is contrary to the evidence. The no motive finding also was infected by the erroneous test for when a touching is inappropriate. A proper analysis of motive would have considered whether the discomfort caused by the touchings of the girls' hands and shoulders (which were not in and of themselves inappropriate) provided a motive to lie about other touchings. Also, the analysis should have considered Girl 1's testimony about Teacher touching Girl 2's breast, explained why that testimony did not undermine the credibility of Girl 1's description of Teacher touching her breast, and addressed the weight of the other evidence discussed by the Commission about motive and credibility. VII. RELIEF ON APPEAL
Reversal is required in this case. First, the superior court applied the wrong test for determining whether a touching was inappropriate and erroneously concluded the touchings of the girls' hands and shoulders was inappropriate and immoral. Second, the court failed to comply with the obligation imposed by Government Code section 11425.50, subdivision (b) and give great weight to the credibility determinations of the Commission. Third, the court's finding of "no motive to lie" is undermined by the legally erroneous test and, furthermore, is not supported by the evidence.
The question presented here is what other relief should accompany our reversal of the judgment and issuance of the writ of mandate. Are further proceedings in the superior court "necessary and proper"? (Code Civ. Proc., § 906.) Alternatively, may we direct the entry of judgment for Teacher? (Ibid.)
A. Contentions of the Parties
Teacher contends the superior court's decision should be reversed on the merits, which would uphold the Commission's decision and result in his reinstatement. School District has not addressed what additional relief should accompany a reversal. It simply contended there was no reversible error and, therefore, the judgment should be affirmed in its entirety.
B. Types of Appellate Relief
There are two primary options for the additional relief to accompany the reversal. First, like the court in Jesperson, we could direct the superior court to enter a new judgment denying the School District's petition for writ of mandate. (Jesperson, supra, 214 Cal.App.4th at p. 1153.) Such an order would end the litigation and result in Teacher's reinstatement.
Second, like the Supreme Court in Fukuda, we could remand to the superior court for further proceedings in which the superior court reevaluates the administrative decision and renders a new decision free of its previous errors. (Fukuda, supra, 20 Cal.4th at pp. 824-825.) Remand for further proceedings also was granted in San Dieguito Union High School Dist. v. Commission on Professional Competence (1982) 135 Cal.App.3d 278. There, the Fourth District stated it was unable to say, as a matter of law, no grounds for the teacher's dismissal existed and, consequently, it directed the cause to be "remanded for further proceedings conformable to this opinion." (Id. at pp. 288-289.)
C. Choosing the Proper Appellate Relief
A reversal with directions to deny School District's petition for writ of mandate would be the proper form of appellate relief if we can determine, as a matter of law, the superior court is precluded from determining "that the [Commission's] findings are not supported by the weight of the evidence." (Code Civ. Proc., § 1094.5, subd. (c).) In other words, such relief is proper if we can "foreclose the possibility that the trial court, after exercising its independent judgment as described [in Education Code section 44945], reasonably could conclude that the [Commission's] decision was an abuse of discretion." (Fukuda, supra, 20 Cal.4th at p. 825.) In this appeal, the abuse of discretion by the Commission found by the superior court related to the sufficiency of the evidence.
Broadly framed, the issue before us involves applying the substantial evidence standard of review to the superior court's finding that the Commission's findings were not supported by the weight of the evidence. (See Jesperson, supra, 214 Cal.App.4th at p. 1145 [evidence did not show Commission's findings were contrary to the weight of the evidence].) Evidence is "substantial" for purposes of this standard of review if it is reasonable in nature, credible and of solid value. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935-936; see Jesperson, supra, at p. 1142.) As in Jesperson, we consider the more specific question of whether substantial evidence supports the superior court's finding that the student's account of the touchings was credible. (Ibid.) In Jesperson, the Fourth District determined the superior court's finding as to the credibility of the student's version of the touchings was not supported by substantial evidence. We reach the same determination in this case. The many contradictions within the various descriptions given by the girls and Girl 1's false statement about Teacher touching the breast of Girl 2 rendered those versions incredible and, thus, their testimony does not constitute substantial evidence.
In Jesperson, the Fourth District considered remanding for further proceedings, but rejected the need for additional proceedings. The court stated, "[b]ecause we conclude the administrative record does not support a finding that Jesperson engaged in conduct constituting unfitness to teach, remand is not necessary." (Jesperson, supra, 214 Cal.App.4th at p. 1149, fn. 7.) The same conclusion about the appropriate relief applies in this case.
Lastly, Teacher's claim of error relating to a potential award of attorney fees to School District is rendered moot by our outright reversal of the judgment.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to enter a new judgment denying the petition. Teacher shall recover his costs.
/s/_________
BLACK, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
SMITH, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.