Opinion
H049321
03-21-2023
RAM AKELLA, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 20CV01601)
WILLIAMS, J. [*]
In Akella v. Regents of the University of California (2021) 61 Cal.App.5th 801 (Akella I), we addressed "whether the instructional workload policy of a department at the University of California, Santa Cruz [(UCSC)], authorized the department chair to assign an additional course to [Professor Ram Akella] to compensate for deficiencies in [his] fulfillment of his standard teaching workload." (Id. at p. 804.) Based on the language of a workload policy, Akella had disputed the authority of the chair to make the additional course assignment and, on that basis, refused to teach the class, resulting in administrative discipline against him in 2017. (Id. at pp. 808, 811.) Akella challenged that action in a petition for writ of administrative mandate, which the superior court granted. (Id. at pp. 812-813.) Reversing the trial court, we held that the Regents' interpretation of the applicable workload policy was entitled to "a reasonable degree of judicial deference" (id. at p. 817) and as so interpreted, substantial evidence supported the administrative findings and decision to impose discipline. Thus, there were no grounds to set aside the decision and imposition of sanctions by UCSC against Akella for refusing to teach the additional course based on his lack of recognition of his department chair's authority to assign the course to him (id. at pp. 824-825).
Meanwhile, in 2018, the Baskin School of Engineering (Baskin School), of which Akella's Department of Technology Management was a part, underwent a reorganization (reshaping) and that department was "disestablished." Most of its ladder-rank faculty, were moved or reassigned to other academic departments. But Akella's "FTE" was not transferred to another academic department, and instead was placed with the Baskin School-not a department but a division-with Akella characterized as a "divisional appointment." He was also made part of the faculty of the newly established academic unit called the "Technology and Information Management Interdepartmental Group" (TIM Group) with the Dean of the Baskin School, Alexander Wolf, deemed, by the Campus Provost and Executive Vice Chancellor (EVC) as Akella's supervisor and the equivalent of his department chair, over Akella's objection.
"Ladder rank faculty are faculty holding tenured titles or non-tenured titles in a series in which tenure may be conferred."
A "Full-Time Equivalent," abbreviated as "FTE," is a budget term "used to describe a unit equal to a Full-Time (100 percent) position [for academic appointees] for one year."
Per the TIM Group charter, the departments involved are Computer Science and Engineering (CSE), Electrical and Computer Engineering, and Computational Media for required TIM Group coursework, and Statistics and Biomolecular Engineering for additional elective course offerings.
The TIM Group charter, developed as part of the reshaping of the Baskin School, provides that "[s]ignatory departments are responsible for allocating teaching resources to the courses they offer, including assignment of instructors" and that the "[s]cheduling of courses will be negotiated between the instructor of record, [their] department chair, and the [TIM] Group Chair." Its bylaws also include that the "privileges and duties of the [TIM Group] faculty include: teaching required and elective courses as part of departmental teaching assignments; . . ."
When Akella was consulted by the TIM Group Chair, John Musacchio, about his teaching preferences for the 2019-2020 academic year, he took the position that because he was not then assigned to an academic department, and thus had no formal department chair, he could not, per the TIM Group charter, be assigned to teach any TIM Group courses, which could only be assigned by a department chair. In a recurring theme, he again contended that no one- including Dean Wolf as his designated supervisor, Dean of the Baskin School with oversight of the TIM Group, and his assigned department-chair equivalent per the directive of the Campus Provost and EVC-had the authority to make his course assignments or to "negotiate[]" with him, per the TIM Group charter, the scheduling of courses. On this basis, Akella refused and did not show up to teach assigned coursework in the winter and spring quarters of the 2019-2020 academic year, negatively impacting the students signed up for his courses and the TIM Group charged with delivering its curriculum.
Akella again faced administrative discipline for his refusal and failure to teach, ultimately leading, after a hearing, to his dismissal and denial of emeritus status by the Regents. Akella sought relief in mandate in the trial court, which was denied. On appeal from the judgment, his claims rest on the reprised assertion that he could not be disciplined for failing to teach courses that no one had the authority to assign to him. We reject his claims and affirm the judgment.
Akella's opening brief is 68 pages long with his four arguments beginning on page 59. The brief's background sections include numerous references to matter seemingly not presented to the trial court, such as links to internet references that do not have simultaneous references to the clerk's transcript or the administrative record and new and largely irrelevant matter of which Akella seeks judicial notice on appeal. We address the request for judicial notice, post, but do not rely in our review or for our factual summary on any improper matter that is not in the administrative record, does not have a record cite, or was not presented to the trial court.
Our summary of the factual background is drawn from the administrative record, including testimony and documentary evidence presented in connection with the disciplinary hearing before a hearing committee of the University's Academic Senate Privilege and Tenure Committee.
As noted, Akella was formerly part of the faculty of UCSC's Department of Technology Management. He was a full and tenured professor with attendant rights and privileges, and had been part of the UCSC faculty since 2003. As a departmental appointee, some of these rights and privileges were derived from Bylaw 55 of the Bylaws of the University of California Academic Senate. Bylaw 55 is under Part I, "Membership, Authority and Organization," Title VI, "Rights and Authority of Senate Members," and it is titled "Departmental Voting Rights." It generally provides for departments to" 'determine their own form of administrative organization'" with members of a department who are voting members of the Academic Senate having "the right to vote on substantial departmental questions," including "the right to vote on all new departmental appointments," "the right to vote on all cases of promotion" among specified ranks, the right to vote on all "cases of non[-]reappointments or terminations" of certain lower ranks, and the right to vote on "all cases of advancement" within certain ranks.
In 2018, the Baskin School was reorganized or "reshaped," as a result of which the Department of Technology Management was "disestablished." The Dean of Baskin School, Dean Wolf, was charged with oversight of the reshaping. He made a comprehensive proposal for the reshaping in April 2018, which involved the "transfer, consolidation, disestablishment, and discontinuance" (initial caps omitted) of various departments within the Baskin School with the consultation and input of people in those affected departments.
Faculty from the Department of Technology Management were mostly proposed to be transferred to other departments within the Baskin School, and were made part of the new TIM Group, an interdepartmental academic unit also within the Baskin School. But Akella's faculty appointment was proposed to be transferred from his prior department to the Baskin School itself, a division instead of a department, a proposal that the Academic Senate's Committee on Academic Personnel (CAP) first opposed but later came to support, on the perceived basis that were he to be transferred to the CSE department, as he desired, Akella could not receive "a fair evaluation of his work" from colleagues in that department.
This transfer of Akella's appointment to the Baskin School, effective July 2018, had the effect of making him a divisional appointee, which affected some of his departmental rights and privileges, in particular his Bylaw 55 rights. According to a 2018 Academic Personnel memo issued by the Campus Provost and EVC and the 2017 and 2018 Chairs of the CAP, "[d]ivisional appointees are faculty who are not affiliated with an existing department, and instead report directly to a dean. Because of the traditional role that departments play in structuring both the service and teaching responsibilities, divisional appointment files are rare and should be accompanied by information about expectations in these two critical areas to give subsequent reviewers a sense of how and where the candidate will contribute to the campus beyond research."
But it also appears that the practice or custom of using divisional appointments had become not so rare at UCSC and had been accompanied, for the "information," by the practice of addressing ambiguities related to that status by having the faculty member and the administration sign an agreed-upon memorandum of understanding (MOU) idiosyncratic to each such appointment.
According to the hearing testimony of Vice Provost for Academic Affairs Herbert Lee, "when a faculty member is appointed into or transferred into a divisional appointment, it is important to have clarity about roles and responsibilities. And so when possible, we create an MOU that all the parties agree to and sign, and that is used to define and clarify rules and responsibilities. [¶] Where there is not agreement on an MOU in advance, then when the EVC makes the approval of the transfer and appointment, the EVC will try to provide direction and clarity in that appointment and transfer. And so, in that sense, the EVC then is providing guidance to the dean." In the absence of an MOU, "[i]t's helpful for everyone to have that type of clarity, and so we try to always have as much direction and clarity as we can in those approvals from the EVC."
With the plan to make Akella a divisional appointee of the Baskin School as part of the reshaping, in April 2018, Dean Wolf gave him a form of MOU to sign to reflect the terms of the appointment. The MOU provided first that Akella "and the FTE associated with his appointment will be transferred to the [Baskin School], with the result that Professor Akella will be a divisional appointee of [the Baskin School] reporting to and being supervised by the Dean of [the Baskin School]."
It went on say that "[t]here are no Bylaw 55 rights associated with divisional appointments per se; however, Professor Akella is eligible to obtain Bylaw 55 rights in accordance with campus policy." And the "Dean will appoint an ad hoc personnel committee as needed to conduct Professor Akella's personnel reviews in accordance with the procedures in [Campus Academic Personnel Manual (CAPM) 414.220.D." As to teaching assignments, the MOU provided that the "Dean shall be responsible for ensuring that Professor Akella's annual teaching workload meets the established UCSC standard for Senate faculty as described in the Instructional Workload Policies .... Upon [its] establishment, Professor Akella will be a member of the [TIM] Group. The Dean will determine both the number of and actual courses that Professor Akella will teach each academic year. This determination will be made after consultation with Professor Akella and with the approval of the Chair(s) of the course[-]sponsoring academic unit(s) as applicable, and incorporated into the normal Curriculum and Leave Planning process for [the Baskin School]."
As noted, "CAPM" stands for Campus Academic Personnel Manual. Likewise, "APM" stands for the broader UC Academic Personnel Manual.
The MOU also said that Akella's "status as a divisional appointee has no impact on his current graduate student supervision and advising activities. Professor Akella is eligible to be instructor of record for senior thesis and independent study courses as well as advisor or joint advisor for doctoral or masters students, consistent with established procedures. Professor Akella will have access to [Baskin School] graduate student application pools in accordance with the attached [Baskin School] 'Guidelines for Shared Access to [Baskin School] PhD Application Pools'." It finally provided for his "[c]urrent space" to remain the same, "subject to reassignment," and that "[o]ffice and laboratory space and supplies as well as administrative and instructional support for teaching, research and service will be made available as needed and consistent with [Baskin School] practices for ladder rank faculty in departments." Finally, the MOU provided that Akella's "tenure shall continue to be attached to the UCSC campus" and that "future changes with respect to divisional or departmental organization or arrangements will not affect the security of his tenure."
Akella objected to being made a divisional appointee and expressed his concerns to the then Campus Provost and EVC, Marlene Tromp, among others. He also refused to sign the proposed MOU he had received from Dean Wolf, who, it appears, did not sign the document either.
Although Dean Wolf testified that he was reasonably sure he had signed it, no version of the MOU signed by anyone appears in the administrative record and no one from the University was able to produce a signed copy during the administrative proceedings.
As a result of his status having effectively changed to a divisional appointment, on October 25, 2018, Akella filed a Bylaw 335 grievance with the Committee on Privilege and Tenure, contending that his "rights and privileges were violated when [his] FTE was moved from the Technology Management department to the Baskin School of Engineering effective July 2018." This grievance was later (sometime before May 2019) judged to have made a prima facie showing and it then went through the "preliminary review phase" and, later in 2019, on to an evidentiary hearing with a hearing committee. This process remained pending while many of the following described events occurred, until January 2020 when the Privilege and Tenure hearing committee issued its decision on the matter. That outcome is discussed in the chronology below.
On January 22, 2019, Campus Provost and EVC Tromp wrote to Akella to inform him of her "final decision in the [Baskin School] Reshaping Proposal" that he would remain a divisional appointee, effective July 1, 2018. This was after she had been previously inclined to approve his transfer to the CSE department within the Baskin School, but then she received negative feedback for such a move from faculty within that department from whom she had sought input and consultation. In her letter, Tromp confirmed to Akella that his "role and responsibilities as an Interdepartmental Group faculty member [were] described in the [TIM Group charter] and Dean Wolf is your 'department chair' for purposes of this document." She also expressed her encouragement to Dean Wolf, copied on the letter, "to ensure that [Akella] can continue [his] research program, including applying for grants and having support for [his] graduate students. In addition, it was [her] expectation that as [his] direct supervisor, Dean Wolf will ensure that [Akella's] teaching and service assignments are made in accordance with established and relevant campus and divisional workload policies, and in the event such divisional policies need to be created or revised, that [Akella would] be afforded the opportunity to provide input."
According to University policy (CAPM 312.245), the "[a]uthority for the appointment of department chairs . . . is delegated to the divisional deans." Because of this delegation, Akella took the position that only Dean Wolf as a divisional dean, not the Campus Provost and EVC as his supervisor, had the authority to appoint Wolf as a department chair or equivalent, meaning Tromp did not have the authority to deem Wolf as his department chair with the authority to assign him courses to teach per the TIM Group charter. But Akella did not file a grievance over the "final decision" by Tromp in January 2019 to have him remain a divisional appointee.
On January 28, 2019, John Musacchio, as the Chair of the TIM Group, emailed Akella, copying Dean Wolf, to seek Akella's input and preferences on his teaching assignments for the 2019-2020 academic year. The e-mail proposed specific courses for Akella that he had previously taught when they were offered through his prior department. Akella responded the next day by reply-all email, adding Campus Provost and EVC Tromp. To "state [his] position," he attached an e-mail he had previously sent to Tromp and reiterated that he would" 'not teach any courses going forward unless the mandated negotiations involving [him] as the instructor of record, [his] department chair, and [TIM Group] Chair Musacchio take place,'" referring to the terms of the TIM Group charter.
On January 30, 2019, Wolf e-mailed Akella suggesting a meeting to discuss Akella's "assigned teaching, buyouts, and leaves for next" academic year. Akella responded three days later. He said, "Until my FTE is transferred from the [Baskin School] to a Department within the [Baskin School], no classes that I am assigned to teach for academic 2019-20 can be scheduled because the mandated negotiation among my Department Chair, the [TIM] Group Chair and me, as required by the [TIM Group charter], a copy of which is attached, cannot take place [because Akella had no department chair and would not recognize Dean Wolf as such]. [¶] Given this, I don't see why you and I should meet . . . what can be achieved?"
On February 20, 2019, Dean Wolf again e-mailed Akella. He said, "If you refuse to participate in a discussion with me as part of the course planning process, then I have no choice but to assign you courses without your input.... [¶] Please confirm to me immediately that you agree to teach the courses I assign for you next year as we need to proceed with curriculum planning in [the Baskin School] for the upcoming academic year. I do hope you will meet with me as scheduled tomorrow to discuss." Akella responded the next day, indicating that he would meet with Dean Wolf but that his position remained the same. "When we meet, I will point out that there would be no problems whatsoever, and you would not be involved, if the [Campus Provost and] EVC would move my FTE from the [Baskin School] to the CSE Department. She can do that tomorrow, because CAP's role in that matter is merely advisory, meaning she does not need CAP approval to do so. My question to you and to the [Campus Provost and] EVC is this: why don't you follow written policy, and what will it take for you to do so?" The two met anyway later that day and Akella again "informed [Dean Wolf] that he would not accept any teaching assignments from [Wolf] because [he did] not recognize [him] as his department chair."
In mid-March 2019, Dean Wolf e-mailed Akella to provide his teaching assignments for the 2019-2020 academic year, to begin that fall. Fall would be a non-teaching quarter, and two courses were assigned for the winter quarter, with one repeating in the spring, as had been initially proposed by the TIM Group Chair. All three were courses Akella had taught before. Wolf also informed Akella that he was not approving his "request for a course buyout during the 2019-20 academic year," something Akella had previously solicited.
On March 18, 2019, Akella filed a grievance with the Committee on Privilege and Tenure, alleging that his right to have his teaching assignments made in accordance with the TIM Group charter had been violated by Dean Wolf and TIM Group Chair Musacchio.
Sometime before April 4, 2019, Akella also filed a formal complaint against Dean Wolf alleging that he had violated the Faculty Code of Conduct (APM 015), Part II, section C.1," 'Intentional disruption of functions or activities sponsored or authorized by the University'" by assigning Akella to teach his courses for the 2019-2020 academic year when Dean Wolf purportedly lacked the authority to do so. The asserted basis for his lack of authority was that "only a signatory department (and by implication department chair) of the [TIM] Group can assign teaching to a member of [that Group]" and "Dean Wolf is not a department chair" and therefore cannot assign courses to Akella. Dean Wolf was notified of the complaint on April 4, 2019, by the (new) Interim Campus Provost and EVC, Lori Kletzer.
The Faculty Code of Conduct appears in the record to also be referred to as "APM 015" and these terms seem interchangeable.
On April 9, 2019, Dean Wolf filed a formal complaint against Akella for "refus[ing] to fulfill his teaching obligations." The complaint attached the January 22, 2019 letter from the Campus Provost and EVC Tromp to Akella that had informed him he would be a divisional appointee with Wolf serving as "both his supervisor and his 'department chair' for purposes of the [TIM Group charter]" and it alleged that Akella "refuses to recognize [Wolf's] authority as such." The complaint also attached text from the e-mails described above about Akella's teaching assignments for the 2019-2020 academic year. It further said that Wolf had "attempted to engage with Professor Akella to discuss his teaching assignments for the 2019-20 academic year" but that Akella had reiterated he would not "accept any teaching assignments from [Wolf] because [Akella] does not recognize [Wolf] as his department chair." Wolf cited the Faculty Code of Conduct (APM-015), Part II, section A.1 ("[f]ailure to meet the responsibilities of instruction") and section C.1 ("[i]ntentional disruption of functions or activities sponsored or authorized by UC") as having been violated by Akella. He explained that he had made the teaching assignments to Akella anyway to fulfill his own obligations "in a manner consistent with [Campus Provost and] EVC Tromp's final decision and the [Baskin School] Reshaping Proposal."
Wolf also expressed his own "understanding as a faculty member and expectation as a dean . . . that faculty should continue to meet their professorial responsibilities and obligations even when they disagree with them and even while they have a grievance pending on the issue. To do otherwise, is essentially to withhold their professional services from the University in a way that conflicts with the University's central functions and mission."
Akella was notified of Wolf's complaint and provided with a copy of it by letter of May 3, 2019, from the Campus Provost and EVC. She cited the same sections of the Faculty Code of Conduct (APM 015) referenced in the complaint as the basis of the allegations; provided internet links to that Code and the University Policy on Faculty Conduct and the Administration of Discipline (APM 016) and the UCSC Procedures for the Implementation of the latter (CAPM 002.015); and she informed Akella of his right to submit a written response. She also relayed that the complaint and supporting documentation and any response would be provided to the Senate Charges Committee, who would at the end of their process advise her in writing: "1. Whether any of the allegations in the formal complaint, if true, would constitute a violation of the Faculty Code of Conduct; 2. If so, whether there is probable cause to warrant the initiation of disciplinary action by the administration; and 3. If there has been a finding of probable cause, what specific disciplinary sanction(s) the Committee recommends." She finally informed Akella that upon her receipt of the Charges Committee report, and "acting on behalf of the Chancellor," she would "decide whether to dismiss the complaint, initiate disciplinary action against [Akella], or take administrative action for misconduct in [his] role as a faculty administrator."
On May 9, 2019, the Committee on Privilege and Tenure notified Akella by letter that it had considered his grievance filed on March 18, 2019, alleging that his rights had been violated by Dean Wolf having assigned him courses to teach for the 2019-2020 academic year, based on the terms of the TIM Group charter. The Committee found the grievance did not state a prima facie case that Akella's faculty rights had been violated because the Committee read the relevant provision of the TIM Group charter to "define[] a responsibility of the participating departments, which have agreed to support the interdisciplinary program with teaching resources. It is not a statement about the rights of participating faculty." It appears from the record that no further administrative action was available to take on this rejected grievance, and Akella did not then seek judicial relief in some form of mandate.
On May 23, 2019, Akella responded in writing to the formal complaint filed by Dean Wolf against him. He first contended that he had "not refused to fulfill his teaching obligations," as alleged, because the time to teach those courses in the winter and spring quarters of the 2019-2020 academic year had not yet arrived. He clarified that instead, he had "require[d] that the provision in the [TIM Group charter] that governs" the assignment to Akella of coursework for the 2019-2020 academic year, "the Charter having been drafted by Dean Wolf and signed by Dean Wolf, be followed. That provision requires that [Akella's] teaching for Academic Year 2019-20 be assigned by a Department that signed the Charter." Akella then contended that "[r]ather than conform to the [TIM Group charter], Dean Wolf instead claims he is authorized to make my teaching assignments on the pretext that [Campus Provost and] EVC Tromp" had informed Akella that Wolf was his" 'department chair' . . . for purposes of the [TIM Group charter]. [¶] Unfortunately for the Dean's claim, under the relevant campus policy [CAPM 312.245], the [Campus Provost and] EVC does not have the authority to appoint Department Chairs," as this power resided solely in deans. Akella further contended that there is no provision in the TIM Group charter "whereby teaching assignments for faculty who are members of the Group can be made by any person or entity other than the signatory departments. [¶] If a 'Signatory department responsible for . . . assignment of instructors' assigned my teaching for Academic Year 2019-20, I would, of course, accept that assignment[.]"
On July 24, 2019, the Charges Committee issued its written report on the complaint filed by Akella against Dean Wolf, rejecting it. The Committee found that Dean Wolf was, in fact, Akella's "direct supervisor and so serves as his department chair. This arrangement for division faculty members is a longstanding practice at UCSC across all divisions. In such cases, the divisional dean serves as the department chair for divisional faculty and is responsible for assigning teaching and handling personnel actions. In addition to this longstanding practice, we note that EVC Tromp and CAP supported the transfer of professor Akella's FTE to a [Baskin School] divisional appointment with Dean Wolf serving as his department chair (and having the authority to assign Prof. Akella's teaching) as specifically described in EVC Tromp's January 22, 2019 letter to Prof. Akella .... [¶] Therefore, we find no merit to the complaint Dean Wolf violated APM 015, Part II.C.1 by assigning Prof Akella to teach his usual courses in 2019-2020 for the [TIM] Group.... To the contrary, Dean Wolf's assignment of teaching is faithfully executing an activity authorized by the University.... [¶] The Committee notes that teaching is part of the standard job function of a Professor at UC Santa Cruz. This complaint suggests that a faculty member with a divisional appointment such as Professor Akella somehow becomes exempt from this requirement when they do not wish to be a divisional appointment. No document suggests or implies this. The fact is that Professor Akella is obligated to teach, and the three courses he is assigned for 2019-20 are his usual courses. To suggest that Professor Akella does not have to teach simply because he fails to recognize that Dean Wolf now functions as his Department Chair-even after EVC Tromp explicitly stated this-is simply absurd. [¶] We note that if Professor Akella[] refuses to teach his assigned courses in 2019-20, then this would constitute a prima facie violation of the faculty code of conduct APM 015 Part II. Section A.1. 'Failure to meet the responsibilities of instruction' and Part II. Section C.1 'Intentional disruption of functions or activities sponsored or authorized by UC.' "
Interim Campus Provost and EVC Kletzer provided the Charges Committee's report on Akella's complaint to Dean Wolf by letter of August 2, 2019, and informed him that she, too, found no merit in the complaint against him and was dismissing it. She noted, "It is my position that your actions in assigning Professor Akella courses for the 2019-20 academic year were in accordance with campus practice, the former [Campus Provost and] EVC's direction, and your responsibility to see that the terms of the [TIM Group] Charter are responsibly met." There was no further administrative action on the dismissal of Akella's complaint against Dean Wolf. Again, it does not appear from the record that any further administrative action was available, and Akella did not seek judicial relief for its rejection in some form of mandate.
On August 6, 2019, the Charges Committee issued its report on Dean Wolf's complaint against Akella. The report reiterated the Committee's view that Dean Wolf "has the authority to assign Prof. Akella to teach courses." It noted that the complaint was "unusual as it involves Prof. Akella's refusal of his future 2019-20 teaching assignment, rather than for neglecting a 2018-2019 course," and observed that this was one basis on which Akella had disputed the alleged violations. But the Committee concluded it was "clear from the email exchanges . . . and from Prof. Akella's response to the complaint, that [he] has no intention of accepting his 2019-20 teaching assignments because he disputes Dean Wolf's authority to assign him to teach." The Committee was not sympathetic to Akella's position that the complaint was premature because Akella "[h]aving been . . . a full professor since 2003, [he] must certainly understand that courses must be scheduled far in advance" for planning and practical purposes and "we do not think it is reasonable or necessary to wait until the first day of instruction to determine that Prof. Akella has failed to meet the responsibilities of instruction. Therefore, we find there is probable cause to warrant the initiation of disciplinary action against Prof. Akella for violation of APM 015, Part II, section A.1, "Failure to meet the responsibilities of instruction. [¶] Further, because we believe fully that he understands the impact of his refusal to teach has on students, staff, and his colleagues, we find there is also probable cause to warrant the initiation of disciplinary action against Prof. Akella for violation of APM 015, Part II, section C.1, 'Intentional disruption of functions or a activities sponsored or authorized by UC.' "
The Committee went on to express its members' understanding of Akella's position that Dean Wolf "cannot serve in the role of department chair per the [TIM Group charter]. We also support a faculty member's right to disagree with decisions that have been made by the administration (whether chair, dean, or campus leadership). However, we concur with the complainant [Dean Wolf] that faculty must continue to meet their professorial responsibilities and obligations while they are pursuing a formal remedy to such a disagreement, which we would expect to take the form of a grievance filed with the Senate Committee on Privilege and Tenure. For faculty to withhold their services from the University during a dispute like this is disruptive to the University's central functions and mission and cannot be permitted.... [¶] . . . [¶] The Committee is unanimous in its position that the serious and fundamental nature of this type of misconduct, which impacts the University's central functions and mission, demands significant disciplinary action up to and including dismissal from the employ of the University."
No Notice of Intent to Discipline Akella based on the Charges Committee's findings in its report of August 6, 2019, was issued until February 27, 2020, as discussed, post.
On the first day of Akella's two scheduled classes for the winter quarter, January 7, 2020, he did not show up to teach. Dean Wolf sent an e-mail to Akella that day, requesting an explanation for his absence and inquiring about his intentions for the next course sessions of those classes. Akella replied the next day, referring back to his e-mail to Wolf of January 29, 2019, nearly a year before, in which he had asserted that he "was not assigned classes to teach for Winter 2020 because 'the mandated negotiations involving [him] as the instructor of record, [his] department chair, and [TIM] Group Chair Musacchio [did not] take place.'" Akella said that his "position has been consistent since [he] sent the email. [He had] informed anyone inquiring that [he] was not teaching [the assigned courses] in Winter 2020. [His] intent was to ensure that [Wolf] could plan in a timely fashion, given the extended duration and consistency of [his] response going back to Jan 29, 2019, so that teaching schedules and students would be minimally impacted by [Wolf's] lack of adherence to policy." Akella reiterated that he would "not be teaching [the assigned courses] in Winter 2020 until the 'negotiations [referenced in the TIM Group charter] occur."
Akella also for the first time suggested that rather than transferring his appointment to a department, the TIM Group charter could be amended by Wolf so that "Group members can be assigned courses without" such negotiations and expressed that he had "an interest in having [Wolf] adhere to policy so as to protect [Akella's] faculty rights, including with respect to teaching."
Because Akella did not teach his assigned classes in the winter 2020 quarter, one of the classes was cancelled entirely and the other was merged with another class session taught by a non-tenured lecturer, resulting in a much larger than normal class. And students had to scramble at the last minute to get admitted to alternative classes to replace the cancelled one, a challenge in the Baskin School that was already impacted with many of its classes already full. Dean Wolf did not want to assume that Akella would also not show up for his assigned class in the spring 2020 quarter (as Akella had already contended in response to Dean Wolf's complaint against him that he had not failed to teach because the time for him to do so had not yet arrived) and did not cancel Akella's spring teaching assignment. So, the Baskin School and TIM Group were forced to put resources toward the contingency of his failure to show up, "rather than, say, using resources to offer additional electives to broaden the curriculum to make the program better." It was "a negative" to have "a senior faculty member who is not reliable in fulfilling their teaching."
On January 13, 2020, the Privilege and Tenure hearing committee issued its report after an evidentiary hearing on Akella's grievance of October 25, 2018, concerning his claim that his rights had been violated when he was made a divisional appointee earlier that year. The committee focused solely on the question whether Akella's rights had been violated, rejecting as irrelevant the University's claim that the process had been fair. The committee observed "[a]t the outset" that there was an "absence of policy guidance in the matter. This policy lacuna is particularly concerning given what appears to be the increased use of divisional appointments at UCSC to address all manner of difficult situations." The committee acknowledged that several sections of CAPM cited by the University recognized the existence of divisional appointments, and that a Regents policy appeared to account for this status, but observed that all the cited policies were "silent with regard to how the many rights and responsibilities attendant to belonging to a department are secured with divisional appointments or otherwise compensated for."
This observation led to the following conclusion supportive of Akella's position: "While there is no policy that states a right of a faculty member to be in a department, many rights enumerated in the Faculty Code of Conduct (APM 015), Bylaw 55 and elsewhere assume departmental membership. So when a faculty member loses departmental membership, this faculty member loses access to rights previously enjoyed. The most troubling losses are those that pertain to participation in governance of the university and its intellectual directions . . ., which are only partially enjoyed through participation in other service opportunities afforded to all Senate faculty such as Academic Senate committees. Some of these rights can be restored with creative and proactive administrative measures; others, like participation in appointment and promotion of departmental faculty and selection of chairs are necessarily abrogated with divisional appointments, as these rights pertain explicitly to department self-governance. In the Akella matter, we found that [he], by virtue of becoming a divisional appointee, no longer enjoys his departmental-afforded rights, in particular Bylaw 55 rights, selection of chairs, and the governance of the university and the setting of intellectual directions that occurs within departments."
The hearing committee further found that Akella "may have lost certain privileges related to graduate education" and "[w]hether these privileges . . . have been abrogated depends on the organization and management of the [TIM Group].... If Professor Akella is not informed . . . and [is] not in the room for decisions about [graduate school] applications, fellowships, block grants, and more, we concur with [him] about this loss of rights."
Still, "[i]n finding in favor of [Akella] on certain matters, we do not endorse his proposed remedy of being appointed to a [Baskin School] department of his choice-a remedy we anticipate is unlikely to be met with success." The committee instead recommended that "a negotiated and carefully crafted new [MOU] be written. This new MOU should ensure access to privileges related to graduate education, including restoring presence as an affiliated member of the TIM program faculty and potentially providing something of value in compensation for lost rights intrinsic to departmental membership. The MOU should also specify how Professor Akella will be offered service opportunities, so that he can be permitted to receive credit necessary for evaluation in future personnel cases."
On February 18, 2020, Akella again expressed by e-mail to Dean Wolf and others that he would not be teaching the course assigned to him by Dean Wolf for the spring 2020 quarter, with reference to his prior e-mails as the basis for that assertion. He said he wanted to "provide [Dean Wolf] enough time to make arrangements for classes you assigned to me extraprocedurally for Spring 2020 to be taught, so as prevent any harm to the students who register for them."
On February 27, 2020, the Interim Campus Provost and EVC Kletzer notified Akella of her concurrence with the Charges Committee's findings, based on Dean's Wolf's formal complaint, that there was "probable cause to warrant the initiation of disciplinary action against [Akella] by the administration based on" his violation of the two cited sections of the Faculty Code of Conduct (APM 015)-the failure to meet the responsibilities of instruction and the intentional disruption of functions or activities sponsored or authorized by the University. She also agreed that "the serious and fundamental nature of this type of misconduct, which impacts the University's central functions and mission, demands significant disciplinary action up to and including dismissal from the employ of the University." Further relying on the fact that Akella had "expressly demonstrated [he does] not intend to correct [his] alleged misconduct" by his failure to have shown up to teach assigned classes for the winter 2020 quarter, "creating significant disruption for the administration and the students in these classes," Kletzer added that she also proposed the further sanction of denial of emeritus status.
On March 3, 2020, UCSC Chancellor Larive wrote to Akella concerning her review of the Privilege and Tenure hearing committee's report dated January 13, 2020, on his October 2018 grievance about his loss of rights from having been made a divisional appointee. She agreed with the hearing committee's recommendation that the (unsigned) MOU previously provided to Akella be "revised to ensure access to certain privileges." Chancellor Larive concluded that Akella's "rights were not violated" but that "the MOU governing [his] status lacked the clarity to properly inform [him] of [his] rights as a divisional appointee." She therefore recommended that the MOU be "significantly revised" by "Vice Provost Herbie Lee" to accomplish the following: (1) ensuring access to specified privileges related to graduate education; and (2) specifying how Akella would be offered service opportunities to allow full participation in the shared governance of the University. Although the hearing committee had also recommended that Akella have a "restor[ed] presence" in the TIM Group, the Group's graduate program had been discontinued in the interim, making it "impossible" to achieve this full restoration. But Chancellor Larive recommended that the prior MOU be revised "to clarify [Akella's] privileges with respect to graduate education to detail the specific [Baskin School] programs for which [he] can participate as a graduate student mentor" and to outline relevant guidelines for Akella's access to Baskin School PhD application pools.
Chancellor Larive's letter also denied Akella's request to be transferred to the new Department of Computer Science and Engineering (CSE), in agreement with the hearing committee's recommendation on this point. She further noted that consistently "with Academic Senate Bylaw 55, an MOU for a divisional appointee cannot confer voting rights for faculty personnel actions in any department(s). However, the voting members of a department's faculty can vote to extend voting rights to a divisional appointee." The Chancellor added in closing that "to guide the actions related to similar cases in the future, she [was] instructing the Vice Provost for Academic Affairs to work to clarify the language of the Campus Academic Personnel Manual [(CAPM)] regarding divisional appointments with consultation with the appropriate Academic Senate committees." This process was still ongoing in the spring of 2020.
As is customary at UCSC, faculty make available written information to students before the first day of class. Students not in receipt of information from Akella for his assigned course for the spring 2020 quarter e-mailed him in March to inquire. He responded by informing them that he would not be teaching the course. Professor Musacchio also contacted students signed up for Akella's course to inquire whether they had received instructions from Akella for remote learning, as by then the Covid-19 pandemic was taking hold and forcing remote learning, and was apprised that none had been provided. Musacchio instructed the students on the first day of class, March 31, 2020, to remotely join the other concurrent session of the same course, which was the University's contingency plan in the event Akella again did not show up to teach his assigned class. Musacchio indicated to the students that additional information would be forthcoming.
Dean Wolf e-mailed Akella that day after he did not show up to teach his course to ask for an explanation and to inquire whether Akella intended to appear at the next class session and whether he needed any assistance in setting up remote instruction. Akella responded the next day, asking if Dean Wolf's e-mail was a representation that he had not received Akella's prior e-mail from January 29, 2019, that he would not be teaching any courses assigned to him by Dean Wolf, who had no authority to do so.
The University and the Baskin School then implemented the contingency plans for Akella's assigned course for the spring 2020 quarter, which meant again merging the 93 students in the required course into another session of that course, taught by a lecturer, that had been previously limited to 50 students. As a result, that class was tripled in size and no students received the benefit of being taught the course by a tenured faculty member. Although Dean Wolf and others had been consistently apprised by Akella that he would not honor teaching assignments made to him made by Dean Wolf for the 2019-2020 academic year under the circumstances, Dean Wolf elected to give Akella the opportunity to meet his teaching obligation in both the winter and spring quarters, by not cancelling the courses or the teaching assignments. As noted, contingency plans were made in advance for the single course in spring, but these plans were not implemented until Akella, in fact, did not show up on the first day of class and then again reiterated that he would not teach the class. The contingency plans in any event were less than desirable and had negative impacts on students and the administration alike, especially just as UCSC, like the rest of the world, was adjusting to conducting daily life through remote means.
True to his previously stated intentions, Akella did not teach a single course for the entire 2019-2020 academic year.
Akella exercised his right to a formal hearing after Interim Campus Provost and EVC Kletzer issued the February 27, 2020 Notice of Intent to Discipline to him. The hearing before a three-member panel assigned by the Privilege and Tenure Committee took place via Zoom on April 2 and 3, 2020, over Akella's objection based on his asserted right to be personally present. In a prehearing letter dated March 18, 2020, revised on March 25, 2020, the three "issues to be decided" by the hearing committee were identified as whether the administration proved by clear and convincing evidence: (1) that the Dean of the Baskin School was authorized to assign classes to Akella for the 2019-2020 academic year; (2) that Akella had failed to meet the responsibilities of instruction as set forth in Part II, Section A.1 of the Faculty Code of Conduct (APM 015); and (3) that Akella had engaged in intentional disruption of functions or activities sponsored or authorized by the University, as set forth in Part II, Section C.1 of the Faculty Code of Conduct (APM 015).
Both sides submitted voluminous documentary exhibits for the hearing and called witnesses, including for the University, TIM Group Chair Musacchio, Dean Wolf, and Vice Provost for Academic Affairs Herbert Lee, and for Akella, a retained expert on statutory construction (as applied to academic policies) and Akella himself. The parties also submitted post-hearing briefing. In that briefing, the University contended that the first identified issue-whether Dean Wolf was authorized to assign Akella courses-was in the nature of a defense, and even if proven, did not excuse or justify Akella's alleged violations of the Faculty Code of Conduct because teaching is a core function for all faculty. Akella, for his part, conceded that if Dean Wolf was determined by the hearing committee to have such authority, Akella's alleged violation of the Faculty Code of Conduct had been proven. But he contended there was no such authority, which meant that his conduct was not "arbitrary" or "without legitimate reason," couching these assertions in two of the illustrative but not exclusive list of examples provided at Faculty Code of Conduct Part II, Section A.1, for the "failure to meet the responsibilities of instruction,'" with which he had not specifically been charged.
On May 18, 2020, the hearing committee issued its decision on the Akella discipline matter to Chancellor Larive. The decision referenced the two charges of which Akella had been accused and the three "issues to be decided by the Committee" referenced above. "The Committee found clear and convincing evidence" that Akella had violated the two referenced sections of the Faculty Code of Conduct. He "did not teach any podium classes in academic year 2019-2020, a fact that he did not dispute, with written refusals to teach as part of the evidentiary record. We note that the responsibility to teach as described in the Faculty Code of Conduct is a core responsibility of a professor and outweighs any other considerations or interpretations of less authoritative documents," such as the TIM Group charter. Akella's "refusal to teach as a tactic to obtain a departmental appointment were intentionally disruptive of university function. As a result, students enrolled in classes which were cancelled with no advance notice, or were placed in classes much larger than normal and not taught by a ladder rank faculty member."
As we noted in Akella I, the term" 'podium course' refers to a regularly scheduled course." (Akella I, supra, 61 Cal.App.5th at p. 806.).
Turning to the first listed issue-Dean Wolf's authority to assign Akella classes-on which Akella's case was seen to rest, "[a]lthough the Committee saw some evidence in the record that the Dean did have that authority- including an assignment by the [Campus Provost and] EVC[-the Committee] did not find that the Administration's burden was met. For one, an MOU assigning the Dean authority to assign classes was signed by neither the Dean nor [Akella]. In the absence of a signed MOU, the policy issues here are murky, because there is an absence of policy of whether and how divisional appointments will be made and therefore who will have the rights authorities normally held by departments and their chairs. In practice, the policy void has been only partially filled by an MOU for each divisional appointment and in this case the MOU is missing."
"Nevertheless, the Committee was not convinced by [Akella's] defense that the Dean's lack of authority in assigning classes provided a legitimate reason for [Akella] not to teach the normal course load. All faculty know they are expected to teach, and [Akella] is no exception. Typically, faculty volunteer the courses they wish to teach based on norms in their units, and it is a last resort for even chairs to assign classes. The [TIM Group] charter, to which [Akella] frequently referred, states that three podium courses are a typical teaching load for that unit. [Akella] had every opportunity to propose to TIM, the division, or other departments within the division what three classes he would teach in that year, and it is almost certain no one would have objected to those stated preferences. In fact, the Dean assigned courses which [Akella] normally teaches, in no way abusing the dean's admittedly unclear authority. But [Akella] chose neither to self-assign his classes nor allow someone else the authority to assign."
As "[t]o the question of appropriate discipline, the Committee might have considered a lesser sanction than termination were this a one-off event, albeit a poorly advised one. But, as the evidentiary record shows, this is not the first time [Akella] has exploited loopholes to abrogate his teaching responsibilities.... Since the previous disciplinary charges and sanction failed to result in [Akella] hewing to the [Faculty Code of Conduct] we have determined that it is necessary to agree with the Administration's arguments for dismissal. However, we do not concur that Akella should be denied emeritus status." (Boldface omitted.)
Before concluding their decision, the hearing committee "return[ed] to the issue of divisional appointments. This case would not have been brought before us were there clear policies regarding the circumstances by which divisional appointments are allowable at UCSC and procedures providing for the rights and responsibilities of all ladder faculty absent the usual departmental Bylaw 55 structure. The MOU process has become the only means to clarify the rights and responsibilities of divisional appointees but it is highly idiosyncratic, and there is no default position when parties do not come to a shared understanding, leading to unsigned MOUs." The committee also clarified its prior decision on Akella's grievance in response to the University's characterizations of it. Akella "did not 'lose' his last grievance case [filed October 25, 2018] nor did the panel weigh in on specific content of the MOU, including the Dean's authority to assign classes, other than to say the entire document needed to be revisited. [¶] To be absolutely clear, [the Privilege and Tenure Committee] sees divisional appointments as a disenfranchisement of rights associated with departmental membership that at the very least should be compensated with some provisions agreeable to the faculty member, but in general should be avoided. Even a mutually satisfactory MOU cannot take the place of developing appropriate policy so as to curtail the practice of using divisional appointments as a means of dealing with all manner of problems that should be addressed via other means."
On July 29, 2020, Chancellor Larive, in accordance with CAPM 002.015.M.2, wrote to the hearing committee to inform its members of her intention to disagree, in part, with the committee's recommendations. She concurred with the recommendation of Akella's dismissal but disagreed that he should be permitted to retain emeritus status, explaining that Akella's misconduct warranted that additional sanction. "The status and esteem connoted by the status of emeritus/a is not consistent with a record of repeated refusals to engage in the core professorial duty of teaching and repeatedly impeding the University's ability to advance its mission and central functions."
The next day, Chancellor Larive wrote to the UC President to "recommend that Professor Akella be dismissed from the employ of the University pursuant to APM 016.II.6, and denied Emeritus status pursuant to APM 016.II.5." The Chancellor provided the background and justifications for her recommendations, including that she was not resting her recommendation for dismissal on the fact of Akella's prior discipline, as the hearing committee had referenced in its decision. Instead, the Chancellor found "that dismissal is warranted solely based on Professor Akella's misconduct in the present case. This is in part because the record of this case demonstrates that his refusal to teach spanned two quarters of assigned classes, and persisted after [a Faculty-Code-of-Conduct] complaint that he filed challenging the Dean's authority assign him to teach was dismissed by the Charges Committee and the EVC, and even after charges in this case were filed against him and this hearing was scheduled. (The record shows that charges related to Professor Akella's refusal to teach in winter quarter were filed on February 27, 2020, and he again refused to teach his assigned spring quarter class on March 30, 2020.) Professor Akella's actions not only failed to advance but repeatedly impeded the central functions and mission of the University. Professor Akella's intentional disruption of the core University function of teaching students, and his persistent failure to meet his responsibilities of instruction, warrant dismissal."
As to the additional sanction of denial of emeritus status, Chancellor Larive explained her disagreement with the hearing committee's recommendation to not impose this. She said, "Emeritus status and the emeritus title are honors accorded to retired senate faculty whom the University hold in high esteem for their careers in service consistent with the University's mission and central functions. By repeatedly refusing to meet a professor's core responsibility to teach, and by repeatedly causing disruption to students and others at UCSC who depend on faculty to show up and teach their assigned courses, Professor Akella has demonstrated that he is undeserving of this status and title."
On October 30, 2020, the UC General Counsel's office notified Akella in writing of the President's decision to recommend to the Regents that he be dismissed from the University's employ and that the President would issue a decision on emeritus status after the Regents' decision on dismissal. Akella was informed that he could make a written submission to the Regents and could attend the Regents' upcoming November meeting, held remotely, as this item was on the agenda and he could address the Regents, if he so chose, before their deliberations. He apparently did so.
On November 20, 2020, Akella was notified that the Regents had sustained the recommendations of the hearing committee, the Chancellor, and the UC President to terminate his employment. He was further informed that the UC President had also determined to deny him emeritus status. On November 30, 2020, Akella was notified by UCSC that he was dismissed, effective that day.
We note that all of these events preceded the issuance of our opinion in Akella I on February 16, 2021, reversing the trial court's grant of Akella's earlier mandate petition involving his prior discipline.
II. Procedural Background
Akella filed his petition for writ of mandate under Code of Civil Procedure section 1094.5 (further unspecified statutory references are to the Code of Civil Procedure) challenging his dismissal and the denial of emeritus status. The pleading was twice amended. The second amended petition (petition) asked the court "to conduct such an inquiry as provided for by . . . section 1094.5, to determine a.) if the findings of the Hearing Committee that he violated the Faculty Code of Conduct by not teaching and by not participating in preparations to teach lecture courses for [academic year] 2019-20 are not supported by the evidence the Hearing Committee received, given that the evidence [it] received did not identify anyone with the authority to assign Akella lecture courses to teach that academic year, and b.) if [the University] did not proceed in the manner required by law when Chancellor Larive exceeded her final authority . . . to determine which type(s) of disciplinary sanction to impose on Akella by sending the letter to the UC President recommending which type(s) of disciplinary sanction should be imposed on Akella by the President and by the Regents." (Some capitalization omitted.) No other specific claims or challenges to the discipline and sanctions imposed were raised in the petition.
Akella then moved for a peremptory writ of mandate raising three articulated claims as constituting an abuse of discretion under section 1094.5: (1) the findings of the hearing committee that Akella had violated the Faculty Code of Conduct are not supported by the evidence, which should be reviewed by the court independently as a fundamental vested right is at issue; (2) the Regents failed to proceed in the manner required by law when the administrative hearing was conducted remotely by Zoom in the midst of the Covid-19 pandemic; and (3) the Regents failed to proceed in the manner required by law when UCSC Chancellor Larive recommended to the UC President that Akella should be denied emeritus status and to the Regents that he should be dismissed and emeritus status denied.
The second and third issues asserted below are not raised on appeal and appear to have been abandoned. Thus, the only remaining overarching issue preserved in the trial court was whether the findings of the hearing committee that Akella had violated the Faculty Code of Conduct are not supported by the record evidence, "given" that the evidence did "not identify anyone with the authority to assign Akella lecture courses to teach" for the 2019-2020 academic year, as Akella pleaded in the petition and argued in the motion. (Capitalization omitted.).
The University answered the petition and filed opposition to the motion. It urged on the first claim that the substantial-evidence standard applied to judicial review of the record, the University being a state agency of constitutional origin, and that the administrative findings that Akella had violated the Faculty Code of Conduct in the two cited respects were supported by substantial evidence. The University contended on Akella's second and third claims that the hearing having occurred by Zoom and the Chancellor having made recommendations as to Akella's dismissal and denial of emeritus status did not violate any policy or represent any failure to proceed in the manner required by law. Akella filed a reply, raising no new issues.
The court issued a written tentative ruling denying the petition, which Akella contested. Oral argument was held and the court then adopted its tentative ruling, filing a written order accompanied by a judgment in the Regents' favor. The written denial order reflected that the trial court had, as urged by the University, applied substantial-evidence review to the administrative findings and decision. Specifically, the court determined that the hearing committee's findings that Akella had violated the Faculty Code of Conduct in failing to meet the responsibilities of instruction and in having engaged in the intentional disruption of functions or activities sponsored or authorized by the University were supported by substantial evidence in the record, by the required standard of clear and convincing evidence. The court likewise rejected Akella's arguments that there had been an abuse of discretion by the University having failed to proceed in the manner required by law.
Akella timely appealed from the judgment.
DISCUSSION
I. The Scope of the Record
This court previously granted by separate order the Regents' unopposed motion to augment or correct the record under rule 8.155 of the California Rules of Court to include documents supplementally included within the administrative record and lodged in the superior court but that were not initially contained within the record provided to this court.
Before he filed his opening brief, Akella filed a motion or request for judicial notice in this court, which was deferred for consideration with the merits of the appeal. The Regents oppose the motion, as argued in the respondent's brief. The matters of which Akella seeks judicial notice consist of six exhibits, the first of which is his 2018 "UCSC Biobibliography" or curriculum vitae. Exhibits 2 through 4 consist of records of Akella's 2019 merit review, a 2020 Report of the Committee on Academic Personnel (CAP), and the approval by the Dean of the Baskin School of Akella's 2020 merit review. Exhibit 5 consists of text purporting to be the "Remarks of Ram Akella and exhibits presented to the Board of Regents on November 19, 2020, concerning Action Item: Dismissal of Faculty Member, Santa Cruz," and Exhibit 6 is a copy of the "General University Policy Regarding Academic Appointees, Appointment and Promotion, Review and Appraisal Committees, APM-210."
As to the first four exhibits, which essentially reflect that Akella, as a professor, and his work were well received on the merits, they are not properly the subject of judicial notice under Evidence Code sections 452 and 459, they were not presented during the course of the administrative proceedings leading to Akella's dismissal or to the trial court as part of the administrative record or otherwise, and they are not relevant to the issues within the scope of our review. We fail to see how Akella's merit as a professor, even if undisputed, relates to the asserted basis for his dismissal or the sanctions imposed. As to the fifth-purported text of Akella's remarks to the Regents as they considered his dismissal-it is not an official record and was not presented to the trial court as part of the administrative record or otherwise. As to the sixth, while University policies such as this may properly be the subject of judicial notice in a particular case, this too was not submitted as part of the record before the trial court and, more importantly, the University policy on appointment and promotion of faculty, as with Akella's merit as a professor, is not relevant to the issues raised there or on appeal.
Elemental to appellate practice and procedure is that a reviewing court will ordinarily not consider on appeal matters that were not presented to the trial court when it made the challenged ruling, including matters of which an appellate court may take judicial notice under Evidence Code section 459. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 573, fn. 4 (Western States) ["it would never be proper to take judicial notice of evidence that (1) is absent from the administrative record, and (2) was not before the agency at the time it made its decision"); Vons Cos., Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; [appellate court will not generally take judicial notice of matters that were not before the trial court absent exceptional circumstances]; Brosterhous v. State Bar of California (1995) 12 Cal.4th 315, 325 [appellate courts may properly decline to take judicial notice of a matter that should have been but was not first presented to trial court for consideration in the first instance].) Documents not presented in the trial proceeding generally cannot be included as part of the record on appeal and must be disregarded on appeal as beyond the scope of review. (Doers v. Golden Gate Bridge, Highway &Trans. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; Christ v. Schwartz (2016) 2 Cal.App.5th 440, 450, fn. 5; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 631-632 (Pulver).)
Add to that in this case brought in administrative mandate, none of the proffered records (except Exhibit 5 (Akella Remarks to Regents)) were presented in, or relate to issues actually raised in, the course of the underlying administrative proceedings, the contours of which cabin the scope of later judicial and appellate review. (Western States, supra, 9 Cal.4th at p. 573, fn. 4; Southern Cal. Underground Contractors v. City of San Diego (2003) 108 Cal.App.4th 533, 549 [issue not raised in administrative proceedings may not be raised in later judicial proceedings]; Bohn v. Watson (1954) 130 Cal.App.2d 24, 37 [review in administrative mandate confined to issues appearing in the administrative record].) It is elemental that a petitioner in mandate is required to administratively exhaust both remedies and issues at every level of the administrative process, and the failure to do so will preclude these issues from being raised for the first time during judicial review. (Danser v. California Public Employees Retirement Sys. (2015) 240 Cal.App.4th 885, 891; Cal. Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489 [exhaustion of administrative remedies is jurisdictional prerequisite to judicial review]; Anton v. San Antonio Comm. Hosp. (1977) 19 Cal.3d 802, 826 [if claim of denial of fair hearing based on bias known during administrative process, these grounds must be raised in that process], abrogated by statute on another point as stated in Fahlen v. Sutter Central Valley Hospitals (2014) 58 Cal.4th 655, 678, fn. 11.)
For all these reasons, Akella's motion or request for judicial notice is denied. We will not consider the exhibits attached to the request as part of the appellate or administrative record and we will disregard statements or arguments in the briefing that cite to or reference these materials. (Kendall v. Allied Investigations, Inc. (1988) 197 Cal.App.3d 619, 625; Pulver, supra, 182 Cal.App.3d at p. 632 [party's brief cannot make arguments that rely on facts either outside the record or improperly included within it; statements in the briefs based on such matter are disregarded by an appellate court].)
II. Issues on Appeal and Standards of Review
"[S]ection 1094.5, the state's administrative mandate statute, governs judicial review of adjudicatory decisions by administrative agencies. [Citations.] The inquiry of the reviewing court extends to questions about the agency's jurisdiction to proceed, whether there was a fair hearing, and 'whether there was any prejudicial abuse of discretion.' (§ 1094.5, subd. (b).) An abuse of discretion is established if the administrative agency has failed to proceed 'in the manner required by law, [or] the [agency's] order or decision is not supported by the findings, or the findings are not supported by the evidence.' (Ibid.)" (Akella I, supra, 61 Cal.App.5th at p. 813, fn. omitted.)
As we read Akella's four separate claims made here, which we strain to frame as properly articulated challenges under section 1094.5, they are that: (1) the Dean of the Baskin School, who was not a department chair, lacked authority to assign teaching duties to Akella as a divisional appointee; (2) because of the Dean's lack of authority to make teaching assignments to him, "there was no University policy requiring that Akella teach any podium courses;" (3) no substantial evidence supports the finding that Akella, and not the University, was responsible for the disruption of University-sponsored functions or activities occasioned by Akella's not showing up to teach assigned courses; and (4) the sanction of dismissal under the circumstances here was excessive and disproportionate.
As we understand them, the first two of these four arguments are linked to the asserted "shared governance" concept between the administrative and academic sides of university organization and governance, and the second claim proceeds on the premise of the first-because the administrative Dean of the Baskin School, Dean Wolf, did not have the authority of a chair of an academic department to make teaching assignments to Akella, Akella had no duty to teach the assigned courses, and therefore he did not violate the Faculty Code of Conduct in the specified manner by his failing to show up to teach. We question whether the conclusion of the second claim logically follows from the premise of the first. Instead, we examine, as did the hearing committee, whether Akella had an independent or overriding duty-by University policy, core values, or governing rules, notwithstanding the "murky" rights and obligations attendant to his divisional appointment-to teach or provide instruction, separate and apart from his challenge to the Dean's authority to make the disputed teaching assignments and the ongoing administrative processes that were taking place to address the lack of clarity in his status by revisions to the proposed MOU and the development of policy to generally address ambiguities associated with divisional appointments.
These first two of Akella's claims are separately headed in the argument section of his opening brief, with no identification of what manner of abuse of discretion under section 1094.5 is being asserted. We perceive the claims to be asserting that the University failed to proceed in the manner required by law, and because Akella attempts to logically link these two claims even while heading them separately, we will address them together. As framed here, both claims involve the interpretation and application of University policies, which tasks present questions of law to which we apply independent review, affording appropriate deference to the agency's interpretation, discussed further below. (Akella, supra, 61 Cal.App.5th at pp. 815-817.)
But, "[g]enerally, a court's determination of whether an agency's hearing procedures are in compliance with relevant statutes and regulations, and with an agency's own policies, requires application of the rules of statutory interpretation and construction. (Yamaha Corp. of America v. State Board of Equalization (1998) 19 Cal.4th 1, 12 [(Yamaha)].) In such cases,' "the appropriate mode of review . . . is one in which the judiciary, although taking ultimate responsibility for the construction of a statute, accords great weight and respect to the administrative construction. [Citation.]"' (Ibid.; see Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 28 [general rule of judicial deference to agency's interpretation of its own regulations, unless interpretation is clearly erroneous or unreasonable].)" (Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1488 (Do).)
Akella's third claim appears to require review of whether the administrative finding that he was responsible for intentionally disrupting University-sponsored functions or activities is supported by the evidentiary record, to which we will apply substantial-evidence review. Akella posits, as he did below, that a fundamental vested right is at stake, and therefore the trial court was obliged to exercise its independent judgment on the evidence. But he is mistaken in this. As the University of California is an agency of constitutional origin (Cal. Const., art. IX, § 9) and derives its quasi-judicial and adjudicating powers from the Constitution itself, its findings are not subject to independent review or reexamination de novo. Instead," '[s]uch constitutionally authorized quasi-judicial agency decisions are subject under section 1094.5, subdivision (c), to substantial evidence review, in which abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the whole record.' [Citation.]" (Do, supra, 216 Cal.App.4th at p. 1484.) That there may be a fundamental vested right involved, including an employment right, does not alter the standard of judicial review of the evidence when the agency is of constitutional origin. (Id. at p. 1485; Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34-35.)
"Because the trial court properly applied the substantial-evidence standard, 'our review is the same as the trial court's-we review the administrative record to determine whether substantial evidence supports the agency's findings.' [Citation.] 'In that review, we resolve all conflicts in the evidence and draw all inferences in support of [those] findings.' [Citation.]" (Alpha Nu Assn. of Theta XI v. University of Southern California (2021) 62 Cal.App.5th 383, 411.)" '[W]e do not "weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it."' (Do, supra, 216 Cal.App.4th at p. 1492.)' "[The administrative agency's] findings come before us 'with a strong presumption as to their correctness and regularity.' [Citation.] We do not substitute our own judgment if the [agency's] decision '" 'is one which could have been made by reasonable people....' [Citation.]" '"' [Citation.] 'Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency's findings are not supported by substantial evidence.' (Do, supra, at p. 1490; [citation].) [¶] We are required to accept all evidence which supports the successful party, disregard the contrary evidence, and draw all reasonable inference to uphold the [decision]. [Citation.] Credibility is an issue of fact for the finder of fact to resolve [citation], and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact [citation]." (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1073-1074 (Doe).)
Akella's fourth and final claim is that the University's sanction of dismissal was excessive and disproportionate. Such a claim, if preserved for appeal, is reviewed for abuse of discretion. (Doe, supra, 5 Cal.App.5th at p. 1106.) But "[t]his court cannot 'substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.' [Citation.] Moreover, '[i]t is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown.' [Citation.]" (Ibid.)
The Regents point out in their respondent's brief that this claim of excessive and disproportionate sanction is raised for the first time in Akella's opening brief on appeal. In his reply brief, Akella contends that the sanction of dismissal was "front-and-center in the administrative decision and order that Akella sought to overturn through judicial review in the trial court." But the only articulated claim Akella made in the trial court about the sanction imposed was that Chancellor Larive had exceeded her authority by making her recommendation for dismissal and emeritus status to the UC President and the Regents once she received the hearing committee's decision and recommendation for Akella's dismissal. This is a distinct claim from the one asserted here. Akella was notified of this possible sanction in the August 2019 report of the Charges Committee that reviewed Dean Wolf's complaint about Akella's refusal and failure to teach, and in the February 2020 notice of intended discipline from the Interim Provost and EVC. In that pre-hearing notice, the EVC said that the sanction she proposed was "dismissal from the employ of the University and denial of emeritus status." Yet, Akella did not raise any proportionality or excessive-sanction issues in the subsequent administrative hearing, or in the trial court after the sanction was actually imposed.
Under these circumstances, we will consider this last issue to have been not administratively exhausted and to have been forfeited on appeal, and thus outside the scope of our review. (Vallejo Police Officers Assn. v. City of Vallejo (2017) 15 Cal.App.5th 601, 621 [party cannot raise new theory of case for the first time on appeal from denial of administrative mandate].) We will accordingly not reach the merits of this claim.
III. The Regents Are Not Shown to Have Abused Discretion
A. Akella's Obligation to Teach Assigned Courses Was an Overriding Duty Pending Resolution of His Appointment Status
Akella was charged with and found to have violated the University Faculty Code of Conduct by failing "to meet the responsibility of instruction," a type of "unacceptable conduct" in the general category of "Teaching and Students" (APM-015, Section II, Part II.A.1). As we have discussed, Akella does not dispute that he refused to and did not teach courses assigned to him by Dean Wolf during the academic year 2019-2020. Instead, he contends that he may not disciplined or sanctioned for this conduct, and that the Regents abused their discretion by doing so, because his refusal and failure to teach was legitimate and not arbitrary. This is based on his assertion that Dean Wolf lacked the authority under the TIM Group charter to assign him courses, as the Dean was not formally his department chair, Akella then being a divisional and not a departmental appointee. And the further assertion that the Campus Provost and EVC, Marlene Tromp, had no authority to make Dean Wolf his department-chair equivalent as she indicated in her letter to Akella of January 22, 2019, when she said, "[Y]our role and responsibilities as an Interdepartmental Group faculty member is described in the [TIM Group charter] and Dean Wolf is your 'department chair' for purposes of this document. Should other such agreements be pursued involving you and different academic programs or academic departments, Dean Wolf will serve as your supervisor in reviewing, approving, and/or implementing such agreements." (Italics omitted.)
On appeal, for the first time, Akella characterizes his conduct in refusing and failing to teach as "a legitimate exercise of his Academic Freedom." But he references not a single University policy on the subject, which are numerous. And he fails to show how requiring him to teach assigned courses, equivalent to those he had previously taught, compromised or interfered with this lofty principle, even if the rights and obligations and lines of authority related to his status as a divisional appointee were acknowledged to be "murky" but were evolving by processes to address the "policy lacuna" surrounding this status and the ways in which it had compromised his previous departmental rights, in particular his "Bylaw 55 rights."
The hearing committee found that the University had shown by clear and convincing evidence that Akella had "failed to meet the responsibilities of instruction as set forth in Part II, Section A.1 of the FCC" and had "engaged in intentional disruption of functions or activities sponsored or authorized by the University, as set forth in Part II, Section C.1 of the FCC." But in recognition of Akella's asserted defensive position that his refusal to teach was excused by the absence of anyone in authority to assign him coursework, the hearing committee included within the "issues to be decided" whether "the Administration proved . . . that the Dean of the [Baskin School] was authorized to assign [Akella] classes to teach for [academic year] 2019-20." As to this question, and as noted, the committee answered: "Although the Committee saw some evidence in the record that the Dean did have that authority-including an assignment by the CPEVC, we did not find that the Administration's burden of proof was met." This was based on the committee's observation that in the absence of a signed MOU, the "policy issues here are murky, because there is an absence of policy of whether and how divisional appointments will be made and therefore who will have rights and authorities normally held by departments and their chairs. In practice, the policy void has been only partially filled by an MOU for each divisional appointment and in this case, the MOU is missing."
Still, the committee went on to find that "the responsibility to teach as described in the Faculty Code of Conduct is a core responsibility of a professor and outweighs any other considerations or interpretations of less authoritative documents," such as the TIM Group charter. The Faculty Code of Conduct, for example, expresses the intent behind it as to "protect academic freedom, to help preserve the highest standards of teaching and scholarship, and to advance the mission of the University as an institution of higher learning." References to teaching rights and responsibilities run throughout the Faculty Code of Conduct with "Teaching and Students" as the first listed category of professional responsibilities. The committee continued: "[Akella's] refusals to teach as a tactic to obtain a departmental appointment were intentionally disruptive of university function. As a result, students enrolled in classes which were cancelled with no advance notice, or were placed in classes much larger than normal and not taught by a ladder rank faculty member." Although recognizing that some of Akella's rights and benefits had been compromised by his transition to a divisional appointment, the Committee was "not convinced by [Akella's] defense that the Dean's lack of authority in assigning classes provided a legitimate reason for [Akella] not to teach the normal course load. All faculty are expected to teach, and [Akella] is no exception."
There was also undisputed evidence and testimony from multiple witnesses in the administrative hearing that faculty have an overarching and overriding duty based on various University policies to teach, which is a core function or responsibility and one of the "pillars" of what faculty is expected to do. Even Akella and his expert witness (on interpretation of academic written policies) agreed on this. As stated by the Charges Committee in its rejection of Akella's complaint against Dean Wolf for assuming the assigned role as his department-chair equivalent, "The Committee notes that teaching is part of the standard job function of a Professor at UC Santa Cruz. This complaint suggests that a faculty member with a divisional appointment such as Professor Akella somehow becomes exempt from this requirement when they do not wish to be a divisional appointment. No document suggests or implies this. The fact is that Professor Akella is obligated to teach, and the three courses he is assigned for 2019-20 are his usual courses. To suggest that Professor Akella does not have to teach simply because he fails to recognize that Dean Wolf now functions as his Department Chair-even after EVC Tromp explicitly stated this-is simply absurd."
In addition to the obligation to teach being a "core responsibility" of the Faculty Code of Conduct as described by the hearing committee, the Regents point to a specific and overarching University policy to dispel Akella's claim that his refusal and failure to teach was legitimate because of his ongoing challenge to Dean Wolf's authority to assign him courses and his status as a divisional appointee. Specifically, the Regents point to "Regents Policy 1111: Policy on Statement of Ethical Values and Standards of Ethical Conduct," which was also cited by at least one University witness as evidentiary support during the administrative hearing.
Regents Policy 1111 begins with its "Statement of Ethical Values," which provides that "Members of the University of California are committed to the highest ethical standards in furtherance of our mission of teaching, research and public service.... Our policies, procedures, and standards provide guidance for application of the ethical values stated below in our daily life and work as members of this community." Among the four stated ethical values is "Accountability," described as the commitment to "be as accountable as individuals and as members of this community for our ethical conduct and for compliance with applicable laws and University policies and directives."Under the next heading of "Standards of Ethical Conduct," the purpose is stated as: "Pursuit of the University of California mission of teaching, research and public service requires a shared commitment to core values of the University as well as a commitment to the ethical conduct of all University activities. In that spirit, the Standards of Ethical Conduct are a statement of our belief in ethical, legal, and professional behavior in all of our dealings inside and outside the University." The Standards of Ethical Conduct "apply to all members of the University community."
The others are integrity, excellence, and respect.
The ensuing list of Standards identifies 12 categories, all of which are further described. As relevant here, Number 1, "Fair Dealing," provides that "[e]ach situation needs to be examined in accordance with the Standards of Ethical Conduct. No unlawful practice or a practice at odds with these standards can be justified on the basis of customary practice, expediency, or achieving a 'higher' purpose." Number 2, "Individual Responsibility and Accountability," provides that "[e]ach individual is expected to conduct the business of the University in accordance with the Core Values and the Standards of Ethical Conduct, exercising sound judgment and serving the best interests of the institution and the community." Number 5, expressly cited in the administrative hearing, is labeled "Compliance With Applicable University Policies, Procedures and Other Forms of Guidance." It provides: "University policies and procedures are designed to inform our everyday responsibilities, to set minimum standards, and to give University community members notice of expectations.... Each member is expected to seek clarification on a policy or other University directive he or she finds to be unclear, outdated, or at odds with University objectives. It is not acceptable to ignore or disobey policies if one is not in agreement with them, or to avoid compliance by deliberately seeking loopholes." (Italics added.)
In the administrative hearing, Professor Herbert Lee, then the ViceProvost for Academic Affairs, testified that "university policy," with specific reference to Regents Policy 1111, does not "provide the faculty member with discretion to refuse to teach the [assigned] course." He described the "assignment of faculty to teach courses" not only as a function of resource allocation but also "a matter of implementation of" Regents Policy 1111. Referring to the Standards of Ethical Conduct Number 5 in that Policy, he testified as follows:
"Q.... So with respect to a situation where a member of the university finds that a policy is unclear or has some uncertainty about the policy, does this Standard No. 5 provide guidance with how to treat that uncertainty?
"A. Yes. The faculty member is expected to follow the policy. They can follow parallel processes to try to test the policy, but that doesn't allow them to disobey it while the disagreement is in place.
"Q. So a parallel policy for a faculty member, for example, could be a grievance under Bylaw 335 to the committee on privilege and tenure?
"A. Yes, that would be one option for a faculty member to contest something. But while that's in play, they should be complying with the policy, and they should not be deliberately seeking loopholes.
"Q.... So if Professor Akella were to file a grievance, for example, because he believed that Dean Wolf's assignment of these classes violated his rights and privileges as a tenured faculty member, is it your understanding that under the policies, and Regents Policy 1111, that he, nevertheless, has to continue to comply with the teaching assignment, even while his grievance is pending?
"A. Yes.
"[¶] . . . [¶]
"Q.... We had looked at Regents Policy 1111 and Standard of Ethical Conduct No. 5. [¶] In your view, does it have any application to Professor Akella's refusal to accept the Dean's authority to assign courses to him?
"A. Absolutely. There is an expectation that all faculty teach. And Professor Akella appears to be trying to exploit a loophole to not teach. And that is very explicitly not allowed by the Standards of Ethical Conduct of Regents Policy 1111."
There was also testimony in the hearing that even if another campus policy-CAPM 312.245 concerning the appointment, duties, and responsibilities of department chairs-provided the authority to appoint chairs solely to the "divisional deans," such as Dean Wolf, Campus Provost and EVP Tromp, as Dean Wolf's supervisor, still retained the authority to designate him as Akella's department-chair equivalent for purposes of the TIM Group charter's described governance of that interdepartmental unit. On that topic, Professor Lee testified that even though the power to make department chair appointments resided in Dean Wolf per CAPM 312.245, the "authority [to appoint department chairs] is delegated by the chancellor, and the EVC has further delegated it down [to divisional deans], but . . . anytime an administrator delegates authority down, they don't lose the authority to do that same action." He further said, "The way that our working definition of 'delegation' is, that's the ability to make binding decisions, but that doesn't preclude people further up in the chain from making decisions as well. Everything . . . flows through the org chart, and so someone higher up can always overrule someone lower down. That's how it works throughout all parts of policy." Thus, even though Dean Wolf as a divisional dean had the designated authority to appoint department chairs, he could also be functionally designated as such by the Campus Provost and EVC for purposes of implementing the TIM Group charter with Akella as a divisional appointee.
All of this gets back to our holding in Akella I concerning the degree of deference to be afforded to the University in its interpretation and application of its own policies. (Akella I, supra, 61 Cal.App.5th at pp. 815-820.) Although there are more University policies at play in this case, we likewise conclude that although "the interpretation of university policy at issue here does not depend on special' "expertise and technical knowledge"' (Yamaha, supra, 19 Cal.4th at p. 12), the members of the hearing committee [and university witnesses] are' "likely to be intimately familiar with the [University policies] and sensitive to the practical implications of one interpretation over another."' (Ibid.) We believe that contextual familiarity matters. The disputed policy language, while not complex or technical, should be interpreted in a manner that is both knowledgeable of and sensitive to the needs of . . . [the] university population to which it applies. (See Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1505 [noting the 'particular expertise' of the agency's commissioner in that case was a 'deep understanding of the context in which the regulation exists]; Berman [v. Regents of University of California (2014)] 229 Cal.App.4th -1265] 1271-1272 [explaining that the court accords great weight and respect to the administration's construction of the university's student conduct code based on its expertise and familiarity with the legal and regulatory issues].)" (Akella I, supra, 61 Cal.App.5th at p. 816.)
"Also relevant are factors suggesting the agency's interpretation is likely to be correct (Yamaha, supra, 19 Cal.4th at p. 12)," including "whether the agency has adhered consistently to the interpretation at issue . . . [citation]." (Akella, supra, 61 Cal.App.5th at p. 817.) Based on the whole record here, there is a consistency of understanding of the overarching and overriding obligation and duty for faculty to teach as a core value and ethical standard, including while challenging policies or practices with which one disagrees. And this understanding is consistent with the specific provision in Regents Policy 1111, Standards of Ethical Conduct Number 5 that "[e]ach member is expected to seek clarification on a policy or other University directive he or she finds to be unclear, outdated, or at odds with University objectives. It is not acceptable to ignore or disobey policies if one is not in agreement with them, or to avoid compliance by deliberately seeking loopholes."
The consistency of understanding and interpretation of these University policies, including as spelled out in the hearing committee's findings and through the ultimate disciplinary determination is not dispositive. "But considering it is well within the Regents' constitutionally delegated authority (Cal. Const., art. IX, § 9) to hear and resolve disputes related to the administration of the university's academic affairs 'by applying University policies to particular cases' (Do, supra, 216 Cal.App.4th at p. 1487) we conclude that [the Regents'] interpretation [of Regents Policy 1111, Standards of Ethical Conduct Number 5 as imposing an overarching requirement on Akella to teach his assigned courses] is entitled to a reasonable degree of judicial deference. The policy language [and its application to Akella's challenge of Dean Wolf's authority to assign him courses] remains, however, subject to our independent review, with any deference commensurate with the thoroughness of the [hearing committee's] consideration and the validity of its reasoning. (Yamaha, supra, 19 Cal.4th at pp. 14-15; cf. Do, supra, at p. 1488 [citing general rule of deference to agency's construal of its own policies, 'unless interpretation is clearly erroneous or unreasonable']; Berman, supra, 229 Cal.App.4th at p. 1272.)" (Akella, supra, 61 Cal.App.;5th at p. 817.)
Generally speaking, the rules governing the interpretation of statutes also govern the interpretation of administrative regulations, including university polices. (Akella, supra, 61 Cal.App.5th at p. 817.) "Further, policies established by the Regents according to their constitutionally derived rulemaking and policymaking power . . . have the force and effect of statute. (Kim v. Regents of University of California (2000) 80 Cal.App.4th 160, 165.)" (Ibid.)
Applying all of these general rules of interpretation and construction to the relevant University policies at play, we conclude that the hearing committee was correct in its decision and its interpretation and application of the relevant policies, in particular Regents Policy 1111, Standards of Ethical Conduct Number 5. Even though Akella's status as a divisional appointee presented problems and murkiness in the lines of authority and rights and obligations associated with this status, and even though the Committee found that the University did not prove by clear and convincing evidence Dean Wolf's authority to function as Akella's department-chair equivalent, Akella's responsibility to teach assigned courses "outweighs any other considerations or interpretations of less authoritative documents" and his "defense" that the Dean lacked authority to assign classes did not provide "a legitimate reason for [him] not to teach the normal course load." Although Akella was free to continue to challenge his divisional-appointment status and seek restoration of his prior departmental rights and privileges, what he could not do is refuse to discharge a core responsibility-teaching-and hold that as a cudgel over the ongoing process of reaching terms with the University to restore his departmental rights. This is so even if he continued to discharge other core duties such as research and service, and even if he met other teaching obligations that did not count as podium courses, as he contends.
We accordingly conclude that Akella has not shown an abuse of discretion by the failure to proceed in a manner required by law in the University having found that he violated the Faculty Code of Conduct by failing to meet the responsibilities of instruction. Because of the existence of an overarching and overriding duty to teach, even while challenging policies with which he disagreed, this finding did not require a threshold determination that Dean Wolf had the authority, through assignment by the Campus Provost and EVC, to act as Akella's supervisor and department-chair equivalent and to make his course assignments. Akella's attempt on appeal to justify his violations of the Faculty Code of Conduct and other Regental policy as a "legitimate exercise of his Academic Freedom" lacks merit. Further, the decision is supported by the hearing committee's findings and those findings are supported by substantial evidence in light of the whole record.
B. Substantial Evidence Supports the Finding That Akella Violated the Faculty Code of Conduct by Intentionally Disrupting University Functions or Activities
Although seemingly framed as an evidentiary challenge, Akella does not attack the finding that he violated the Faculty Code of Conduct by engaging in the intentional disruption of functions or activities sponsored or authorized by the University by contending that the finding itself is not supported by substantial evidence. Instead, he faults the University for "improperly assign[ing] all the blame" to him for the consequences of his refusal and failure to show up to teach, citing to various parts of the administrative record. This is based on the argument that his persistent and consistent representations for a year preceding his no-shows that he would not teach his assigned classes gave the University ample time to prepare to avoid the chaos and harm that indisputably ensued, and the general claim that the University is at fault for the entire situation by having made him a divisional appointee in the first place.
But we have already determined that based on applicable policies, whatever fault the University bore in the problems that arose from making Akella a divisional appointee, which admittedly compromised his previously afforded departmental rights and created ambiguity in the parties' respective rights and obligations, this did not excuse Akella's refusal and failure to teach. The record is undisputed that because he did not fulfill this obligation, chaos was inflicted on many students and the administration alike, as contingency plans were forced to be made and executed, scheduled classes were cancelled with no advance notice to students, other classes were much larger than normal, and no ladder-rank professor was teaching these classes, depriving students of that benefit. And there is evidence that Akella having been a UCSC professor for years, he had to know that his conduct would disrupt University functions or activities, resulting in harm to students, staff, and his colleagues.
Applying substantial-evidence review to the hearing committee's finding that Akella violated the Faculty Code of Conduct by intentionally disrupting University functions or activities, we conclude that the finding is amply supported. Akella's attempt to shift blame for the fallout of his conduct from himself to the University fails, as the question of fault was one of fact to be determined by the hearing committee based on the evidence presented. We must defer to factfinder's determination in this regard if it is supported by substantial evidence in light of the whole record, and here, it is. Even if Akella were factually correct that the record supports some measure of blame or fault on the part of the University for not making more concrete (instead of contingency) plans in advance to address his stated intention to not teach courses assigned by Dean Wolf, and so as to lessen the harm that was felt by students, this would still not avoid the harm inflicted on University staff and Akella's colleagues alike by their not being able to rely on him to fulfill his teaching obligations, and related disruptions to University functions or activities.
DISPOSITION
The judgment is affirmed. Respondent Regents is entitled to costs on appeal.
WE CONCUR: GREENWOOD, P.J., LIE, J.
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.