BEFORE A

COMMISSION ON PROFESSIONAL COMPETENCE

FOR THE JURUPA UNIFIED SCHOOL DISTRICT

In the Matter of the Dismissal of:

CHARLES BAUGH, OAH No. 2017061013

A Permanent Certificated Employee,

Respondent.

DECISION

On October 12, 13, and 16, 2017, a Commission on Professional Competence

(Commission) heard this matter in Jurupa Valley, California. The Commission consisted of
the following members: Kimberly J. Belvedere, Administrative Law Judge, Office of
Administrative Hearings (OAH); Gregory Nicholas; and Michael Apffel.

Kerrie McNally, Attorney at Law with the law firm of Adams, Silva & McNally,
LLP, represented complainant, Tamara Elzig, Deputy Superintendent of Personnel Services,
Jurupa Unified School District (JUSD).

Carlos Perez, Attorney at Law with the law firm of Reich, Adell & Cvitan,
represented respondent, Charles Baugh, who was present throughout the hearing.

The record was held open to permit the committee to deliberate and reach a decision.
The record was closed and the matter submitted on October 27, 2017.

ISSUE

Did Mr. Baugh’s February 16, 2017, post on a Facebook thread or choice of
Halloween costume on October 30, 2015, constitute immoral conduct or evident unfitness for
service, warranting his dismissal?

SUMMARY

Although Mr. Baugh could have used better judgement before posting a comment on
Facebook on February 16, 2017, and in selecting a Halloween costume depicting a popular

1
television show character, neither incident constituted immoral conduct or evident unfitness
for service. Accordingly, applicable law does not permit his dismissal.

FACTUAL FINDINGS

Procedural Background

1. Mr. Baugh is a science teacher currently assigned to Rubidoux High School

(RHS).

2. On February 17, 2017, complainant placed Mr. Baugh on paid administrative

leave. She provided him with written notice that he was under investigation due to “concerns
that [he] may have violated school regulations, Board policies, or state laws.”

3. On May 1, 2017, complainant provided Mr. Baugh with a Draft Notice of Intent
to Dismiss and Immediately Suspend Without Pay and the corresponding Statement of Charges.
The letter attached to the above-referenced documents provided Mr. Baugh with information
concerning his right to a Skelly conference.

4. On May 9, 2017, Mr. Baugh declined to participate in a Skelly conference, but

did provide certain documentary evidence to the district to consider prior to rendering a decision
on whether he should be terminated.

5. On May 11, 2017, Dave Doubravsky, the Assistant Superintendent of

Educational Services for the JUSD, wrote a letter to Mr. Baugh stating that the district had
considered the documentation he provided but would still be seeking termination of Mr.
Baugh’s employment. On that same date, complainant provided Mr. Baugh with a letter stating
she would be presenting the Notice of Intent to Dismiss and Suspend Without Pay and
corresponding Statement of Charges to the District Governing Board (board) on May 15, 2017.

6. On May 15, 2017, complainant presented the Notice of Intent to Dismiss and
Suspend Without Pay and corresponding Statement of Charges to the board. The board voted 4
to 1 to approve the proposed disciplinary action.

7. On May 15, 2017, complainant signed the Notice of Intent to Dismiss and
Immediately Suspend Without Pay and corresponding Statement of Charges, alleging that Mr.
Baugh is subject to termination for immoral conduct and evident unfitness for service, in
violation of Education Code sections 44932, subdivisions (a)(1) and (a)(6).

8. The Notice of Intent to Dismiss and other jurisdictional documents were

served on Mr. Baugh, who timely filed a demand for hearing on May 22, 2017.

9. Mr. Baugh subsequently filed a Motion for Immediate Reversal of Suspension

(motion) with OAH, pursuant to Education Code section 44939, alleging that the Notice of

2
Intent to Dismiss did not set forth a sufficient basis for immediate suspension.1 Under
Education Code section 44939, subdivision (c)(1), review of a motion filed pursuant to this
section is limited to a determination as to whether the facts as alleged in the Notice of Intent
to Dismiss, if true, would be sufficient to constitute a basis for immediate suspension.

10. On July 11, 2017, Administrative Law Judge Adam L. Berg granted Mr.
Baugh’s motion. Mr. Baugh was taken off unpaid administrative leave and placed on paid
administrative leave pending the outcome of the hearing.

The Protest Event

11. On February 16, 2017, a protest event called “A Day Without Immigrants”
was held throughout the country. The protest event was meant for persons who were
immigrants, or who supported immigrants, to stay home in order to show what impact
immigrants have, economically, on society. It was a nationwide protest event and was not
limited to any particular profession.

12. RHS has approximately 1,600 students. Approximately 90 percent of the

students are Hispanic. According to the principal of RHS, Jose Araux, a “robocall” was
made to parents prior to the protest event urging them to have their students attend school.
Tamara Elzig, the Deputy Superintendent, also testified that a posting was placed on the
district’s website informing parents about the importance of having their students attend
school on February 16, 2017. Nonetheless, about 355 students, or 22 percent of the student
body, were absent on the day of the protest event. Dr. Araux conceded that there was no way
of knowing precisely what the reason was for each absence, but presumably, many were
attributable to the protest event.

The Facebook Thread

13. On February 16, 2017, several teachers at RHS – Geoffrey Greer, Robin
Riggle, Charles Baugh, Patricia Crawford, and Allen Umbarger, posted comments on a
Facebook thread started by Mr. Greer on his public Facebook page. The original post by Mr.
Greer read as follows:

Well. A day without immigrants. Perhaps all the missing

workers in all the various industries out there had the intended
impact and sent the desired message. I don’t know. As for the
public school system, having my class size reduced by 50% all
1
Education Code section 44939, subdivision (b), states, that a school district may
immediately suspend a permanent employee of the school district who has been charged
“with immoral conduct, conviction of a felony or of any crime involving moral turpitude,
with incompetency due to mental disability, with willful refusal to perform regular
assignments without reasonable cause, as prescribed by reasonable rules and regulations of
the School District . . . .”

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 day long only served to SUPPORT Trumps initiatives and prove
how much better things might be without all the overcrowding.

That’s what you get when you jump on some sort of bandwagon
cause as an excuse to be lazy and/or get drunk. Best school day
ever.

Several other individuals posted comments on Mr. Greer’s Facebook thread about
absences in their class, and the pleasant classroom conditions that day because of the same.
Eventually, Mr. Baugh posted the following free-standing comment (i.e. not in reply to any
particular post): “I had 49. Quieter classes, more productive – let’s do this more often.”

That single comment was the only comment posted by Mr. Baugh on the Facebook
thread.

It is unknown overall, how many people continued to comment on the Facebook

thread, or if the reproduction of the Facebook thread provided in the exhibits was a full and
complete copy of all the comments on the thread. Nonetheless, the exhibit provided
contained the comment of Mr. Baugh.

Eventually, Mr. Greer deleted the original post, as he explained, to “mitigate any
further damage,” and posted a public apology in its place, apologizing for the “harsh tone”
and “hurtful structure” of the original post, which he understood came across in an
unfortunate manner.

The Facebook Thread Goes Viral

14. It did not take long for the entire Facebook thread to “go viral.” Aside from
the numerous comments people made on Facebook, an individual by the name of “Marina,”
tweeted the link to the Facebook thread on her Twitter page. The Facebook thread and
comments were shared by individual Facebook users and spread about various social media
platforms. Eventually, Mr. Greer deleted the Facebook thread, as he explained, to “mitigate”
any damage and apologize for the “hurtful structure” of the post. However, because the
original content of the Facebook thread had been captured in screenshots and reproduced so
many times, deleting the posts did nothing to stop the continuing viral spread.

In the ensuing days, the story would be covered on most local news stations as well as
Univision, a Spanish language news station. Local newspapers covered the story; some of
the news articles simply reported the facts of what occurred; other articles used less-neutral
headlines and editorialized the articles to express the belief that the Facebook posts were
racist or anti-immigrant, which certainly could have added fuel to an already out-of-control
firestorm.2 Daniel Brooks, the Director of Personnel for the JUSD, said his office – which
2
For example, one article from the Huffington Post was simply entitled, “Riverside
Teachers Put on Paid Leave Over Immigrant Protest Comments.” Another article from the

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usually does not receive phone calls from angry parents – received a “couple dozen” phone
calls. The district and RHS received angry e-mails from students, parents, community
members, individuals who had no affiliation or personal interest in the district, and some who
lived across the country. The American Civil Liberties Union, Department of Justice3, Anti-
Defamation League, and various immigrant organizations wrote to the district regarding their
concern after learning of the comments on the Facebook thread. Some of the angry
communications were directed solely towards Mr. Greer. Others were directed at all the
teachers whose comments appeared on the Facebook thread. In many of the e-mail
communications, it was unclear if the writers were reacting to the actual posts, the
representation in the news regarding the posts, or what they had read from others regarding
their opinions of what the posts contained. Nonetheless, it was not disputed that many
people from all walks of life were upset for a variety of reasons about the comments
contained on the Facebook thread.

The Aftermath

15. On February 17, 2017, the district had extra personnel on the RHS campus in
case any problems arose. Two classrooms, one belonging to Mrs. Riggle and the other
belonging to Mr. Greer, had been vandalized overnight, with messages stating “fuck you”
and “fuck your opinion” spray-painted outside the front of the classrooms.

16. Jose Araux is the principal of RHS. Dr. Araux’s testimony is summarized as
follows: RHS has approximately 1,578 students. Approximately 90 percent of the students
are Hispanic, two percent are black, two percent are white, and the rest are “other.” Dr.
Araux is aware that some of the students at the school have parents who are immigrants. Dr.
Araux reviewed the comments made on the Facebook thread and said he could not believe
the comments were made by his teachers and a counselor. He was “upset, angry, and hurt”
and felt the comments were “racist and discriminatory.”

When Dr. Araux went to RHS on February 17, 2017, his primary goal was to ensure
the “physical, psychological, and emotional well-being” of the students. That day, there
were also many extra people on campus from the district to help provide support. Dr. Araux
read a message over the school public address system acknowledging the reaction to the
Facebook thread and letting students know that the district was committed to investigate and
“take appropriate action.” He responded to over 200 e-mail complaints from parents and
people across the country. Dr. Araux also set aside additional time to meet with parents,
should they want to do so. RHS received many calls regarding the Facebook thread. Talking
points were provided to teachers to help them deal with any situations that might arise in the
classroom.

Washington Post, however, was entitled, “These California Teachers Mocked Students For
Skipping School On Immigrant Boycott Day.”
3
It was never made clear in testimony whether it was the California Department of
Justice or the federal Department of Justice.

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 A student forum was scheduled for 2:20 p.m. in the gymnasium, however, they were
not able to hold the forum because there was a student walkout following lunch. Dr. Araux
estimated less than 300 students left the campus. Teachers and administrators tried to get the
students to go back to their classrooms, but they would not. When they approached a
perimeter fence, one student went over the fence. Other students began to push on it. Dr.
Araux said he made the decision to open the gate because he did not want anyone to get hurt.
Some students came back to the campus, but many did not. As for the majority of students
who did remain on campus, Dr. Araux made the decision to keep them in their fifth period
class rather than proceed like normal, and they were eventually dismissed from fifth period.

On February 18, 2017, Dr. Araux received an e-mail from a student notifying him
about a potential second student walkout planned for February 21, 2017. The student was
very “disappointed” with the actions of the other students who walked off the campus on
February 17, 2017, and concerned about the safety of students and staff members at RHS
should the second walkout have occurred. Dr. Araux sent out an e-mail to all staff with a
modified schedule for that day in order to avert a second walkout. Dr. Araux sent a
notification to parents warning them of the safety concerns should a second walkout occur
and also telling them that the school day would be modified on February 21, 2017. The
message, however, did not encourage parents to tell their students to remain in class and
refrain from participating in the second walkout. At least one media outlet reported on the
planned second walkout. Nonetheless, the second walkout never occurred.

Dr. Araux has observed Mr. Baugh in the classroom and has never seen Mr. Baugh do
anything to make him think Mr. Baugh is “anti-immigrant.”

17. Complainant also testified about the student walkout. She added that the
students crowded the flagpole prior to walking off campus and tried to take down the
American flag and replace it with a Mexican flag. The students “flooded” onto a four-laned
road. Police were blocking intersections trying to anticipate where the students were going
in order to keep everyone safe. Although complainant testified that she believed the student
walkout was because of the Facebook thread, she provided deposition testimony on a prior
date where she stated that the student’s frustration was with the Trump administration.
During the student walkout, the students were chanting “fuck Trump” and “fuck your
opinions.”

Complainant corroborated Dr. Araux’s testimony about the second potential walkout.
She said notifications were sent to parents in order to try and avoid a difficult situation.

Complainant testified that at a February 21, 2017, board meeting, they took 37 public
comments and that there was a large crowd. There were members of the media present.
There were students, parents, and activist groups. There was tension in the air. People were
generally unhappy. A short video was shown regarding the board meeting, but the video
showed calm speakers clearly presenting their views; the video did not show a tense, angry
crowd, nor did it show media present. Complainant said the media were asked to move away
from the board members, and that was why they were not depicted on the video.

6
governing board must do, not teachers. This policy is not one that can be violated by a
teacher.

Complainant also believed Mr. Baugh’s Facebook post violated the Code of Ethics,
contained in Board Policy 4119.21. However, the Code of Ethics speaks of teacher’s
responsibilities in the classroom – not activities engaged in during their personal time.
Moreover, the broad language complainant referred to as being violated came from the
preamble of the document, which cannot be violated.4

Complainant also believed Mr. Baugh’s Facebook post violated Board Policy
4119.32, having to do with the duties and responsibilities of teachers. Again, this policy
explains what teachers must do in the classroom and in their job as educators; nothing in the
policy states what a teacher may and may not do outside the classroom with respect to social
media.

Complainant also believed Mr. Baugh’s Facebook post violated Board Policy 5000,
having to do with concepts and roles of teachers. Again, like Board Policy 4000, this policy
sets forth responsibilities of the governing board and explains the commitment of the
governing board to students. It cannot be violated by teachers.

Complainant also believed that Mr. Baugh’s Facebook post violated Board Policy
5145.3, concerning harassment and discrimination. This policy applies to activities on
campus as well as off campus that create a hostile environment at the school. It is unclear,
however, how Mr. Baugh’s single Facebook post violated this policy given that his comment
merely stated how many absences he had and did not disparage any student or contain any
racially inappropriate or discriminatory language. It is also unclear how the comment could
be construed as being racially motivated, given that the students who participated in the
protest event were Hispanic; but those who remained were also predominantly Hispanic.

Complainant confirmed on cross-examination that the district has no policies,

procedures, or guidance regarding teachers’ use of social media outside of their employment.

//
4
The Code of Ethics contains a clause at the end stating that the code governs the
profession and any violations will be considered “unprofessional.” The clause goes on to say
that in order to constitute grounds for discipline, the violation must endanger students,
evidence malice, indicate serious incompetency, bad judgement, or a pattern of bad
judgement.” Interestingly, complainant stated the Code of Ethics was violated, but did not
charge Mrs. Riggle with unprofessional conduct. A reasonable inference, then, can be drawn
that the district did not believe Mr. Baugh did anything that constituted a danger to students,
and his conduct did not involve provable malice, bad judgement, or a pattern of bad
judgement.

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never expressed an opinion about immigrants. She has maintained contact with Mr. Baugh
and wanted to testify on his behalf because it is the right thing to do. Mr. Baugh “really
cared” about his program and has a passion for teaching. Ms. J said Mr. Baugh
“really cares about kids” and about “engaging students.” She sees him as a role model and
said he is the “kind of teacher [she] hopes every kid can have.”

28. Douglas Morrill is a friend who has known Mr. Baugh since the seventh grade.
Mr. Morrill is now retired. Prior to retiring, he served as a sworn police officer with the
Garden Grove Police Department for 31 years and then as a sworn investigator for a county
agency for 11 years. Mr. Morrill and Mr. Baugh ride motorcycles together, meet for lunch,
and generally socialize with each other. Mr. Morrill described Mr. Baugh as an honest
person and said Mr. Baugh has never made any comments that he felt were inappropriate.
Mr. Baugh has never said anything to indicate that he does not like immigrants; Mr. Morrill
has never known Mr. Baugh to disparage anyone regarding culture or race.

29. Terri Spencer is the librarian at RHS. She recalled February 17, 2017, when
some of the students walked off campus. She said the walkout was not peaceful. As she and
other teachers tried to get the students to go back to class, many told the authority figures to
“fuck off” because it was still their lunchtime. Some students went to the flagpole and tried
to remove the American flag and replace it with a Mexican flag. After that, the “mob” made
their way towards the parking lot. Ms. Spencer said there has not been another walkout of
that magnitude since that date. She recalled that within the first few weeks after the student
walkout, people wanted teachers fired. However, after time passed, she feels a majority of
the students want him to come back. She does not think Mr. Baugh did anything wrong and
feels that he and the other teachers would be “welcomed back.”

MR. BAUGH’S MOST RECENT EVALUATIONS

30. Mr. Baugh submitted two evaluations. Both evaluations show he met or
exceeded standards in all areas and were completed by his superiors at RHS. Some of the
commentary on his evaluations are as follows:

Mr. Baugh creates a physical environment that engages all

students. . . . He maintains order in his classroom by reminding
students of appropriate behavior expectations, class routines,
and is consistent upholding classroom rules.

Mr. Baugh addresses his students’ varied learning needs by

planning for activities that support an array of learning modality
preferences. He values his students’ backgrounds and interests
by creating class discussion opportunities that are engaging and
interesting. . . .

Mr. Baugh connects learning goals to students’ prior

knowledge, life experience and interests. . . . He creates

10
 frequent opportunities for classroom discussions and allows for
students to ask questions related to topics that are of particular
interest to them. These activities promote autonomy,
interaction, and choice. . . .

Mr. Baugh promotes a climate of fairness and respect.

Mr. Baugh draws on and values students’ backgrounds, interests

and developmental needs.

LETTER FROM GEORGE MONGE

31. Mr. Monge is an Advanced Placement Government & Politics teacher who is
the head of the Social Studies Department at RHS. Mr. Monge wrote a letter, on behalf of
the teachers and staff of RHS, dated May 4, 2017, to the JUSD administration. Pertinent
excerpts from his letter are:

[T]he district may have some legitimate concerns regarding the

potential for future disruption to the learning environment. But
those of us who were interacting and communicating with our
students in the immediate aftermath and the time since the
incident are less worried about that potentiality.

On the very next day, many of our students were speaking of the
need to maintain our unity as a school community. In the days
that followed, multiple student groups communicated to
teachers and School administration their desire to offer
forgiveness to these teachers to help expedite our healing
process. A sentiment which was frequently expressed by
students, was the idea that within a family, you may have a
member that says or does something wrong, But you don't kick
them out of the family - instead you counsel and you coach
them and you continue to work with them, so that mistakes are
aren’t repeated. This process all starts with some level of
forgiveness. We would also know that such a position if taken,
would be consistent with the philosophy behind PBIS, which is
the district's mandated student discipline program.

On the issue of disruption, the absence of these teachers has

greatly disrupted the learning environment and effectiveness
within many of our most important programs such as AVID,
FFA, Guidance and AP. Our students have attempted to
maintain their progress while working with a series of mostly
inexperienced substitutes. In response to the situation students
have gathered hundreds of signatures on petitions (see attached

11
 pages) requesting the return of these teachers and the students
have communicated these views with school administration.

Over the course of their careers, these teachers have made

enormous contributions to our school, established strongly
positive relations with our students and are considered valuable
and vital members of the wider Rubidoux community. Within
this group of educators are multiple teacher of the year
recipients, teachers who have earned statewide recognition and
awards for their work with our students, they have inspired
students and have helped hundreds, perhaps thousands of
students earned admission to universities and gained meaningful
careers.

We know Charles Baugh, Patricia Crawford, Rhonda Fuller, Jeff

Greer, Robin Riggle and Allen Umbarger. We know them to be
caring and courageous educators that have devoted their lives to
the students of this community. These educators are immensely
talented and the impact of their permanent loss to our students
and programs would be devastating.

We hope that you will take our thoughts into consideration. . . .

MR. BAUGH’S TESTIMONY

32. Mr. Baugh’s testimony is summarized as follows:

Mr. Baugh holds an Associate of Arts degree in Theater Arts, a Bachelor of Arts in
Liberal Studies, and a Master of Arts in Earth Science. He has spent 20 years in the teaching
profession; 10 of those years have been at RHS. Mr. Baugh is also a veteran of the United
States Army and served three years in Vietnam.

Mr. Baugh is employed as a science teacher, but has taught drama in the past.
Currently he has an earth science credential but has also held a supplemental drama
credential.

Mr. Baugh said that his classes were much quieter than normal on February 16, 2017.
He knew it was the date of the protest event. When he got to campus that day he could see
the difference from a normal day. Because of the absences, he changed his lesson for the day
because on February 16, 2017, he had a mandatory test preparation that the students needed
to complete in order to be ready for a test at the end of the week. He changed the lesson
because the students who were missing would not have been permitted to make up the work
that day – and would have missed the test preparation.

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 When he got home from school that day, he saw Mr. Greer’s Facebook post and the
thread that contained comments from other teachers. He saw that another teacher, Robin
Riggle, had posted that she had 50 absences that day and that it was a pleasant day. Mr.
Baugh said his post regarding quieter classrooms was in direct response to Mrs. Riggle’s
post. After he added his comment, he got off Facebook and made dinner.

The next morning, Mr. Baugh found out the Facebook thread went viral.
Complainant placed him on administrative leave and told him to “turn over his keys.” He
said that interaction was “not even five minutes.” Mr. Baugh said he has not returned to
campus since February 17, 2017, but was permitted to enter his classroom to retrieve
personal belongings, or what was left of them, after the school year ended.

Mr. Baugh said he loves teaching science. He has never been accused of being racist
and has never expressed any anti-immigrant sentiments. He feels immigrants are simply
trying to get a better life by attending school and he would never do anything to interfere
with that. Mr. Baugh has even taken trips to Peru and Mexico to work with kids and build
houses for families living in poverty. He has brought his professional telescope to
orphanages in Tijuana because many of the children have never seen the moon through a
telescope. Mr. Baugh said seeing them experience looking at the sky through a telescope for
the first time “makes it all worthwhile.”

Mr. Baugh does not think he should be terminated because he is a “very good teacher
with enthusiasm,” a role model, and his comment on Facebook was misconstrued. It was not
his intent to say anything anti-immigrant. He believes the district and administration, by
their actions, did not give him or the other teachers any support. He said if there were social
media rules he would follow whatever rule or policy he is directed to follow. Mr. Baugh said
if he had known all that happened would occur he never would have posted anything on
Facebook.

LEGAL CONCLUSIONS

Burden and Standard of Proof

1. The standard of proof in a teacher disciplinary proceeding is a preponderance

of the evidence. (Gardner v. Commission on Professional Competence (1985) 164
Cal.App.3d 1035, 1039-1040.)

2. “‘Preponderance of the evidence means evidence that has more convincing

force than that opposed to it.’ [Citations.]” (Glage v. Hawes Firearms Company (1990) 226
Cal.App.3d 314, 324-325) The sole focus of the legal definition of ‘preponderance’ in the
phrase ‘preponderance of the evidence’ is on the quality of the evidence. The quantity of the
evidence presented by each side is irrelevant.” (Ibid., italics emphasis in original.)

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Applicable Law

3. A permanent employee may be dismissed for cause only after a dismissal

hearing. (Ed. Code, §§ 44932, 44934, and 44944.)

4. When a school board recommends dismissal for cause, a Commission on

Professional Competence may only vote for or against the dismissal; the Commission may
not dispose of a charge seeking dismissal by imposing probation or an alternative sanction.
(Ed. Code, § 44944, subds. (c)(1)-(3).)

5. A permanent certificated teacher may not be dismissed except for, among

other things, immoral conduct or evident unfitness for service. (Ed. Code, § 44932, subds.
(a)(1) and (a)(6).)

Applicable Case Law

6. In Morrison v. State Board of Education (1969) 1 Cal.3d 214, 235, the Supreme
Court held that “an individual can be removed from the teaching profession only upon a
showing that his retention in the profession poses a significant danger of harm to either students,
school employees, or others who might be affected by his actions as a teacher.” The court
delineated the following criteria to determine whether a teacher’s conduct indicates that he or
she is not fit to teach: (1) the likelihood that the conduct may have adversely affected students
or fellow teachers; (2) the degree of such adversity anticipated; (3) the proximity or remoteness
in time of the conduct; (4) the type of teaching certificate held by the teacher; (5) the
extenuating or aggravating circumstances, if any, surrounding the conduct in question; (6) the
praiseworthiness or blameworthiness of the motives resulting in the conduct; (7) the likelihood
of the recurrence of the conduct in question; and (8) the extent to which disciplinary action may
inflict an adverse impact or have a chilling effect upon the constitutional rights of the teacher
involved or other teachers. (Id., at pp. 229-230.)

7. In Board of Education v. Jack M. (1970) 19 Cal.3d 691, the Supreme Court

detailed the process to be considered in determining fitness to teach. In addition to the
Morrison factors, the court provided additional factors that may be considered to determine if
there is a nexus between the conduct and a teacher’s fitness to teach: (1) likelihood of
recurrence of the questioned conduct; (2) the extenuating or aggravating circumstances, if
any; (3) the effect of notoriety and publicity; (4) impairment of teachers’ and students’
relationships; (5) disruption of educational process; (6) motive; (7) proximity or remoteness
in time of conduct. (Id., at fn. 5.)

IMMORAL CONDUCT

8. There is broad discretion in determining what constitutes immoral conduct in

the context of teacher disciplinary matters. (California Teachers Association v. State of
California (1999) 20 Cal.4th 327.) Immoral conduct has been defined by the courts as
follows:

14
 [T]hat which is hostile to the welfare of the general public and
contrary to good morals. Immorality has not been confined to
sexual matters, but includes conduct inconsistent with rectitude,
or indicative of corruption, indecency, depravity, dissoluteness;
or as wilful, flagrant, or shameless conduct showing moral
indifference to the opinions of respectable members of the
community, and as an inconsiderate attitude toward good order
and the public welfare. (Palo Verde etc. School Dist. v. Hensey
(1970) 9 Cal.App.3d 967, 972, citing Bd. of Education of San
Francisco Unified School Dist. v. Weiland, 179 Cal. App 2d
808, 811.)

Immoral conduct alone cannot serve as a basis to terminate a teacher unless the
conduct indicates the teacher is also unfit to teach. (Palo Verde, supra, at p. 972.)

EVIDENT UNFITNESS FOR SERVICE

9. Unfitness for service means “not fit; not adapted to a purpose, unsuitable;
incapable; incompetent; and physically or mentally unsound.” (Palo Verde, supra, at p. 972.)
As a threshold matter, the Morrison criteria are examined to ascertain whether the conduct in
question indicates is related to the teacher’s fitness to teach. In reaching a conclusion that
grounds exist to dismiss a certificated employee on the basis of evident unfitness for service,
not all Morrison factors need be examined, only the pertinent ones. (Governing Board v.
Haar (1994) 28 Cal.App.4th 369, 384.) In this sense, the purpose of examining the Morrison
criteria is to establish a nexus between the proven conduct and fitness to teach.

However, even if the Morrison analysis shows a nexus between the conduct and fitness
to teach, it must also be determined that the alleged conduct shows evident unfitness for service.
(Morrison, supra, at p. 1445 [emphasis added].) “Evident unfitness for service” means clearly
not fit for teaching, ordinarily by reason of temperamental defects or inadequacies; it
connotes fixed character trait, presumably not remediable merely on receipt of notice that
one’s conduct fails to meet expectations of the school district. (Woodland Joint Unified
School Dist. v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1444
[emphasis added].)

Evaluation and Conclusion

10. The district focused its case almost entirely on the viral nature of the posts,
and how various people – from school administrators to community members – “felt” about
the thread and the ensuing disruption on campus the day after the Facebook thread went
viral. There was also evidence to the contrary, both by way of character testimony, e-mails,
the letter from Mr. Monge, and other letters in the submitted exhibits, that showed support
for the teachers who commented on Mr. Greer’s Facebook thread. The evidence definitely
showed that reasonable minds may differ as to the nature of Mr. Baugh’s post. However,
reaching a decision in this matter does not mean looking at how many people felt his

15
comment was inappropriate versus how many people did not. Nor does it require
determining which version has more supporters. Rather, the question in this case is whether
Mr. Baugh’s single Facebook comment on Mr. Greer’s Facebook thread on February 16,
2017, and his choice of Halloween costume on October 30, 2015, constituted immoral
conduct or evident unfitness for service, warranting his dismissal. For the reasons discussed
below, a preponderance of the evidence did not establish that Mr. Baugh’s conduct on either
occasion constituted immoral conduct or evident unfitness for service.

EVIDENT UNFITNESS FOR SERVICE

11. Once the Facebook thread was discovered, it went viral. Parents, students,
teachers, immigrant groups, civil rights organizations, and community members became
upset about the overall content of the Facebook thread. The incident also gained widespread
media attention. Eventually, Mr. Greer deleted the original post, as he explained it, to
“mitigate any further damage,” and posted a public apology in its place, apologizing for the
“harsh tone” and “hurtful structure” of the original post, which he understood came across in
an unfortunate manner.

Shortly after the Facebook thread went viral, the district began receiving e-mails and
phone calls from a variety of individuals expressing their anger about the Facebook thread.
Two classrooms were vandalized.

On February 17, 2017, the day after the Facebook thread went viral. The district
ensured there was a large presence of administrators and teachers on the RHS campus to
alleviate any potential problems. Counselors were made available to students and staff.
Talking points were distributed to staff in order to allay any potential problems.
Nonetheless, school district operations were interrupted by a student walkout from regularly
scheduled classes after lunch. During the walkout, several hundred RHS students left the
campus without permission. They blocked streets and almost damaged a school gate. They
tried to replace the American flag with a Mexican flag. They pushed on a perimeter gate
with such force that administrators felt they had no choice but to open the gates to let the
students into the street to continue their march. A majority of the students who comprised
the approximately 1,600 total student body at RHS, however, remained on campus and did
not partake in the disruption. Most certainly, the reaction to the Facebook thread affected
both the school and the district’s ability to provide educational services on February 17,
2017.

However, the impact of the conduct alone does not determine whether a teacher is
unfit to teach. Rather, what matters is whether the conduct meets the legal criteria for
evident unfitness for service. As a threshold matter, the factors mentioned in Morrison and
Jack M. must be considered to determine whether there is a nexus between the conduct and
fitness to teach.

There was a lot of notoriety surrounding this incident and there was an impact on the
students because of the overall Facebook thread – which Mr. Baugh was a part of. Mr. Baugh’s

16
comment could be construed as adversely affecting students and teachers to the extent that his
comment was contained in a Facebook thread that contained other questionable comments
directed against immigrants. Teachers and district personnel were also affected because they
had to modify their schedules to tend to the problems that arose following the Facebook
incident. Given the demographics of the district, Mr. Baugh should have anticipated some
backlash about commenting on a Facebook thread that contained arguably insensitive remarks
about immigrants, or at least against persons participating in the protest event. There were no
aggravating circumstances or bad motives; to the contrary, Mr. Baugh’s credible testimony
established he did not intend to say anything other than what the conditions were like in his
class that day. Mr. Baugh is a science teacher; political issues are unlikely to arise in his class.
Mr. Baugh’s testimony showed he learned from this incident, and had he known of the
repercussions that would follow, he would not have posted his comment on the Facebook
thread. Enough of the criteria in Morrison and Jack M. are satisfied to show a nexus between
Mr. Baugh’s conduct (the posting of a Facebook comment) and fitness to teach.

However, the analysis does not stop after finding a relationship between the conduct
and fitness to teach. Evident unfitness for service must be demonstrated – and here, it was
not. Mr. Baugh has been teaching for over 20 years. He acts as the announcer for the school
soccer games and football games. He has had no formal discipline his entire career.5 R
A said Mr. Baugh’s class was a “good class.” M G said she liked the way
he taught science class. J F described Mr. Baugh as a “great teacher.” L
G noted Mr. Baugh’s passion for teaching and that he made high school memorable
for her. E J described Mr. Baugh as the kind of teacher every student should
have. None of his students ever heard him say anything inappropriate concerning
immigrants. To the contrary, his most recent evaluations stated that he promotes a “climate
of fairness and respect” and “draws on and values students’ backgrounds, interests and
developmental needs.” His evaluations contained glowing commentary and show Mr. Baugh
either met or exceeded the professional standards of a teacher. There was no evidence that
Mr. Baugh has treated any group of students differently than other students at any time in his
career, or otherwise engaged in discrimination or maltreatment of students in his classroom.

Mr. Baugh made a single post on a Facebook thread, which did contain some other
arguably derogatory comments. His comment, however, was made on his personal time, on
his personal computer, on his private Facebook account, after school hours. His comment
did not disparage any student. It did not comment on any student activities. It did not
comment on student race. It did not express agreement with any inappropriate comments.
His comment did not contain strong language or other questionable material that showed an
inappropriate temperament, an undesirable character trait, corruption, depravity, moral
5
The district attempted to raise what it alleged were examples of poor judgement that
were not alleged in the Statement of Charges and fell outside the scope of the four-year rule
set forth in Education Code section 44944, subdivision (b)(2)(A), in order to show a pattern
of poor judgement. Respondent objected based on the four-year rule. The objection was
sustained and questioning regarding anything that pre-dated the Statement of Charges by four
years was not permitted.

17
indignation for any class of persons, or contain any material that suggest Mr. Baugh is unfit
to teach science or drama. Nothing in his comment expressed racism or discrimination.6

Simply put, while several of the factors set forth in Morrison and Jack M. arguably may
have been satisfied, thus establishing a nexus between the comments and the fitness to teach,
ultimately, a preponderance of the evidence did not establish that Mr. Baugh’s single comment
on the Facebook thread were attributable to a temperamental defect, inadequacy, or a fixed
character trait not remediable merely on receipt of notice that one’s conduct fails to meet
expectations of the school district. In other words, he was not shown to be unfit, not adapted
to a purpose, unsuitable, incapable, incompetent, or physically or mentally unsound to continue
teaching. Thus, his comment did not constitute evident unfitness for service.

12. Similarly, a preponderance of the evidence did not establish that Mr. Baugh’s
choice of Halloween costume on October 30, 2015, constituted evident unfitness for service.

In looking at the factors set forth in Morrison and Jack M., there is not a nexus
between Mr. Baugh’s choice of Halloween costume and his fitness to teach. Although there
was a likelihood that the conduct may have adversely affected students or fellow teachers
because it glorified a character that was known for illicit drug activity, no evidence showed
that any students were exposed to Mr. Baugh handing out the rock candy. Although Mr.
Baugh should have anticipated that his costume on a high-school campus would not be well-
received, it appeared that the only people who did not like his costume were the
administrators; the students were familiar with the character and liked his costume. There
were also no extenuating or aggravating circumstances and Mr. Baugh’s testimony did not
establish any improper motive. The costume did not interrupt the educational process, did
not achieve notoriety or publicity, did not impair teachers’ and students’ relationships, and
did not disrupt the educational process. Even if the Morrison and Jack M. factors did show a
nexus between the conduct and fitness to teach, however, the conduct still did not constitute
evident unfitness for service for the reasons discussed below.

The Walter White character Mr. Baugh depicted was notorious in popular culture at
the time and easily identifiable based on his appearance. Mr. Baugh is the spitting image of
the character, which people on campus had pointed out to him. Although he had rock candy
that simulated an illicit drug, he passed the candy out to other adults, and there was no
evidence that the rock candy was ever seen by students. There was no evidence that it was
inappropriate for a RHS teacher to dress up for Halloween, or that he violated any district
policy by wearing a costume. Although dressing up as a character who is a drug dealer
reflected questionable judgment on Mr. Baugh’s part, the fact that Mr. Baugh physically
6
Merriam-Webster defines “racism” as “a belief that race is the primary determinant
of human traits and capacities and that racial differences produce an inherent superiority of a
particular race.” Merriam-Webster defines “discrimination as “the act of making or
perceiving a difference.” Despite the characterization of Mr. Baugh’s single comment about
class size on February 16, 2017, by several witnesses as “racist” and “discriminatory,” the
plain language of the comment contained no racist or discriminatory language.

18
resembled the character and was also a high school science teacher provides some
explanation for why Mr. Baugh thought the costume was appropriate. When told to go home
and change because the school felt it was promoting drug use, Mr. Baugh did. In sum, a
preponderance of the evidence did not establish that the conduct surrounding his choice of
costume was attributable to a temperamental defect, inadequacy, or a fixed character trait not
remediable merely on receipt of notice that one’s conduct fails to meet expectations of the
school district.

IMMORAL CONDUCT

13. A preponderance of the evidence also did not establish that Mr. Baugh’s
comments constituted immoral conduct. Again, while he may have used poor judgement in
participating in a Facebook thread that contained other questionable comments, for the same
reasons discussed above, his decision to post his single comment about conditions in his
classroom on February 16, 2017, was not flagrant, shameless, inconsistent with public
decency, or reflective of a moral indifference to the opinions of others.

14. Similarly, a preponderance of the evidence did not establish that Mr. Baugh’s
choice of Halloween costume on October 30, 2013, constituted immoral conduct. Certainly,
given the impressionable youthful population present in Mr. Baugh’s place of employment,
choosing to portray a character that violates the law was not in keeping with the good
judgement expected of professional educators. Mr. Baugh thought the costume was clever
and creative, and it was – for a Halloween party or some location other than a high school
campus. Notwithstanding his questionable judgement, however, Mr. Baugh’s conduct
surrounding his choice of costume was not flagrant, shameless, inconsistent with public
decency, or reflective of a moral indifference to the opinions of others, and that is what must
be proven to sustain a charge of immoral conduct.

Conclusion

15. The academic environment brings students and teachers together from a
variety of personal, professional, and political backgrounds. Inevitably, students will have
classes with teachers who may disagree with them personally, politically, and professionally.
Given the diverse and multicultural population of any school district, and the unique position
a teacher holds in society, it is important for teachers to be cognizant of the impact their
personal speech outside the classroom may have on the population they serve. With respect
to social media, teachers need to use discretion and good judgment should they decide to
engage in social media interactions. The same principle applies to a choice of Halloween
costume, should a teacher decide to partake in on-campus Halloween festivities.

The choice the district gave the Commission was to dismiss Mr. Baugh from his
employment or dismiss the charges entirely. There was no room to choose a suspension or
other remedial measure. Given that a preponderance of the evidence did not establish that
Mr. Baugh’s conduct was either immoral or rendered him evidently unfit to serve, cause does

19
not exist to dismiss Mr. Baugh pursuant to Education Code sections 44932, subdivisions
(a)(1) or (a)(6).

ORDER

The Statement of Charges against Charles Baugh is dismissed.

DATED: November 16, 2017

___________________________________
GREGORY NICHOLAS
Science/STEM Coordinator and Certificated
Science Teacher and Administrator
Riverside County Office of Education

DATED: November 16, 2017

_______________________________________
MICHAEL APFFEL
Teacher on Special Assignment/Certificated
Science Teacher
Hemet Unified School District

DATED: November 16, 2017

___________________________________
KIMBERLY J. BELVEDERE
Administrative Law Judge
Office of Administrative Hearings

20
 BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS AND A
COMMISSION ON PROFESSIONAL COMPETENCE
ANAHEIM UNIFIED HIGH SCHOOL DISTRICT
STATE OF CALIFORNIA

In the Matter of the Dismissal of:

OAH No.: 2016040305
JILL BRIQUELET,
A Permanent Certificated Employee,

Respondent.

DECISION

The Commission on Professional Competence (Commission) heard the above-

captioned matter in Los Angeles on October 10, 11, and 14, 2016, and on February 22 and
23, 2017. The Commission members were Amber Hughes, Adam Camacho, and John E.
DeCure, Administrative Law Judge (ALJ), Office of Administrative Hearings (OAH),
presiding. The Anaheim Union High School District (the District) was represented by
attorneys Daniel R. Shinoff and Amanda M. Friedman, of Artiano Shinoff. Respondent Jill
Briquelet (respondent) appeared with her attorney, Richard J. Schwab, of Trygstad, Schwab
& Trygstad.

The matter was submitted for decision on February 23, 2017. The Commission
hereby makes its factual findings, legal conclusions, and order.

INTRODUCTION AND STATEMENT OF THE CASE

In this proceeding the District seeks the termination of one of its tenured lead
counselors, respondent Jill M. Briquelet. Three statutory grounds were asserted as justifying
termination: dishonesty (Ed. Code, § 44932, subd. (a)(4); evident unfitness for service (Ed.
Code, §§ 44932, subd. (a)(6); and persistent violation of or refusal to obey state laws or
regulations, or the district’s regulations, for the governance of schools (§44932, subd.
(a)(8)).1

The central allegation of this case is that respondent authored an anonymous letter,
which was mailed to a school board member and two other school officials at Oxford
1
All further statutory references are to the Education Code.
Academy (Oxford), where respondent is the lead counselor. The letter alleged that Oxford’s
principal, Ron Hoshi, created a negative work environment, was dishonest, and had violated
school and district admissions policies by exercising favoritism in the admission of five new
students to Oxford for the upcoming 2015/2016 school year. The District further alleged that
when respondent revealed information regarding the five students in the letter, she violated
school and district confidentiality rules. Lastly, the District alleged respondent continuously
obstructed its subsequent investigation into the charge contained in the anonymous letter that
Oxford engaged in unfair student admission practices.

Respondent denied all of the allegations. She provided evidence regarding the facts
and circumstances of the events referenced in the Amended Notice of Charges, and otherwise
provided evidence in support of her retention by the District. The evidence failed to establish
the District’s factual allegations against her. The Commission finds and concludes,
unanimously, that cause for termination has not been established.

FACTUAL FINDINGS

The Parties and Jurisdiction

1. Complainant Brad Jackson (complainant) executed the Amended Notice of

Charges in this matter while acting in his official capacity as Assistant Superintendent of
Human Resources of the District.

2. The District commenced this proceeding on February 22, 2016, when

complainant executed a Notice of Charges against respondent. That Notice of Charges was
filed with the District's governing board, which thereafter determined to terminate
respondent.

3. On February 22, 2016, the District gave respondent written notice of its intent
to terminate her, and served respondent with a copy of the Notice of Charges. Respondent
made a timely request for hearing. She then filed a Notice of Defense, and this hearing
ensued.

4. On July 26, 2016, the District executed an Amended Notice of Charges against
respondent. That Amended Notice of Charges was filed with the District's governing board,
which thereafter determined to terminate respondent. Respondent made a second timely
request for hearing.

5. All jurisdictional requirements have been met.

6. Respondent is a certificated counselor in the District's employ, credentialed to

teach math, economics, and to provide pupil personnel services (in the area of school
counseling) to high school students. During the spring 2015 semester at Oxford, which is the
time relevant to this proceeding, respondent was the Lead Counselor at Oxford, a combined

2
junior high school and high school serving students from grades 7 through 12, located in
Cypress, California. Among the several high schools within the District, Oxford is a
nationally renowned college preparatory school known for its rigorous academic standards
and a competitive admissions process.

Findings on the Factual Allegations Made Against Respondent

AUTHORSHIP OF THE ANONYMOUS LETTER

7. On or about August 13, 2015, an anonymous letter (the letter), dated the same,
was delivered to Annmarie Randle-Trejo, a District appointee on its Board of Trustees, by
United States mail. 2 The letter referenced five students, whose names are redacted herein to
protect their privacy rights, and stated:

We are writing to you and the other [District] trustees to let you
know about problems that have been developing at Oxford
Academy. Mr. Hoshi’s poor organization and communication
skills, lack of sound judgment, seemingly vindictive behaviors,
and the perception he gives of being completely unprepared to
serve in his position have created a very negative work
environment and have resulted in angry and frustrated teachers,
counselors and secretaries. Mr. Matsuda 3 knows about these
problems but is doing nothing to resolve them because Mr.
Hoshi is a personal friend. These are things we encourage you
to investigate because we are sure that many staff members will
be happy to share their own experiences.

More importantly we need to make you aware of Mr. Hoshi’s

dishonesty and his violation of school and district policy. Mr.
Hoshi is only supposed to accept students who deserve to be at
Oxford Academy. Students earn this honor by taking the
entrance exam and scoring well enough to be admitted. We
have recently discovered that Mr. Hoshi has passed over
students who should have earned this honor and has instead
admitted students whose parents he knows and favors or those
who have siblings he favors. What is even more concerning is
that Mr. Hoshi admitted a student named [name redacted] (Rank
40, Area 38), whose mother was paid to arrange an East Coast
College Tour that Mr. Hoshi promoted to Oxford families and
that he himself attended. Here are the names of several other
2
Copies of the letter were also sent to two persons on Oxford’s teaching and
administrative staff, by U.S. mail, on or about August 13, 2015.
3
Mr. Matsuda is Michael Matsuda, the District’s Superintendent.

3
 students we have learned were selected out of rank: [name
redacted] (Rank 64, Area 32), [name redacted] (Rank 32, Area
37), [name redacted] (Rank 38, Area 40), and [name redacted]
(Rank 32, Area 37). We are certain there are others.

Oxford Academy is an incredible school and we do not want to

see its reputation damaged. Can you imagine what would
transpire if the cheated students’ parents learned about this?
What might happen if the media or Gloria Romero 4 and her
charter school supporters were informed of this? Please look
into these matters and take action on behalf of the parents,
students and staff of Oxford Academy because we deserve
better.

Sincerely,

Concerned in Cypress

8. Soon after the letter was received, the District commenced an investigation to
determine the source of the letter, and to inquire into the allegations of unfair admissions
practices set forth in the letter. 5 The District asked a licensed private investigator, Nicole
Miller, to conduct the investigation. Ms. Miller interviewed multiple witnesses, most of
whom were Oxford employees. Ms. Miller also interviewed respondent, and respondent’s
husband, John Briquelet, a high school principal and former District employee.

9. At no time did anyone subject to the District’s investigation, including

respondent, admit to having authored the letter. No direct evidence was found to establish
who had authored the letter. Instead, the District’s allegation that respondent authored the
letter was based on circumstantial evidence, theory, and conjecture as follows.

ACCESS TO THE ADMISSIONS LIST

10. The names, rankings, and school areas of the five students referenced in the
letter were derived from a master admissions list (list) compiled by Oxford’s then registrar,
Kartha King. The list was to be used by Mr. Hoshi to determine which students who had
applied for admission would be admitted to Oxford for the upcoming 2015-2016 school year.
The list was compiled from several sub-lists, one for students in the geographic area of each

4
Gloria Romero, a former California State Senator and the former Director of
California Democrats for Education Reform, is active in the realm of education reform.
5
Although the ostensible purposes of the investigation included an analysis of
the letter’s contents, the evidence established that the District’s primary objective was to
determine who wrote the letter.

4
junior high school in the district, with each such school assigned an “area” number; those
sub-lists ranked each student based on his or her overall score on a pre-admission entrance
examination that tested students in math, English and essay writing. Every student that
applied and was tested appeared on the sub-list for his or her area’s junior high school. Thus,
far more than 25 students appeared on each sub-list. The students’ applications and grade-
point-averages were also recorded and considered in the selection process. Although the 25
top-ranked students from each junior high school area were initially offered admission, each
year a certain number of those students would typically decline Oxford’s offer, choosing to
attend school elsewhere. This resulted in a number of additional openings for admission
during each admission cycle, and these newly-available positions were filled at the discretion
of the school principal. There were also District policies for the principal to consider. One
District policy allowed for an exception to the top-25 admission policy for students of
District employees, who were offered admission to Oxford as a “perk” attendant to their
parents’ employment. Another District policy favored the admission of any new student who
had a sibling currently attending Oxford. Mr. Hoshi followed both policies while also
exercising his discretion to fill additional openings.

11. The District initially contended that the author of the anonymous letter would
have had access to the list prior to authoring the letter, since the letter contained confidential
admissions information regarding the five students specifically mentioned. This contention
was both logical and reasonable, as several Oxford employees, including Ms. King, Mr.
Hoshi, and respondent, testified that the list was the primary source of such specific
admissions information.

12. The District’s second contention was that respondent, who had access to the
list, was therefore the author of the anonymous letter. This contention was not established by
the evidence. Respondent’s access to the list was brief, and preceded Mr. Hoshi’s selection
of the students referenced in the letter. Moreover, because the list was unsecured and kept in
a busy common space, a wide number of other people may also have had access to it. The
specific facts and circumstances are as follows.

13. Respondent had access to the student admissions information only once, when
she was asked by Ms. King in the spring of 2015 to assist her in selecting the top 25 students
from each sub-list. Ms. King testified that although this was a process Mr. Hoshi was
responsible for completing, he had been “evasive” about following through and had failed to
take action, frustrating Ms. King. Respondent spent approximately 15 to 20 minutes working
with Ms. King, using a formula to deduce the top 25 ranking students on each area sub-list.
When respondent finished, Ms. King took back the list, which she later presented to Mr.
Hoshi so that he could engage in his final selection process. According to Ms. King, Mr.
Hoshi was grateful to respondent for her assistance when Ms. King described to him how
respondent had helped her.

14. The evidence established that respondent’s act of assisting Ms. King with the
selection process was respondent’s only exposure to the list. This being so, a reasonable
presumption cannot be made that during that brief period while she provided assistance,

5
respondent could have also gleaned specific student-ranking information regarding the five
students whose non-admission would be protested in the letter. The sub-lists were
substantial, as they contained information regarding every student applicant from each
District area, not just the 25 top students. As she sat with Ms. King and compiled top 25
rankings for every sub-list, respondent also would have had to memorize information about
other students beneath the cusp of the top 25, on several sub-lists. All this she would have to
accomplish within a time-window of 15 to 20 minutes, and with the school registrar sitting
beside her. This was hardly a prime opportunity for respondent to study the list for other
information regarding students who were below the cusp of the top 25. The evidence did not
establish that Respondent could plausibly perform such a feat of memory.

15. The timing of respondent’s only exposure to the list also fails to implicate her.
In short, her exposure came too early: At the time respondent helped Ms. King with the
preliminary selections, Mr. Hoshi had not yet seen the list. Thus, as respondent went over
the admissions information with Ms. King, she would not have known what to even look for
in order to argue later that Mr. Hoshi engaged in an inequitable selection process or
committed admissions-policy violations. It was too soon for respondent to even consider
those possibilities, because no controversy existed. Mr. Hoshi had yet to make his selections.

16. The District further alleged respondent also had access to the list at a later
date, which would have facilitated her in writing the letter. But the evidence failed to
establish this contention. After Ms. King retired as Oxford’s registrar in June 2015, she was
replaced by Josefina Laris in July 2015. Ms. Laris testified that sometime before the 2015-
2016 schoolyear began, respondent asked Ms. Laris for a list of new students, to be used for
the new-student orientation process. However, Ms. Laris had no recollection of actually
locating or providing such a list to respondent. Ms. Laris was also unclear as to whether the
list of new students was a list that would have contained student admissions information.

17. The District presented no other evidence to prove respondent accessed the list
at a later date. Respondent adamantly denied she ever saw the list after Mr. Hoshi made his
final admissions selections.

18. The evidence established that any number of people other than respondent
potentially had access to the list, as follows.

19. At one point in the summer of 2015 the list’s location was uncertain. After
Ms. King retired, her registrar’s items, some of which were placed in binders, were boxed up
and placed in a conference room. Ms. Laris could not recall whether she located Ms. King’s
binders before or after the District’s investigation. Ms. Laris believed there was an original
list, and one copy, but she could not recall ever seeing either list. Mr. Hoshi kept the
original, and the registrar had the copy.

20. Mr. Hoshi testified that to his knowledge, the list never went missing.

6
 21. The copy of the list was kept in a drawer in the registrar’s desk. The evidence
did not establish that any specific security measures were routinely taken to secure
confidential documents kept in the registrar’s desk. The desk’s location was also
problematic. Sometime during the previous school year, Oxford’s administration had the
registrar’s desk moved from a private office into the school’s main office, in a busy spot
open to foot traffic from teachers, students, administrators, parents, and others. Because the
registrar’s desk was a place where confidential student information was kept, several
witnesses, including Ms. Laris, Ms. King, and respondent, testified that this main-office
location was less than ideal, as the desk was not cordoned off in a cubicle or protected by a
surrounding countertop. Too many people routinely occupied the same space, and there was
no privacy. When Ms. Laris began her position as school registrar in July 2015, which was
after the 2015-2016 admissions selections had been made, she was concerned about her desk
being “out in the middle” and requested that the school provide her with a locking file
cabinet. A few weeks after the District’s investigator interviewed her, Ms. Laris received the
locking file cabinets she had requested.

22. The sum of the evidence established that the list was kept in an open space in a
main office and was not consistently secured or safeguarded. Thus, no reasonable inferences
can be made as to who may have had access to the list, and whether such a person would be
more likely to have written the letter. Under the circumstances, those possibilities were too
broad to be probative of respondent’s alleged conduct.

RESPONDENT’S AGREEMENT WITH THE LETTER’S CONTENTS;

WORKING WITH MR. HOSHI

23. The District contended that because the letter contained multiple criticisms of
Mr. Hoshi, and because respondent was similarly critical of Mr. Hoshi, she was the letter’s
likely author. This theory was undermined by the testimony of multiple witnesses who were
currently or previously employed at Oxford and had worked with Mr. Hoshi. All but one of
those witnesses expressed reservations and concerns regarding Mr. Hoshi’s abilities as
principal. The District further posited that respondent did not get along with Mr. Hoshi, and
due to her frustration with him, she authored the letter. Although the evidence established
that respondent and Mr. Hoshi did not always enjoy a good working relationship, by most
accounts, including their own, they continued to work together. None of the evidence
regarding their workplace collaboration allowed for a further reasonable inference to be
made that respondent was thereby compelled to write the letter. The relevant evidence
regarding these issues is as follows.

24. Kathy Scott was Oxford’s principal for seven years, from approximately 2006
until 2012, and she worked with Mr. Hoshi acting as her assistant principal during that time.
She recalled that Mr. Hoshi and respondent had problems working together at times, but they
often agreed with one another and collaborated as a team. Ms. Scott knew respondent was
sometimes frustrated with Mr. Hoshi’s lack of leadership, but other faculty members made
similar complaints about Mr. Hoshi. Ms. Scott viewed Mr. Hoshi as having weaknesses as a
leader and taking workplace events “very personally.” He also took it personally if others

7
criticized his work. If he grew upset, he was known to have “temper tantrums.” Ms. Scott
did not recall respondent complaining to her that Mr. Hoshi was “vindictive,” as set forth in
the letter, nor did respondent complain that Mr. Hoshi was unprepared, or had a personal
relationship with Superintendent Matsuda.

25. Ms. King saw Mr. Hoshi as “not a very organized principal” who was often
occupied with other things, and was not a good communicator. Ms. King believed
respondent disliked Mr. Hoshi as a principal and did not conceal her concerns about him.
However, Ms. King was aware that other Oxford staff shared mutual concerns about Mr.
Hoshi.

26. Shelly Nicola, an Office Assistant at Oxford since 2004, had worked with Mr.
Hoshi since 2009, when he became assistant principal. Ms. Nicola recalled witnessing stress
and tension between Mr. Hoshi and respondent at times, when they “didn’t see eye-to-eye.”
She did not recall respondent speaking critically of Mr. Hoshi to others.

27. Hiba Taylor, a Teacher on Special Assignment at Oxford who has been
employed at the school since approximately 2007, testified that Mr. Hoshi was not a good
communicator, was not organized, and had a general reputation at Oxford as not being a very
good leader. Ms. Taylor was aware that sometimes there was stress or tension between
respondent and Mr. Hoshi when those two worked together. Respondent’s reputation as
Oxford’s lead counselor is excellent. She is known as a strong leader on campus and a hard
worker who is very honest, straightforward, and willing to say what she believes.

28. Bruce Stevens, a teacher of biology and eighth-grade math, has taught at
Oxford since the school first opened in 1998. He has worked with Mr. Hoshi since 2000,
when Mr. Hoshi began at Oxford as a choir director, then later when Mr. Hoshi became an
assistant principal, and finally the principal. He described Mr. Hoshi as a poor
communicator who often does not finish his own sentences when he speaks. Mr. Hoshi is
not well organized during his meetings with staff, and as a result, his meetings were often “a
jumble.” Mr. Stevens believed Mr. Hoshi exercises unsound judgment, sometimes
prioritizing students’ participation in sports and musical events over the students’ timely
completion of their school work. Because Oxford is primarily an academically rigorous
college preparatory institution, Mr. Stevens sees Mr. Hoshi’s priorities as principal as not
aligned with the school’s main objectives. Halfway through Mr. Hoshi’s first year as
principal, Mr. Stevens, who was then the science department chairperson at Oxford, resigned
from his post. The chairpersons of the math, English, and social studies departments also
resigned from their posts at or about the same time. Mr. Stevens and the other department
chairs resigned in response to having meetings with Mr. Hoshi, during which Mr. Hoshi
would dictate his own meeting agenda and essentially tell the chairs “how to run their
departments.” Mr. Stevens never told Mr. Hoshi why he resigned because he believed Mr.
Hoshi was vindictive. Mr. Stevens has discussed Mr. Hoshi’s problems as principal with
other staff at Oxford several times. Respondent had complained to Mr. Stevens about things
Mr. Hoshi did that she did not like, but Mr. Stevens did not consider respondent to be a
“gossip.” Mr. Stevens has worked with respondent for approximately 13 years and said she

8
is known as being hard-nosed, amenable, forthright, honest, diligent, and well-respected at
Oxford.

29. Deanna Miner, Oxford’s instrumental-music teacher, has worked on the

school’s teaching staff since approximately 2004. She described Mr. Hoshi as being
frustrated with respondent for not always being “on board” with his objectives. Because Mr.
Hoshi is Ms. Miner’s current boss, she felt reluctant to criticize him, but over time, his style
of running the school has made it difficult for her to do her job. She described respondent as
not being a “gossip” about Mr. Hoshi.

30. Respondent testified she had experienced difficulties and frustrations at times
working with Mr. Hoshi, and he with her. However, she maintained a professional
relationship with him and tried to make improvements. In May 2015, she contacted Dr.
Jared Fried, the District’s Assistant Supervisor in charge of Human Resources, and asked Dr.
Fried to set up a meeting with her and Mr. Hoshi, so that she and Mr. Hoshi could explore
how to better work together. Dr. Fried was aware of respondent’s concerns that the overall
work environment was at times chaotic, and that communication between she and Mr. Hoshi
was not always good. In June 2015, Dr. Fried conducted the meeting. Respondent and Mr.
Hoshi were able to air their concerns, and they discussed how they might improve their
working relationship. Respondent and Mr. Hoshi ultimately agreed they were happy to be
working together, and overall, respondent felt the meeting was productive.

31. The evidence established that respondent offered to help Mr. Hoshi with his
principal’s duties in a manner that went beyond her role as lead counselor. In 2014, Mr.
Hoshi sought assistance from respondent through her husband, John Briquelet, who was the
principal at Loera High School, which is also within the District, from 2012 to 2016. Upon
Mr. Hoshi’s request, respondent set up a meeting between her husband and Mr. Hoshi, and
Mr. Briquelet provided advice and suggestions to Mr. Hoshi regarding how to plan out his
first school year at Oxford as its principal. The meeting was productive, and Mr. Hoshi was
grateful to respondent and Mr. Briquelet for their support. On another subsequent occasion,
Mr. Briquelet provided advice to Mr. Hoshi about whether Mr. Hoshi’s proposed class
assignment for a teacher at Oxford might run afoul of the current teacher’s-union
employment contract.

32. Nicole Miller, the private investigator, interviewed Mr. Briquelet, among
others, during the course of her investigation. Mr. Briquelet testified credibly that when Ms.
Miller interviewed him, she asked him whether Mr. Hoshi was a good leader. Mr. Briquelet
responded by saying he had no firsthand knowledge of Mr. Hoshi’s leadership abilities. Ms.
Miller then told him, “I don’t think Mr. Hoshi was a good leader.” 6

6
When Ms. Miller testified, she admitted having told Mr. Briquelet she did not
believe Mr. Hoshi was a very good principal.

9
 33. Only one witness testified in support of Mr. Hoshi’s abilities as a principal.
Hilda Vasquez, Oxford’s Assistant Principal, described Mr. Hoshi as a good communicator
and a fine leader who enjoyed a solid reputation as principal. Ms. Vasquez observed
respondent and Mr. Hoshi in weekly leadership meetings, and she believed respondent was
abrasive, defensive, and reactive toward Mr. Hoshi, undermining his authority. In particular,
Ms. Vasquez took exception that respondent, a counselor, would speak to Mr. Hoshi, an
administrator, as if respondent was on the same level with him as an Oxford employee. Ms.
Vasquez displayed a substantial bias in favor of Mr. Hoshi, as he was her current supervisor
and had been her assigned mentor many years ago when she was a new teacher at another
high school. Ms. Vasquez displayed an equally substantial bias against respondent, having
clashed with her in a school-related incident in which she allegedly called respondent a
racist. Because Ms. Vasquez had “truncated” her side of the story, she was required to
apologize to respondent in order to resolve the matter.

34. Mr. Hoshi described his relationship with respondent as “challenging.” He

met with respondent frequently on a leadership team, and felt she was undermining his
authority by speaking with others after these meetings, and by not being “transparent” during
the meetings. In general, Mr Hoshi felt respondent was challenging his leadership.
However, he did not contend that he and respondent could not work together. Mr. Hoshi
denied he had temper tantrums on the job, explaining that he was passionate about his work.
He conceded that several department chairpersons had resigned during his first year as
Oxford’s principal, but he did not believe their resignations were due to their objections to
his leadership skills.

35. In sum, the evidence established that Mr. Hoshi had many critics at Oxford,
including respondent. This generally negative view of the principal’s abilities was even
shared by the District’s investigator. The evidence further established that respondent and
Mr. Hoshi did not always get along well, yet they continued to work together. None of this
evidence allowed for a reasonable inference to be made that respondent authored the letter.

INVESTIGATOR’S OPINION OF RESPONDENT’S CREDIBILITY

36. To prove respondent authored the letter, the District offered Ms. Miller’s
testimony that in her view, respondent lacked credibility. However, Ms. Miller’s opinion
was not persuasive.

37. Ms. Miller stated that when she evaluates a witness’s credibility, she judges
whether the witness gives honest answers that are consistent with other evidence. She also
judges whether the witness shows a consistency in her statements. In other words, if a
witness says she has information but won’t supply it, the witness lacks consistency. Ms.
Miller offered one example to show why respondent was, in her view, not a credible witness.
Respondent had criticized Mr. Hoshi’s abilities as principal, and told Ms. Miller three
department chairs had stepped down from those positions due to Mr. Hoshi’s incompetence.
However, respondent would not provide Ms. Miller with the names of the department chairs.
Thus, in Ms. Miller’s opinion, respondent was not credible. Ms. Miller’s testimony on this

10
issue was unpersuasive. The incident involving the resignation of several department
chairpersons during Mr. Hoshi’s first year as principal was well known to Mr. Stevens and
Mr. Hoshi, both of whom testified about it at the hearing. Withholding the names of the
department chairs is therefore not a basis for disbelief in light of this other evidence.

38. Ms. Miller was similarly unpersuasive in her assertion that respondent was not
an honest witness. Respondent’s statements were candid and substantive when Ms. Miller
interviewed her. When respondent was shown the letter, she denied having authored it, but
she did not shy away from discussing its contents, telling Ms. Miller she agreed with the
assertions contained in it. 7 Respondent also offered the opinion that she believed Ms. King
would not have authored the letter. Respondent further described how she had assisted Ms.
King in making admissions-process selections, a fact which concretely established
respondent’s exposure to the list. Respondent also openly described Mr. Hoshi’s ability, as
principal, to select students he wanted to see admitted to Oxford, and she further opined that
the selection of the five students mentioned in the letter was unfair. None of respondent’s
assertions were self-serving: instead of distancing herself from the letter, she agreed with it;
she offered an opinion eliminating a colleague as the letter’s suspected author; and she
described her use of the list. This suggests respondent was answering Ms. Miller’s questions
truthfully, without concern for how she might be perceived.

39. As detailed above, the evidence established, by the testimony of multiple

witnesses, that respondent is a straightforward, direct, assertive person who often speaks her
mind without hesitation. Judging by the content of her answers, respondent was being frank
and honest, in keeping with her reputation at Oxford, when she spoke with Ms. Miller.

40. Ms. Miller exhibited biases favoring the District and against respondent.
Although Ms. Miller was tasked with performing an independent investigation, her firm
regularly works for the District and she receives a $5,000 per month retainer fee from the
District for performing such services. This arrangement suggests that Ms. Miller viewed the
District as a regular client, an arrangement which would make it more difficult for her to
approach each investigation in an unbiased fashion.

41. Ms. Miller exhibited bias against respondent when she interviewed Mr.
Briquelet, who testified credibly that during that interview, Ms. Miller had openly accused
respondent of having written the letter. When Mr. Briquelet voiced his firm disagreement,
Ms. Miller further challenged him, stating that if respondent did not write the letter, then Mr.
Briquelet himself must have written it. Although Ms. Miller denied having confronted Mr.
Briquelet in this way, she was a less credible witness than was he. The evidence established
that during Mr. Briquelet’s interview, Ms. Miller spoke disparagingly of Mr. Hoshi, stating
that he was not a good principal. In doing so, the investigator was plainly repeating
7
Respondent qualified this viewpoint when she testified, explaining that she
had no knowledge of Mr. Hoshi being vindictive or creating a hostile work environment; nor
did she know who Gloria Romero was, or what Ms. Romero or the media would do if
Oxford’s admissions policies were discovered.

11
information told to her by witnesses in other, confidential interviews. Ms. Miller was also
suggesting the answer to a question that she had just asked Mr. Briquelet. For an investigator
conducting an independent, fact-finding investigation, such conduct showed a lack of
neutrality and discretion.

42. In view of the evidence presented, complainant’s logic regarding respondent’s

credibility was at cross-purposes. On one hand, complainant argued respondent’s agreement
with the letter’s contents when she spoke with Ms. Miller indicates that she wrote the letter.
Yet concurrently, the District offered Ms. Miller’s testimony to allege that respondent was
not being honest when questioned, indicating that respondent authored the letter. Neither of
these disparate contentions established that respondent did any such thing. This was a
constant evidentiary problem for the District: while it suggested that one inference could be
made from the evidence, another, opposite inference could also be drawn. In this instance,
respondent’s candor regarding her views of the letter’s contents just as readily suggest she is
not the letter’s author; had she written the letter, she would better conceal her authorship by
denying any agreement with its contents, or even rejecting it outright. Instead, respondent
said what she believed.

43. Considering all of these factors, the evidence established that respondent was a
credible witness during the course of the District’s investigation. No reasonable inferences
could be made that based on respondent’s interview with Ms. Miller, respondent was the
author of the letter.

ALLEGED CONTINUOUS OBSTRUCTION OF THE COURSE OF THE INVESTIGATION

44. The District contends respondent continuously obstructed the course of its
investigation. As evidence in support of this allegation it offered the testimony of four
witnesses with whom respondent had spoken after the investigation commenced.

45. Kartha King retired in June 2015, before the letter was mailed and before the
District’s investigation began. She was interviewed by Ms. Miller, but could not recall
receiving any instructions to not talk with anyone else about the investigation. In the
summer of 2015, she attended a Los Angeles Angels of Anaheim baseball game as part of a
Loera High School employees’ reunion. Respondent was present at the game and expressed
her unhappiness with Mr. Hoshi as a principal. Later that summer respondent called Ms.
King at home. Ms. King could not precisely recall the subject of the conversation, but
respondent said nothing to her about the letter.

46. Amanda Bean, a school counselor at Oxford since January 2015, testified that
during the summer of 2015, she had asked respondent to refrain from having respondent’s
children, who were students at Oxford, walk through private school spaces reserved for
school employees and staff. Respondent replied that she felt this prohibition was “funny,
considering the letter going around.”

12
 47. Ms. Laris recalled attending a meeting with District administrators, Oxford
teachers, and respondent, regarding an investigation. Ms. Laris did not recall anyone at the
meeting directing Oxford staff, including herself, not to talk with each other. Just after the
meeting, respondent told Ms. Laris the meeting was regarding the letter, but she did not tell
Ms. Laris anything specific about the letter. At times during the investigation, other people
told Ms. Laris about the letter, but she was unconcerned, as she felt it had nothing to do with
her. Respondent once called Ms. Laris at home and told her the District was blaming the
letter on respondent. Ms. Laris told respondent she did not want to discuss it. Respondent
respected Ms. Laris’s wishes and said no more.

48. Ms. Nicola testified that in the summer of 2015, respondent once asked her if
she had spoken with Ms. Miller. At the time, Ms. Nicola did not know who Ms. Miller was,
and respondent explained she was an investigator seeking information regarding Oxford’s
admission process. Ms. Nicola recalled no further details about this conversation. Another
time, in October 2015, sometime after Ms. Nicola was interviewed by Ms. Miller, respondent
had a brief conversation with Ms. Nicola in the school parking lot, telling her she believed
the District thought she wrote the letter. Respondent also asked Ms. Nicola if she had told
the investigator that respondent “hated” Mr. Hoshi. Ms. Nicola said no.

49. Respondent denied she ever attempted to interfere with the District’s
investigation, or to frustrate, in any way, the cooperation of others involved in the
investigation. When she called Ms. King at home one night, it was because Ms. King had
retired from Oxford, yet Ms. King had been emailed, along with respondent, about an
upcoming private meeting involving school business. 8 Respondent had called to ask Ms.
King why she was being contacted about a school meeting following her retirement. By the
time respondent spoke with Ms. Nicola regarding the District’s belief that respondent wrote
the letter, the District had already notified respondent and her lawyer in writing that
respondent was to be formally charged. Respondent’s attorney had directed respondent to
begin speaking to people she knew who might be potential witnesses on respondent’s behalf.

50. No evidence was presented to show respondent attempted to coerce, threaten,

harass, intimidate, or discourage the cooperation of any witnesses during the District’s
investigation. Ms. Miller testified at length about her investigation, yet she made no claims
that respondent interfered with her inquiries, or that any person refused to provide testimony
or evidence to the District due to respondent’s actions.

51. The District alleged that because it did not inform respondent in writing that
its investigation had concluded, any related communications she had with others, including
those occurring after the District determined to charge her with misconduct, were forbidden.
Yet the evidence did not establish that the District was in the practice of providing such
written notice, nor did the evidence show such written notice was ever provided to
8
Respondent testified that unbeknownst to her at that time, the meeting had
been scheduled to inform certain Oxford employees about the letter and discuss the
upcoming investigation.

13
respondent. Considering that the District’s investigation was plainly focused on respondent,
the District’s contention that she could speak to no one until they deemed the investigation
concluded was unreasonable. By this logic, the District could have indefinitely withheld
notice that its investigation had concluded, rendering respondent incapable of contacting
potential witnesses in preparation of her defense. Such a policy would appear unfair and in
violation of respondent’s fundamental rights to due process of law.

CONFIDENTIALITY ALLEGATIONS

52. Because the evidence did not establish respondent authored the letter, the
Commission need not address the corresponding allegation that she violated district policy
and federal laws preserving the privacy and confidentiality of student information. The
District did not prove respondent included confidential student information in the letter and,
by mailing the letter, disseminated that information to others.

OTHER MATTERS

53. Multiple witnesses testified that Respondent is an exceptionally capable,

excellent lead counselor with a strong reputation among the Oxford staff as well as the
students and parents she serves. The evidence established that respondent has to her credit
many years of good service to the District and its students. In 2015, the Coca-Cola Scholars
Foundation bestowed an Educator of Distinction Award upon respondent due to her
exemplary dedication to the field of education.

54. No evidence was presented to establish respondent has fixed character traits
that make her unsuitable for school counseling.

LEGAL CONCLUSIONS

Legal Conclusions of General Application:

1. The Commission has jurisdiction to proceed in this matter, pursuant to section

44944, and Factual Findings 1 through 5.

2. “Unprofessional conduct” as used in section 44932, subdivision (a)(1), may be

defined as conduct which violates the rules or ethical code of a profession or is such conduct
that is unbecoming of a member of a profession in good standing. (Board of Education v.
Swan (1953) 41 Cal.2d 546, 553.) However, the conduct in question, to amount to
unprofessional conduct, must indicate unfitness to teach. (Perez v. Commission on
Professional Competence (1983) 149 Cal.App.3d 1167, 1174.)

3. “Evident unfitness for service” as used in section 44932, subdivision (a)(5),

means “‘clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of
temperamental defects or inadequacies.” Unlike “unprofessional conduct,” “evident

14
unfitness for service” connotes a fixed character trait, presumably not remediable merely on
receipt of notice that one's conduct fails to meet the expectations of the employing school
district. (Woodland Joint Unified School Dist. v. Commission on Professional Competence
(1992) 2 Cal.App.4th 1429, at 1444.)

4. “Immoral conduct” is not confined to sexual matters. It has been defined to

mean that which is hostile to the welfare of the general public and contrary to good morals.
It includes conduct inconsistent with rectitude, or indicative of corruption, indecency,
depravity, and dissoluteness. Or, it can be conduct that is willful, flagrant, or shameless,
conduct showing moral indifference to the opinions of respectable members of the
community, and as an inconsiderate attitude toward good order and the public welfare.
(Board of Education of the San Francisco Unified School District v. Weiland (1960) 179 Cal.
App.2d 808, 811 (Weiland); San Diego Unified School Dist. v. Commission on Professional
Competence (2011) 194 Cal.App.4th 1454, 1466.)

5. In order for a teacher to be dismissed under section 44932, subdivision (a)(8),

for persistent disobedience of applicable rules and regulations, it must be established that
there has been continuous and constant refusal to obey, or behavior motivated by an attitude
of continuing insubordination; a single instance of disobedience is insufficient. (Governing
Bd. of the Oakdale Union School Dist. v. Seaman (1972) 28 Cal.App.3d 77, 81-82.)

6. Even where unprofessional conduct, immoral conduct, dishonesty, evident

unfitness for service, or refusal to follow rules and regulations is or are established, it must
also be established that such conduct renders the Respondent unfit to teach. (Morrison v.
State Board of Education (1969) 1 Cal.3d 214, 229-230 (Morrison); Fontana Unified School
District v. Burman (1988) 45 Cal.3d 208, fn. 12; Woodland Joint Unified School District v.
Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1444-1445; See
Bourland v. Commission on Professional Competence (1985) 174 Cal.App.3d 317, 321.)

7(a). It is settled that the trier of fact may “accept part of the testimony of a witness
and reject another part even though the latter contradicts the part accepted.” (Stevens v.
Parke Davis & Co. (1973) 9 Cal.3d 51, 67.) The trier of fact may also “reject part of the
testimony of a witness, though not directly contradicted, and combine the accepted portions
with bits of testimony or inferences from the testimony of other witnesses thus weaving a
cloth of truth out of selected material.” (Id., at 67-68, quoting from Neverov v. Caldwell
(1958) 161 Cal.App.2d 762, 767.) Further, the fact finder may reject the testimony of a
witness, even an expert, although not contradicted. (Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 890.) Moreover, the testimony of “one credible witness may constitute
substantial evidence,” including a single expert witness. (Kearl v. Board of Medical Quality
Assurance (1986) 189 Cal.App.3d 1040, at 1052.)

7(b). The rejection of testimony does not create evidence contrary to that which is
deemed untrustworthy. That is, disbelief does not create affirmative evidence to the contrary
of that which is discarded. That the trier of fact may disbelieve the testimony of a witness
who testifies to the negative of an issue does not of itself furnish any evidence in support of

15
the affirmative of that issue, and does not warrant a finding in the affirmative thereof unless
there is other evidence in the case to support such affirmative. (Hutchinson v. Contractors’
State License Bd. (1956) 143 Cal.App.2d 628, 632-633, quoting Marovich v. Central
California Traction Co. (1923) 191 Cal.295, 304.)

Legal Conclusions Pertaining to the Specific Allegations of the Accusation:

8. The evidence did not establish that respondent committed an act of dishonesty
within the meaning of section 44932, subdivision (a)(4). The evidence failed to establish that
respondent authored the anonymous letter in question.

9. The evidence did not establish that respondent displayed evident unfitness for
service within the meaning of section 44932, subdivision (a)(4). The evidence failed to
establish the allegations that respondent authored the anonymous letter in question, revealed
confidential student information in the letter, or continuously obstructed the District’s
investigation. Even if the District had proved a single alleged violation, it did not establish
that respondent has fixed character traits that make her unsuitable for school counseling. To
the contrary, the record established that respondent is an excellent school counselor with
many years of good service to the District and its students.

10. The evidence did not establish that respondent engaged in the persistent
violation of or refusal to obey state laws or regulations, or the district’s regulations, for the
governance of schools within the meaning of section 44932, subdivision (a)(8). There was
no evidence that respondent obstructed the District’s investigation in any way. Instead, the
District’s investigation proceeded as planned and the witnesses the District interviewed
cooperated. The handful of brief, inconsequential conversations respondent engaged in with
other school personnel did not amount to her persistent refusal to obey the District’s rules
and regulations.

11. The Commission agrees unanimously that grounds for termination have not
been established, and that consideration of the Morrison factors is therefore not necessary.

12. The Commission unanimously views this case as deeply regrettable, both for
the complainant, who pursued the matter vigorously despite a notable lack of reliable
evidence; and for respondent, whose direct, outspoken manner with the school principal cost
her dearly, as it made her the prime suspect in the District’s investigation.

//

//

//

//

16
 ORDER

Respondent Jill Briquelet shall not be dismissed as a certificated employee of the

Anaheim Union High School District.

DATED: March 23, 2017

___________________________
AMBER HUGHES
Commission Member

DATED: March 23, 2017

___________________________
ADAM CAMACHO
Commission Member

DATED: March 23, 2017

___________________________
JOHN E. DECURE
Administrative Law Judge
Office of Administrative Hearings

17
 BEFORE THE
COMMISSION ON PROFESSIONAL COMPETENCE
JURUPA UNIFIED SCHOOL DISTRICT

In the Matter of the Proceeding to Dismiss:

PATRICIA CRAWFORD, OAH No. 2017051349

Respondent.

DECISION

This matter came on regularly for hearing before the Commission on Professional
Competence in Jurupa Valley, California on October 3, 4, and 5, 2017. The Commission was
comprised of the following members: Administrative Law Judge (ALJ) Mary Agnes
Matyszewski, Erika Bennett and Van Parker.

Kerrie McNally, of Adams, Silva, & McNally, represented the Jurupa Unified School
District.

Lawrence B. Trygstad and Richard Schwab, of Trygstad, Schwab & Trygstad,

represented respondent Patricia Crawford, who was present throughout the hearing.

On October 20, 2017, the Commission met to deliberate and the matter was submitted.

CASE SUMMARY

Ms. Crawford was employed as a high school guidance coordinator. In 2014 and 2017,
Ms. Crawford posted messages on Facebook that the district alleged demonstrated she engaged
in immoral conduct and was unfit to serve. Ms. Crawford’s posts, particularly her posts
following the February 2017 “Day without Immigrants” protest, constituted immoral conduct
and demonstrated she was unfit to serve. After considering all of the evidence presented, the
Commission concluded that the allegations warranted her dismissal from the district.

1
 FACTUAL FINDINGS

Jurisdictional Matters

1. Ms. Crawford was employed by the Jurupa Unified School District as a

guidance coordinator. At all relevant times Ms. Crawford was a guidance coordinator at
Rubidoux High School (RHS).

2. On February 16, 2017, Ms. Crawford made Facebook posts on a fellow

teacher’s Facebook page.1

3. On February 17, 2017, the district placed Ms. Crawford on paid administrative
leave pending the outcome of its investigation.

4. On May 1, 2017, the district served Ms. Crawford with a draft Notice of Intent
to Dismiss advising her of the district’s intent to dismiss her from employment. The notice
also informed her of her right to a Skelly hearing, and set a date for that proceeding.2

5. On May 11, 2017, Trent Hansen, the district’s Assistant Superintendent of

Planning and Development, who served as the Skelly officer, sent Ms. Crawford a letter
informing her that “after carefully reviewing” the charges, her responses and a letter of
support, he determined that there was “a reasonable basis to sustain the recommendation that
you be terminated and immediately suspended from your employment with the District.” On
that same date, Tamara Elzig, the district’s Deputy Superintendent, Personnel Services,
advised Ms. Crawford that the Skelly officer’s recommendation was to suspend and terminate
Ms. Crawford’s employment and that Ms. Elzig would be making that recommendation to
the governing board.

6. On May 15, 2017, the district’s governing board met to decide whether to
issue the Notice of Intent to Dismiss and Immediately Suspend without Pay; and Statement
of Charges against Ms. Crawford. The governing board voted 4-1 to adopt the Notice of
1
As noted below, in this proceeding, the district also alleged Ms. Crawford sent
improper emails on February 16, 2017, and made a 2014 Facebook post. In her closing
argument, the district’s counsel argued that the 2014 Facebook post was alleged to
demonstrate that Ms. Crawford had a “propensity to post on Facebook.”
2
In Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215, the California
Supreme Court held that in order to satisfy due process, an agency considering disciplinary
action against a public employee must accord the employee certain “preremoval safeguards,”
including “notice of the proposed action, the reasons therefor, a copy of the charges and
materials upon which the action is based, and the right to respond, either orally or in writing,
to the authority initially imposing discipline.” The Supreme Court’s directive gave rise to an
administrative procedure known as a Skelly hearing, in which an employee has the
opportunity to respond to the charges upon which the proposed discipline is based.

2
Intent to Dismiss and Immediately Suspend without Pay; and Statement of Charges, placed
Ms. Crawford on unpaid suspension effective May 16, 2017, and authorized the
superintendent or his designee to serve a copy of the charges on Ms. Crawford.

7. On May 15, 2017, Ms. Elzig signed the Notice of Intent to Dismiss and
Immediately Suspend without Pay; and Statement of Charges in her official capacity. The
notice sought to immediately dismiss Ms. Crawford from employment with the district on the
grounds of immoral conduct (Education Code section 44932, subdivision (a)(1)) and evident
unfitness for service (Education Code section 44932, subdivision (a)(6)).

8. On June 30, 2017, ALJ Carmen Scruggs denied Ms. Crawford’s Motion for
Immediate Reversal of Suspension. Ms. Crawford remains on unpaid suspension.

9. Ms. Crawford timely appealed the dismissal action, denying that grounds for
her dismissal from employment existed, and this hearing ensued.

Motions in Limine

10. The parties filed several motions in limine, objections and oppositions thereto.
Tentative rulings were issued, and the parties were allowed to orally argue their positions at
the start of trial, after which final rulings were issued.

Ms. Crawford’s Education and Employment History

11. Ms. Crawford was raised in a military home; her father was an Air Force pilot.
She graduated high school at age 16 and wanted to join the military, but was too young.
When she turned 18, she joined the Army where she served as a teletype repairman from
1975 to 1978 when she was honorably discharged. She returned to school and received a
Bachelor of Arts Degree in Spanish, French, German, and Russian from Emporia State
University in Emporia, Kansas. After graduation, she was commissioned as an Army officer,
serving as a military intelligence officer. On one tour of duty, she was stationed in Honduras
as part of the tri-national army support during “the civil war.” While stationed there, she
performed volunteer work on medical missions.

After being honorably discharged, she entered the seminary in Oregon where she
received a Master’s of Divinity Degree. She married a fellow student whom she met in the
seminary and after graduation she served for three years as a minister. After becoming
pregnant with her first child, she began substitute teaching in 1993, first working on an
emergency credential and then obtaining a clear secondary English credential. She has her
pupil personnel services (PPS) credential and a Master’s Degree in Educational Counseling.
She taught in four other school districts before coming to the Jurupa Valley district in 2006.
She began working at RHS in 2009.

3
Board Policies

12. The district introduced several board policies, but those addressed the correct
usage of district equipment. None of the policies set forth procedures or restrictions
regarding the use of private e-mail or Facebook accounts.

Ms. Crawford’s 2014 Facebook Post

13. On November 7, 2014, Ms. Crawford was attending an RHS football game in
a supervisory role as part of her employment duties. While at the game, she posted the
following message on Facebook: “I can’t wait for this game to be over. I can’t bring myself
to root for them tonight.”

Four individuals replied to her post. One person liked it, another posted: “What’s
up?” and another posted: “I was wondering if they were going to be allowed to play still.
That answered my question.” A fourth person posted: “There’s [sic] still a lot of good kids
on this team” to which Ms. Crawford replied: “I know that there are, [fourth person’s
name].”

RHS Assistant Principal Todd Moerer sent RHS Principal Jose Araux, Ed.D., an e-
mail attaching Ms. Crawford’s post and the responses to it. Mr. Moerer wrote: “FYI- this is
a Facebook post that Pat Crawford posted on Friday night at the game. Don’t know if it
should be addressed or not, just thought you may want to know where her attitude is. (Not
surprising) [sic]” Dr. Araux emailed the following reply to Mr. Moerer: “I will double
check with Tammy. She is exercising her Constitutional Freedom of Speech, however, doing
this instead of supervising. I don’t know if this time is considered working time for GC’s.3”
At this hearing, Dr. Araux admitted that he took no action against Ms. Crawford because of
this post, nor did he talk to her about it.

Ms. Crawford’s testimony regarding this post is summarized as follows: Members of

the RHS football team were involved in an incident where they encouraged two special
education students to engage in a sexual act that the football players videotaped; she was
“shocked” the football game was allowed to go forward because of the behavior of a few
players; she was never disciplined about this post; she did not know her Facebook post was a
problem or that her assistant principal and principal had exchanged an email about it until
this case; had she been told not to post on Facebook, she would have followed that direction
because she is a “rules person.”

//

3
Guidance Coordinator.

4
Ms. Crawford’s February 16, 2017, Email and Facebook Posts

14. On February 16, 2017, several hundred4 RHS students participated in the
nationwide “Day without Immigrants” protest.5 The protest was designed to demonstrate the
contributions immigrants make to our country and the impact their absence would cause.
RHS experienced an abnormally high absence rate that day; approximately 22 percent of
students were absent.

15. On the afternoon of February 16, 2017, an RHS teacher, Robin Reed Riggle,
sent Ms. Crawford an e-mail about the high number of absences she was observing in her
classroom and asked if other staff had reported “this kind of absenteeism today.” In reply,
Ms. Crawford emailed: “The PROFESSIONAL staff members and SERIOUS students are
here today, boycott be darned.” Ms. Riggle responded: “Absolutely! I had seen it on the
news and was just wondering what kind of impact it would have. Lots of ADA6 money!
Have a wonderful afternoon, Pat.” To which Ms. Crawford replied, “You, too, Robin.”

16. Later that afternoon, Geoffrey Greer, at the time an RHS teacher, posted the
following message on his Facebook page:

Well. A day without immigrants. Perhaps the missing workers

in all the various industries out there had the intended impact
and sent the desired message. I don’t know. As for the public
school system, having my class size reduced by 50% all day
long only served to SUPPORT Trump’s initiatives and prove
how much better things might be without all this overcrowding.

That’s what you get when you jump on some sort of bandwagon
cause as an excuse to be lazy and/or get drunk. Best school day
ever.

In response to Mr. Greer’s post, four other RHS teachers and Ms. Crawford posted
messages on Mr. Greer’s Facebook page. Ms. Crawford was the last of the district’s
employees to respond. Ms. Crawford posted the following messages:

Cafeteria was much cleaner after lunch, lunch, itself, went

quicker, less traffic on the roads, and no discipline issues today.
More, please.
4
357 students were absent on February 16, 2017; 286 of whom had unexcused
absences.
5
According to the testimony from district witnesses, 91 percent of the student body at
RHS is Hispanic and many of the students’ parents are immigrants.
6
Average Daily Attendance.

5
 Several people posted messages after Ms. Crawford’s message criticizing the
“teachers” for their posts. In response to those messages, an individual named C C
made the following post:

Let’s not just focus on the teachers here, a counselor, who I

looked up to made a remark. Very very disappointing.

In response to that post, Ms. Crawford posted the following on Mr. Greer’s page:

Disappointing is to think that some of my students still don’t get

it about education. Staff members who are sympathetic to the
cause were at school today. The kids who care were there. The
professional staff members were there. What I saw today was
more proof, just like last year, that boycotts, especially of
education, aren’t the answer. It just keeps the ones who need it
the most as useful fools.

A few minutes later, another student, named J , posted: “[The first line was
illegible because the copy introduced at hearing was cut off] . . . understand, you don’t
understand what it feels like to have counselors that belittle what you want to be. That when
you’re trying to aim high, they tell you that you can’t.” In reply, Ms. Crawford posted:
“J , any counselor who chops you off at the knees like that shouldn’t be a counselor.
That’s why today upset me so much. I want my students to go out there and stand proud.
Education is one way to do that.” In response to Ms. Crawford’s post to J , an
individual named Andrew Avila posted: “Patricia Crawford, in your previous statement
above you said ‘more please!’, meaning you want more of your students to not keep coming
to class like today. Why contradict yourself now?”

Ms. Crawford’s final post before she logged off Facebook on February 16, 2017, was:

And I’m the great-granddaughter of immigrants. I care. But

this isn’t the way to go about effecting change. My post was
meant to be snarky. Get over yourselves.

Ms. Crawford’s testimony regarding her 2017 Facebook posts is summarized as

follows: she “did not understand how Facebook accounts worked”; she “had no idea” that
Mr. Greer’s Facebook account was public; she thought the posts were simply other district
employees “sharing their observations regarding the day” to which she was adding her
observations; had she known it was public she would never have posted on it; in her first post
she was only stating facts; she meant there were fewer students on campus so the cafeteria
was cleaner (describing the trash/seagull issues at lunch); there was less traffic on the roads
making her daily 90 mile commute shorter, and it was “a joy” to have a day with no
discipline; her “Disappointing” post was intended to respond to the post by the student, C
C , to let C know that she cared about students; the idea that her words were
“misconstrued” or that they hurt others upsets her; she does not know if the word “fools” was

6
a typo, she may have meant to type “tools”; she realized after reading subsequent posts that
nothing she could post would clarify her statements or make a difference so she stopped and
“got off Facebook” at approximately 6:00 p.m.; she immediately began receiving IMs7 but
did not open them because the parts of the messages she could read were “pretty disgusting”
in that they called her a “f**king racist,” “Nazi,” the “C” word, and posted: “I hope you
die”; these statements scared her; she described the “traumatic to say the least” effects her
posts have had on her.

Ms. Crawford’s February 17, 2017, Email to Mr. Araux

17. On February 17, 2017, at 5:39 a.m., Ms. Crawford sent the following e-mail to
Mr. Araux and Ms. Elzig, with a copy to Paul Jensen:

Last night, on Facebook, I responded to a colleague’s

post with an observation, as did a few other teachers. Former
students became very angry, which caught me by surprise. I
responded to one of the former student’s hatefulness, trying to
defend myself, and ended the post with “get over yourselves,”
as in understand that my original post was a joke. I believe that
part of the comment has been reposted and taken out of context.
I then started receiving threatening IMs. I deleted my Facebook
account.

Since after the election, I can no longer eat lunch in the

staff lounge because of the ongoing anti-Caucasian
conversations. The environment has become very
uncomfortable at RHS. Even so, I have not let the environment
affect how I deal with my students. I am a professional, and I
care deeply about ALL of my students.

Because of the comments taken out of context, and the

threats that I received via IM, I don’t feel safe going to work
today.

If I’m being put on Administrative leave, please let me

know. I am not part of NEA-J, and will be getting my own
lawyer.

The Commission found this email to be disingenuous, self-serving, and an attempt by

Ms. Crawford to falsely make it appear as though RHS was a hostile work environment. The
Commission also found this email to be an additional example of Ms. Crawford’s failure to
appreciate the magnitude of her actions and to take responsibility for them.
7
Ms. Crawford testified that IMs are Instant Messages on Facebook and are ways that
people on Facebook who are not your Facebook friends can contact you.

7
RHS Student Body and Campus Reaction

18. Some of the replies to the district employees’ Facebook posts called on the
students to take action and some advocated violence. The next morning on campus, two of
the classrooms of teachers who had posted on Facebook were vandalized. Photographs of
the swear words and statements spray-painted on the walls outside of those two teachers’
classrooms were introduced at hearing.

19. Mr. Araux and Ms. Elzig testified about the student protest at school the
morning after the Facebook posts which culminated in a walkout at lunch. Hundreds of
students left campus and marched through the community. Ms. Elzig described the anger she
observed, how the students stormed the flagpole, attempted to raise a Mexican flag, and how
they stormed the school fences, shaking and climbing them, leading her to open the gates so
that students were not harmed. Ms. Elzig described the concern she felt watching the
students march through the streets, attempt to march onto the local highway, and how law
enforcement attempted to contain the students to protect them from injury.

20. Mr. Araux and Ms. Elzig described the many efforts the district made
following these Facebook posts to address the issues raised by the posts and to help RHS and
the community heal. Ms. Crawford’s argument that community sentiment waned because
only a handful of people came to meet with Mr. Araux after being invited to do so was not
persuasive and paled in comparison to the enormous amount of emails sent.

21. Three teachers at RHS testified about the impact the Facebook posts had on
them, their classroom instruction, RHS, the district, and the community. The three teachers
expressed how upset the posts made them and the backlash they received from students and
the community. One teacher explained how he was contacted by a student asking if he
agreed with the comments. That teacher also believed that Ms. Crawford’s post gave “tacit
approval” to Mr. Greer’s “lazy/drunk” post. Another teacher became extremely emotional
while testifying, explaining how upsetting it was for her students to question her values and
distrust her. A third teacher testified about the loss in instructional time because of the time
spent discussing the posts with students. The testimony from these three teachers established
the extremely negative impact that Ms. Crawford’s Facebook posts had on the school and the
community.

22. Daniel Brooks, the district’s Director of Personnel, described how he was
tasked with speaking with parents and community members about the Facebook posts. He
described how upset the parents and community members were, that they felt the Facebook
posts were discriminatory, and how they demanded that the district take action. Mr.
Brooks’s testimony established the large negative impact Ms. Crawford’s posts caused.

23. Three current students and one former student testified about the negative
impact Ms. Crawford’s posts had on them. They explained how the posts demonstrated that
she could not be a role model, the negative view the posts had of Hispanics and immigrants,
and how upset they were with the negative way that Ms. Crawford viewed the students who

8
stayed home from school in support of the Day without Immigrants. They did not or would
not want her as their school counselor and they had lost trust in her.

Community Reaction

24. In response to the district’s employees’ Facebook posts, the district received
what can only be described as a “hailstorm response.” The district received hundreds of e-
mails and letters, several telephone calls, and multiple visits, from parents, students, former
parents and former students, community members, individuals and press organizations, both
local and from across the nation, the majority of which were critical of the Facebook posts
and demanded the district take action. While there were some letters of support, the
overwhelming response was critical of the district for allowing these employees to be on staff
and condemned the employees for their Facebook posts.

25. Testimony was received from the district’s witnesses regarding the community
outrage expressed at the board meeting about the posts. The board meeting was broadcast by
several news organizations, including ones from across the country, and video excerpts of a
few of the public presentations at the board meeting were played during this hearing. Again,
overwhelmingly, the reaction to the posts was negative.

26. Several media accounts of the Facebook posts were received. These
demonstrated that notoriety of the Facebook posts both in the district and across the country.8

27. Ms. Crawford’s argument that the responses to the Facebook posts were not
about Ms. Crawford because those responses referenced “teachers” and not “counsellor” was
not persuasive. It was clear that Ms. Crawford’s posts were included as a cause for the
backlash the district received. In fact, interestingly enough, Ms. Crawford’s counsel referred
to her as a “teacher” in his closing argument, lending further support to the Commission’s
finding that references to “teacher” in the emails included Ms. Crawford.

28. Gale Hammons, the district’s Communications and Public Relations

contractor, testified about her monitoring of social media sites and the extreme negative
public reaction to the 2017 Facebook posts. In addition to Facebook, the messages “went
viral” on several social media accounts and were reposted numerous times.

Ms. Crawford’s Character Witnesses’ Testimony

29. Ms. Crawford called no current RHS employees to testify on her behalf.
Victoria Kelley, a former teacher in the district, testified in support of Ms. Crawford.
8
Pursuant to the ruling on the motions in limine, Official Notice of the existence of
news accounts was taken, but the content of them was subject to hearsay objections. The
existence of the articles was considered to evaluate factors outlined in Morrison v. State
Board of Education (1969) 1 Cal.3d 214 and to establish the notoriety of the conduct as
discussed in Board of Education v. Jack M. (1977) 10 Cal.3d 691.

9
However, as was established during her cross-examination, when Ms. Kelley was a district
employee, she repeatedly lied about being sick when she was actually out partying and
posting her exploits on Facebook. Ms. Kelley testified falsely at this hearing when she
denied ever being disciplined for her conduct. The district introduced the letter of reprimand
it issued to Ms. Kelley regarding her dishonesty, identifying the numerous dates that she lied
about her absences. Accordingly, Ms. Kelley’s testimony was afforded no weight.

30. James Bosenberg is a handyman who does work for Ms. Crawford and knows
her from church. Although he testified that she has always been respectful towards him,
because he relies on her as a source of income, his testimony was not persuasive.

31. Samuel Mills owns the cleaning company that provides maid service in Ms.
Crawford’s home. He, too, testified that she has always been respectful but, as with Mr.
Bosenberg, he relies on Ms. Crawford as a source of income, making his testimony
unpersuasive.

Additional Testimony Offered by Ms. Crawford

32. In addition to the testimony summarized above, Ms. Crawford also described
the work she has performed for students at RHS. Her testimony regarding her work with
students seemed little more than her rotely checking off boxes; she failed to demonstrate that
she formed any real connection with the students or that she cared for their well-being.
Moreover, her testimony failed to establish that she had any insight into the damage her
Facebook posts caused the students and the community. What was clear is that she was
concerned for her own welfare given the backlash she received, but she never once
throughout this hearing demonstrated any appreciation for the injury her words caused
others. Her testimony about being sorry seemed insincere and contrived. It was also
disconcerting that Ms. Crawford testified that she reinstated her Facebook account not long
after these posts, further demonstrating her lack of any understanding of her actions.

Ms. Crawford’s Letters of Reference and Evaluations

33. Ms. Crawford introduced several letters of reference, explaining that she
gathered them when looking to apply for other positions. Although the letters were very
complimentary, they were insufficient to overcome the grave concerns raised by Ms.
Crawford’s emails, Facebook posts and testimony.

34. Ms. Crawford introduced her evaluations, demonstrating that she received
overall ratings of meets or exceeds expectations. As with her letters of reference, while these
demonstrated she received successful reviews, they were simply not enough to overcome the
concerns raised by her e-mails, Facebook posts or her testimony.

10
 LEGAL CONCLUSIONS

Applicable Code Sections

1. A permanent employee may be dismissed for cause only after a dismissal

hearing. (Ed. Code, §§ 44934 and 44944.)

2. Education Code section 44932 provides the grounds for dismissing a

permanent employee. Subdivision (a)(1) authorizes dismissal for immoral conduct.
Subdivision (a)(6) authorizes dismissal for evident unfitness for service.

3. Education Code section 44944 establishes the right to a hearing, the process
for selecting the three-member Commission on Professional Competence, and the
Commissions’ authority regarding its final decision.

4. Education Code section 44938 outlines the procedures the governing board
must follow before acting on any charges brought against a permanent employee.

Burden and Standard of Proof

5. The “burden of proof” means the obligation of a party, to convince the trier of
fact that the existence of a fact sought to be proved is more probable than its nonexistence.
(Redevelopment Agency v. Norm’s Slauson (1985) 173 Cal.App.3d 1121, 1128.)

6. The standard of proof in a teacher dismissal proceeding is a preponderance of

the evidence. (Gardner v. Commission on Professional Competence (1985) 164 Cal.App.3d
1035, 1039-1040.) A preponderance of the evidence means that the evidence on one side of
an issue outweighs, preponderates over, and is more than, the evidence on the other side of
the issue, not necessarily in number of witnesses or quantity, but in the convincing effect the
evidence has on those to whom it is addressed. In other words, the term refers to evidence
that has more convincing force than that opposed to it. (People ex rel. Brown v. Tri-Union
Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567.)

Immoral Conduct

7. The term “immoral” has been defined generally as that which is hostile to the
welfare of the general public and contrary to good morals. The term “immoral conduct” has
been defined to include conduct inconsistent with rectitude, or indicative of corruption,
indecency, depravity, dissoluteness; or as willful, flagrant, or shameless conduct showing
moral indifference to the opinions of respectable members of the community, and as an
inconsiderate attitude toward good order and the public welfare. “Immoral conduct” is not
confined to sexual matters. It includes an inconsiderate attitude toward good order and the
public welfare. It is sometimes synonymous with “dishonesty” or a high degree of
unfairness. (Board of Ed. of San Francisco Unified School Dist. v. Weiland (1960) 179

11
Cal.App.2d 808, 811, noting that no other California cases had previously defined the term
“immoral conduct.”)

8. “Immoral conduct” is conduct hostile to the welfare of the general public and
is not confined to sexual matters. (San Diego Unified School Dist. v. Commission on
Professional Competence (2011) 194 Cal.App.4th 1454, 1466.)

9. Immoral conduct cannot be considered in the abstract. It must be considered

in the context in which the Legislature considered it, as conduct which is hostile to the
welfare of the general public; more specifically, conduct which is hostile to the welfare of the
school community. In providing standards to guide school boards in placing restraints on
conduct of teachers, the Legislature is concerned with the welfare of the school community.
Its objective is the protection of students from corruption. This is a proper exercise of the
power of a state to abridge personal liberty and to protect larger interests. But
reasonableness must be the governing criterion. (Morrison v. State Board of Education
(1969) 1 Cal.3d 214, 224.) The phrase “immoral conduct” within the meaning of the
Education Code denotes immoral or unprofessional conduct or moral turpitude of the teacher
that renders the teacher unfit to teach. (Ibid. at p. 225.)

10. There are certain professions which impose upon persons attached to them
responsibilities and limitations on freedom of action which do not exist in regard to other
callings. Public officials such as judges, policemen and schoolteachers fall into such a
category. (Board of Trustees v. Stubblefield (1971) 16 Cal.App.3d 820, 824.)

11. “As between a teacher and his student, ‘(a)n important part of the education
. . . is the instilling of a proper respect for authority and obedience to necessary discipline.
Lessons are learned from example as well as from precept.’ (Citation.) ‘A teacher . . . in the
public school system is regarded by the public and pupils in the light of an exemplar, whose
words and actions are likely to be followed by the [students] coming under [his] care and
protection. . . . The teaching by example as well as precept, of obedience to properly
constituted authority and discipline necessary to a well ordered society, is an important part
of education.’” (Watson v. State Bd. of Education (1971) 22 Cal.App.3d 559, 565.)

12. “The calling of an educator is so intimate, its duties so delicate, the things in
which a teacher might prove unworthy or would fail are so numerous that they are incapable
of enumeration in any legislative enactment. The educator’s ability to inspire children and to
govern them, his power as an educator, and the character for which he stands are matters of
major concern in an educator’s selection and retention. . . . An educator in the public school
system is regarded by the public and pupils in the light of an exemplar, whose words and
actions are likely to be followed by the students coming under his care and protection.
(Citation.)” (San Diego Unified School District v. Commission on Professional Competence
(2011) 194 Cal.App.4th 1454, 1463-64.)

13. The governing board of a district is entrusted with the conduct of the schools
under its jurisdiction, their standards of education, and the moral, mental, and physical

12
welfare of the pupils during school hours. An important part of the education of any child is
the instilling of a proper respect for authority and obedience to necessary discipline. Lessons
are learned from example as well as from precept. “Book learning” is only a phase of the
important lessons a child should learn in a school. (Palo Verde Unified School District of
Riverside County v. Hensey (1970) 9 Cal.App.3d 967, 970–71.)

14. Rejecting statutory terms, such as “immorality,” “unprofessional conduct,” or

“moral turpitude” as overly broad to use as grounds for discipline of public school teachers,
the Morrison court created a seven-part test to assess whether a misbehaving teacher is fit to
teach. (Broney v. California Com. on Teacher Credentialing (2010), 184 Cal.App.4th 462,
466.) “Because terms such as ‘immoral,’ ‘unprofessional,’ or ‘involving moral turpitude’ are
too broad and amorphous to be used as a basis for the termination of a professional license, it
must be shown the conduct in question indicates an unfitness to engage in the profession.”
(Id. at pp. 473-74.)

15. Since the term “immoral conduct” is vague and broad, whether the conduct
demonstrates an unfitness to teach must be measured against seven criteria set forth in
Morrison. (Governing Board of ABC Unified School District v. Haar (1994) 28 Cal.App.4th
369, 383.)

Evident Unfitness for Service

16. The applicable standard or determinative test in teacher dismissal cases is

whether the person is fit to teach. “Fitness to teach” is a question of ultimate fact. (Board of
Education v. Commission on Professional Competence (1980) 102 Cal.App.3d 555, 560-
561.)

17. “Evident” is defined as “clear to the vision and understanding.” “Unfit” is

defined as “not fit; not adapted to a purpose, unsuitable; incapable; incompetent; and
physically or mentally unsound” and “unsuitable, incompetent and not adapted for a
particular use or service.” (Palo Verde Unified School District of Riverside County v.
Hensey (1970) 9 Cal.App.3d 967, 972.)

18. In Woodland Joint Unified School Dist. v. Commission on Professional

Competence (1992) 2 Cal.App.4th 1429, the court noted the two parallel, yet contradictory,
lines of cases regarding “unfit for service.” One line of cases equated that term with
“unprofessional conduct” and the other line of cases distinguished the two definitions. In
deciding that the latter line of cases was the correct way to evaluate “unfit to serve,” and
complied with the rules of statutory construction. The Woodland court concluded that
“unprofessional conduct” and “evident unfitness for service” do not mean precisely the same
thing. Although conduct constituting “evident unfitness for service” will often constitute
“unprofessional conduct,” the converse is not always true. Evident unfitness for service
requires that unfitness for service be attributable to defect in temperament, which is not
necessary for a finding of unprofessional conduct. Nevertheless, lower courts may not
disregard the criteria for unfitness set out in Morrison where that court concluded that

13
“unprofessional conduct” meant conduct showing a teacher was unfit to teach. These criteria
must be analyzed to determine, as a threshold matter, whether the conduct indicates unfitness
for service. If it does, the next step is to determine whether the “unfitness” is “evident”; i.e.,
whether the offensive conduct is caused by a defect in temperament. (Id. at pp.1442-1445.)
A finding of “unfit to serve” can be made if the evidence, taken in the aggregate, shows that
retaining the employee would pose a significant danger of psychological harm to students
and fellow teachers. (Id. at p.1456.)

19. An employee can be dismissed from the teaching profession only upon a
showing that his retention in the profession poses a significant danger of harm to either
students, school employees, or others who might be affected by his actions as a teacher. The
inquiry is whether any adverse inferences can be drawn from the teacher’s conduct as to his
teaching ability, or as to the possibility that publicity surrounding the past conduct may in
and of itself substantially impair his function as a teacher. (Morrison, supra, at p. 235.)

20. To establish a teacher is unfit to teach, Morrison requires a nexus between

government employment and alleged employee misconduct stemming from the principle that
“[n]o person can be denied government employment because of factors unconnected with the
responsibilities of that employment.” (San Diego Unified School District v. Commission on
Professional Competence (2011) 194 Cal.App.4th1454, 1463.)

21. “Unlike ‘unprofessional conduct,’ ‘evident unfitness for service’ connotes a

fixed character trait, presumably not remediable merely on receipt of notice that one’s
conduct fails to meet the expectation of the employing school district.’” (San Diego Unified
School District v. Commission on Professional Competence (2013) 214 Cal.App.4th 1120,
1142-43.)

22. An employee’s actions on a given day may suggest a lack of judgment and
discretion, or may be an isolated act precipitated by an unusual accumulation of pressure and
stress. An absence of any other incidents in the employee’s teaching career suggestive of
lack of judgment or discretion can further distinguish the aberrant character of the act at
issue. In such a case, a fact finder could reasonably conclude that the isolated incident of
poor judgment was overweighed by years of demonstrated teaching competence, and that on
balance the employee possessed the qualities of character necessary for teaching fitness.
(Board of Education v. Jack M. (1977) 19 Cal. 3d 691, 696-701.)

23. In determining whether the teacher’s conduct indicated unfitness to teach, such
matters as (1) the likelihood that the conduct may have adversely affected students or fellow
teachers, (2) the degree of such adversity anticipated, (3) the proximity or remoteness in time
of the conduct, (4) the extenuating or aggravating circumstances, if any, surrounding the
conduct, (5) the likelihood of the recurrence of the questioned conduct, and (6) the notoriety
and publicity accorded the teacher’s conduct may be considered. (Jack M., supra., at p.702,
footnote 5.)

14
 24. The nexus between an employee’s conduct and his fitness to teach is
established when the conduct is detrimental to the mission and functions of the employer.
Factors to consider are whether the acts demonstrate a serious lapse in good judgment, the
teacher failed to recognize the seriousness of his misconduct, the teacher attempted to shift
blame to parents and students who might access his posting, his principal had lost confidence
in his ability to serve as a role model based upon the posting, or, most noteworthy, the
teacher’s testimony that he did not think his postings would have any impact on his ability to
teach his students if any of them had viewed his post and that he did not view his posting as
immoral. The conduct itself, together with the teacher’s failure to accept responsibility or
recognize the seriousness of it, given his position as a teacher and role model, demonstrates
evident unfitness to teach. (San Diego Unified School Dist. v. Commission on Professional
Competence (2011) 194 Cal.App.4th 1454, 1465-66.)

25. One act does not alone demonstrate the unfitness of the teacher, but is simply
one of the factors to be considered. (Board of Education v. Commission on Professional
Competence (1980) 102 Cal. App.3d 555, 561-62.)

26. There must be a nexus between the teacher’s conduct and his usefulness to the
school district and only when so construed can grounds to dismiss for immoral conduct or
unfitness to serve be constitutionally applied. (Board of Trustees v. Judge (1975) 50 Cal.
App. 3d 920, 929.)

Morrison Factors

27. In Morrison, supra, the Supreme Court suggested seven factors to consider
when evaluating whether the school employee should be dismissed: (1) the likelihood that
the conduct adversely affected students or fellow teachers and the degree of such adversity;
(2) the proximity or remoteness in time of the conduct; (3) the type of teaching certificate
held by the teacher; (4) the existence of extenuating or aggravating circumstances and
publicity, if any, surrounding the conduct; (5) the praiseworthiness or blameworthiness of the
motives resulting in the conduct; (6) the likelihood of recurrence of the questioned conduct;
and (7) the extent that the discipline may adversely impact or have a chilling effect on the
constitutional rights of the teacher.

28. The Morrison factors may be applied to the charges in the aggregate. When a
camel’s back is broken, the trier of fact need not weigh each straw in its load to see which
one could have done the deed. A trier of fact is entitled to consider the totality of the
offensive conduct. (Woodland Joint Unified School Dist. v. Commission on Professional
Competence (1992) 2 Cal.App.4th 1429, 1456-1457.)

29. Only the pertinent Morrison factors need to be analyzed. (Broney v.

California Com. on Teacher Credentialing (2010) 184 Cal.App.4th 462, 476.)

15
Other Discipline Considerations

30. An administrator’s loss of confidence in the educator and doubt regarding the
educator’s ability to serve as a role model for students are factors that may be considered.
(San Diego Unified School District v. Commission on Professional Competence (2011) 194
Cal.App.4th 1454, 1460.)

31. The notoriety and publicity accorded a teacher’s conduct may properly be
considered. (Board of Education v. Jack M. (1977) 19 Cal.3d 691, 701, fn. 5.) If the
teacher’s conduct is sufficiently notorious that the students know or are likely to learn of it,
and if the teacher continues to model his past conduct, the Commission may infer that the
teacher’s conduct may result in student emulation, but such an inference is disputable. (Id.,
at p. 699 and fn. 4.)

32. Where it can reasonably be inferred that the salient facts at issue reached the
attention of many persons in the community, it may also be inferred that the educator’s
conduct attained a degree of timely notoriety among persons - students, teachers, parents, and
others - interested in the high school. (Comings v. State Bd. of Education (1972) 23
Cal.App.3d 94, 105–6.)

33. An educator may be dismissed if the conduct has gained sufficient notoriety so
as to impair his or her on-campus relationships. (Board of Trustees v. Stubblefield (1971) 16
Cal.App.3d 820, 826; Watson v. State Bd. of Educ. (1971) 22 Cal.App.3d 559, 562.)

34. The Commission is vested with discretion not to dismiss an employee even if
grounds for discipline exist. (Fontana Unified School District v. Burman (1988) 45 Cal.3d
209.)

Evaluation

35. Ms. Crawford’s 2017 Facebook posts negatively impacted students, the
school, the district and the community. Her comments were discriminatory and her “get over
yourselves” comment demonstrated her utter lack of understanding or appreciation for the
magnitude of her actions. At this hearing she failed to demonstrate any insight for what she
had done, take any real ownership for her actions, or exhibit any empathy for the students or
community she harmed. In short, her presentation was underwhelming.

Her testimony that she thought Mr. Greer’s Facebook page included only district
employees was not credible and was belied by the facts. Three messages posted before Ms.
Crawford posted her first message were from individuals who were not employed by the
district. Ms. Crawford, by her own admission knew C C was a student when she
responded to that post; and, at a minimum, she had a Facebook account from 2014 to 2017, a
span of three years, so to think she did not know the public nature of Facebook was absurd,
as was her testimony that her first post was merely a recitation of facts. Her repeated claim
that her words were “misconstrued” demonstrated her failure, even today, to appreciate the

16
effects that her posts had and to accept responsibility for her actions. Moreover, her claim
that she did not realize her words would be “misconstrued” was disingenuous; how she could
not know her posts were improper was astounding. Her claim was all the more baffling
given her level of education, international relief work, her extensive career as a counselor,
and her employment in the district at a school site where more than 90 percent of the student
body is Hispanic. In addition, if one were to adopt respondent’s counsel’s argument that
“any reasonable person would agree” that Mr. Greer’s initial post “would incite” the
community reaction that occurred, it is even more confounding that Ms. Crawford,
presumably a reasonable person, failed to perceive that her post on Mr. Greer’s Facebook
page would be viewed negatively as well. Ms. Crawford’s claim that her first post was
merely a “recitation of the facts,” was not credible and was refuted by the evidence. Her
“more please” comment showed her disdain for the students who participated on the boycott.
Ms. Crawford’s attitude and lack of insight makes it likely she will engage in this behavior
again. These conclusions were reached after applying the Morrison factors.

Cause Exists to Dismiss Ms. Crawford

36. Cause exists to dismiss Ms. Crawford pursuant to Education Code section
44932, subdivision (a)(1), because the evidence established that Ms. Crawford engaged in
immoral conduct.

37. Cause exists to dismiss Ms. Crawford pursuant to Education Code section
44932, subdivision (a)(6), because the evidence established that Ms. Crawford was evidently
unfit for service.

//

//

//

//

//

17
 ORDER

Ms. Crawford’s appeal of her dismissal from employment with the Jurupa Unified
School District is denied. The district’s request to dismiss Ms. Crawford is granted. Ms.
Crawford shall be dismissed from the district.

DATED: November 13, 2017

___________________________
VAN PARKER
Commission Member

DATED: November 13, 2017

___________________________
ERIKA BENNETT
Commission Member

DATED: November 13, 2017

______________________________
MARY AGNES MATYSZEWSKI
Administrative Law Judge
Office of Administrative Hearings

18
 BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA

In the Matter of the Accusation Against:

OAH Case No. 2016050044
BEATRICE ESSAH (EN 716647), A
Permanent Certificated Employee of the Los
Angeles Unified School District,

Respondent.

DECISION

This matter was heard by Thomas Y. Lucero, Administrative Law Judge (ALJ),
Office of Administrative Hearings (OAH), in Los Angeles, California. Under Education
Code section 44944, the parties submitted a statement in writing, Exhibit 7, to OAH,
indicating that both parties waived the right to convene a Commission on Professional
Competence and stipulated to having the hearing conducted by a single ALJ.

Complainant was represented by Meredith Karasch and Michael Voight, each

assistant general counsel to the Los Angeles Unified School District (LAUSD or the
District).

Respondent Beatrice Essah was represented by Rosemary O. Ward, Rosty G. Gore,

and Deborah Eshaghian, Attorneys at Law.

Oral and documentary evidence was received and argument was heard. The matter
was submitted for decision on March 28, 2017.

SUMMARY

The District seeks the termination of the respondent tenured teacher. It asserted five
statutory grounds: (i) unprofessional conduct (§ 44932, subd. (a)(2) 1; (ii) unsatisfactory
performance (§ 44932, subd. (a)(5)); (iii) evident unfitness for service (§ 44932, subd. (a)(6);
(iv) persistent violation of or refusal to obey school laws of the state or reasonable
regulations for the government of schools (§44932, subd. (a)(8); and (v) willful refusal
without reasonable cause to perform regular assignments as prescribed by reasonable rules

1
Statutory citations are to the Education Code unless otherwise noted.
and regulations of the employing district (§44939). The evidence favored the District’s case,
indicating that respondent’s teaching methods were substandard, she was unable to improve,
though provided much guidance and assistance toward that end, and her relations with other
teachers and administrators was contentious and detrimental to learning.

FACTUAL FINDINGS

1. Complainant Justo H. Avila executed the accusation in his official capacity as

the District’s Chief Human Resources Officer.

2. Respondent is a certificated teacher employed by the District. The District

commenced proceedings on March 25, 2016, when complainant executed a statement of
charges against respondent and caused it to be filed with the District’s governing board.
(Exhibit 2.).

3. On April 13, 2016, the District gave respondent written notice of its intent to
terminate her (the notice). (Exhibit 1.) Respondent made a timely request for hearing.
(Exhibit 3.) The District served the accusation on respondent by mail on May 10, 2016.
(Exhibit 4.)

4. During the relevant period, that is, at the time of “matters occurring [no] more
than four years before the filing of the notice” (Educ. Code § 44944, subd. (b)(2)(B)),
respondent was teaching at San Fernando Middle School (SFMS). She had two teaching
assignments during the relevant period.

A. In the 2012-2013 and part of the next academic year, respondent was a teacher
in the Resource Specialist Program (RSP). Teachers in the program, resource specialist
teachers (RSTs or RSPs), provide Special Education to students with mild to moderate
learning disabilities and those in need of special assistance in one or more areas of learning.
As an RST, respondent went each day, for part of each class period, to one or another
classroom where General Education teachers taught in self-contained classes. SFMS was
legally required to provide RSP services.

B. Starting in the second half of the 2013-2014 academic year, respondent was an
SDP teacher, that is, a teacher in the Special Day Program (SDP). SDP teachers give special
assistance to students whose learning may be hindered by such things as physical disability
or their status as English language learners. In SDP respondent was a teacher in a self-
contained sixth-grade class.

Respondent’s October 2012 Dispute with SFMS Administration

5. During the relevant period, Freddy Ortiz was the Principal at SFMS. At his
request in 2012 (and later), Michael Harrington, one of the Assistant Principals at the school,
observed respondent’s teaching methods.

2
 A. Mr. Harrington has been employed by the District since 2004. He was
promoted to the assistant principal position in 2009 or 2010. He had experience as an
administrator at another school in the Los Angeles area. He had previously acted as assistant
principal at an LAUSD high school in North Hollywood. Before that, he taught music at a
middle school in Hollywood. He has also taught college courses part time.

B. As assistant principal at SFMS, Mr. Harrington has many duties, some

changing year to year. He has been in charge of the English Language Learner program,
safety, student discipline, and the school’s overall campus.

Charge 1: Events in November and December, 2012

6. On October 24, 2012, Mr. Harrington wrote respondent “to summarize . . . our
informal conference on October 23, 2012.” (Exhibit 8.)

A. Informal conferences between an administrator and a teacher generally do not

lead to discipline of a teacher. Formal conferences, on the other hand, more often result in
discipline, which may include the teacher’s suspension or dismissal. After 2012, respondent
was required by Mr. Harrington and later by Mr. Ortiz, to participate in several formal
conferences.

B. During the October 23, 2012 informal conference, Mr. Harrington noted that
some of respondent’s Special Education students had missing documentation relating to each
student’s Individualized Education Program (IEP).

(i) Public schools must create an IEP for every child receiving Special
Education services in accordance with the Individuals with Disabilities Education Act
(IDEA), Title 20 United States Code section 1400 et seq.

(ii) Several educators meet as a team to prepare an IEP. IEP team meetings
must be held before the expiration of deadlines specified by IDEA and its implementing
regulations. Failure to meet the deadlines usually causes a school to be out of compliance
with federal law.

(iii) Documentation was missing, as Mr. Harrington noted, and as described

in more detail below, because respondent had not updated records for students identified as
her responsibility in a Special Education Student Assignment Coordination report (SESAC).
Using SESACs, the District and a particular school like SFMS maintain a current count of
students receiving Special Education services.

(iv) Respondent had not updated the students’ records in the Welligent IEP
management system (Welligent). Welligent is a computerized system that assists schools in
complying with federal law. SFMS and other LAUSD schools use Welligent to calendar the
federal deadlines and to schedule IEP meetings in order to coordinate and facilitate the
participation and preparation of IEP team members and their draft IEP’s. Respondent, like

3
other RSTs, was required to log on to Welligent and provide input on such matters as when
an IEP meeting took place.

7. On October 25, 2012, respondent replied in writing to Mr. Harrington but did
not address any issue involving the Welligent records: “Your summary of our meeting . . .
violates my due process rights but I expect that you will make me whole . . . .” (Exhibit 9.)

8. On November 1, 2012, an email from Lester Powell, Specialist, Outcome 132,

LAUSD, Division of Special Education, to Sonia Munoz at SFMS, advised her that several
students were not being tracked in Welligent in October 2012. Respondent should have been
tracking five of them. (Exhibit 10.)

9. Later in November 2012, respondent had not yet activated at least two students
in Welligent. Consequently, those students were not properly tracked. (Exhibit 11.)

Conferences with Administrators Followed by Conference Memos

10. Respondent’s responsibility for tracking students in Welligent was the subject
of a conference with Mr. Harrington, after which he sent her a Conference Memo.

A. On several occasions during the relevant period, SFMS administrators, Mr.

Harrington and Mr. Ortiz, held in-person conferences to discuss with respondent their
evaluation of her teaching. The evaluation of each administrator was based primarily on his
unannounced visit to respondent’s classroom that generally occurred a few days before each
conference.

B. Generally after each conference, the administrator sent respondent a

Conference Memo describing and memorializing the substance of the conference.

C. Conference Memos are inter-office correspondence. Each teacher at SFMS

was assigned a mail slot, a compartment or pigeonhole which school administrators used to
distribute written materials, such as bulletins, correspondence, and Conference Memos.

D. The several Conference Memos described below were distributed to

respondent the day they were written (except for the revised version of one), either by hand
delivery or, more often, by placement in her designated mail slot.

2
Outcome 13 is one of 15 outcomes ordered in a 2003-2004 Modified Consent
Decree (MCD) binding on LAUSD. The outcomes focus upon graduation rates, parent
participation, and teacher quality, among other issues. Under the MCD, the District’s
Special Education Division was required to develop each year a plan to promote and measure
progress. Outcome 13 addressed the District’s delivery of services as stated in IEPs and in
substantial compliance with law.

4
 E. Respondent claimed unconvincingly that she was not timely provided the
October 2012 Conference Memo addressed to her by Mr. Harrington, maintaining she did
not receive it until several months later.

F. Beginning in early 2013, respondent chose not to discuss her evaluations in

person, exercising her right to respond to Conference Memos in writing instead. In
consequence, after early 2013 there was never a face to face, give-and-take dialogue between
respondent and administrators.

G. Each Conference Memo offered assistance and guidance designed to improve

respondent’s teaching. As indicated below, the Conference Memos were not the only form
of assistance and guidance provided respondent. She also attended several seminars over the
course of two years, in the 2013-2014 and 2014-2015 academic year, as the administration
requested.

H. Each Conference Memo included directives, followed by a warning phrased in

substantially identical language:

Failure to follow administrative directives may lead to disciplinary action such

as but not limited to a Notice of Unsatisfactory Act(s), Notice of
Unsatisfactory Service, suspension without pay up to and including dismissal
from the Los Angeles Unified School District.

The December 7, 2012 Conference and December 13, 2012 Conference Memo

11. The December 13, 2012 Conference Memo Mr. Harrington sent respondent
described his conference with her on December 7, 2012.

A. They discussed that respondent must, for students on her caseload: (i)
complete service logs;” (ii) update and/or complete the service page in Welligent according
to FAPE 2;” and (iii) “co-plan with the general education teachers on a weekly basis and
generate a lesson at those co-planning meetings.” (Exhibit 12.)

B. During the conference, Mr. Harrington gave respondent screenshots, that is,
images from the Welligent website, “showing [her] exactly what needs to be updated . . . .”
(Ibid.) He also used a laptop computer and a projector to show her items in Welligent that
needed updating. They reviewed the Service Log page in Welligent together. Mr.
Harrington printed out names of courses available from the LAUSD website for Welligent
training, which he recommended that respondent attend. He stated that a plan for co-
planning had been put in place, requiring that respondent attend co-planning meetings one
day per week in alternate weeks for English and Mathematics instruction.

C. Mr. Harrington gave respondent two directives: (i) to input logs for students
she serviced on a daily basis; and (ii) to review and update Welligent information daily. Like

5
the other Conference Memos to her, it included the warning that she must follow directives
or face possible discipline, including dismissal. (Id.)

12. Respondent wrote Mr. Harrington a January 11, 2013 memorandum about
their December 12, 2012 conference.

A. Respondent maintained that Mr. Harrington’s “account of discussions and

responses [were] inaccurate.” (Exhibit W.)

B. She said that she was not responsible for inaccuracies in the Welligent records
of several students.

C. Nevertheless respondent acknowledged that the record of one student, V

O., “ha[d] a direct association with [her] performance, which could have been resolved with
a simple email to make the correction . . . .” (Ibid.)

D. Despite the seeming acceptance of responsibility for the problem with V

O.’s record in Welligent, respondent added that, “Someone dropped the ball but it is
certainly, not me.”

Charge 2: Co-planning in December 2012

13. As indicated below, such as in the testimony of SFMS teachers Nicole Golden
and Karen Ruth Arco, respondent failed at times to co-plan with General Education teachers.
However, the evidence did not establish that respondent failed to co-plan specifically in
December 2012, as alleged in Charge 2 of the accusation.

Charges 3 and 4: Events on January 14, 2013

14. At times respondent did not treat co-workers with respect. An instance
occurred on January 14, 2013, when respondent attempted to suspend a student in her class.
But she had not completed a form setting forth information required to implement a
suspension under provisions of an agreement between the District and UTLA (United
Teachers of Los Angeles), the union in which respondent is a member.

15. Respondent sent the student to the office of SFMS administrator Margaret
Mulder with a note stating she was suspending him for using foul language. Ms. Mulder was
the school counselor in the student services office. Ms. Mulder, who testified at hearing,
previously taught elementary school for several years, including at schools in the District and
in the Las Virgines Unified School District, and at other schools. She retired in 2014.

16. Ms. Mulder telephoned the classroom and told respondent that before the
student could be suspended, respondent must first complete the required paperwork.
Respondent did not discuss the required paperwork. She asserted instead that she had a right
to suspend students and she would not accept this student back into class. Then she hung up.

6
 17. Ms. Mulder spoke to calm the student in her office. He was near tears. Before
sending him back to respondent’s class, Ms. Mulder told him he should apologize to
respondent. He agreed to do that. Ms. Mulder sent the student back to respondent’s class
with a note on how respondent could access the paperwork necessary for suspension.

18. Shortly afterwards respondent walked into Ms. Mulder’s office with the
student. She raised her voice to tell Ms. Mulder again that she would not accept the student
back and that she had a right to suspend a student. She left immediately afterwards, giving
Ms. Mulder no opportunity to respond.

19. Ms. Mulder described the incident in terms similar to her testimony, as set out
above, in an email she sent to Mr. Harrington the day of the incident, January 14, 2013.
(Exhibit 13.)

20. Respondent’s version of the attempted suspension was different. Her

testimony regarding these events was not convincing.

A. She testified that she suspended the student properly after her good morning
greeting to him was met with “cuss words.” Initially she testified that she had completed a
form to suspend the student before sending him with the form to Ms. Mulder. The
implication seemed to be that the student did not present the UTLA form to Ms. Mulder.

B. Then respondent testified that the problem was that Ms. Mulder thought
respondent had presented her with the wrong form. Respondent said she had used the proper
UTLA form. Respondent said that Ms. Mulder sent a note to her when Ms. Mulder sent the
student back explaining where respondent could find the proper form and to call her if she
needed more help.

C. Respondent thought Ms. Mulder’s note made no sense because she thought she
had used the right form. She telephoned Ms. Mulder and told her that. According to
respondent, Ms. Mulder apologized to her, but said that the student could not be suspended
because there was no room to keep him in Ms. Mulder’s office. During the call, students in
respondent’s classroom became noisy. Respondent put the telephone down to quiet them but
she said she did not mean to hang up and did not hang up on Ms. Mulder.

D. Shortly after that, respondent happened to see Ms. Mulder, who said
respondent had hung up on her. Respondent apologized to Ms. Mulder even though she had
not hung up on her.

E. Respondent denied that she ever raised her voice to Ms. Mulder. She said that
in any event there was no discussion at which respondent, Ms. Mulder, and the student were
present.

21. As Ms. Mulder testified, guidelines the District has promulgated in

cooperation with UTLA for student suspension protect students. So do required forms.

7
Teachers have power over students. A clash between teacher and student may generate
personal animosity. Guidelines and forms help to keep issues and concerns less personal and
more professional. If teachers do not observe rules and do what is required, their power may
be exercised unprofessionally and abused, to the grave detriment of students.

22. Mr. Harrington held a conference with respondent regarding the incident on
February 6, 2013. Randall Ebelhar attended as her union representative. The District has
employed Mr. Ebelhar for more than 20 years. His experience includes teaching Special
Education. During the relevant period and at present, he serves as a Chapter Chair and
UTLA representative at SFMS. Like Chapter Chairs at other school sites, he acts as the local
liaison between the UTLA main office in Los Angeles and the local school. As Chapter
Chair he also defends members’ professional rights and helps resolve conflicts with School
administration.

23. In his Conference Memo to respondent that day, February 6, 2013, Mr.
Harrington wrote that respondent had acted disrespectfully toward Ms. Mulder regarding
suspending the student. He provided her copies of the LAUSD Employee Code of Ethics
and the LAUSD Board Resolution Reaffirming Respectful Treatment of All Persons. The
Conference Memo included the same warning as the December 13, 2012 Conference Memo.
(Exhibit 16.)

Charge 5: Co-planning in March 2013

24. Respondent did not co-plan with other teachers in March 2013. Respondent
testified that she consistently co-planned, but that co-planning was difficult when she was an
RST because her workload was so heavy.

25. Respondent did not claim her workload made it difficult to co-plan until after
Mr. Harrington stated she had not been co-planning but must do so in future.

26. An SFMS General Education teacher, Karen Ruth Arco, testified to her
experiences with respondent, especially relating to co-planning. At the hearing, she testified
the District has employed her for approximately 19 years. She has been a teacher in both
Special Education and General Education classrooms. She has taught at SFMS for the last
14 years. Ms. Arco, like respondent, is familiar with and has regularly taught using the Read
180 and the similar System 44 programs, both computer-assisted and minutely scripted to
improve comprehension and the reading scores of middle school students.

27. While an RST during part of the relevant period, respondent was assigned to
assist Special Education students in Ms. Arco’s class. To be effective in this role, respondent
should have met Ms. Arco at frequent intervals, a least once per week, to co-plan, that is, to
plan out instruction together. Respondent did not meet for co-planning. Ms. Arco did not
see respondent except during class time, as instruction was delivered.

8
 28. Likewise, respondent never co-taught any lessons with Ms. Arco. Ms. Arco
never witnessed respondent teach a planned lesson in her classroom.

29. Respondent did not consistently attend Ms. Arco’s class to assist students.
There were occasions during several months when respondent should have been in Ms.
Arco’s classroom helping students, but was absent.

30. Respondent was good at disciplining students, but harshly. Ms. Arco has
taught Special Education students, several with low lexiles (numerical reading
comprehension scores that allow comparison of same-age peers), who have gone on to
college and earn good grades. Ms. Arco has found that too often students in Special
Education are discouraged, having been told, sometimes for all the years that they have been
in school, that they are failures. To help them improve and learn, she usually speaks to them
encouragingly, even gently, whereas respondent was stern, and spoke to students harshly.
Ms. Arco recalled one occasion in particular when students tried to sit at respondent’s table.
She ordered them away brusquely, refusing to listen to them.

31. Ms. Arco acknowledged that not all students improve, even when a teacher is
skilled and is dedicated to giving the student attention, assistance, and good instruction.

32. Ms. Arco also admitted that she never brought respondent’s performance to
the attention of an administrator, though she believed respondent often failed to fulfill her
teaching duties.

Charges 6 through 8: March 12, 2013 Classroom Observation

33. On March 12, 2013, Mr. Harrington observed respondent in two classes, a
second-period English class and a fourth-period mathematics class. He described what he
observed in an April 19, 2013 conference, where Mr. Harrington and respondent were joined
by another SFMS assistant principal, a certain Ms. Welsh, and by Mr. Ebelhar. Mr.
Harrington wrote respondent an April 23, 2013 Conference Memo regarding his
observations. (Exhibit 18.)

34. The observations have considerable detail, referencing what respondent did to
the minute at times, such as “I observed you [at] 9:28-stand in the back of the classroom,
9:40-sit down next to a student and quietly speak to him . . . .” (Exhibit 18.) As indicated
below, there followed throughout the relevant period, many other Conference Memos from
both Mr. Harrington and Mr. Ortiz, usually with classroom observations similarly detailed.

35. Respondent did not conduct herself as an effective teacher when observed on
this occasion. She did no teaching she had planned. She reacted to students instead, such as
by answering their questions. She wasted instructional time while waiting to react. As Mr.
Harrington wrote respondent in the Conference Memo, there was “need to teach a planned
lesson of some sort everyday [sic], every period. You are not to simply walk around the

9
room answering random student questions or simply supervise the students while they
work.” (Id.)

36. The April 23, 2013 Conference Memo reiterated advice Mr. Harrington had
imparted previously: “You need to co-plan with the general education teachers on a weekly
basis and generate a lesson at those co-planning meetings.” (Id.) Mr. Harrington observed
that on March 12, 2013, respondent failed to use a lesson she had generated before class
started, leading to Mr. Harrington’s conclusion that she had not co-planned at all or, if she
had tried, had done so ineffectively. In either case, Mr. Harrington found that she had not
generated a usable and effective lesson.

37. At hearing, Mr. Harrington acknowledged that co-planning could be quite

informal and might be accomplished in many ways. Two teachers could co-plan extempore,
such as during a five-minute conversation in a school corridor. Or they might discuss the
topic for an hour or two in a more formal setting. The goal is that each teacher is clear on
what each plans to teach and that their teaching is complementary.

38. Respondent had not entered service logs for nine students for six days in
March 2013. In the Conference Memo respondent was directed to enter the logs by April 26,
2013. This directive was followed by the same warning, quoted above in Finding 10.H., to
the effect that respondent’s failure to follow administrative directives could lead to
discipline. (Id.)

39. The April 23, 2013 Conference Memo also provided assistance and guidance.
In addition to what Mr. Harrington had discussed at the April 19, 2013 conference, he
described several strategies and aids respondent might use. For instance, he wrote that
respondent might “[f]acilitate Kagan cooperative learning groups.” (Id.) Also known as
Kagan structures (named after a University of California professor of psychology and
education), this method of teaching encourages students to cooperate with other students,
helping each other learn the lesson collectively and individually.

40. Respondent did not respond to Mr. Harrington during the April 19, 2013
conference, except to say that she would do so in writing.

41. Respondent sent Mr. Harrington her own memo dated April 29, 2013.

A. In the April 29, 2013 memo, respondent made these points: “but you failed to
mention three other pertinent facts,” “you failed to include in your observation,” “[y]our
observation . . . paints an incomplete picture of what actually occurred,” “[c]onspicuously
missing from your observation is the fact,” “but as you have done throughout this summary
you left out the most important part of the narrative,” “I take exception to your description of
my performance . . . .” (Exhibit O.)

B. Respondent set out three reasons for standing at the back of the class at 9:28
a.m., as Mr. Harrington observed and mentioned in his Conference Memo. First, the class

10
had just started a minute before. Second, respondent wanted to stand clear of the
classroom’s sole entry door at the back. Third, she wrote that she “patiently listened and
politely waited” (Ibid.) until the students had finished a reading with the General Education
teacher.

C. She gave two reasons for her conduct at 9:40 a.m., as noted by Mr. Harrington,
when respondent sat down next to a student and spoke quietly to him. First, she wrote that in
sitting next to the one student Mr. Harrington mentioned, she was near him and his Kagan
group, which allowed respondent’s “coaching the entire Kagan group through the pair share
activity; per the current school plan, as I am required to do.” (Id.) Second, she explained
that she spoke quietly to avoid disturbing the General Education teacher. She then asks
rhetorically, “should I pitch my voice to match that of the general education teacher?” (Id.)

D. Respondent’s memo rebuffed, denied, or disputed every concern or criticism

in Mr. Harrington’s memo.

E. Respondent’s memo concludes:

You ended your summary of charges with the comment that were you asked to
evaluate me at this point that you would rank my performance at below
standard. I reject this assessment as unfair, unjust, and not supported by the
true and complete facts. The only way you can reach such a conclusion is to
rely on the biased narrative that you presented in your summary. In your
determination to find fault with me, you skewed facts, deliberately omitted
essential information, and culled out of your narrative any details or
explanation that proved that I did my work diligently. To conclude, I strongly
assert that any unbiased reading of my answer would prove your evaluation of
my performance as inaccurate and unwarranted. (Id., Exhibit O.)

Charges 9 through 17: March 19, 2013 IEP Meeting

42. On March 19, 2013, an IEP meeting convened concerning one of respondent’s
Special Education students. In attendance at the meeting were: (i) respondent, (ii) Sonia
Munoz, acting as Bridge Coordinator, (iii) Marta Ortega, mother of the student for whom the
IEP was prepared, and (iv) Lynda Silberschein, a General Education teacher, who was called
to join the meeting in progress.

43. A LAUSD Bridge Coordinator such as Ms. Munoz, who testified at hearing,
works with both General Education and Special Education teachers to integrate the two types
of teaching and has duties to monitor Special Education activities. The District has
employed Ms. Munoz for 22 years in several positions, including General Education
assistant, Special Education assistant, and Bridge Coordinator. She has worked at SFMS
since the 2005-2006 academic year, attending dozens of IEP meetings in that time.

11
 44. Ms. Silberschein testified at the hearing. The District has employed her as a
teacher since 2000 and as a member of SFMS’s mathematics department. At weekly
department meetings for sixth grade mathematics, questions were answered and lesson plans
were discussed so that the teachers could be sure they were delivering the same instruction to
all the sixth graders. Ms. Silberschein, who served as the team leader, organized meetings
and made sure that paperwork was completed.

45. Respondent stated at the March 19, 2013 IEP meeting that the student had met
his mathematics goals. Ms. Silberschein, who was the student’s General Education teacher,
disagreed and commented that the student had not met his mathematics goals. Ms.
Silberschein had previously questioned the student and found he lacked understanding of
basic mathematical concepts whose mastery the District expected of a student at his level.
Additionally, Ms. Silberschein had maintained possession of the student’s written work that
demonstrated that the student had not met his goals, but she had not brought the work with
her to the IEP meeting. Despite this, respondent claimed that the student had met his goals,
although she would not share specifically why she believed the student had. Instead,
respondent walked out of the meeting, leaving Ms. Munoz to finish writing the IEP.

46. On April 5, 2013, Mr. Ortiz sent respondent a Conference Memo, describing
his conference with her that day. (Exhibit 17.) As he noted, he spoke to Ms. Ortega, the
student’s mother, who came to him saying that respondent was disrespectful to all in
attendance at the IEP meeting because she “was mad, rude, and was not interested in [the
mother’s] questions. She was not interested in my own suggestions about my son. She said
no to suggestions given.” (Ibid., at hearing, however, Ms. Ortega could not remember why
she went to Mr. Ortiz about the meeting.)

47. Mr. Ortiz had previously told respondent that he had instructed Ms. Munoz to
assist respondent in her Special Education work. Despite this, respondent always refused
any help from Ms. Munoz. Specifically , Ms. Munoz made a point of going to respondent
regularly, at least three times per week, to offer her support. Respondent never accepted
support from Ms. Munoz.

48. Respondent’s memorandum is dated April 12, 2013. (Exhibit Y.) She denied
any disrespect at the IEP meeting and stated that all discussions held during the IEP meeting
were routine.

Charges 19 and 20: March 21, 2013 IEP Meeting

49. On March 21, 2013, an IEP meeting convened concerning one of respondent’s
Special Education students. Respondent had been in charge of helping the student progress
toward a planned exit from the Special Education program into the General Education
program, however, respondent did not attend an IEP meeting, because she was out sick. The
meeting had been scheduled the previous month, February 2013, but respondent had failed to
prepare a usable draft IEP, and respondent failed to complete any section of it.

12
Consequently, shortly before the meeting started, Ms. Munoz was forced to prepare the draft
IEP with inadequate time and data.

50. The student’s parent who attended the meeting, Estalla Duran, as she testified,
was upset that respondent had prepared an inadequate draft IEP for the meeting. Some of the
information in the draft was incorrect, such as the description of her child’s disability. It was
Ms. Duran’s expectation, based in part on her having attended several IEP meetings before
March 2013, that if the draft IEP was not going to be ready in time for the IEP meeting, the
person responsible, respondent in this case, should have called the parent ahead of time about
the problem. That did not happen, prompting Ms. Duran to later complain to the principal.

51. The parent considered the IEP and meeting crucial to her child’s joining his
peers in a General Education classroom. LAUSD’s policy is that students who are able to
benefit from General Education classes should be in those classes, while other students
should receive Special Education services only so long as it helps them master the
curriculum and goals that the General and Special Education programs share.

52. Respondent contended that in her absence, the Bridge Coordinator, Ms.
Munoz, could have taken her place and that she had completed enough of the draft IEP in
preparation for the March 21, 2013 meeting that it should have been no special burden on
Ms. Munoz to complete the draft. Respondent noted, moreover, that the administration had
not specifically demanded that respondent be at the March 21, 2013 meeting.

53. The District contended respondent had time to prepare a draft IEP but failed to
use her time wisely. Respondent asserted she had approximately six IEP’s to prepare in this
period, February and March 2013, so that she should not be blamed for not trying to draft
sooner.

Charge 21: Failure to Administer Formal Testing of Student Despite Parent’s Request

54. Respondent acknowledged that the parent who attended the March 21, 2013
IEP meeting had previously asked respondent for formal academic testing of her son. Mr.
Ortiz noted this fact in his April 5, 2013 Conference Memo to respondent. (Exhibit 17.)
Respondent admitted at hearing that she did not administer the testing before the meeting.

55. Respondent excused her conduct by asserting that the law forbids formal
testing without a written request. Respondent referred the parent to Bridge Coordinator Ms.
Munoz, so that Ms. Munoz might follow up with the parent to prepare the necessary forms.
As respondent wrote in her April 12, 2013 memo in response to Mr. Ortiz’s Conference
Memo, the forms were not provided to respondent by the time of the March 21, 2013
meeting. (Exhibit Y.) Respondent testified to the same at hearing.

//

//

13
Charges 22 and 23: April 17, 2013 Classroom Observation

56. Unannounced, Mr. Harrington observed respondent in the classroom on April

17, 2013, as he described in a conference and Conference Memo on April 29, 2013. Like the
April 19, 2013 conference, the April 29, 2013 conference included SFMS Assistant
Principal, Ms. Welsh, and union representative Mr. Ebelhar. (Exhibit 19.)

57. Mr. Harrington presented details in a format similar to that in the previous,
April 23, 2013 Conference Memo, including references to what respondent was doing at
precise times. This time, however, Mr. Harrington described more frequent events, every
two to five minutes:

I observed you do the following: 9:55-walking around the classroom, 9:58-sat

down at a table and spoke to a student, 10:03-worked on laptop, 10:07-Put
away your laptop and walked around the room, 10:11-stood in one place,
10:13-left the classroom, 10:16-returned to the classroom and walked around.

. . . Your need [is] to teach a planned lesson of some sort everyday, every
period. You are not to simply walk around the room answering random
student questions or simply supervise the students while they work. You are
to deliver pre-planned instruction on a daily basis to the students. (Id., Exhibit
19.)

58. The assistance and guidance provided respondent in the April 29, 2013
Conference Memo is substantially the same, and sometimes the same verbatim, as that
provided in the previous, April 23, 2013 Conference Memo. Again Mr. Harrington gave
respondent directives:

a. Plan instruction to ensure that all students have equal access to the
curriculum.
b. Deliver rigorous instruction to our students daily.
c. Review and adhere to the California Standards for the Teaching
Profession.

As before, the directives were followed by the same warning, quoted above in Finding 10.H.,
to the effect that if respondent failed to follow administrative directives, she could be
disciplined. (Id.)

59. As before, respondent wrote her response at length, in a memo of five and a
half pages dated May 7, 2013. She described how walking around the classroom was an
effective teaching method of hers. She then asked and asserted:

[I]f you prefer, I could remain stationary at a designated spot, a spot that I would ask
you to select so that in the future you would no longer accuse me (as you did in your
April 23, 2013 Summary) of “stand[ing] in the back of the classroom” . . . etc. As

14
 you ponder on your decision regarding this issue, I would remind you that if you
choose to order me to stay stationary at a designated spot, the special education
students will be adversely affected. . . . [I]f I am stationed away from the special
education students (because of your order that I not walk around the classroom, or sit
by the special education students to help them), they will respond by withdrawing
from participation in classroom activities. (Exhibit P.)

60. Respondent noted that some of Mr. Harrington’s comments were identical in
the April 19 and April 29, 2013 Conference Memos. In response, in her May 7, 2013 memo,
Exhibit P, she repeated verbatim from her April 29, 2013 memo, Exhibit O, these comments:

While I am willing to abide by your order that I “deliver pre-planned

instruction on a daily basis to the students,” I can only do this if the teachers
let me know well-ahead of time what they plan on teaching. Currently, I do
not receive a copy of the general education teachers lesson plans, nor am I
informed about what they plan to cover until the day of the lesson (that is,
while I am in the classroom); this makes it impossible for me to “deliver pre-
planned instruction on a daily basis to the students.” Additionally, I am unable
to demand that the teachers provide me a copy of their lesson plans (in
advance) because you ordered me not to tell the teachers what to do. If I tell
them to provide me with their lesson plans, I will be in violation of your order.
Since you have prohibited me from asking the teachers, please remember to
tell the teachers to make their lesson plans available to me at least two weeks
in advance [a reasonable time for six teachers and eight preps]. (Id., Exhibit
P.)

61. As before, respondent concluded her memo by stating her belief that Mr.
Harrington was biased and distorted facts to suggest that respondent was “engaged in
nefarious activities during school time and/or . . . [her] work was not satisfactory. . . . To
conclude, I find your statement that my performance was unsatisfactory as unfair, unjust, and
biased.” (Id.)

Below Standard Evaluation

62. Toward the end of the 2012-2013 academic year, Mr. Harrington evaluated
respondent’s performance as below standard. Respondent sought to avoid such an evaluation
in a memo she sent Mr. Ortiz dated May 3, 2013. She stated that Mr. Ortiz should be her
evaluator, not Mr. Harrington, adding:

Mr. Michael Harrington . . . appears to have taken over your job as my

evaluator since March 12, 2013 or thereabouts. Without giving me the
required opportunity to defend myself against his claims, claims that are
clearly biased, unfair, unproven, and unwarranted, he is now threatening to
issue a below standard evaluation for me at a conference that he has scheduled
for May 6, 2013. (Exhibit XX, p. LAUSD 2468.)

15
Charges 24 and 25: Events on May 22, 2013

63. On May 22, 2013, Ms. Silberschein received permission from school
administration to use the classroom usually assigned to respondent. Ms. Silberschein’s usual
classroom was infested by rats and she was asked to move to the other classroom to make
way for pest control.

64. That afternoon, respondent went to the classroom, where Ms. Silberschein was
still working with two students for a few minutes after the bell had rung and the period had
ended. Ms. Silberschein asked respondent whether the students might stow learning
materials in a cabinet to tidy the room. Respondent became upset and yelled at Ms.
Silberschein, loudly refusing to allow her any further use of the room and saying that the
administration had allowed Ms. Silberschein and her students only one day to use the room.
Respondent said she needed the room to test students.

65. Ms. Silberschein pointed out that because they had the same conference
period, there should be no conflict between her and respondent’s use of the room. Ms.
Silberschein also explained that there was a health and safety issue in her own classroom.
Respondent said that she did not care, she would take the room back. Ms. Silberschein
apologized and suggested that respondent talk to school administration. Respondent told Ms.
Silberschein that she, not respondent, should do that, as the problem was hers. Ms.
Silberschein and the two students exited the room shortly afterwards.

66. Ms. Silberschein reported the incident to Mr. Harrington in an email the next
day, May 23, 2013. (Exhibit 22.) At hearing, Ms. Silberschein testified credibly to the same
facts.

67. On June 5, 2013, when he conducted a conference with respondent and wrote
her a Conference Memo, Mr. Harrington described the incident as reported by Ms.
Silberschein and by the two students. Respondent, accompanied by Mr. Ebelhar, said that
she had requested a copy of Ms. Silberschein’s complaining documents but had not received
them. She did not comment on the substance of what Ms. Silberschein reported in her email.

68. Mr. Harrington offered assistance and guidance, particularly: “It is never
appropriate to yell or shout at another staff member in anger or frustration. . . . Should a
situation such as this happen again, please contact the main office for assistance.” (Exhibit
23.) He also gave directives, especially to “[s]how respect to Staff members at all times,”
followed by the same warning quoted above in Finding 10.H., that failing to follow
administrative directives could result in discipline. (Id.)

69. On June 9, 2013, respondent provided Mr. Harrington a memo of five and a
half pages, Exhibit Q, regarding the incident.

A. She reiterated that she had asked for but never received Ms. Silberschein’s
written complaint.

16
 B. She disputed an opening phrase in Mr. Harrington’s Conference Memo that
“items were discussed.” (Id.) She wrote that Mr. Harrington was implying “a back-and-
forth conversation, or an exchange of different views, ideas, and explanation took place; this
would be far from the truth.” (Id., Exhibit Q.)

C. Respondent further stated: “There was no ‘yelling’ or anger involved and I

strongly reject any notion that I acted unprofessionally; however, Ms. Silberschein’s
behavior was another matter, and her lack of proper conduct will be explained later in this
document.” (Id., Exhibit Q.)

D. Respondent wrote that Ms. Silberschein started the conflict by asking whether
she, Ms. Silberschein, might move respondent’s books in the classroom, to which respondent
said no. (Id.)

E. In respondent’s version, Ms. Silberschein was unprofessional in “ordering

[respondent] to move out of my assigned classroom. . . . Ms. Silberschein shed her sense of
proper professional conduct by initiating the conversation and by evicting me out of my
classroom in front of the students. . . . Ms. Silberschein would not stop arguing, she pursued
me into the hallway.” (Id.)

F. Respondent saw the incident as part of a pattern, Mr. Harrington’s actions

against her: “[Y]ou created a poisonous atmosphere at the workplace by engaging in a
systematic campaign to find me guilty of something, of anything. I have to say that you have
been relentless in your quest to destroy me.” (Id.)

Charges 26 and 27: Events on August 23, 2013

70. On August 23, 2013, respondent was acting as substitute teacher for a sixth
grade class in which G L. was one of the students.

71. It was unclear from the hearing testimony of G L. whether respondent

failed to treat her appropriately.

72. Frank Salazar, a security guard at SFMS who has been employed by the
District for 13 years, saw G L. outside the classroom. She was upset and he spoke to
calm her. G L. admitted at hearing that she had inappropriately and without
respondent’s permission left the classroom as respondent was teaching.

73. G L. left her backpack in the classroom. When later she tried to retrieve
it, respondent blocked her and tried to close the door. G L. put her foot in the
doorway, but then she withdrew it and respondent was able to close the door. G L.
waited for the bell to ring and the students to exit. She went in and was making her way out
with her backpack when she saw respondent at the door. G L. ducked under
respondent’s arm and left. She did not hear respondent call her any names, such as
loudmouth, as the accusation alleges.

17
 74. G L.’s September 18, 2013 statement about the incident, Exhibit 25,
does not establish that respondent used the word loudmouth or that respondent spoke or acted
inappropriately otherwise.

75. The evidence did not establish that respondent engaged in improper conduct at
SFMS on August 23, 2013.

76. Part of Mr. Harrington’s Conference Memo dated October 8, 2013, Exhibit 27,
described the incident and concluded that respondent acted inappropriately. It is based on
the statements of the students, including that of G L. and, like them, do not establish
that respondent spoke or acted inappropriately.

77. Respondent responded to the Conference Memo in writing and denied that she
called G L. a loudmouth or that there was any confrontation between them. (Exhibit
Z.)

Charges 28 and 29: Classroom Observation on September 11, 2013

78. When he observed respondent’s fifth period on September 11, 2013,

specifically seventh grade mathematics, Mr. Harrington could not hear respondent clearly.
As a result, he could not tell whether she delivered differentiated instruction to the Special
Education students.

79. Differentiated instruction is often necessary for effectively teaching Special

Education students. In a General Education class, students are generally assumed to have
normal perception and other abilities. In Special Education, however, a student may have
perceptual difficulty, such as in seeing clearly or in hearing what the teacher says. For
students with these types of disabilities or difficulties, a solution may be to have them sit
closer to the teacher. Another student may have difficulty grasping narrow objects like a pen
or pencil and could be given one that is unusually thick. Yet another might have difficulty
with oral instructions, and be given a visual aid. All such accommodations may be
considered types of differentiated instruction.

Charges 30 through 37: Events in Mr. Foote’s Class in October 2013

80. At times in October 2013, respondent disrupted the classroom of General

Education teacher Gregory Foote, who testified at hearing. The District has employed Mr.
Foote for 14 years. He was new to SFMS in 2013. The Antelope Valley Union High School
District currently employs him.

81. Respondent would attempt to assist students in Mr. Foote’s class for about 30
minutes at a time, several times per week. She did not co-plan with Mr. Foote. She did not
comply with previous directives to co-plan with General Education teachers to whose
classrooms, like that of Mr. Foote’s, she was assigned as RST.

18
 82. Mr. Foote described several difficulties that respondent caused him and his
students in an October 22, 2013 email to Mr. Harrington. (Exhibit 28.) As he testified at
hearing, he preferred not to criticize another teacher, but he sought out Mr. Harrington for
advice on how to deal with respondent’s conduct during his classes. Mr. Harrington insisted
that Mr. Foote set out his concerns in writing. Mr. Foote complied with some reluctance. He
testified reluctantly as well.

83. Respondent would loudly express to certain students that they were
misbehaving, asking at times that a student change seats or leave the room, interrupting Mr.
Foote’s teaching to the class in general. She would also take one or another student,
sometimes a few together, out of class and into the hallway as a way to discipline and
admonish the students.

84. Mr. Foote acknowledged that he ran his class in a freeform way that other
teachers might not appreciate or may consider as lacking in order, but in doing so he created
a good environment for learning, with which both he and his students were comfortable.
Respondent’s conduct in his class detracted from the environment he fostered. She deprived
the students who were subject to her attempts at discipline of valuable instructional time.

85. Mr. Foote’s October 22, 2013 email described more specific examples of
respondent’s conduct which he found inappropriate.

A. During a class on October 17, 2013, respondent called out that Mr. Foote
should stop what he was doing. Respondent then told three students that she was removing
them from the class. Mr. Foote told the students to stay in their seats and focus. After class,
respondent told Mr. Foote that someone must deal with those students and she was willing to
do so. Mr. Foote replied that he did not think the students were acting badly but rather were
excited by the lively discussion the class was having. He emphasized that he did not want
students removed from class unless there was an immediate safety issue, because students
“need their instructional time.” (Exhibit 28.)

B. On October 21, 2013, respondent asked that student E A. get up and

move. Mr. Foote was standing right next to the student, trying to help her to focus on her
work. He told the student that she should not move away, as respondent had demanded.

86. Mr. Harrington convened a conference on November 13, 2013, inviting

another administrator, Barbara Posalski. Respondent attended with Mr. Ebelhar. Mr.
Harrington’s November 13, 2013 Conference Memo summarizes the conference “regarding
your unprofessional behavior in the classroom” (Exhibit 30), describing Mr. Foote’s
complaints, including the October 17, 2013 incident, when respondent asked Mr. Foote to
stop while respondent said she was removing several students from the class.

87. Respondent testified that she co-planned with Mr. Foote, but not according to
her usual practice. He had not yet been transferred to SFMS at the beginning of the 2013-
2014 academic year and she could not introduce herself to him then and discuss how they

19
might co-plan. Respondent recalled that at times when she might have been co-planning
with Mr. Foote, she was too busy with an IEP meeting she was required to attend.
Nevertheless respondent maintained that she co-planned with all the General Education
teachers with whom she worked, including Mr. Foote.

88. In her November 22, 2013 memo in response to Mr. Harrington’s Conference
Memo, respondent accused him of unfairness for not providing her the “complaining
documents.” (Exhibit D.) She also explained that she asked students to change seats at times
or took them outside the classroom for a few minutes at a time as a reasonable way to correct
misbehavior and avoid disruption.

Charges 39 through 46: October 24, 2013 Classroom Observation

89. As indicated in his November 14, 2013 Conference Memo, Mr. Harrington
observed respondent’s conduct in two classes on October 24, 2013, General Education
teacher Ms. Denning’s mathematics class and General Education teacher Ms. Weiss’s
English class. The observations were discussed at a conference on November 13, 2013,
attended by Mr. Harrington, Ms. Posalski, respondent, and Mr. Ebelhar. (Exhibit 31.)

A. Mr. Harrington observed nothing to indicate that respondent had co-planned

with either teacher. He saw no plan book, teacher’s edition, or lesson outline.

B. There was no differentiation of instruction, though respondent was there to

provide such Special Education services to the students.

C. Respondent provided none of the students a directed teaching lesson. She did
not participate in providing the instruction that the other two teachers provided, or provide
the lesson to a small group of students.

D. Instead, respondent at times stood in the back of the room, at other times she
circulated, looking at student work and answering a question that one or another student put
to her, and at one point she sat next to one student and looked on as the General Education
teacher was teaching, without helping or commenting on the work of the student next to
whom she sat.

E. She did not help the Special Education students on her roster with
accommodations and support.

90. Mr. Harrington offered assistance and guidance. As he had done before, he
told her she should plan instruction with the General Education teachers. He wrote that she
should do so weekly. He asked her to ensure that in the classroom evidence of her planning,
such as her plan book, remain visible. He suggested different types of activities she might
use to engage her students, such as facilitating a writing circle. He also attached reference
materials, such as one of the District’s Policy Bulletins, this one describing the role of the
RST. (Exhibit 31.)

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 91. In respondent’s November 21, 2013 written response, she denied any
shortcomings in her teaching or preparation, discussing point by point essentially all of the
content of Mr. Harrington’s Conference Memo. Regarding the plan book and related
materials, respondent did not state whether they were visible, but that they were available
and ready:

It is not true that I did not have my lesson plan, plan book, etc., available in the
classroom; I did have all of these items ready. Unfortunately, because you
chose not to inform me that you were my evaluator or ask to see these items,
you did not give me the opportunity to demonstrate my preparedness. (Exhibit
V.)

92. She concluded with questions of Mr. Harrington and her argument that he
should have warned her he would be observing her:

[W]ithout informing me and without speaking to me, how could I have known,
to give you the above mentioned evidence of planning, and explain what I was
doing. Given the secrecy and trickily [sic] that you have started this year, can
you in all honesty be able to evaluate me in a fair and equitable manner? (Id.)

Charges 47 through 52: January 15, 2014 Classroom Observation

93. Mr. Harrington sent respondent a February 5, 2014 Conference Memo about
what he observed respondent doing in a mathematics class on January 15, 2014. The
observations were discussed at a conference on January 31, 2014, attended by Mr.
Harrington, Mr. Ortiz, respondent, and Lisette Rodriguez, acting as respondent’s union
representative. (Exhibit 34.)

94. Mr. Harrington’s observations were similar to those he made previously in the
two classrooms on October 24, 2013. Again, there was no evidence of effective co-planning
with the General Education teacher and no visible evidence of respondent’s having otherwise
prepared to teach, such as a visible plan book. He did not observe differentiation in her
teaching. Respondent did not teach a lesson and she did not play a role in the lesson taught
by the General Education teacher. (Id.)

95. As before, Mr. Harrington observed very specific deficiencies, such as this
example described in the Conference Memo’s section 2.d:

When students worked on ratio problems, you sat with the students with an
IEP and asked, “What did you come up with? Did you look at your paper? If
you have the answer, check with her.” Instead of reviewing the student’s [sic]
work yourself and providing them feedback and support. (Id., p. 34-2.)

96. As he did in the November 14, 2013 Conference Memo, Mr. Harrington
offered guidance and assistance in his February 5, 2014 Conference Memo, much of it the

21
same as before. He attached again the District’s Bulletin describing the role of the RST. He
attached other useful materials, such as an article entitled “Direct Instruction: Targeted
Strategies for Student Success” by David W. Moore. (Id., p. 34.4.)

97. Respondent’s written response to Mr. Harrington is a memo dated February

12, 2014. Again she discusses point by point essentially all of the content of Mr.
Harrington’s Conference Memo. Although Mr. Harrington’s memo did not address lesson
plan format, respondent stated:

[W]hile you have the right to ask for a lesson plan, demanding that the lesson
plan follow a “special format” is illegal. The passage in the contract
(LAUSD/UTLA Contract Article IX 4.1) reads as follows: “No special format
for a lesson plan shall be required.” (Exhibit F, p. LAUSD 288.)

Respondent’s memo also addressed Mr. Harrington’s concern regarding evidence of lesson
planning:

It is patently untrue that “evidence of lesson planning” was not made visible to
you. Not only did the general education teacher project the objective and
lesson outline on the projector, but the lesson outline was clearly written on
the white board (located on the west wall of the classroom), and while you
were present in the classroom, the students copied the information into their
notebooks. Additionally, the teacher’s edition was also visible on the
teacher’s desk and in plain view. During the time you were in the classroom,
had you asked me to point to the teacher’s edition, the outline on the white
board, the projected image of the lesson outline, or any other item that you had
difficulty seeing, I would have promptly done so. (Id.)

Charges 53 through 62: March 7, 2014 Classroom Observation

98. Mr. Harrington’s March 27, 2014 Conference Memo described respondent’s
conduct in her Special Day Class on March 7, 2014. The observations were discussed at a
conference on March 27, 2014, attended by Mr. Harrington, Ms. Posalski, respondent, and
Mr. Ebelhar. (Exhibit 35.)

99. Mr. Harrington observed a number of deficiencies in respondent’s preparation

and teaching. Among the detailed observations were instances when respondent confused
students, but did not clear up any of the confusion. For instance, Mr. Harrington’s memo
quoted respondent’s statements that he found confusing, and then offered advice on how
respondent could have avoided the confusion:

a. “Before I left for my two day conference I explained what you were to do.
Some of you have done it and some of you missed a few steps.” However,
you did not review what you had told them before you left to your conference
nor did you review the steps that you said some of the students missed.

22
 b. “You need to have a transition word or a transition sentence. But if you
have never used a transition sentence before then a transition word will be
fine.” You did not explain or provide examples of transition sentences nor did
you provide a list of transition words for the students to reference. (Id.,
Exhibit 35, p. 35-2.)

These are two of several examples of how respondent displayed little or no understanding of
how to teach effectively.

100. Respondent sent Mr. Harrington an April 7, 2014 memo in response, denying
each of his points. With respect to Mr. Harrington’s criticism about respondent’s confusing
the students, respondent asserted that she cleared the confusion when she “circulated the
room and gave instructions that addressed each individual student’s needs.” (Exhibit G, p.
LAUSD 308.)

101. Respondent’s April 7, 2014 memorandum in response to Mr. Harrington’s

memo is worded like previous memos she sent him. It demonstrates what Mr. Harrington
deemed to be a recurring theme of respondent’s denial, deflection, discontent, distrust, and
difficult attitude, evidenced by some of respondent’s statements:

(i) “You have wrongly accused me . . . .” (Exh. G, p. LAUSD 304);

(ii) [There is] “[u]ndisputed proof that I had previously taught my students
the strategies listed above was very evident . . .,” (Ibid.);

(iii) “If I had not previously reviewed the vocabulary . . ., how could some
of the students had [sic] been so near to completion of their . . . assignment?” (Id.);

(iv) “[I]t is clear that you failed to take into consideration . . .” (Id.);

(v) “Thus, your claim that I did not teach or provide examples of transition
words/phrases varies greatly from the truth . . .” (Id., p. LAUSD 305);

(vi) “Rather than accusing me of providing no help, you should have

mentioned how I used my time judiciously throughout the class period . . .” (Id.);

(vii) “There is a disconnect in this sentence; it sounds like two different

voices or two people speaking . . .” (Id.);

(viii) “[Y]ou decided not to use any punctuation marks to clarify my spoken
sentences . . .” (Id., p. 307);

(ix) “I have made this offer before, but let me repeat it: if at any time you
have difficulty seeing anything in my classroom, feel free to ask me to point it out to you . .
.” (Id., p. LAUSD 306);

23
 (x) “. . . I did exactly what an astute and proficient teacher who is well
versed in the special needs of his/her students would do,” (Id., p. 305);

(xi) “Although you did not accurately present my statements, I will

acquiesce and accept the spirit of the statement . . .” (Id., p. 308);

(xii) “A ‘counter argument’ is the same as ‘opposite argument.’ . . . I

explained ‘counter argument’ to the student by using the more student-friendly word:
‘opposite . . .’” (Id., p. 309.);

(xiii) “[Y]ou imply that because I ‘circulated the room . . . that . . . was
contrary to effective teaching. However, . . . you mandate that I ‘Circulated throughout the
classroom on a regular basis . . . . So, which order should I obey, the one where I should stop
circulating or the one where you want me to circulate the classroom?” (Id., p. 310.);

(xiv) “Please explain to me why . . . you believe it is wrong for me to ask a

student to observe a peer’s work . . .” (Id., p. 310);

(xv) “As to your offer of the “Thinking Maps”, and “Write From Beginning
and Beyond”, on reading it, I busted out laughing because I could not think of any other
emotion that would be appropriate other than laughter . . .” (Id., p. 314);

(xvi) “. . . I use the strategies from the IEP’s (some of which I wrote), since I
am considered the expert in this field . . .” (Id., p. 314); and

(xvii) “I no longer believe that you will remain professional enough to assess
my performance on its true merits . . .” (Id., p. 317).

Respondent’s Access to Resources for Teachers

102. A teacher, one of respondent’s peers, helped respondent learn skills to help her
become a better teacher. Specifically, respondent participated in the Peer Assistance and
Review (PAR) Program in the 2013-2014 academic year, from August 12, 2013 to May 9,
2014. Susan Masero, coordinator of the program for the District, attested to the program’s
design and respondent’s participation. (Exhibit 110.)

A. The PAR Program is authorized under the Education Code and the District’s
agreement with UTLA. Education Code section 44502 provides that the District may select
consulting teachers who provide assistance to peers and report their peer reviews as part of
the program.

B. Qualifying as a consulting teacher requires classroom experience and positive

evaluations for several years. Full time consulting teachers must be active full-time
employees of the District. Recently retired teachers may be part-time consulting teachers.

24
 C. The PAR Program established performance goals for respondent as a
participating teacher. The consulting teacher worked with respondent to develop strategies
to assist and support respondent in the effective delivery of instruction.

D. Respondent’s consulting teacher observed respondent on several occasions

over the course of the academic year. The consulting teacher described the observations in
peer review reports, and provided respondent with advice and critiques in several
conferences.

E. A panel of nine, five UTLA members and four administrators from the
District, govern the PAR Program. At the end of the academic year during which peer
assistance was provided, the panel determines, based on the peer review reports, whether a
participating teacher, such as respondent, met the goals of the PAR program.

F. A District employee may participate in the PAR Program for two consecutive
years at most. Though a teacher might be ineligible to participate in the PAR program,
resources from the program remain open to them. Among the assistance and guidance
offered respondent in February 2016 were registration and attendance at PAR Professional
Development workshops. (Exhibit 87, p. LAUSD 2175.)

103. Respondent was required to participate in the PAR program in the 2013-2014
academic year because she had received a below standard performance evaluation in areas
related to instruction, as indicated in Finding 62 above.

104. The PAR panel determined toward the end of the 2013-2014 academic year
that respondent had not met the established PAR goals to improve her teaching for that
academic year and advised her so in writing. (Exhibit 110, p. LAUSD 1563.)

105. Respondent received another below standard performance evaluation in areas

related to instruction for the 2013-2014 academic year. The District required respondent to
participate in the PAR program again in the 2014-2015 academic year.

106. Toward the end of the 2014-2015 academic year, the PAR panel determined
that respondent had not met the established PAR goals to improve her teaching for that
academic year and advised her so in writing. (Exhibit 110, p. LAUSD 1564.)

107. In addition to the PAR program, Mr. Ortiz advised respondent that SFMS
teacher Nicole Golden would serve as her mentor during the 2014-2015 academic year. Ms.
Golden, who was the head of the Mathematics Department at SFMS, and whom the District
has employed for 10 years, has mentored other teachers in the past. Respondent never
sought help or guidance from Ms. Golden.

108. Respondent did not take advantage of other resources available in the
Mathematics Department either. Approximately three times per month, the mathematics
teachers would meet to plan and ensure that there was fidelity in their teaching, including

25
preparing quizzes and tests that all of the teachers might use. Respondent was reminded of
and invited by email messages to attend these meetings, but did not attend during the relevant
period except occasionally during the 2014-2015 academic year.

Charges 63 through 74: May 14, 2014 Classroom Observation

109. Mr. Ortiz observed as respondent taught mathematics on May 14, 2014 from
9:40 to 10:44 a.m. He noted a number of problems and teaching methods she might
improve. He met respondent to discuss these matters on May 29, 2014. She said during the
conference that she would respond in writing. She also requested the notes of his
observation.

110. Mr. Ortiz described his observations in about three and a half pages of his May
30, 2014 Conference Memo. (Exhibit 52.) Most of the memo’s remaining two and a half
pages were assistance, guidance, and directives. Respondent replied with a memorandum of
six and a half pages dated June 6, 2014 describing the same events from respondent’s
perspective.

111. During part of the class, respondent had demonstrated how to solve a problem
in long division. It involved numbers with decimal points, specifically dollars and cents.
Respondent incorrectly wrote the answer as 40 dollars, as opposed to 40 cents. Mr. Ortiz
generally refrained from speaking while observing a class, but in this instance he spoke up to
point out the error. Respondent excused herself by saying “she was doing it [the long
division problem in her] head and forgot” to show the students the final step, which required
moving the decimal point. (Exhibit 52.)

112. Mr. Ortiz noted respondent did not use academic language at times. She used
the words “point” or “decimal,” rather than the correct term, “decimal point.” Respondent
employed the term anticlockwise, from British usage, instead of counterclockwise, the
preferred American term. She allowed students to use phrases like “up and down” or “side
to side” instead of referencing location along a graph using the X and Y axis.

113. Respondent’s June 6, 2014 memorandum to Mr. Ortiz denied that she
incorrectly named the decimal point. She denied she incorrectly solved the long division
problem and explained:

I deny uttering the statement “I think I’m doing it in my head and forgot to
show you how to do it.” There was no call for me to make such a statement
because the students are accustomed to me working out problems without the
use of a calculator; informing them of a practice that I employ on a daily basis
would have been redundant. (Exhibit I.)

114. At hearing, respondent asserted that her observers failed to consider the
following: (i) how burdensome her schedule was when she was an RST; (ii) her routine
during classes; (iii) the IEP’s and disabilities of her students when she was an SDP teacher,

26
which caused her to work in a way misunderstood by others; (iv) rights under the contract
between the District and UTLA; and (v) other teachers’ inappropriate conduct that adversely
affected respondent.

115. Mr. Ortiz criticized respondent about the way she treated her students at times:

Your interactions with some students were negative, demeaning or

inappropriate. You only called attention to student L R. when he was off
task but said nothing to the several other students that were unfocused and off
task. (Exhibit 52, p. 52-3.)

Respondent replied in a memo:

Although you provided absolutely no proof and cite no incident to support

your claim, you decided to accuse me of engaging in interactions with students
that “were negative, demeaning or inappropriate.” Without reservation, I
reject this charge as unfounded and unjust! You state that I “called attention to
student L R. when he was off task,” except you did not demonstrate what
was “negative, demeaning or inappropriate” about a teacher telling a student to
pay attention. You continued your charge by claiming that while I called on
L to pay attention, I “said nothing to the several other students who were
unfocused and off task.” First, I did not ignore any student; indeed, any
student caught off task was told to start working. Second, if we take your
claim that I said nothing to “the several other students” as true (let me add that
I do not concede that I behaved in such a manner), how can I then be guilty of
saying things to these students that “were negative, demeaning or
inappropriate.” Simply, I cannot both, not say nothing to “the several other
students” and at the same time say to these “several other students” something
or statements that “were negative, demeaning or inappropriate.” (Exhibit I, p.
LAUSD 347.)

Charge 75 through 84: August 28, 2014 Classroom Observation

116. Mr. Ortiz prepared and sent respondent several Conference Memos after
observing her in the classroom, as indicated below. Mr. Ortiz’s Conference Memos were as
detailed as Mr. Harrington’s and similar in format to Mr. Ortiz’s May 30, 2014 Conference
Memo, Exhibit 52. As Mr. Harrington had, Mr. Ortiz included in each memo guidance,
assistance, and directives. Each included the warning, quoted in Finding 10.H., above, that
failure to follow administrative directives could lead to discipline, up to and including
dismissal.

117. Exhibit 58 is Mr. Ortiz’s September 30, 2014 Conference Memo regarding his
observation of respondent’s classroom on August 28, 2014.

27
 118. Mr. Ortiz noted that respondent was inadequately prepared because she failed
to indicate what the students were to learn and did not make a connection to previous
learning. She posted an agenda:

Homework Check
Warm-Up (English/Math)
Lesson
Exit Ticket (Exhibit 58, p. 58-1.)

Mr. Ortiz observed that respondent did not clear up confusion among students. Specifically,
she asked students for the dimensions of certain square units, but she did not review the
meaning of “dimensions.” A student asked, “Dimensions?” Respondent repeated the word
without explanation. (Id., p. 58-1.) Mr. Ortiz found respondent’s instruction too simple,
evidenced by her questions calling for basic recall, rather than analysis. (Id., p. 58-3.) Mr.
Ortiz noted that respondent singled out a student for talking to another student, though other
students were doing the same. (Id., p. 58-3.)

119. Respondent sent Mr. Ortiz a memo dated October 7, 2014, in which she
claimed that, procedurally, he was not entitled to evaluate her as he did. She did not respond
to the points Mr. Ortiz highlighted in his memo regarding respondent’s teaching. Instead,
she wrote, “I will declare your summary . . . simply as null and void due to the undisputable
violation of both the language and spirit of the [LAUSD/UTLA] contract . . . .” (Exhibit B.)

Charges 85 through 92: October 22, 2014 Classroom Observation

120. Exhibit 59 is Mr. Ortiz’s November 14, 2014 Conference Memo regarding his
observation of respondent’s classroom on October 22, 2014. A November 10, 2014
conference regarding the observations included respondent and Mr. Ebelhar.

121. Mr. Ortiz noted that the agenda respondent posted was not only vague, but she
did not follow it:

1. HW ck
2. Standard/Object
3. Directed Lesson
4. I, we, you
5. Closure
6. Exit Ticket (Exhibit 59, p. 59-1.)

122. Mr. Ortiz also noted that respondent did not teach a directed lesson, and was
ill-prepared for what she told the students. Specifically, respondent drew a chart for use by
the students which depicted two fingers resembling a peace sign to represent a “yes”
response, and depicted one finger to represent a “no” response, which Mr. Ortiz concluded
could be interpreted as an obscene gesture. Respondent told Mr. Ortiz that she had not
drawn the sign, a student had. (Id., Exhibit 59, p. 59-3.) At hearing respondent drew a

28
similar chart, Exhibit J, except that she showed one finger for yes and two fingers (similar to
a peace sign) for no.

123. Neither party proffered any evidence that respondent prepared a written
response to the November 14, 2014 Conference Memo. However, at hearing respondent
denied that Mr. Ortiz’s observations were grounds for criticism of her teaching, either
because his observations lacked context, as he entered her classroom after instruction had
begun, or his observations were simply inaccurate or mistaken altogether.

Charges 93 through 99: February 9, 2015 Classroom Observation and the Read 180
Program

124. Exhibit 61 is Mr. Ortiz’s March 18, 2015 Conference Memo regarding his
observations in respondent’s classroom on February 9, 2015, during a Special Education
English class that used Read 180 materials.

125. The Read 180 program includes a set of books, graduated readers, and
computer software that provides students instant electronic feedback regarding their
understanding of words and concepts. The program provides scripts for teachers to use, as
well as step by step guidelines on how teacher and students should use the materials. The
Read 180 Teacher Guide is Exhibit 120 and excerpts from Read 180 books are Exhibits 115,
116, and 117.

126. Mr. Ortiz observed that, despite the programmed nature of Read 180,
respondent was not adequately prepared to make good use of the materials, having no
detailed lesson plan. She skipped, or inadequately presented, a number of activities normally
conducted early in the class period designed to lead to better and quicker understanding by
students later, such as warm-up activities.

127. There was extensive testimony by respondent describing at various times and
in various years, her pedagogical uses of the Read 180 program.

128. Her testimony regarding Read 180 made clear that respondent understood the
program well. Also clear, however, was that respondent was nevertheless unwilling or
unable to use the program effectively. For example, respondent’s pace through the program
was too slow.

129. On more than one occasion, Hanh Kim D’Aloisio observed respondent’s class
along with Mr. Ortiz. Ms. D’Aloisio, who has been a teacher since 1996, began working for
the District in 2003 and is currently a principal at LAUSD’s Oliver Wendell Holmes Middle
School. She previously supervised Special Education at LAUSD’s Robert A. Millikan
Middle School for approximately eight years. Each time after observing respondent’s
classes, Mr. Ortiz and Ms. D’Aloisio compared notes and discussed the deficiencies they
observed. They also discussed what assistance and guidance they could offer to help
respondent improve her performance.

29
 130. As Ms. D’Aloisio observed, respondent did not implement the program as it
was intended to be implemented. Mr. Ortiz would provide suggestions on how to teach a
lesson effectively in his Conference Memos, as described above. Weeks later, however, Ms.
D’Aloisio observed that respondent was using the same ineffective methods, such as in
teaching vocabulary. Her students were forced to spend many weeks on the same basic
materials which they should have been able to master within two weeks.

131. In response to the criticism regarding her use of the Read 180 program,
respondent asserted that because her students had IEP’s, proceeding at a very slow pace was
appropriate.

132. During Mr. Ortiz’s and Ms. D’Aloisio’s observations, they noted that one of
the Read 180 lessons addressed understanding and using the word “minimum” correctly.
Respondent presented a definition and instructed the students to repeat the word. She did not
model how to use the word in a sentence, so when she asked the students to use the word in a
sentence, they did so incorrectly.

133. Respondent provided Mr. Ortiz her response to the Conference Memo in a
memo dated March 25, 2015, Exhibit LL. She claimed that Mr. Ortiz was incorrect about
several activities, like a warm-up, at the beginning of class. She maintained that he had
missed approximately 11 minutes at the beginning of the class, and so had not witnessed her
instructing the students in appropriate activities. At hearing respondent proffered similar
testimony regarding Mr. Ortiz’s observation, as well as the comments of other administrators
who observed a number of respondent’s classes. Specifically, respondent explained that their
criticism of her methods was misguided, because they had not been present during the whole
class period from beginning to end. However, based on Mr. Ortiz’s experience of Read 180
and in order for this particular argument from respondent to be valid, respondent would have
had to complete a number of activities within the short period that Mr. Ortiz and the other
administrators were not present in respondent’s classroom. For example, if such activities
were completed in the first 11 minutes of class on February 9, 2015, Mr. Ortiz concluded
respondent would have had to speed through the activities at a pace that would have made
the lesson ineffective.

134. Respondent defended her teaching of the word “minimum” by describing how
she had used scaffolding. That is, she did not have the students use the word itself, but its
meaning or definition in a sentence, the “scaffold.” They were then told to strike out that
part of the sentence (or scaffold) and replace it with the word. (Id., Exhibit LL, p. LAUSD
36.) However, respondent acknowledged in her memo that she did not appreciate that the
students had used the word incorrectly and thus did not learn.

Charges 100 through 106: May 8, 2015 Classroom Observation

135. Exhibit 63 is Mr. Ortiz’s May 26, 2015 Conference Memo regarding his
observations in respondent’s classroom on May 8, 2015, during another Read 180 session.

30
 136. Mr. Ortiz concluded that respondent, again, was not adequately prepared to
teach the material, as she followed no apparent lesson plan. At his request, respondent had
provided Mr. Ortiz with a weekly lesson plan. For Monday of that week, the lesson plan
stated:

Read 180 S44

Rotations
Present tense verbs (Exhibit 63, p. 63-1.)

Mr. Ortiz determined that such a lesson plan was vague and inadequate. The lesson plan for
other days, Tuesday through Thursday, included similar lists, which Mr. Ortiz also
considered vague and inadequate. For Friday it stated only, “Reading log checks.” (Ibid.)

137. Respondent explained at hearing that she gave Mr. Ortiz vague lesson plans,
just as she had for other classes in previous years. For instance, her lesson plan for February
3, 2014 stated:

I&E
Ratios
Math 6 – Ratios (Exhibit 105, p. 105-1.)

Her lesson plan for February 29, 2016 stated:

BIC Tutorial
Study Guide and Area of Right Triangle
David & Solomon
Present-Tense Questions (Exhibit 105, p. 105-62.)

138. However, respondent claimed that the lesson plans she showed administrators
were not the sort of lesson plan she actually used in preparing her classes. Respondent
asserted that she prepared much more detailed plans, which she kept under lock and key in
her classroom, for her use only. Respondent never showed any administrator her detailed
lesson plans, despite the requests, because respondent believed that she could not legally
share her detailed lesson plans, as they would reveal confidential information about students
with disabilities. She never told the administrators that she was withholding these materials,
or why, and never requested clarification of any confidentiality rules in relation to her lesson
plan, even after administrators had repeatedly instructed respondent to submit her lesson
plans. Additionally, respondent never told administrators that the skeletal lesson plans she
submitted were abbreviated versions of her more detailed “confidential” lesson plans.
Respondent’s testimony in this regard was therefore deemed not credible, given the
unreasonable nature of her explanation.

139. Mr. Ortiz noted that respondent did not teach any directed lessons on May 8,
2015, despite his direction on previous occasions to do so. Instead she instructed her

31
students to prepare notes or letters addressed to their mothers, in preparation for Mother’s
Day.

140. Mr. Ortiz noted that when respondent circulated or walked about the
classroom, she did not carefully or closely check students’ written work. If she had, Mr.
Ortiz believed, she would have been able to notice mistakes and comment to the students
about them. Because of this failure and others, Mr. Ortiz concluded respondent did not
advance her students toward mastery of common core state standards (set out in Exhibit
109).

Charges 107 through 116: August 24, 2015 Classroom Observation

141. Exhibit 66 is Mr. Ortiz’s September 9, 2015 Conference Memo regarding his
observations during respondent’s classroom on August 24, 2015.

142. Mr. Ortiz noted that respondent did not design differentiated lessons or
activities for the class. Consequently, Mr. Ortiz concluded that the needs of respondent’s 12
IEP students were not met.

143. Mr. Ortiz concluded that a large part of respondent’s presentation of the Read
180 learning materials was illogical and not useful to the students, particularly a Powerpoint
slideshow, which students appeared to view passively. At the end of her presentation,
respondent did not ensure that students understood how to proceed in the Read 180 program.
She did not ask high-level questions (i.e., questions that ask for critical thinking, rather than
simple recall). (Id., Exhibit 66.)

144. Respondent disputed all of Mr. Ortiz’s statements in a September 17, 2015
memo, Exhibit T. Respondent claimed that it was too early in the year for her students to
have a good understanding of the Read 180 program, and stated further:

This is a perfect example of an observation that is grossly unjust, unfair and

inequitable. When you taught your math-intervention class last year, how
many of your students became proficient in math by the end of the 2nd or even
by the 22nd day of class? If your answer is: yes, and you can show
incontrovertible proof, then I would ask you to teach me how to achieve this
miraculous result. But if no student of yours achieved such a standard, then
the question begging to be asked is: Why are you demanding that I meet a
standard that you yourself, as the principal of this school, could not achieve?
(Exhibit T, p. LAUSD 2216-2217.)

Charges 117 through 125: September 28, 2015 Classroom Observation

145. Exhibit 73 is Mr. Ortiz’s October 21, 2015 Conference Memo, which
references his October 20, 2015 conference with respondent, accompanied by Mr. Ebelhar.

32
Also in attendance was Mauro Mejia, a School Administrative Assistant. The memo
described respondent’s Read 180 class, which Mr. Ortiz observed on September 28, 2015.

146. Mr. Ortiz found that respondent was as ineffective and ill-prepared as she had
been in his previous observations. For instance, Mr. Ortiz found that respondent was not
helpful to students, even after they expressed difficulties in obtaining information she asked
them to obtain from her teacher’s edition. Although respondent told her students to copy a
definition from the Read 180 teacher’s edition, they could not all use the book at one time
and had trouble standing close enough to see what was in the book. One student asked that
respondent write a word’s definition on chart paper, but respondent refused to provide such
help, saying that there was no room to write it, even though much of the chart paper available
was blank and respondent could have used a different, blank sheet. (Exhibit 73, p. 73-3.)

147. Respondent wrote an October 28, 2015 memo in reply, Exhibit DD, in which
she denied all of Mr. Ortiz’s statements. She gave this explanation regarding her lesson
planning:

Additionally, I have previously explained the confidentiality requirements

regarding students’ IEPs, but you continue to insist that I indicate this in my
planning. To put an end to this back-and-forth, I am requesting that you issue
a mandate compelling me to discuss my students’ IEPs in my planning. I
assure you that upon receipt of such a written mandate, I will write individual
students’ names, their goals, accommodations, and services such as counseling
etc., in my lesson plans. And, if at some future date I am questioned as to why
I did not follow District, State, and Federal mandates on confidentiality, I will
produce your written mandate as the reason why. (Exhibit DD, p. LAUSD
2246.)

October 16, 2015 Notice of Suspension

148. The District issued an October 16, 2015 Notice of Suspension. It informed
respondent her employment was suspended for 11 days. (Exhibit 72.)

A. The causes stated in the Notice of Suspension were: (i) unprofessional

conduct; (ii) unsatisfactory performance; (iii) willful refusal to perform regular assignments
without cause, as prescribed by the District’s reasonable rules and regulations; and (iv)
persistent violation of and refusal to obey California’s school laws or reasonable regulations
prescribed for the government of the public schools by the State Board or by the District’s
Governing Board.

B. The charges stated in the Notice of Suspension were the same as those Mr.
Ortiz had set out in four of his Conference Memos to respondent, dated: (i) September 30,
2014 (Exhibit 58); (ii) November 14, 2014 (Exhibit 59); (iii) March 18, 2015 (Exhibit 61);
and (iv) May 26, 2015 (Exhibit 63).

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Charges 126 through 134: November 13, 2015 Classroom Observation

149. Exhibit 79 is Mr. Ortiz’s December 7, 2015 Conference Memo, which

references his December 1, 2015 conference with respondent. The memo describes
respondent’s English class on November 13, 2015, an hour of which Mr. Ortiz observed,
accompanied by Ms. D’Aloisio.

150. During their November 13, 2015 visit, Mr. Ortiz and Ms. D’Aloisio observed
the same types of teaching deficiencies observed previously in respondent’s classes. At one
point, for instance, respondent took time to sharpen students’ pencils, which was not an
effective use of instructional time. Additionally, Mr. Ortiz and Ms. D’Aloisio concluded that
respondent demonstrated ineffective teaching, evidenced by how much of the students’ time
was consumed in a vocabulary lesson on one word only, “income.” Moreover, they noted
that the methods respondent used during the lesson were low-level. For instance, she
instructed the students to rate the word according to this scale:

1 = I don’t know
2 = I have seen the word
3 = I have seen the word and know how to use the word

She then simply dictated the word’s meaning to all, not using the scale or other means to
differentiate instruction.

151. At hearing, Ms. D’Aloisio corroborated observations memorialized in Mr.

Ortiz’s Conference Memo, particularly how respondent failed to differentiate instruction for
those students who required it. She, like Mr. Ortiz, concluded respondent was generally
ineffective and greatly in need of improvement.

152. Respondent’s memo dated December 14, 2015 is respondent’s point by point
response to Mr. Ortiz’s comments. She denied that any of her teaching was deficient and
then stated the following:

I know that you believe that all will be well if only I would close my eyes to
your policy of favoritism, inaccurate reporting and downright fabrications,
unfortunately, I cannot and would not accept anything other than the truth.
For that reason, I asked to transfer and continued to ask out of your school.
Your response was to write even more inaccuracies with one goal and only
one goal in mind which is to see to it that I am dismissed from LAUSD, and
not even my offer to take an administrative transfer would satisfy this quest of
yours there, I stand by my opening response to your first Informal Observation
of August 24, 2015, you must and do indeed hate me. (Exhibit U, pp. LAUSD
2268-2269.)

//

34
Charges 135 through 144: Events on December 7 and 10, 2015

153. Exhibit 85 is Mr. Ortiz’s December 18, 2015 Conference Memo, which
references a conference with respondent that was twice scheduled, but which she failed to
attend. The memo describes Mr. Ortiz’s observations of respondent’s mathematics class on
December 10, 2015, which he attended for approximately one and one quarter hours.

154. Mr. Ortiz noted that respondent failed to comply with his mandate that she
submit her lesson plans to him before the formal observation. As described below, Mr. Ortiz
concluded that respondent’s failure to cooperate beforehand contributed to the ill-prepared
and ineffective nature of respondent’s teaching that he witnessed.

155. Mr. Ortiz observed deficiencies similar to those he had witnessed several times
before. Specifically, respondent had not designed her lesson so that it promoted learning
commensurate with the State’s common core standards for mathematics. Respondent
presented a lesson on calculating the perimeter of a parallelogram, but it was confusing, in
part because she did not model any calculation and did not explain how to use two formulae
she provided the students. Mr. Ortiz found that respondent failed to respond effectively to
address students who expressed confusion. For instance, one student answered respondent
that the number one was a factor of a higher number. Respondent said that one was not used
as a factor, but she did not explain or guide the student to revise his answer. Mr. Ortiz also
found that the calculation she asked her sixth-grade students to perform was activity
appropriate for third-grade students.

156. Respondent sent Mr. Ortiz a January 15, 2016 memo in reply. As before, she
denied each of his criticisms, stating:

I am in receipt of your memo dated December 18, 2015. The fact that you held a
previous conference meeting the first week of December, 2015, and attempted to hold
this additional meeting when the contract allows one and only one conference
meeting per month, means that this meeting which did not take place; was not and
would not have been in compliance with the contract, even if you had held the
meeting. [¶] . . . [¶]

[M]y evidence contracts [sic] yours; evidence that I will provide if and when it
becomes necessarily. [¶] . . . [¶]

[Y]ou had no intention of being anything other than to pretend, and for that you were
indeed dishonest, and you confirmed my assertions that your evaluations are pre-
determined, and biased in nature.

I will ask again that you recuse yourself as my evaluator and again that you
use your administrative power to transfer me out of your school to prevent the
continuance of this harassment that you believe I deserve for no other reason
because of your deep seated hatred of me. I know that you deny hating me,

35
 but your public admittance that you do not treat all teachers equally at this
school site is proof; so that even if you were to deny this, does it not trouble
you that at some point someone will start to wonder how to distinguish your
definition of not hating verses [sic] all others versions of not hating since no
one can claim not hating yet deliberately put that individuals [sic] life in
jeopardy. Use that power to transfer me out of your school, since you do not
want me here and I do not wish to be here, one thing I know is that I do not
wish to die. (Exhibit S, pp. LAUSD 2183, 2186 [heading numbers omitted].)

Charges 145 through 151: Class Observation on February 8, 2016

157. Exhibit 87 is Mr. Ortiz’s February 22, 2016 Conference Memo, which
references his observation of respondent’s mathematics class on February 8, 2016 and a
conference held on the same day with respondent. Ms. D’Aloisio observed the class but did
not attend the conference. Two other people attended the conference: (i) Mauro Mejia,
School Administrative Assistant, and (ii) a teacher, Christine Kizito.

158. Mr. Ortiz noted that the types of deficiencies observed in respondent’s
teaching were similar to what he had observed during previous observations. Specifically,
Mr. Ortiz found that respondent was not adequately prepared, evidenced by her failure to
post a content standard that corresponded to the lesson she gave. Mr. Ortiz also found
respondent’s instruction deficient, evidenced by her failure to state the purpose of the lesson,
to model skills, and to effectively check to ascertain whether her students understood the
lesson. Mr. Ortiz found respondent’s directions to students as unclear, such that some
resorted to asking other students what they should be doing. Mr. Ortiz also noted that
respondent failed to use precise descriptions of mathematical concepts, such as “angle”
instead of “corner” and “equal” instead of “same.”

159. As Ms. D’Aloisio noted, respondent tried to explain right angles, but
concluded she did so poorly, because she failed to explain that a right angle has 90 degrees.
Additionally, Ms. D’Aloisio noted that respondent did not properly model how to solve for
the area of a parallelogram, a two-dimensional object. While respondent tried to model by
using a tissue box she had smashed flat, Ms. D’Aloisio found it was confusing to use a three-
dimensional object in this way.

160. Respondent provided no written response to Mr. Ortiz’s February 22, 2016
Conference Memo.

Respondent’s Rebuttal and Impeachment Evidence

161. Respondent’s primary vehicle to discredit the District’s evidence against her
was her own testimony. In all of her testimony, respondent took the position she did nothing
significant that might have prompted the District to attempt to dismiss her or even to criticize
her at any time.

36
 162. Respondent testified that she was responsible for improvements in students’
understanding and for their achievements in learning that, but for her good teaching methods,
would not have occurred. To support this testimony, respondent relied in significant part
upon a “Growth Report,” Exhibit 104, showing students’ reading test scores near the
beginning and toward the end of the 2015-2016 academic year. The report shows slight
improvement for a few students, but most demonstrated no significant improvement. A few
performed worse on the second testing.

A. Teresita Rodriguez

163. Teresita Rodriguez testified at hearing. The District employs her as a Special
Education assistant at SFMS. She has approximately 16 years of experience in Special
Education.

164. Ms. Rodriguez worked in respondent’s self-contained sixth grade classroom

from spring 2014 until respondent left SFMS in 2016. Ms. Rodriguez did not at first wish to
work in respondent’s self-contained classroom, as she told Amy Harrington Trinidad (who is
married to SFMS assistant principal Mr. Harrington), the assistant principal in charge at the
time of assigning classrooms to teachers and Special Education assistants. Ms. Rodriguez
learned that respondent had asked Ms. Trinidad that Ms. Rodriguez be assigned to her
classroom. Ms. Rodriguez then told Ms. Trinidad she acquiesced.

165. At times Ms. Rodriguez spoke with Sonia Munoz concerning respondent. As
indicated in Findings 42 and 52, Ms. Munoz and respondent attended IEP meetings together
at times. As indicated in Finding 47, Mr. Ortiz had instructed Ms. Munoz to assist
respondent with Special Education work, so that Ms. Munoz reported to respondent’s
classroom several times per week, though respondent refused her assistance. Ms. Rodriguez
witnessed the occasions when Ms. Munoz reported to respondent’s classroom and respondent
turned her away.

166. Ms. Rodriguez did not recall that respondent ever yelled at another teacher or
at a parent, contrary to the testimony of Ms. Silberschein, as noted in Finding 64.

167. Ms. Munoz appeared several times weekly in respondent’s classroom, but as
Ms. Rodriguez recalled in corroborating some of Ms. Munoz’s testimony, respondent
repeatedly told Ms. Munoz to leave because she did not need her help.

168. Ms. Rodriguez recalled that standards were posted in respondent’s classroom,
but she did not recall whether they were changed at times, or whether different standards
were posted from time to time.

169. Ms. Rodriguez testified that respondent followed the Read 180 program well.
For instance, rotations by the students from one small group to another in respondent’s class
were at 20-minute intervals, as mandated by the Read 180 program, and no longer. As Ms.

37
Rodriguez recalled, respondent used a timer with a bell to mark the start of a rotation after
each 20-minute interval.

170. Respondent gave Ms. Rodriguez lesson plans each week. They met regularly
to discuss their activities in class on Tuesdays and at other times during conference periods.

171. Ms. Rodriguez testified that students liked respondent’s teaching. She recalled
that one student in respondent’s class cried at times. But the student was crying because of
her parents’ divorce and difficulties at home, rather than because of any treatment by
respondent.

172. Both respondent and Ms. Rodriguez circulated about the classroom each day,
to be sure that students were doing work and to check the work. When respondent found that
a student was not doing work, she would say something to the effect of, “Get back to work or
I will call your parents.” But Ms. Rodriguez denied that respondent used a harsh tone with
children, explaining that both she and respondent were strict, and would speak to students in
a tone appropriate to maintain orderly conduct when students were misbehaving.

B. S N.

173. S N., who testified at hearing, was one of respondent’s sixth grade
students in the 2015-2016 school year. She liked respondent. She liked respondent’s class
and thought it was fun.

C. H T

174. H T , who testified at hearing, is the mother of S N. She

observed respondent teaching her daughter and her classmates in the classroom on three
occasions and talked to respondent at times about how her daughter was progressing.

175. Ms. T observed no problems in the classroom and testified that

respondent was an excellent teacher, responsive to Ms. T and attentive to her students.
Ms. T praised respondent and her teaching ability.

D. G M

176. Another parent, G M , who testified at hearing, stated that

respondent was a good teacher. Ms. M ’s testimony was based her son’s experience in
respondent’s class. He did well in the class and was happy with respondent. Ms. M did
not observe respondent yell or raise her voice disrespectfully.

//

//

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 E. I F

177. I F , who testified at hearing, is the mother of J M. She

testified that respondent was an effective teacher and that her daughter did well in
respondent’s class.

Testimony Particularly Pertinent to Respondent’s Credibility

178. Respondent’s testimony regarding her lesson plans, as described above,

indicates that she was at times an unreliable witness. She did not prepare detailed lesson
plans, as she testified at length that she did. It is incredible that a teacher such as respondent,
whose activities were scrutinized and criticized for years, and who faced dismissal for failure
to follow directives, would prepare detailed lesson plans but then not tell the principal about
them, but rather keep them hidden away. Adequate lesson plans can be prepared without
revealing confidential information, despite respondent’s assertions to the contrary.
Respondent refused to prepare or was incapable of preparing a comprehensive and well-
organized lesson plan.

179. Likewise one cannot credit respondent’s testimony that she took the
photographs of her classroom seen in Exhibit DDD. Respondent’s testimony in this regard
seemed confident. She did not hesitate to say that she was the photographer. Yet she had no
reason to take such pictures and could not explain, when questioned, what her purpose was in
taking the photographs. There is, further, a concrete indication that respondent was not
truthful or was mistaken about her being the photographer. The photographs were pre-
marked as the District’s Exhibit 103 (which however the District ultimately decided not to
have marked or moved into evidence). The District did not obtain the photographs from
respondent. Mr. Ortiz testified credibly he was the photographer and made the photographs
available to District’s counsel in preparation for the hearing.

180. Respondent admitted at the hearing that Mr. Ortiz told her she was not to
require that the students simply copy information, because copying the definition of a
vocabulary word, for instance, does not substitute for teaching that ensures a student’s
comprehension of the word. To comply with Mr. Ortiz’s mandate, respondent prepared
cards with printed information and distributed them to the students so that they could refer to
them. In this way she avoided the stricture against copying by students, but only by
distributing copies to them.

Testimony Rebutting Respondent’s

181. At hearing respondent testified that she received guidance from Christine
Lamb on preparing draft IEP’s. According to respondent, Ms. Lamb criticized respondent
about how she had prepared a draft IEP, but Ms. Lamb had changed her opinion after
respondent submitted a later IEP draft that evidenced that respondent adhered to Ms. Lamb’s
advice regarding IEP drafting. After viewing the second IEP draft, Ms. Lamb supposedly
told respondent that, in effect, respondent had mastered the skill necessary to prepare IEP’s,

39
and no longer needed Ms. Lamb’s assistance, as the IEP complied with applicable federal
law.

182. Respondent’s testimony was impeached by Ms. Lamb’s testimony at hearing.

Ms. Lamb noted that respondent was attentive and willing to learn from her. Nevertheless, at
an IEP meeting at which Ms. Lamb accompanied respondent, respondent presented an IEP
that was incomplete and not legally compliant. Ms. Lamb could not remember the name of
the student who was the subject of the IEP or when the meeting occurred, but did recall that
the parent, who attended the meeting, was unhappy with the incomplete IEP draft.

Attempted Transfers

183. Respondent submitted a Teacher-Initiated Transfer Application to the District,

in late 2013. She sent Mr. Ortiz her written Transfer Notice dated December 5, 2013, stating
she had received an offer of employment from another school in the District. (Exhibit 32.)
The District did not approve the transfer and respondent stayed at SFMS.

184. Respondent again sought transfer to teach at another school in the District.
She would have been a teacher at Barack Obama Global Preparation Academy in Los
Angeles as of July 1, 2014 (Exhibit VV), but the transfer was cancelled due to her
ineligibility. Specifically, respondent was deemed ineligible for transfer because
administrators had rated her performance as unsatisfactory.

Credibility

185. Respondent was articulate and her testimony was extensive, with recollection
of events covering the years of the relevant period. She offered in evidence several exhibits,
such as Exhibits AA, BB, and CC, which she drew during the hearing, to illustrate charts she
had used in her classroom. The exhibits were helpful and respondent’s testimony about them
showed her ability to communicate effectively.

A. At times respondent’s presentation of the evidence faltered understandably,

since she was asked, during many consecutive hours on the witness stand, to recall and
describe in detail the events of several years. It is a demanding task fraught with challenges
and difficulties for any witness.

B. Throughout her testimony, respondent asserted she was an effective teacher.

This testimony was not believable, except in minor matters. For instance, there was no
reason to fault respondent for the occasional Briticism. Her use in the classroom of a British
term like anticlockwise, as discussed in Finding 113, was excusable, because lapses from
American usage were not shown to be frequent or particularly confusing for her students.
Charge 21, discussed in Findings 54 and 55, concerns respondent’s failure to test a student
despite a parent’s request. The charge was not proven, and in any event such a mistake, if
made, was not shown to be grounds for dismissal. On the other hand, respondent’s incorrect
use of mathematical terms, as set out for instance in Finding 158, indicates a specific way in

40
which she was ineffective, and not credible in asserting that she was effective, in teaching
mathematics.

C. Pertinent here as applicable to much of respondent’s testimony is the court’s

characterization of the credibility of trial testimony in Wilson v. State Personnel Board
(1976) 58 Cal.App.3d 865, 877-878, quoting Meiner v. Ford Motor Co. (1971) 17
Cal.App.3d 127, 140:

On the cold record a witness may be clear, concise, direct, unimpeached,

uncontradicted -- but on a face to face evaluation, so exude insincerity as to
render his credibility factor nil. Another witness may fumble, bumble, be
unsure, uncertain, contradict himself, and on the basis of a written transcript be
hardly worthy of belief. But one who sees, hears and observes him may be
convinced of his honesty, his integrity, his reliability.

186. The cold record does not materially support respondent’s testifying ability in
that she was evasive.

A. Questioned on direct examination, respondent almost always professed near

perfect recall of events. Many times on cross-examination, however, she testified she had
almost no memory of the same facts.

B. Respondent was able to understand and answer with pertinent information

when the question came from her counsel. However, at times when asked similar questions
by the District’s counsel, respondent professed her inability to comprehend.

C. As the hearing proceeded over a series of weeks, respondent’s asserted

inability to answer questions posed during cross-examination increased. She avoided
answers by saying she did not comprehend the District’s questions.

187. Much of respondent’s testimony regarding particularly important facts was not
credible. There are several salient instances.

A. Respondent’s testimony regarding her lesson plans, discussed above in

Findings 137, 138, and 178, made little sense and was not believable.

B. There was extensive testimony by respondent describing her effective

instruction based on the Read 180 program. An example is her description of her teaching in
February 2015, referenced above in Finding 133. This extensive testimony, given toward the
last few days of the administrative hearing, was not credible. The evidence showed that
respondent’s pace through the materials was too slow. Her students learned little because
respondent presented them with little over the course of weeks.

C. Not credible is the last paragraph in respondent’s January 15, 2016 memo,
Exhibit S, quoted above in Finding 156. Her statements are confusing, partly

41
ungrammatical, and make little sense. The last comment, regarding death, is extreme and
puzzling, unsupported by the evidence, and apropos of no preceding communications or
incidents. Respondent testified that what she wrote in her many memos in response to the
several Conference Memos was accurate and truthful, including assertions that Messrs.
Harrington and Ortiz were acting against her based on their personal animosity. In the end,
respondent had no credible evidence that any personnel of SFMS, administrators or others,
expressed or acted upon strong negative emotions towards her.

188. Other teachers were more credible than respondent.

A. Ms. Arco was convincing regarding the simple fact that respondent never co-
planned with her. Ms. Arco’s demeanor was sincere and straightforward, reinforced by her
willingness to acknowledge on cross-examination facts that might be considered as
qualifying, in respondent’s favor.

B. There was similarly credible testimony from Ms. Silberschein. Ms.

Silberschein and respondent were at odds during the IEP meeting on March 19, 2013, as
indicated in Finding 45. However, it is unlikely that Ms. Silberschein used her disagreement
with respondent as a reason to misrepresent the events she reported to Mr. Ortiz, as indicated
in Finding 64, 65, and 66. Like Ms. Arco’s, Ms. Silberschein’s manner of testifying
supported belief.

C. Ms. Mulder was credible regarding respondent’s disrespectful conduct in the

incident on January 14, 2013, as set out in Findings 14 through 23. In testifying to the
incident, Ms. Mulder’s demeanor indicated that she was merely recalling what happened,
with detailed recollection of facts in testimony that was serious, careful, and respectful.

D. Ms. Lamb gave credible testimony, as indicated in Findings 182 and 183, that
impeached respondent on a subject, specifically, IEPs. Ms. Lamb admitted that respondent
was an attentive and willing learner, an indication that Ms. Lamb had no bias against
respondent. Ms. Lamb’s testimony, based on her experience with drafting IEP’s and helping
teachers, in which she concluded that respondent did not become competent at drafting
IEP’s, was given great weight.

E. Respondent asserted that Mr. Ortiz prohibited her from asking other teachers
for assistance, such as copies of materials like lesson plans. (Finding 60.) Despite
respondent’s assertion, the weight of the evidence shows that respondent was offered a
number of resources, including the PAR program teachers, discussed in Finding 102, and a
mentor teacher, Ms. Golden, discussed in Finding 107.

189. The administrators who testified were credible. The Conference Memos
written by Messrs. Harrington and Ortiz (a few of the latter’s with the help of Ms. D’Aloisio)
give good and detailed descriptions of respondent’s inadequate teaching methods and
activities. They were backed by convincing testimony. Apparent to each administrator
throughout the relevant period was respondent’s ineffectiveness as a teacher. Respondent

42
asserted that the administrators should not be believed because they did not teach regularly.
The assertion was not persuasive. Administrators, given their level of experience, were
capable of recognizing bad or ineffective teaching.

190. One theme apparent throughout respondent’s testimony was her penchant for
shifting blame to others. For example, if there was a dispute with a teacher like Ms.
Silberschein, the problem originated, in respondent’s characterization of events, with Ms.
Silberschein’s failure to communicate promptly with respondent. Similarly if a problem
arose in Mr. Foote’s class, the problem was not respondent’s failure to appreciate Mr.
Foote’s method of fostering free and spontaneous discussions and excitement for learning,
but his failure to keep students quiet and submissive in the way respondent preferred. It did
not seem to occur to respondent that communication with other teachers was very much a
two-way street, requiring constant cooperation and an accepting spirit.

LEGAL CONCLUSIONS

1. The District has the burden of proof. The applicable standard is proof by a
preponderance of the evidence. (Gardner v. Com. on Prof. Competence (1985) 164
Cal.App.3d 1035, 1040.)

Pertinent Law and Regulations

2. Education Code section 44932, subdivision (a), provides in pertinent part:

(a) A permanent employee shall not be dismissed except for one or more of the
following causes: [¶] . . . [¶]

(2) Unprofessional conduct. [¶] . . . [¶]

(5) Unsatisfactory performance.

(6) Evident unfitness for service. [¶] . . . [¶]

(8) Persistent violation of or refusal to obey the school laws of the state or
reasonable regulations prescribed for the government of the public schools by
the state board or by the governing board of the school district employing him
or her.

3. Education Code section 44939 provides in pertinent part:

(b) Upon the filing of . . . a written statement of charges formulated by the

governing board of a school district, charging a permanent employee of the
school district with . . . willful refusal to perform regular assignments without
reasonable cause, as prescribed by reasonable rules and regulations of the

43
 employing school district, . . . the governing board of the school district may,
if it deems that action necessary, immediately suspend the employee from his
or her duties and give notice to him or her of his or her suspension, and that 30
days after service of the notice of dismissal, he or she will be dismissed, unless
he or she demands a hearing.

4. Whether a teacher like respondent may be dismissed depends on both statutory

law and factors set out in Morrison v. Board of Education (1969) 1 Cal.3d 214 (Morrison).
The Morrison factors are set out in California Code of Regulations, title 5, section 80302,
subdivision (a):

(a) The Committee, in conducting its investigation, shall determine the

relationship between the alleged misconduct and the applicant’s or holder’s
fitness, competence, or ability to effectively perform the duties authorized by
the credential. Such relationship may be based on facts which include, but are
not limited to, the following:

(1) The likelihood that the conduct may have adversely affected students,
fellow teachers, or the educational community, and the degree of such
adversity anticipated;

(2) The proximity or remoteness in time of the conduct;

(3) The type of credential held or applied for by the person involved;

(4) The extenuating or aggravating circumstances surrounding the conduct;

(5) The praiseworthiness or blameworthiness of the motives resulting in

the conduct;

(6) The likelihood of the recurrence of the questioned conduct;

(7) The extent to which disciplinary action may inflict an adverse impact or
chilling effect upon the constitutional rights of the person involved, or other
certified persons;

(8) The publicity or notoriety given to the conduct.

Cause for Dismissal

5. Cause for dismissal exists under several sections of Education Code section
44932.

A. Under Education Code section 44932, subdivision (a)(2), dismissal is

warranted based on respondent’s unprofessional conduct. The statute defines unprofessional

44
conduct as that which violates the rules or ethical code of a profession or is unbecoming a
member of a profession in good standing. (Board of Ed. v. Swan (1953) 41 Cal.2d 546, 553,
overruled in part, on another ground, in Bekiaris v. Board of Ed. (1972) 6 Cal.3d 575, 588,
fn. 7.) Another formulation of “unprofessional conduct” is stated in Perez v. Commission on
Professional Competence (1983) 149 Cal.App.3d 1167, 1174:

Conduct which produced serious friction in the school and showed the
teacher’s insubordination and refusal to conform to the instructions and
requirements of her superiors was held “unprofessional conduct.” (Johnson v.
Taft School Dist., supra, [(1937)] 19 Cal.App.2d 405, 407.)” (Board of
Education v. Swan (1953) 41 Cal.2d 546, 553.) Unprofessional conduct is
grounds for dismissal, however, only if it indicates unfitness to teach.

Respondent was unwilling and unable to cooperate with other teachers and school
administrators, though cooperation is a professional duty of both an RST and SDP teacher.
Such conduct unbecoming a teacher is described in:

(i) Findings 16 through 19, describing the incident between respondent

and Ms. Mulder and respondent’s attempt to suspend a student;

(ii) Findings 45 and 47, describing the March 19, 2013 IEP meeting and
the disagreement between respondent and Ms. Silberschein;

(iii) Findings 64 and 65, describing the exchange between respondent and
Ms. Silberschein when Ms. Silberschein, to make way for pest control, was temporarily
using respondent’s classroom.

(iv) Findings 80 through 88, describing respondent’s conduct in Mr.

Foote’s class;

(v) Findings 107 and 108, describing respondent’s failure to avail herself
of having a teacher mentor, Ms. Golden and of resources in the Mathematics Department;
and

(vi) Findings 137 and 138, one among other Findings indicating respondent
refused to conform to the instructions and requirements of her superiors.

B. Under Education Code section 44932, subdivision (a)(5), dismissal is

warranted based on respondent’s unsatisfactory performance, as indicated, for instance, by
her unsatisfactory preparation (Findings 90 and 137), unsatisfactory teaching in English
(Finding 129), and her unsatisfactory teaching of mathematics (Findings 159 and 160). In
Perez v. Com. On Prof’l Competence (1983) 149 Cal.App.3d 1167, the court considered
unsatisfactory performance the equivalent of incompetent teaching methods. “Incompetency
does not invoke subjective analysis of standards of morality or professionalism which vary
from individual to individual dependent on time, circumstances or custom. . . . We hold

45
incompetency to be its own standard . . . .” (Ibid., 149 Cal.App.3d at 1176.) Respondent’s
teaching and teaching methods were deficient both as an RST and SDP teacher. As indicated
particularly in Findings 47 and 64 through 66, respondent would not cooperate with or
communicate with certain other teachers reasonably, which constitutes a deficient teaching
method.

C. Under Education Code section 44932, subdivision (a)(6), dismissal is

warranted based on respondent’s evident unfitness for service. In Woodland Joint Unified
School Dist. v. Com. on Professional Competence (1992) 2 Cal.App.4th 1429, the court
affirmed a judgment of dismissal against a teacher who, like respondent, conducted himself
toward others, including administrators, in a manner that was confrontational, belligerent,
and otherwise offensive. The conduct demonstrated evident unfitness for service:

“Evident unfitness for service” . . . means “clearly not fit, not adapted to or
unsuitable for teaching, ordinarily by reason of temperamental defects or
inadequacies.” Unlike “unprofessional conduct,” “evident unfitness for
service” connotes a fixed character trait, presumably not remediable merely on
receipt of notice that one’s conduct fails to meet the expectations of the
employing school district.

(Ibid., 2 Cal.App.4th at 1444.) (See also Palo Verde etc. Sch. Dist. v. Hensey (1970) 9
Cal.App.3d 967. Respondent was confrontational in her dealings with others as indicated
particularly in Findings 16 through 19, and 45, demonstrating a temperamental defect or
inadequacy that renders respondent evidently unfit for service.

D. Under Education Code section 44932, subdivision (a)(8), dismissal is

warranted based on respondent’s persistent violation of or refusal to obey the school laws of
the state or reasonable regulations prescribed for the government of the public schools by the
state board or by the governing board of the school district employing her. A single instance
of refusal or disobedience is insufficient. Termination under the statute is appropriate if
there has been continuous and constant refusal to obey, or behavior motivated by an attitude
of continuing insubordination. (Governing Bd. of the Oakdale Union School Dist. v. Seaman
(1972) 28 Cal.App.3d 77, 81-82.) The record here presents a long history, extending the
length of several academic years, during which respondent refused to perform, despite
administrative directives, a great deal necessary and beneficial for the education of children:
(i) co-planning; (ii) cooperation with other teachers; (iii) preparing adequate lesson plans;
(iv) posting appropriate materials in her classroom; (v) delivering lessons designed to instill
learning of core educational standards; and (vi) respectful treatment of others.

6. Cause for dismissal exists under Education Code section 44939, based on
respondent’s willful refusal without reasonable cause to perform regular assignments as
prescribed by reasonable rules and regulations of the employing district, LAUSD. As the
evidence established, Mr. Harrington and Mr. Ortiz on several occasions directed respondent
to perform regular teaching assignments that she did not perform. A primary example is
when the administrators asked that respondent provide them with her lesson plans.

46
Respondent testified she prepared detailed lesson plans, but never provided them to the
administration. Respondent did not prepare such lesson plans. What she prepared and
provided were inadequate summaries that often used a single word or a brief phrase to
describe an entire lesson lasting a class period, over an hour. (Exhibit 105.) In this way
respondent willfully and without cause refused to fulfill a reasonable assignment for which
she had more than one specific directive. As respondent was warned repeatedly in
Conference Memos, a teacher who refuses to obey such a directive is subject to discipline, up
to and including dismissal. (E.g., Exhibit 12, the Conference Memo dated December 12,
2012, and Exhibit 94, the Conference Memo dated April 6, 2016.)

7. Respondent’s conduct constitutes unfitness to teach under several Morrison

factors:

(i) Under the first Morrison factor, the likelihood of adverse effect:

(a) Respondent’s conduct adversely affected SFMS and has a high

likelihood of affecting the School in the future if respondent is not dismissed.

(1) A school cannot function properly when cooperation

among its teaching personnel is lacking. Respondent tacitly conceded as much, insisting, for
instance, though generally contrary to her actual practice, that she co-planned with other
teachers. Co-planning was required in order to keep lessons orderly and consistent. Lack of
order in lessons, such as respondent demonstrated repeatedly, and inconsistency between
respondent’s teaching and that of other teachers, is a detriment to learning. A particular
instance of detrimental inconsistency in respondent’s case is how slow her pace was in
teaching the Read 180 program.

(2) Administrators whose supervision and direction are

thwarted or subverted by a teacher cannot keep a school functioning properly. Enterprises
involving many people must have direction and supervision and particularly when a number
of teachers are working toward a common goal, teaching the same concepts in a structured
curriculum, every teacher must obey administrative mandates. Respondent did not. She had
an adverse impact on operations at SFMS and is likely to continue to have an adverse impact
on the School if she is not dismissed.

(3) Respondent had an adverse impact on students whose

learning was directed by IEP’s, both when she was an RST and SDP teacher. It is likely that
she would continue to have an adverse impact on such students in the future if she is not
dismissed. Any student’s educational achievement is far less likely under the deficient
teaching that respondent delivered.

(4) The rules and regulations respondent violated are those

that ensure that a teacher is providing, if not excellent, at least standard, instruction to
students. Without such standard instruction, students are deprived of fundamental
information.

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 (ii) The second Morrison factor, the time since the conduct, favors
dismissal.

(1) Respondent’s conduct was recent, lasting the entire relevant

period, from the academic year that started in 2012 until she left SFMS in 2016.

(2) Respondent’s unfitness lasted during a period of years when she

knew she was under scrutiny, underwent discipline, and, unless she changed her ways
significantly, was likely to face more discipline. Nevertheless during the relevant period
respondent did not change her conduct.

(iii) Under the third Morrison factor, concerning the credential involved,
respondent’s teaching credential allows her to teach elementary school-age children,
including those with special needs as indicated in IEP’s. This group of students is as
adversely affected by deficient teaching as any other group, if not more so.

(iv) Under the fourth Morrison factor concerning the presence of

extenuating or aggravating circumstances:

(a) There are several aggravating factors, which outweigh any

mitigation.

(1) Aggravating circumstances are respondent’s dealings

with other teachers and administrators stretching over years, throughout the relevant period.
She refused to accept help from Ms. Munoz and Ms. Golden, for instance, despite
encouragement to do so from the administration. Her written communications were
sometimes accusatory, stating that administrators meant her harm. In speaking to one
administrator, Ms. Mulder, about respondent’s attempted suspension, respondent was
unwilling to accept what Ms. Mulder offered her as assistance, cutting off the
communication by telephone abruptly and refusing to accept that she, respondent, had
attempted to suspend a student improperly. Respondent was completely unaccepting of
criticism of her manner, even after years of attempts to encourage her cooperation with
others and follow advice on how to be a good teacher. Respondent’s unyielding attitude over
a long period constitutes a significant aggravating circumstance.

(2) Respondent was given a great deal of assistance and

guidance, over years, and in many formats, including conferences, Conference Memos,
workshops, printed materials, consultation with other teachers having special expertise, such
as Ms. Lamb, and the PAR program. She might have gathered information and skills from
these resources to help her mind and implement the rules and regulations of the District and
the State of California. However, despite these resources, she did not follow the rules and
regulations, to the detriment of her students.

(3) Respondent presented no significant extenuating

evidence.

48
 (v) Under the fifth Morrison factor, concerning the praiseworthiness or
blameworthiness of motives, respondent’s motives and resulting conduct were blameworthy.
By insisting that her teaching was not deficient and that virtually all her methods were
sufficient or better than sufficient, despite much authority to the contrary, respondent may be
blamed for unprofessional conduct in providing students substandard instruction. Teaching
in the public schools is a profession that demands cooperation. Respondent failed to
accommodate the reasonable expectations of others and was unable or unwilling to learn to
cooperate for the betterment of her own teaching resources and methods. Her memos in
response to administrators’ Conference Memos indicate personal animus that developed
early in the relevant period and took the place of any motivation to become a better and
effective teacher.

(vi) Under the sixth Morrison factor, concerning the likelihood of

recurrence:

(1) Given that respondent engaged in unprofessional conduct

repeatedly for years, recurrence is likely.

(2) Again and again, evident particularly in her memos in response

to administrators’ Conference Memos, respondent sought to defend herself by attacking
others, including the administrators. Her failure to be counseled out of an entrenched
position, which yielded no benefit to SFMS and its students, indicates a fixed character trait
incompatible with the teaching profession.

(3) Respondent had much guidance and assistance over the years to
change the character of her teaching methods, but failed to make any significant change. She
is likely to go on as before.

(vii) The seventh Morrison factor, concerning how discipline may affect
constitutional rights, is not significant here. This is not a case in which there is doubt
whether respondent was exercising a right such as freedom of speech or another
Constitutional right. Dismissing a teacher based on deficient teaching and other
unprofessional conduct does not implicate rights protected by the Constitution.

(viii) The eighth Morrison factor, concerning the conduct’s publicity or

notoriety, the evidence did not show that respondent’s misconduct was publicized, and any
notoriety was limited to persons with whom respondent dealt at SFMS directly. This factor
has little bearing on whether dismissal is warranted.

8. In light of the above, cause exists to dismiss respondent from her employment
with the District as a permanent certificated employee.

//

//

49
 ORDER

The accusation against respondent Beatrice Essah is sustained. Respondent is

dismissed as an employee of the Los Angeles Unified School District.

DATED: July 6, 2017

___________________________
THOMAS Y. LUCERO
Administrative Law Judge
Office of Administrative Hearings

50
 BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS AND THE
COMMISSION ON PROFESSIONAL COMPETENCE FOR THE
ANAHEIM UNION HIGH SCHOOL DISTRICT
STATE OF CALIFORNIA

In the Matter of the Dismissal of:

OAH No. 2016060721
TU HOANG,
A Permanent Certificated Employee,

Respondent.

DECISION

The Commission on Professional Competence (Commission) heard this matter on

October 18-21, 2016, March 2-3, 2017, and March 9, 2017, in Anaheim, California. The
Commission members were Laurie R. Pearlman, Administrative Law Judge (ALJ) with the
Office of Administrative Hearings (OAH), State of California, Melissa Chan-Nauli, and
Persida Torres. ALJ Pearlman presided.

Daniel R. Shinoff and Arthur M. Palkowitz, Assistant General Counsel, represented

complainant Brad Jackson, Assistant Superintendent of Human Resources for the Anaheim
Union High School District (District).

Daniel D. Sorensen, Attorney at Law, represented respondent Tu Hoang.

Six motions in limine were argued and denied, for the reasons stated on the record.
Oral and documentary evidence was received and argument was heard. The record was
closed and the matter was submitted for decision on May 9, 2017.

FACTUAL FINDINGS

Jurisdiction and Parties

1. The District’s Governing Board (Board) is the duly elected, qualified and
acting governing board of the District, organized, existing and operating pursuant to the
provisions of the California Education Code and other laws of the State of California.
 2. At all times relevant, respondent was a permanent certificated employee of the
District.

3. On April 12, 2016, complainant, in his official capacity as the District’s

Assistant Superintendent of Human Resources, filed with the Board an Amended Statement
of Charges against respondent, alleging factual and legal grounds for respondent’s immediate
suspension without pay and termination of his employment with the District.

4. Respondent was timely provided with notice of all hearing dates before the
Commission.

5. Respondent holds a Pupil Personnel Services School Counselor Credential.

He is employed at Sycamore Junior High School (Sycamore) as a certificated employee in
the position of counselor.

Complainant’s Charges Against Respondent

6. In the Amended Accusation and Statement of Charges against respondent,

complainant alleges the following causes to dismiss respondent from his employment as a
permanent certificated employee of the District:

a. Immoral conduct, under Education Code section 44932, subdivision

(a)(1);1

b. Dishonesty, under Education Code section 44932, subdivision (a)(4);

c. Evident unfitness for service, under section 44932, subdivision (a)(6);

and

d. Persistent violation of or refusal to obey the school laws of the state or

reasonable regulations prescribed for the government of the public schools by the State
Board of Education or by the governing board of the school district employing him, under
section 44932, subdivision (a)(8).

Bases for Dismissal from Employment

7. Respondent was placed on administrative leave effective January 22, 2016,

based upon a determination that he had persistently violated the provisions of the Education
Code, as well as rules, policies and regulations, as follows:

(a) Respondent did not follow proper protocol for his profession or the District
procedure in handling a suicidal student;

1
All further statutory references are to the Education Code unless otherwise specified.
2
 (b) Respondent placed a student at greater risk by leaving him unattended;

(c) Respondent placed a student at greater risk by allowing the student to run
from school;

(d) Respondent acted unprofessionally:

(e) Respondent used a raised voice with his lead counselor after the student
incident referenced above;

(f) Respondent used profanity with his lead counselor;

(g) Respondent was dishonest and not forthcoming with accurate information
regarding the details and nature of the incident.

Suicide Intervention and Prevention Protocol

8. In late Spring 2015, a two-hour training was provided by Patricia Lockhart,

Director of Guidance and Student Support Services at Sycamore, and Program Administrator
Adela Cruz, regarding the District’s Suicide Intervention and Prevention Protocol (Protocol).
(Exhibit 20). The training was part of a day-long professional development training provided
to the District’s counselors, who deal with students’ social, emotional and academic needs.
Respondent was in attendance.

9. The Protocol had recently been updated, but did not substantially differ from
the previous version. It provided that “everything else stops” while a suicide assessment is
conducted by either the school psychologist or the school counselor. Doing the assessment is
“the priority focus.”

10. The first step of the assessment is to determine whether the student is at risk of
suicide by asking specific questions set out in the Protocol and completing a written
“screening instrument” which involves checking off boxes on a form. If the student is
determined to be at risk, the second step is to determine the level of risk (i.e., low, moderate
or severe.) The third step is to determine a course of action.

11. If a student is determined to be at greater than low or moderate risk for suicide,
the Orange County Healthcare Agency’s Centralized Assessment (CAT) team must be
called. The CAT team then carries out its own assessment to determine whether psychiatric
hospitalization is required.

12. The school counselor or psychologist doing the assessment must stay with the
student until the student is either hospitalized or released to a parent. The student cannot be
left with staff who have not been trained in the Protocol.

3
 13. On September 24, 2015, Lockhart sent an email to all of the District’s
counselors, including respondent, entitled “Suicide Intervention and Prevention.” A copy of
the Protocol was attached. Lockhart’s email stated:

I also am restating what we went over in our meeting, at the end

of last [school] year, when we discussed the [Suicide
Intervention and Prevention] process.

(a) If a student comes to you and may be suicidal, drop

everything and use the protocol and forms to complete a suicide
assessment.

(b) Do NOT pass them off to another person. If you have a

meeting, let someone know you cannot attend. That child came
to you, and their life is worth more than anything.

(c) If a student is with an intern (either school counseling or

social work) and they need to conduct a suicide assessment, a
counselor must sit with them during the process. Because they
are interns, they, and the student, will need your expertise.

I know most of you already follow this procedure.

However, several people asked for clarification so here it is.

(Exhibit 27).

14. On an unspecified date after the Spring 2015 Protocol training, respondent
stated to Sycamore’s Lead Counselor, Monica Pineda, that the school psychologist is
responsible for assessing a student who may be suicidal. Pineda told respondent that the
psychologist is not at Sycamore on a daily basis. Therefore, while respondent can consult
with the psychologist when performing an assessment, it is also the counselor’s role to
conduct an assessment in accordance with the Protocol.

15. On September 18, 2015, respondent sent an email to Sycamore’s counselors

expressing his “narrow and jaded view of the role of a school counselor.”

Respondent’s Inappropriate Handling of Student DOE on January 21, 2016

16. On Thursday, January 21, 2016, Sycamore teacher Anthony Barber followed
up with a 13-year-old student (DOE)2 about an assignment which posed self-discovery
questions. In response to a question about his life goals, DOE wrote, “To be dead before I’m

2
The student’s name and that of his mother will not be used in order to preserve their
privacy.
4
50.” One question asked, “Who are you?” DOE wrote, “[I am] a no good asshole who can’t
seem to want to live.” (Exhibit 23.) Barber asked DOE if he always felt that way and he
replied, “Yeah, I feel that way every day.”

17. Barber “takes suicide extremely seriously” and has “dealt with that issue in the
past.” He was concerned that DOE might harm himself. Barber asked the boy whether he
“would be comfortable talking to someone, his counselor?”3 DOE said he would be
comfortable speaking with respondent, who was his assigned counselor. Barber escorted
DOE to his next class where Barber felt he would “be supervised.” Barber told the teacher
that he or respondent may come back to retrieve DOE from the class. Barber then went to
look for respondent.

18. At approximately 12:45 p.m., Barber “ran into” respondent, who was returning
from lunch, and apprised him of DOE’s situation. Respondent asked Barber if it was a
matter for the psychologist to handle. School psychologist Anita Baldison had been meeting
with DOE for 30 minutes each week pursuant to his Individualized Education Program
(IEP)4 to address coping skills and stress management. He had not previously indicated to
her any desire to harm himself. Baldison was not on campus on January 21, 2016, as she
was working at another school that day.

19. Barber told him DOE’s counselor should handle the matter first and then could
choose to involve the psychologist or the CAT team. Respondent agreed to have security
“pull” DOE from class and bring him to the counseling office where respondent would speak
to him. Fifteen or twenty minutes later, Barber spoke to Pineda, as lead counselor, to inform
her about the situation with DOE and his discussion with respondent.

20. Laura L. Munoz is the only secretary in Sycamore’s counseling office, where
she handles clerical tasks. Munoz also interprets for counselors and Spanish-speaking
parents, when asked to do so. She has never received training in handling suicidal students.
Munoz did not see campus security bring DOE into the counseling office on January 21,
2016.

21. Security brought DOE to respondent’s office at 12:40 or 12:45 p.m.

Respondent contends that he spent 30 to 35 minutes asking DOE questions and verbally
performing the screening and suicide assessment. DOE said he “would choke himself with
his own hands or burn himself” but did not have a “specific plan” as to how he would carry
this out. DOE had several key stressors, but respondent concluded that the main one was the

3
Sycamore had three counselors, including the lead counselor. Each counselor is
assigned part of the alphabet based upon the students’ last name.
4
An IEP is a written document developed for each public school child who is eligible
for special education.
5
boy’s fear “of a male figure in the house.” Respondent assessed DOE’s risk for suicide to be
moderate to severe.

22. At about 1:15 p.m., respondent came out of his office with DOE. He
telephoned the CAT team while the boy waited outside on the couch in the lobby.
Respondent spoke to the dispatcher and asked him whether he should call DOE’s parent.
Respondent was told not to do so at that time, and that the CAT team would call him back.

23. Respondent then left the counseling office to attend a one-hour “Junior High
101” planning meeting with Sycamore’s Principal Gary Brown to discuss an upcoming
orientation for sixth grade students.5 As he was leaving the counseling office, respondent
gestured to Munoz. DOE was seated on the couch in the lobby of the counseling office,
outside of respondent’s office. Respondent pointed to his eyes, pointed to DOE, and stated
to Munoz, “I’m going to a meeting.” Respondent did not say anything to Munoz about DOE
being suicidal, nor did he tell her that he was expecting a call from the CAT team. Munoz
continued with clerical work, glancing at DOE “once in a while.”

24. Pineda entered Brown’s office at the start of the meeting and informed those
present that respondent would not be joining them because he was working with a student.
Shortly after, respondent entered Brown’s office and stayed for the entire meeting. Pineda
assumed respondent’s attendance at the meeting meant that he had spoken to DOE, had
quickly assessed the situation, and had determined that there was no identifiable suicidal
ideation and no threat of suicide.

25. The meeting concluded at approximately 2:10 or 2:15 p.m. As he left,

respondent stated that he “still needed to do an assessment.”

26. After the meeting concluded, respondent went to a classroom where he

conversed with a teacher for a few minutes. He then returned to the counseling office where
DOE was still seated on the couch in the lobby outside of respondent’s office. Respondent
had left DOE with Munoz for 45 to 48 minutes. Respondent took DOE into his office for
two or three minutes and then brought him back out to the couch.

27. Respondent asked Munoz to telephone DOE’s mother, who is Spanish-

speaking. Munoz told respondent she would do so after doing some filing. Respondent told
DOE to sit down again on the couch outside his office.

28. Respondent went back into his office and closed the door just before the bell
rang at 2:20 p.m., signaling the end of the school day. When the bell rang, DOE got up from
the couch. Munoz asked him where he was going, but DOE left without responding.

5
There was conflicting testimony as to whether the meeting began at 1:00 p.m. or
1:30 p.m.
6
 29. Munoz immediately knocked on respondent’s office door, but got no answer.
She knocked again and when he opened the door, Munoz told respondent that DOE had left.
Respondent ran out of the counseling office in pursuit of DOE, but lost him in the crowd of
students exiting the school grounds.

30. Respondent paged DOE on the school’s public announcement (PA) system.
As soon as Pineda heard the announcement, she went to respondent’s office to find out what
was going on.

31. Respondent informed Pineda that DOE had run off. Respondent became
agitated and told Pineda that according to the Education Code it is not the counselor’s role to
carry out an assessment. He repeatedly stated that it is the school psychologist’s
responsibility to assess the student since she sees DOE on a weekly basis. Pineda stated that
she disagreed and told respondent that if a staff member asks a counselor to speak with a
student who may be suicidal, it is a counselor’s role to do so.

32. Respondent began yelling at Pineda. He stated that he had motioned to

Monica Munoz, the counseling department’s secretary, to indicate that she should keep an
eye on DOE when he left for the meeting in Brown’s office. Pineda told respondent that is
not the secretary’s responsibility to watch a suicidal student and insisted that respondent
should not have attended the meeting if he still had a suicide assessment to do.

33. Respondent told Pineda that he had attended the meeting because he was
waiting to hear back from the CAT team. Pineda explained that if respondent had been
waiting for the CAT team, then he should have been available to speak with them, rather than
attending the meeting. As Pineda gave respondent suggestions as to what he should have
done, respondent continued to yell that he had not left DOE unattended and that none of what
had occurred was his fault. Respondent was pacing back and forth in his office, visibly
upset. He then slammed his office door and left.

34. Pineda went to Brown’s office and informed him of what had transpired.
Brown instructed Pineda to telephone respondent on his cell phone to ascertain whether he
had carried out an assessment or contacted DOE’s parent and police. Pineda spoke to
respondent by cell phone. She then returned to Brown’s office and told him that respondent
refused to take directives from her.

35. Respondent subsequently came to Brown’s office visibly upset. Respondent

stated that “it wasn’t [his] fault” and that he is “not allowed to touch a student [to prevent
him from leaving campus].” He asked Brown, “I’m not going to get written up for this, am
I?”

36. While respondent was searching for DOE, Barber saw respondent out near the
athletic field. Respondent was “flustered” and told Barber, “Thanks a lot for getting me into
this [situation with DOE].”

7
 37. The police were contacted by respondent and/or Brown, and arrived at
Sycamore within 15 minutes. At 3:38 p.m., respondent called DOE’s mother on his office
telephone.

38. At 7:15 p.m., the Anaheim Police located DOE, who was unharmed. His
mother believed DOE had gone to a fast-food restaurant with friends.

January 22, 2016 Meeting

39. On January 22, 2016, respondent attended a meeting with Kelly Wilson,
Sycamore’s Assistant Principal, Brown, and his union representative. Respondent was
informed that he could either wait for an investigation to be conducted by Human Resources
or he could respond to the incident at that meeting. Respondent chose to respond, stating that
he had had a conversation with Barber regarding DOE, had performed the suicide
assessment, had telephoned the CAT team and had been told by the dispatcher to await
further instructions. Respondent stated that he had asked the dispatcher whether he could
attend a scheduled meeting, and was told that any school staff member could monitor the
student in his absence while he attended the meeting.

40. During the January 22, 2016 meeting, respondent stated that when he returned
from the meeting in Brown’s office, DOE was still present in the counseling office. He
claimed that the CAT team telephoned him, and as he was reaching for the telephone on his
desk, DOE ran out the door. Respondent called the CAT team and was directed to call the
police. He stated that DOE left his office at approximately 2:30 p.m. Respondent stated he
would have to check his notes to determine what time he called the police. Respondent also
stated that:

(a) “I strongly believe I followed what needed to be done.”

(b) “I can’t place my hands on him.”

(c) “The CAT team told me not to call anybody.”

(d) “What can I do?”

(e) DOE “was there when I got back.”

(f) “I feel I do [sic] my best this year.”

41. Following the meeting, the District placed respondent on administrative leave.

January 25, 2016

42. On January 25, 2016, Baldison met with DOE on his first day back at school.
She did not have any written assessment by respondent. DOE told her about his suicidal
ideation. Baldison “dropped what [she] was doing” and spoke to him for five to 15 minutes

8
to perform a suicide assessment. Baldison assessed DOE as being at moderate to severe risk
of suicide, but stated that she found him to be “closer to severe.” Baldison informed Pineda
of the assessment and contacted the CAT team. Baldison remained with DOE until the CAT
team arrived at Sycamore “within the hour.” Based on the information provided to them, the
CAT team decides “whether to come and how quickly.” The CAT team performed an
assessment and took additional action.

43. It was not established by a preponderance of the evidence, as alleged in the

Charges, that on January 28, 2016, Baldison spoke with Juan Bonillas from the CAT team,
that Bonillas confirmed that a call was made to the CAT team regarding DOE on January 21,
2016, at approximately 3:00 p.m., and that no other telephone calls to the CAT team
regarding DOE were logged at that time. No member of the CAT team testified, no
statements or other documents from the CAT team were admitted into evidence, and none of
the witness testimony established those allegations.

March 7, 2016 Meeting

44. Darrick Garcia, Director of Human Resources, conducted an investigation of

the events of January 21, 2016. On March 7, 2016, Garcia and Brown met with respondent
and his union representative to give respondent an opportunity to explain what had transpired
on January 21, 2016. It took three attempts to arrange the meeting because respondent had
not provided the District with updated contact information. At the meeting, respondent
stated that he was “frustrated” because DOE was sent to him for an assessment, rather than to
Pineda or the school psychologist.

45. At the March 7, 2016 meeting, respondent stated that after lunch on January
21, 2016, Barber came to him with DOE. Respondent said that around 1:30 p.m., respondent
performed a Risk Assessment, finding DOE to be at moderate to severe risk for suicide.
Respondent then called the CAT team on his cell phone. Respondent stated that he did not
have proof of that because he had recently deleted the record of calls from his cell phone, but
that he would provide paper records of his cell phone calls.6 He asked the dispatcher
whether he should call DOE’s parent and was told the team would call him back.

46. Respondent explained that he then went to the Junior High 101 meeting in
Brown’s office, which he termed “an important meeting.” Garcia asked respondent, “What
meeting could you go to that was more important than attending to a student that has a
moderate to severe risk of harming himself? Is there such a meeting?” Respondent
responded, “What was I supposed to do? I cannot touch a student.” Garcia stated, “Make
sure the student is safe to the best of your ability.” Respondent replied, “I see that now, you
are right.”

6
The cell phone records later produced by respondent in connection with the hearing
showed three incoming calls from the CAT team at 3:02 p.m., 3:26 p.m., and 3:37 p.m.
There was no record of an outgoing cell phone call from respondent to the CAT team.
9
 47. At the March 7, 2016 meeting, respondent emphasized that when he returned
to the counseling office at approximately 2:20 p.m., DOE was still there. Respondent talked
to DOE in his office and told him “we have to figure this out.” As respondent “grabbed the
phone” DOE ran. Respondent pursued him and called on the radio for help. About five
minutes later, respondent paged DOE on the PA system, without success.

48. Respondent told Garcia that Pineda then came to his office and told him that
he should have supervised DOE at all times. Respondent was “panicked” and acknowledged
that he acted inappropriately and unprofessionally by speaking to Pineda with a raised voice.
Respondent was frustrated with Pineda and went to speak with Brown for advice.

49. Respondent told Garcia that the CAT team called him on his cell phone around
3:00 p.m. and he told them DOE had left. Respondent asked the CAT team whether he
should contact DOE’s parent and was told to call her and the police. Respondent told Garcia
that he called DOE’s mother and left a message.

Unprofessional Behavior to Employee

50. Respondent was hired as a counselor at Sycamore two weeks before Pineda.
He and Pineda worked together as counselors for ten years. Their relationship soured when
Pineda became lead counselor in the 2015/2016 school year. As lead counselor, Pineda is
the department chair, attends meetings, is part of the school leadership team, and serves as
the liaison between the District and Sycamore’s counselors. However, Brown is
respondent’s direct supervisor and provides his evaluations. At the hearing, respondent
emphasized that it is not Pineda’s role to give the other counselor’s directives or
assignments.

51. On October 21, 2015, Pineda received an email from Sycamore’s attendance
clerk, stating that respondent was not to be near the clerk’s work area due to some animosity
between them. At the end of that work day, Pineda met with respondent to discuss the email.
Respondent became extremely upset that the email had been sent to Pineda. Respondent
raised his voice, used obscenity, and became combative and hostile. Respondent told Pineda
that he would “find a way to retaliate.”

52. Pineda became concerned about respondent’s “explosive and unstable

demeanor” and was upset and “worried about what [respondent] might do next.” Pineda
went to the office of Sycamore’s Assistant Principal Sean Pfeiffer to ask where she could file
a complaint about respondent. Pineda was frustrated and angry, telling Pfeiffer that
respondent did not want to work and would only do things under the direction of “admin or
Mr. Brown.” Pineda requested an escort back to her office and then to her car.

53. Pfeiffer then went to respondent’s office. Respondent was clearly agitated and
stated, “She’s fucking crazy.” Pfeiffer told respondent, “you can’t threaten her and curse”
and told him that he should have come to an administrator if there was a problem.

10
 54. Pfeiffer instructed respondent to stay in his office with the door closed.
Pfeiffer then went with Pineda to her office to get her belongings. When they arrived at the
office, Pineda stated, “I’ll call the fucking cops. . . . I’m sick of his shit.” A majority of the
panel deemed Pineda’s conduct to be a deliberate attempt to provoke respondent. Pineda
was then escorted to her car.

55. Pfeiffer returned to respondent’s office and observed him standing in front of
his desk, visibly shaken and agitated. Respondent had red eyes and was tearful. Pfeiffer
followed respondent to the parking lot where he entered an Uber car.

56. In October 2015, Brown held a conflict mediation in his office with
respondent and Pineda. Brown directed both of them to work together, conduct themselves
in a professional manner and not use profanity in the workplace. Both respondent and
Pineda had acted unprofessionally and used profanity.

57. On November 9, 2015, respondent received a verbal warning and a written

memorandum from Brown regarding his unprofessional behavior with Pineda on October 21,
2015, and its detrimental impact on the school. (Exhibit 16.)

58. On February 9, 2016, Pineda met with Brown to express her continuing
concerns about respondent stemming from their interaction on January 21, 2016. Pineda
stated that respondent had become increasingly unstable in his conduct with her, creating
what she deemed to be a hostile work environment.

Excessive Absenteeism

59. District policy requires that employees provide a note from a medical
professional for absences of five days or more. District employees may request a leave of
absence if they will be out for an extended time period. A substitute counselor can be
obtained if an employee notifies the school that he will be out for an extended period and a
leave of absence request is approved. Most of respondent’s absences were reported that
same morning, which made it impossible to arrange for a substitute counselor.

60. Respondent was absent 39 days between August 26, 2013 and April 11, 2014.
This represented 28 percent of the work days in that time period. The majority of
respondent’s absences occurred between December 6, 2013, and April 11, 2014, when
respondent was absent as many days as he was present.

61. Respondent was informed he was not fulfilling his obligation as a counselor
due to his pattern of poor attendance. The District alleged, but failed to prevent sufficient
evidence to establish that excessive absenteeism, and respondent’s failure to communicate
with the school about his situation or promptly provide medical verification and seek a leave
of absence, caused the following problems:

11
 (a) Parents were unable to meet with their child’s assigned counselor.
Appointments were scheduled and then cancelled or rescheduled due to respondent’s
absences.

(b) Students were unable to access counseling services for extended periods of
time.

(c) Students had to be assigned as teacher aides to receive grades.

(d) Staff and teachers were unable to rely on respondent to carry out his
assigned tasks.

(e) It was a hardship for counseling and administrative staff to fill-in during
respondent’s absences, contributing to decreased effectiveness and low morale.

62. Respondent stopped coming to work on December 6, 2013. After he was

contacted by the District on December 16, 2013, he provided a medical authorization and
requested a retroactive leave of absence, which was granted, effective December 6, 2013.

63. Respondent was absent from March 20, 2014, to April 16, 2014, without
requesting a leave of absence or providing a medical verification. On April 7, 2014, Judy
Bright, Coordinator of Personnel Services, sent a letter to respondent regarding these
absences. On April 16, 2014, respondent and Bright met. Respondent told Bright that he
had returned from his December 2013 leave “too soon,” had “been yelling at kids” and
“needed help.” Respondent requested, and was granted, a retroactive leave of absence,
effective March 20, 2014.

64. Respondent was given a verbal warning about excessive absences on April 21,
2014. (Exhibit 18.) He received a written warning about the same absences on April 29,
2014. (Exhibit 19.)
Progressive Discipline

65. The District has a progressive discipline policy designed to provide employees
with notification of an issue and an opportunity to correct the problem before the District
takes disciplinary action. The policy provides for a verbal warning, followed by a written
warning, and finally a written reprimand. (Exhibit B.)

66. If an issue is severe, the District is not required to carry out progressive
discipline prior to imposing discipline. An employee may file a grievance if the District fails
to comply with its progressive discipline policy.

67. The District contended that it followed its progressive discipline policy by
providing respondent with a verbal warning about excessive absences on April 21, 2014,
followed by a written warning on April 29, 2014. (Exhibit 17.) The panel concluded that the
evidence presented did not establish justification for providing the written warning only eight

12
days after the verbal warning in that respondent was not given an adequate opportunity to
conform his behavior to District expectations.

68. On October 23, 2015, respondent was given a verbal warning regarding
unprofessional behavior with Pineda on October 21, 2015. (Exhibit 16.)

69. At the hearing, respondent contended that no progressive discipline was

implemented following the January 21, 2016 incident. Due to the potential for harm to
students, the District did not implement progressive discipline prior to placing respondent on
administrative leave after the January 21, 2016 incident. No grievance was filed by or on
behalf of respondent for the District’s failure to utilize progressive discipline. The evidence
presented did not establish that the District violated its progressive discipline policy in
placing respondent on administrative leave for the January 21, 2016 incident.

Respondent’s Evidence

70. Respondent has been credentialed for ten years. Respondent earned a
bachelor’s degree from California State University, Fullerton in 2003 and a master’s degree
from Chapman University in 2006. At Sycamore, respondent received an evaluation every
other year, all of which indicated that his job performance was satisfactory.

71. Respondent is 37 years-old. He was born in Vietnam and came to the United
States with his family when he was 13 years-old. As the eldest child, there are cultural
responsibilities he is expected to fulfill. Respondent’s absences in 2013-2014 were due to
the stress he was under as a result of his mother’s illness and death in late 2012. His mother
had been respondent’s “best friend” and after her death, his father suffered a heart attack and
continues to be in poor health. Respondent delayed grieving for his mother, had “no chance
to cope” and was diagnosed with depression. Respondent “tried [his] best to make it to
work” or call in if he was going to be out, but he wasn’t “strong.” A majority of panel
members found this assertion to be credible. Respondent sought “help for depression” and
has “now worked through those issues.”

72. Although respondent and Pineda initially had a good relationship, respondent
asserts that Pineda “became more of a micro-manager” after she became lead counselor. She
wanted respondent to report directly to her although Brown was his direct supervisor.

73. On October 21, 2015, Pineda came to respondent’s office at the end of the
workday to tell him there had been a complaint against him by a school staff member. He
asked Pineda for more information, but she refused to provide it. Their behavior “mutually
escalated” and respondent matched Pineda’s volume and intensity. He denied that he made
any threats, as that is “not in [his] nature.” Respondent stated that he no longer trusted
Pineda after the October 21, 2015 incident. After Brown conducted a mediation session,
respondent collaborated with Pineda on work that needed to be done, but otherwise “kept a
professional distance.”

13
 74. Respondent attended the Protocol training in Spring 2015, which he termed a
“new District protocol.” He received “dozens of emails” each day, and does not recall
getting the September 2015 email regarding the Protocol. Respondent disagreed that the
Protocol required him to “be in the same vicinity of the student at all times” so long as the
suicidal student was left with another adult. However, respondent acknowledged that the
Protocol did provide that the suicidal student “should not be passed off to another.”
Respondent had called the CAT team on other occasions, “but not a whole lot, less than five
times in a year.”

75. As a school counselor, respondent addressed students’ academic, personal,

social, and career issues. On September 18, 2015, respondent sent an email to Sycamore’s
counselors stating that he did not know his role as a counselor because it “wasn’t clearly
defined.”

76. On January 21, 2016, Barber approached respondent as he was returning from
lunch and told respondent that “it would be beneficial for [DOE] to speak with someone”
because “he didn’t want to live anymore.” Respondent “said [he would] take care of it” but
he thought Baldison was “better equipped to assess [DOE] since she was seeing him twice a
week.” Respondent emphasized that he was not “avoiding work.” He felt that “someone
more qualified or trained” than he was should conduct a suicide assessment. Barber told
respondent he would “contact” Pineda to let her know about the situation.

77. DOE was assigned to respondent’s caseload and he knew DOE. The boy’s
mother had requested meetings to address DOE’s disobedience and respondent had provided
her with some referrals, which was part of his job. He and DOE did not interact with “high
frequency”, but respondent had met with DOE approximately once per month, and had met
with DOE’s mother two or three times before January 21, 2016. Respondent was aware that
Baldison had sessions with DOE pursuant to his IEP.

78. Respondent testified that he did perform a verbal suicide assessment before
leaving for the meeting in Brown’s office. A majority of panel members found this assertion
to be credible. Respondent assessed DOE’s risk for suicide to be “moderate, approaching
severe.” He did not fill out a written suicide assessment “screening instrument” as required
by the Protocol. Respondent testified that he “was going to come back and fill out the form”
later, but did not explain his failure to do so.

79. Respondent contended that DOE told him he planned to go with friends to a
fast-food restaurant after school that day, which led respondent to believe the suicide risk
was closer to moderate. At the hearing, respondent could not recall whether he told the
police that DOE might have gone to a fast-food restaurant when school ended. This would
have been very important information to share with police, who were searching for DOE.
Therefore, respondent’s contention that DOE had told him about his after-school plans
during the assessment lacks credibility.

14
 80. Respondent contended that he discussed a “safety plan” with DOE in that, at
some point that afternoon, he told DOE that if he had “more suicidal thoughts, he should talk
to mom.”

81. Respondent asserted that the Protocol did not require him to call the CAT
team, but that he did so because he is “cautious.” Respondent testified that he called the
CAT team from his office telephone at 1:30 p.m.7 A clinician/dispatcher answered and
respondent related the information he had gleaned from the assessment. Respondent testified
that he asked the dispatcher whether he should contact DOE’s mother and was told “to hold
and not do anything” until the CAT team called him back. Respondent gave the CAT team
his cell phone number “in case [he] stepped out.”

82. DOE was waiting on the couch outside respondent’s office while he made the
call to the CAT team. Respondent asked Munoz “to keep an eye on [DOE]” through a hand
gesture, stating that “body language is a huge part of human communication.” Respondent
contended that “adequate supervision was provided” to DOE when he left the counseling
office to attend the meeting in Brown’s office.

83. Respondent described the Junior High 101 meeting as “critical.” That
assertion was not supported by Brown or any of the other attendees. Respondent testified
that he announced to those in attendance that he was waiting for a telephone call and might
need to leave, but this was not corroborated by any other witnesses. Neither assertion was
deemed to be credible.

84. Respondent admitted that as he left the meeting, he “might have mistakenly
said that [he] has an assessment to do.” He contended that he “misspoke” and meant that he
needed to “fill out the paperwork.”

85. Respondent initially testified that when he returned to the counseling office
after the meeting, he took DOE into his office and the boy ran out as he picked up the
telephone to call DOE’s mother. This conflicts with his testimony that the CAT team
dispatcher had told him not to contact the boy’s mother. When reminded that Munoz had
testified that DOE was seated outside respondent’s office and ran off when the bell rang,
respondent stated that it was possible that he had “misremembered.” He then concurred with
Munoz’s version of events.

86. Respondent admitted that, while searching for DOE, he ran into Barber and
said, “Thanks a lot for getting me into trouble.” Respondent testified that it “was perhaps a
poor choice of words” due to respondent being “anxious to find the kid.”

7
At the March 7, 2016 meeting, respondent stated that he had made the initial call to
the CAT team from his cell phone. That assertion was not supported by respondent’s cell
phone records. Nevertheless, a majority of the panel found respondent’s contention that he
called the CAT team at 1:30 p.m. to be credible.
15
 87. Respondent returned to his office to “try to figure out the next step” when
Pineda entered. She addressed respondent in what respondent described as a “scolding
accusatory voice” and wanted him to stay and rehash what had transpired in his handling of
DOE. After approximately seven minutes, respondent left in order to “descalate” the
situation and continue to search for DOE. On the way back from searching, respondent went
to speak with Brown. He did admit that he asked, “I’m not going to be disciplined for this,
am I?”

88. At 2:55 p.m., Pineda called respondent on his cell phone and relayed Brown’s
directive that respondent contact the police and DOE’s mother. At 3:02 p.m., the CAT team
called respondent on his cell phone and told him to call police and the boy’s parent.
Respondent stated that he subsequently made these calls from his office telephone.
Respondent told the police that DOE is off-campus, but did not recall whether he had told
them that DOE planned to go to a fast-food restaurant. Police officers arrived at
respondent’s office between 3:30 p.m. and 3:45 p.m.

89. Respondent spoke to the CAT team again by calling them from his office
telephone. He received return calls from the CAT team on his cell phone at 3:26 p.m. and
3:37 p.m. These incoming calls to respondent’s cell phone were documented on a bill from
AT&T, which includes a log of cell phone calls (Exhibit A.)8

90. Respondent testified that during a 5:45 p.m. telephone call, he asked the CAT
team retroactively whether it was acceptable for him to have left DOE with a school staff
member while he attended a meeting. He contends that the dispatcher told him that was not
inappropriate. Even assuming that is true, respondent did not tell the CAT team that he had
already determined that DOE was at moderate to severe risk of suicide. Moreover,
respondent’s actions were not in conformity with the Protocol or the September 24, 2015
Lockhart email, which specifically addressed that scenario. (Exhibit 27.)

91. Respondent contended that the suicide protocol was new and complicated and
had only been presented in a one-hour training. However, he did not seek additional training
or clarification of the Protocol. At the hearing, respondent contended that his “experience
and training did not qualify him to do the full spectrum of possible suicide situations that
may come [his] way.” Moreover, respondent did attend one or two-hour suicide assessment
trainings which were presented to counselors seven or eight times over a four-year period.

92. Respondent asserted that he simply misunderstood what actions he was

required to take when DOE was brought to him. Respondent testified that he “followed the
Protocol to the best of [my] knowledge at the time.” Contrary to the Protocol, respondent
never performed a written suicide assessment “screening instrument” because of
“interruptions” and the fact that “the school sent [respondent] home [after the school day

8
The District does not maintain a record of calls made to or from Sycamore’s office
telephones.
16
ended on January 21, 2017.]” Respondent did not offer any explanation as to why he did not
subsequently prepare a written assessment.

93. Respondent attempted to shift blame onto Barber, Pineda and Baldison. He
contended that Barber mishandled the situation with DOE by taking DOE to his next class
and leaving him there without informing the teacher of any suicide concerns. Respondent
argued that Pineda should have conducted the suicide assessment. And respondent also
asserted that since the school psychologist had been meeting regularly with DOE, she should
have been the one who dealt with the situation on January 21, 2016.

94. As for the delay in setting up the March 7, 2016 meeting due to respondent’s
failure to provide his updated contact information to the District, respondent contended that
both he and the District “co-share responsibility” for ensuring the information is current.

95. Respondent purchased paint and donated a couch “to spiff up the [counseling]
office” and “help make it a better place for the kids.” In 2012, he received Congressional
recognition for his role in a gang reduction program.

96. DOE’s mother testified at the hearing. She first met respondent in
approximately October 2015, when she contacted him regarding her concerns about her son’s
disobedient behavior and absences from school. Mother found respondent to be “very
helpful.”

LEGAL CONCLUSIONS

Jurisdiction

1. The Commission has jurisdiction to proceed in this matter under section

44944. (Factual Findings 1 through 7.)

Burden of Proof

2. The District has the burden of proof in this matter, since it is seeking to
dismiss respondent from employment as a certificated employee. The District must prove its
case by a preponderance of the evidence. (Gardiner v. Commission on Prof. Competence
(1985) 164 Cal.App.3d 1035, 1040.)

Statutory Grounds for Dismissal

3. The governing board of a school district may dismiss a permanent certificated

employee if one or more of the causes enumerated in section 44932, subdivision (a), or
section 44939 are established. In the Amended Notice of Charges to Dismiss Certificated
Employee, the District alleged four of those causes: immoral conduct, dishonesty, evident

17
unfitness for service, and persistent violation of or refusal to obey school laws or regulations.
(Factual Finding 6.)

4. The District’s Amended Notice of Charges to Dismiss Certificated Employee

charged respondent with various acts to support the four statutory grounds for dismissal. The
Commission examined each charged act to determine whether it was proven. For each
charged act that was proven, the Commission considered whether the charged acts violated
one or more of the alleged statutory bases for dismissal.

5. The Commission determined that the District established by a preponderance

of the evidence that respondent did not follow proper protocol for his profession or the
District procedure in handling a suicidal student (Factual Findings 8-49 and 74-93.)

6. The Commission determined that the District established by a preponderance

of the evidence that respondent placed a student at greater risk by leaving him unattended
(Factual Findings 8-49 and 74-93.)

7. The Commission determined that the District established by a preponderance

of the evidence that respondent placed a student at greater risk by creating a situation would
enabled the student to run from school by leaving him on a couch in the lobby of the
counseling office while respondent stayed in his office with the door closed (Factual
Findings 8-49 and 74-93.)

8. The Commission determined that the District established by a preponderance

of the evidence that respondent acted unprofessionally. (Factual Findings 8-49 and 74-93.)
9. The Commission determined that the District established by a preponderance
of the evidence that respondent used a raised voice with his lead counselor after the student
incident on January 21, 2016, but a majority of the panel deemed his behavior to have been
provoked. (Factual Findings 8-49 and 74-93.)

10. The Commission determined that the District established by a preponderance

of the evidence that respondent used profanity with his lead counselor, but a majority of the
panel deemed his behavior to have been provoked. (Factual Findings 50-58 and 70-94.)

11. The Commission determined that the District established by a preponderance

of the evidence that respondent was dishonest and not forthcoming with accurate information
regarding the details and nature of the January 21, 2016 incident. (Factual Findings 8-49 and
74-93.)

12. Cause for dismissal of respondent exists under section 44932, subdivision
(a)(1), based on immoral conduct, as set forth in Factual Findings 8-49 and 74-93 and Legal
Conclusions 16 through 18.

18
 13. Cause for dismissal of respondent exists under section 44932, subdivision
(a)(4), based on dishonesty, as set forth in Factual Findings 8-49 and 74-93 and Legal
Conclusion 19.

14. A majority of the panel concluded that cause for dismissal of respondent does
not exist under section 44932, subdivision (a)(6), based on evident unfitness for service, as
set forth in Factual Findings 8-96 and Legal Conclusions 20 through 23.

15. Cause for dismissal of respondent exists under section 44932, subdivision
(a)(8), based on persistent violation of or refusal to obey the school laws of the state or
reasonable regulations prescribed for the government of the public schools by the State
Board of Education or by the governing board of the school district employing him, as set
forth in Factual Findings 8-96 and Legal Conclusions 28 through 34.

Immoral Conduct

16. “Immoral conduct” has been defined to mean that which is hostile to the
welfare of the general public and contrary to good morals. It includes conduct inconsistent
with rectitude, or indicative of corruption, indecency, depravity, and dissoluteness. Or, it can
be conduct that is willful, flagrant, or shameless, conduct showing moral indifference to the
opinions of respectable members of the community, and as an inconsiderate attitude toward
good order and the public welfare. (Board of Education of the San Francisco Unified School
District v. Weiland (1960) 179 Cal. App.2d 808, 811 (Weiland).)

17. The seminal case for teacher dismissals is Morrison v. State Board of
Education (1969) 1 Cal.3d 214. There the Supreme Court held that where charges of
immoral conduct are raised in teacher dismissal cases, the applicable standard is whether the
person is fit to teach.9 The phrase “immoral conduct” within the meaning of the Education
Code denotes conduct of the teacher that renders the teacher unfit to teach. (Id., at 225.)

18. “Immoral conduct” is not confined to sexual matters. It includes an

inconsiderate attitude toward good order and the public welfare. It is sometimes
synonymous with “dishonesty” or a high degree of unfairness. (Board of Education v.
Weiland (1960) 179 Cal.App.2d 808, 811.)

Dishonesty

19. Dishonesty “connotes a disposition to deceive” and “necessarily includes the

element of bad faith.” It means “fraud, deception, betrayal, faithlessness,” and “denotes an
absence of integrity; a disposition to cheat, deceive or defraud; deceive and betray.”
(Midway School District v. Griffith (1946) 29 Cal.2d 13.) Not every falsehood constitutes

9
This reasoning is applicable despite the fact that respondent is a counselor, rather
than a teacher. The terms “teacher” and “counselor” shall be used interchangeably herein.
19
“dishonesty” within the meaning of Education Code section 44932, subdivision (a). For that
reason, dishonesty must also be evaluated in light of the Morrison criteria. (Fontana Unified
School District v. Burman (1988) 45 Cal.3d 208, 220, fn. 12).

Evident Unfitness for Service

20. A majority of the panel concluded that it was not established by a

preponderance of the evidence that respondent is evidently unfit for service as a counselor,
pursuant to section 44932, subdivision (a)(6), as set forth in Factual Findings 8-96.

21. “Evident unfitness for service” as used in section 44932, subdivision (a)(6),
properly means “‘clearly not fit, not adapted to or unsuitable for teaching, ordinarily by
reason of temperamental defects or inadequacies.” Unlike “unprofessional conduct,”
“evident unfitness for service” connotes a fixed character trait, presumably not remediable
merely on receipt of notice that one’s conduct fails to meet the expectations of the employing
school district. (Woodland Joint Unified School Dist. v. Commission on Professional
Competence (1992) 2 Cal.App.4th 1429, at 1444.)

22. The Commission should look at the proven conduct in the aggregate. This
applies also to its determination of unfitness for service. The Woodland court found that it
was not necessary to determine if each and every act demonstrated unfitness for service.
Rather, it was proper to examine the totality of the offensive conduct. “When the camel’s
back is broken we need not weigh each straw in its load to see which one could have done
the deed.” (Woodland at p. 1457.)

23. The applicable standard or determinative test in teacher discharge cases is

whether the person is fit to teach. “Fitness to teach” is a question of ultimate fact. (Board of
Education Commission on Professional Competence (1980) 102 Cal.App.3d 555, 560-561.)
A majority of the panel concluded that the evidence presented did not establish that
respondent is unfit to be a counselor based upon an unremediable or fixed character trait.

Analysis of the Morrison Factors

24. Dismissal for immoral conduct, dishonesty, and evident unfitness for service
was assessed utilizing criteria enunciated by the Supreme Court in Morrison v. State Board
of Education (1969) 1 Cal.3d 214 (Morrison): the likelihood that the conduct may have
adversely affected students or fellow teachers; the degree of such adversity anticipated; the
proximity or remoteness in time of the conduct; the type of teaching certificate held by the
party involved; the extenuating or aggravating circumstances, if any, surrounding the
conduct; the praiseworthiness or blameworthiness of the motives resulting in the conduct; the
likelihood of the recurrence of the questioned conduct; and the extent to which disciplinary
action may inflict an adverse impact or chilling effect upon the constitutional rights of the
teacher involved or other teachers. These criteria are commonly referred to as “the Morrison

20
factors.”10 The Morrison court held that “an individual can be removed from the teaching
profession only upon a showing that his retention in the profession poses a significant danger
of harm to either students, school employees, or others who might be affected by his actions
as a teacher.” (Id. at p. 235.)

25. It is settled that not all “Morrison factors” need be present for the Morrison
test to be satisfied. (Governing Board of ABC School District v. Haar (1994) 28 Cal.App.4th
369.) Moreover, the Morrison analysis need not be conducted on each individual fact
established, but rather can be applied to the accumulated facts established collectively.
(Woodland Joint Unified School District, supra, 2 Cal.App.4th at p. 1457.)

26. Applying the Morrison factors, respondent’s acts, as established by the

evidence, constituted immoral conduct and dishonesty as grounds for dismissal, although a
majority of the panel concluded that the evidence presented failed to establish evident
unfitness for service as a ground for dismissal. (See, e.g., Bd. of Ed. v. Swan (1953) 41
Cal.2d 546, 553 (unprofessional conduct); Woodland Joint Unified School Dist., supra, 2
Cal.App.4th 1429 (evident unfitness).)

27. In this case, we find as follows:

(A) The likelihood the conduct may adversely affect students or fellow
teachers: it was likely that respondent’s conduct on January 21, 2016 could have adversely
impacted the student and his parent, the school and the District.

(B) The degree of such adversity: respondent’s conduct had the potential to
significantly have an adverse impact on the student and his parent, the school and the District
in that it could have resulted in the death or attempted suicide of a student.

(C) The proximity or remoteness in time of the conduct: respondent’s

conduct was proximate in time, as the incident with DOE occurred on January 21, 2016.

(D) The type of teaching certificate held by the party involved: as a school
counselor, respondent addresses students’ academic, personal, social, and career issues. His
conduct in carrying out this role has a major impact on students who rely on him to assist
them in these important concerns.

(E) The existence of extenuating or aggravating circumstances, if any,

surrounding the conduct: aggravating circumstances include respondent’s steadfast refusal to
acknowledge his serious lack of good judgment in leaving DOE in order to attend a meeting,

10
The Morrison analysis does not apply to causes for dismissal for unsatisfactory
performance or for persistent violation of laws and regulations (Morrison, supra, 1 Cal.3d at
pp. 227-230); it is presumed that such conduct is related to fitness to teach.
21
the fact that respondent continues to defend his mishandling of a dangerous situation and his
attempt to shift blame to others.

(F) The praiseworthiness or blameworthiness of the motives resulting in

the conduct: respondent’s motives for his conduct are unknown.

(G) The likelihood of recurrence of the questioned conduct: it is highly

likely that respondent will engage in the same activity if the situation arose in the future
given that he refuses to acknowledge his serious lack of good judgment and to defend his
mishandling of the situation with DOE.

(H) The extent discipline may cause adverse impact or chilling effect upon
the constitutional rights of the teacher involved or other teachers: no evidence was presented
to establish that any disciplinary action against respondent would have an adverse impact or
chilling effect upon his constitutional rights or upon the rights of other teachers.

Persistent Violation of School or District Rules or Laws

28. It was established by a preponderance of the evidence that respondent

persistently violated or refused to obey the school laws of the state or reasonable regulations
prescribed for the government of the public schools by the State Board of Education or by
the Board of the District, within the meaning of section 44932, subdivision (a)(8).

29. Cases interpreting section 44932, subdivision (a)(8), require a “showing of

intentional and continual refusal to cooperate.” (San Dieguito Union High School District v.
Commission on Professional Competence (1985) 174 Cal.App.3d 1176, 1196.)

30. In order for a teacher to be terminated under section 44932(a)(8) for violations
of law or school rules, the violations must be either “persistent” or “motivated by an attitude
of continuous insubordination.” (Gov. Board of Oakdale Union School District v. Seaman
(1972) 28 Cal.App.3d 77, 81.) A single violation of a school board’s rules is not of itself
cause for dismissal; it is the persistent disregard of school rules that the subdivision is
designed to regulate. (Seaman, p. 84.)

31. The word “persistent” is defined by lexicographers as “refusing to relent;

continuing, especially in the face of opposition . . . stubborn; persevering . . . constantly
repeated.” And in the judicial decisions of this, as well as other states, the word has been
interpreted to mean “continuing or constant.” (Governing Board of the Oakdale Union
School District v. Seaman (1972) 28 Cal.App.3d 77, 82.)

32. The subdivision pertains to unintentional as well as intentional transgressions,

and hence the Legislature has decreed that a single violation is not sufficient to warrant
dismissal, apparently to allow for correction; “it is the persistent disregard” of school rules
that the subdivision is designed to regulate. (Id. at.84.)

22
 33. The District must establish that the employee’s refusal to follow the laws or
regulations was “persistent,” i.e., “stubborn and continuing.” (San Dieguito Union High
School District v. Commission on Professional Competence (1985) 174 Cal.App.3d 1176,
1183.) Isolated incidents or incidents involving an issue unresolved over a period of time are
not generally considered “persistent.” (Bourland v. Commission on Professional
Competence (1985) 174 Cal.App.3d 317.)

34. Respondent’s acts constituted persistent violation of or refusal to obey the

school laws of the state or reasonable regulations prescribed for the government of public
schools by the State Board of Education or by the governing board of the school district
employing him, or willful refusal to perform regular assignments without reasonable cause,
as set out in Factual Findings 8-94.

35. The panel unanimously concluded that the District presented sufficient
evidence to establish cause for dismissal based upon respondent’s inappropriate handling of
student DOE on January 21, 2016, as well as his dishonesty as to his actions on that date.
Moreover, this constituted a persistent violation of school or District rules. (Factual Findings
8-49 and 70-94.)

36. A majority of the panel concluded that the District presented insufficient
evidence to establish cause for dismissal for unprofessional behavior in respondent’s
interactions with Pineda. They deemed that Pineda deliberately provoked respondent and
that both respondent and Pineda engaged in unprofessional behavior and used profanity in
the workplace. However, the panel unanimously agreed that respondent’s continued
unprofessional behavior and use of profanity in his interactions with Pineda constituted a
persistent violation of school or District rules. (Factual Findings 50-58 and 70-94.)

37. A majority of the panel concluded that the District presented insufficient
evidence to establish cause for dismissal for excessive absenteeism. However, the panel
unanimously agreed that respondent’s repeated failure to seek a leave of absence constituted
a persistent violation of school or District rules. (Factual Findings 59-64 and 70-94.)

Disposition

38. Even where cause for dismissal has been established, the Commission has
broad discretion to determine whether discipline is warranted. (Fontana Unified School Dist.
v. Burman (Fontana) (1988) 45 Cal.3d 208, 220-222.) “The Commission has broad
discretion in determining what constitutes unfitness to teach . . . , and whether dismissal or
suspension is the appropriate sanction. [Citing Fontana, supra, 45 Cal.3d at pp. 220-222.]
‘[A] disciplinary discharge often involves complex facts and may require a sensitive
evaluation of the nature and seriousness of the misconduct and whether it warrants the grave
sanction of dismissal.’ [Citation].” (Cal. Teachers Assn. v. State of Cal. (1999) 20 Cal.4th
327, 343-344.)

23
 39. The Commission unanimously agreed that dismissal is necessary to protect
students, school employees, or others or to further deter respondent from engaging in similar
conduct in the future.

ORDER

Tu Hoang is dismissed from employment with the Anaheim Union High School
District.

DATED: June 16, 2017

____________________________
LAURIE R. PEARLMAN
Administrative Law Judge
Office of Administrative Hearings

I concur with the Decision and Order set forth above:

DATED: June 16, 2017

____________________________
MELISSA CHAN-NAULI
Commission Member

I concur with the Decision and Order set forth above:

DATED: June 16, 2017

____________________________
PERSIDA TORRES
Commission Member

24
 BEFORE THE
COMMISSION ON PROFESSIONAL COMPETENCE
VALLEY CENTER - PAUMA UNIFIED SCHOOL DISTRICT

In the Matter of the Proceeding to Dismiss:

CHRISTOPHER JAHN, OAH No. 2017061281

Respondent.

DECISION

This matter came on regularly for hearing before the Commission on Professional
Competence in Valley Center, California on October 23, 24, 25, 2017, and in San Diego on
November 3, and 9, 2017. The Commission was comprised of the following members:
Administrative Law Judge (ALJ) Mary Agnes Matyszewski, Ursula Sack, Ph.D., and Carmen
Martinez.

Daniel Shinoff, Michelle Pacis, and Jack Sweet, Attorneys at Law, Artiano Shinoff,
represented Valley Center - Pauma Unified School District.

Jon Cadieux, Attorney at Law, Smith, Steiner, Vanderpool & Wax, APC, represented
respondent Christopher Jahn, who was present during the hearing.

On November 16, 2017, the Commission met to deliberate and the matter was
submitted.

CASE SUMMARY

Mr. Jahn was employed by the district as a school psychologist. Beginning in the 2013-
2014 school year, Mr. Jahn received an unfavorable evaluation. Thereafter, he was out on
medical leave and when he returned he was behind in his work. During the 2015-16 and 2016-
17 school years, Mr. Jahn failed to complete student assessments and reports, was unprepared
for Individualized Education Plan (IEP) meetings, failed to comply with district directives and
behaved inappropriately. Mr. Jahn was out on several leaves of absence and fell further behind
in his work. Mr. Jahn’s actions constituted unprofessional conduct and demonstrated he was
evidently unfit to serve; and constituted persistent violations or refusals to obey regulations
and district policies. The Commission did not find that Mr. Jahn’s actions constituted
dishonesty, although his statements to his supervisors were misleading. Based upon the
evidence presented, the Commission concluded that the allegations that were sustained
warranted Mr. Jahn’s dismissal from the district.

FINDINGS OF FACT

Jurisdictional Matters

1. Mr. Jahn was employed by the Valley Center - Pauma Unified School District
as a school psychologist. During the time of the alleged incidents, he primarily worked at
Valley Center Middle School.

2. On May 24, 2017, Mr. Jahn was placed on paid administrative leave to allow
the district to complete its investigation.

3. Mark Garner, then the district’s Director of Human Resources, signed the
Notice of Charges on June 16, 2017, in his official capacity. The notice set forth the facts
and laws on which Mr. Garner was relying and sought to immediately dismiss Mr. Jahn from
employment with the district on the grounds of unprofessional conduct (Education Code
section 44932, subdivision (a)(2)), dishonesty (Education Code section 44932, subdivision
(a)(4)), unsatisfactory performance (Education Code section 44932, subdivision (a)(5)),1
evident unfitness for service (Education Code section 44932, subdivision (a)(6)), and
persistent violation or refusal to obey regulations and district polices (Education Code
section 44932, subdivision (a)(8)).2

4. On June 19, 2017, Mr. Garner authored a letter to Mr. Jahn advising him of his
intent to recommend to the Governing Board that it terminate Mr. Jahn’s employment. Mr.
Garner enclosed a copy of the Notice of Charges with his letter. In that notice, the district
alleged that Mr. Jahn did not complete assessments or reports, was unprepared for meetings,
was tardy to meetings, and did not comply with district directives.

5. Mr. Jahn timely appealed the dismissal action, denying that grounds for his
dismissal from employment existed, and this hearing followed.

1
Mr. Jahn’s motion in limine to strike the cause of discipline for unsatisfactory
performance (Education Code section 44932, subdivision (a)(5)), was granted because the
district failed to comply with the mandates of Education Code section 44938 that required
the district to provide Mr. Jahn at least 90 days’ notice of the charge to give him a chance to
correct his behavior giving rise to the charge.
2
Page 2, line 3, of the notice erroneously referenced Education Code section 44932,
subdivision (a)(1), immoral conduct, and neither party objected to that subdivision being
struck from the notice at the start of the hearing. The notice was also amended by
interlineation at page 2, line 14, to strike “2017” and insert “2016.”

2
Motions in Limine

6. The parties filed motions in limine and oppositions3 thereto. Tentative rulings
were issued and the parties were allowed to orally argue their positions at the start of trial.
After listening to oral arguments, final rulings were issued.

As the district’s counsel successfully argued in one of its motions in limine, Mr. Jahn’s
medical condition should not be considered as a factor in this hearing because Mr. Jahn asserted
during discovery that he had no medical issues affecting his work performance. Accordingly,
the Commission made no findings about Mr. Jahn’s medical condition.

Mr. Jahn’s Education and District Employment

7. After obtaining his Bachelor of Arts degree, Mr. Jahn received an Educational
Specialist degree and a Master’s Degree in Educational Psychology in 2006. Prior to
obtaining his masters, Mr. Jahn was required to perform internships. Mr. Jahn did his
internship at the district and his supervisor was so impressed with his work that he
encouraged Mr. Jahn to apply for a position with the district. During his employment, Mr.
Jahn worked at every school site with the bulk of his assignments being at the middle
schools. Although the district asserted as further evidence of Mr. Jahn’s unfitness and
unprofessional conduct, that Mr. Jahn’s office was in disarray, Mr. Jahn established that he
shared an office with others and that it was used as a meeting room and for storage, making
that claim unpersuasive.

Mr. Jahn’s 2013-2014 Evaluation

8. Scott Huffman, Director of Student Support Services, evaluated Mr. Jahn for
the 2013-2014 school year. In the “Standards/Assessments” section, Mr. Jahn received
ratings of “meets standards” in four categories and “partially meets standards” in two
categories. Mr. Jahn did not receive any “exceeds standard” ratings.

Standard III evaluated how Mr. Jahn “[i]mplements the IDEA4 consistent with district
procedures and policies regarding the provision of special education services; maintains
records/files containing all pertinent and legally information [sic] for assigned students.” Mr.
Jahn received a “partially meets standards” rating and Mr. Huffman wrote the following
comment: “Chris is becoming more aware of updated district procedures and policies
regarding the provision of special education services; he does a good job with maintaining
3
The motions in limine, oppositions thereto and the tentative rulings were received in
evidence as Exhibits 23, 25, and 26.
4
The Individuals with Disabilities Education Act (IDEA) ensures services to children
with disabilities and governs how states and public agencies provide early intervention,
special education and related services to more than 6.5 million eligible infants, toddlers,
children and youth with disabilities.

3
records/files containing all pertinent and legally information [sic] for assigned students. He
is careful to ask questions to ensure that all documents and procedures are followed as is
growing [sic] in this area as well.”

Mr. Jahn also received a “partially meets standards” rating for Standard IV which
evaluated whether Mr. Jahn “[p]rovides consultations and support to parents and staff in the
areas of intervention, preventative crisis management and students’ social-emotional needs;
documents all communication regarding STANDARDS, service and progress of assigned
students.” In the comments section Mr. Huffman wrote: “Chris is developing in his ability
to provide consultation and support to parents and staff in the areas of intervention,
preventative crisis management, and students’ social-emotional needs; He learning [sic] to
document all communication regarding the service and progress of students that he works
with. He is working on ways to communicated [sic] and collaborate with staff regarding
student matters on a daily basis.”

In the District Expectations portion of the evaluation, Mr. Jahn received a “Does Not
Meet Standard” rating in the “Demonstrates responsibility in duties” category. Mr. Huffman
wrote: “Chris is demonstrating increased responsibility with his duties. He has taken
seriously his need to manage his time and provide support to school site in a responsible
manner. This is an area that Chris is continuing to work on.” Mr. Jahn also received a “Does
Not Meet Standard” rating in the “Is punctual” category. Mr. Huffman wrote the
accompanying comment: “Chris is working on being on time to meetings and trainings.”

Mr. Jahn’s Overall Evaluation was “Meets Standards.” In the Evaluator

Comments/Recommendations section Mr. Huffman wrote:

Chris is a pleasure to have on the team. He always [sic] willing

to grow and learn, as well as improve at his craft. Chris is
supportive of systems change and provides valuable insight
regarding the ways in which we can serve the students of
VCPUSD. He a [sic] great depth of knowledge and is a real
asset to the District and the sped team.

I would like to see Chris continue to grow in his ability to

address behavior systems and interventions at his school site. I
would also like to see Chris stay in tune with his site team and
maintain good follow up skills so as to ensure positive outcomes
for the students he works with.

2016 Letter of Reprimand

9. On April 8, 2016, Mr. Huffman authored a Letter of Reprimand to Mr. Jahn.

In it, he cited a March 29, 2016, IEP meeting to which Mr. Jahn arrived late, was unprepared,
and presented himself in an unprofessional manner. Mr. Huffman referenced prior e-mails
advising Mr. Jahn of the subject of the meeting to refute Mr. Jahn’s claim of not knowing

4
what he needed for the meeting. The letter of reprimand mentioned a second meeting that
was to occur on March 29, 2016. Allegedly, Mr. Jahn stated he did not have his report
completed and would “wing it” at the meeting and his supervisor told him that was not
acceptable. However, Mr. Jahn testified that the word choice “wing it” was his supervisor’s
word choice, not his, stating that when he admitted he did not have a report for the meeting
she asked him, “What are you going to do, wing it?” Mr. Jahn also testified that his
supervisor always made him very anxious, nervous and upset when he interacted with her,
because he felt that she was bullying him. However, he never reported those concerns to Mr.
Huffman or Mr. Garner.

In response to his reprimand, Mr. Jahn authored a letter to Mr. Huffman on April 22,
2016, stating:

Thank you for meeting with me on March 30th and April 8th
2016. I apologize for unprofessional behavior on my part
occurring on March 29th, 2016. The unsatisfactory features of
my work performance on my part occurring on March 29th were
caused by psychiatric, medical and other health factors. I’ve
taken actions to remedy the situation, including but not limited
to medical appointments, psychiatric/psychological
appointments, updating medications, shortening my commute,
consulting clergy, exercising regularly and dietary
modifications. I have scheduled an appointment to meet with
you at your office on May 8th at 1:00 p.m. I have also reviewed
the board policies and California standards for the teaching
profession cited in the letter dated April 8th, 2016. Thank you
for your time and consideration.

Mr. Jahn testified that this letter was his way of saying that if he did something to
make administration worry, he was sorry, he was trying to be a team player, to go along, and
to not make waves. However, now that he looks at that letter, he “should have written it
differently.”

The Commission concluded that the evidence did not establish that Mr. Jahn made the
“wing it” statement but the evidence did not support Mr. Jahn’s claim of being “bullied” by
his superior. Instead, his testimony seemed to be little more than excuses for his failure to
complete his work. Moreover, Mr. Jahn’s claim that he should have written his letter
differently was not persuasive and seemed to be an additional attempt to rationalize his
actions.

Allegations and Findings Re: Escondido Union High School Student

10. On January 21, 2017, the Escondido Union School District Program Specialist,
Renee Steel, sent Mr. Jahn an e-mail advising that he had promised to provide her with “the

5
psych-ed and SCIA5 reports” for a student who had transferred to that district, but she had
not yet received them. She noted that her e-mail was “a gentle reminder” that he send those
reports. Mr. Huffman, not Mr. Jahn, replied to Ms. Steel’s email, stating that they would get
the reports to her.

On February 7, 2017, Ms. Steel sent another e-mail advising that the student’s IEP
meeting had taken place on December 16, 2016, and that she was still waiting for the reports.
Mr. Jahn replied on February 8, 2017, that he would e-mail her the reports “by the end of the
week.”

On February 8, 2017, Mr. Jahn sent an e-mail to “Ramon Guzman” stating: “I failed
to obtain a copy of your report at our last IEP.” Mr. Jahn asked Mr. Guzman to fax it to him
and asked if the parents had signed the IEP and if Mr. Jahn could access the student’s
information in the Special Education Information System (SEIS), an information system that
tracks all the district’s special education students.

On February 13, 2017, Ms. Steel advised Mr. Jahn that he could access the student’s
SEIS information, that the parents had signed the IEP, and asked Mr. Guzman to scan and
send the requested IEP to Mr. Jahn.

The district also alleged that Mr. Jahn acted unprofessionally at this student’s IEP
meeting. The student’s mother testified in this hearing and disagreed with that claim. She
described Mr. Jahn as being alert, engaged and able to articulate his recommendations at IEP
meetings. She felt he understood her child’s needs. She testified that the IEP meetings were
“large” because representatives of both districts attended and that if Mr. Jahn was unable to
answer her questions, the other school psychologist “might have the answer.”

The Commission determined that Mr. Jahn failed to provide timely reports to Ms.
Steel and misled her as to when he would provide them. Moreover, the student’s mother’s
testimony did not completely refute the district’s contention that Mr. Jahn was unprepared
for meetings as she referenced getting the answers from the other school psychologist when
Mr. Jahn could not provide them. Moreover, the mother’s focus in the meeting would not be
solely on Mr. Jahn making her testimony about what she observed unpersuasive.

Allegations and Findings re: February 2017 Staffing Meeting, IEP Meetings and Conduct

11. Kevin Sunderman, a special education teacher at Valley Center Middle

School, testified about his interactions with Mr. Jahn regarding IEP students. During the
2016-2017 school year, Mr. Sunderman sent many e-mails to, and had many discussions
with, Mr. Jahn regarding the status of assessments and reports that were due. Although Mr.
Jahn never told Mr. Sunderman that he would not be able to complete the reports, he seldom
completed them, causing Mr. Sunderman extreme stress because the lack of reports affected
the IEP Teams’ ability to perform their job. Mr. Sunderman explained that if Mr. Jahn had
5
No evidence regarding what that acronym meant was provided at hearing.

6
informed him that he could not get the assessments or reports completed, Mr. Sunderman
could have made other arrangements; instead Mr. Jahn thanked Mr. Sunderman for “keeping
him on top of things.” Mr. Jahn’s failure to “communicate and be honest” caused Mr.
Sunderman and the IEP Teams undue stress. This year, with Mr. Jahn gone and his
replacement hired, the IEP Teams are “running on all cylinders” and the work is getting
done.
Mr. Sunderman described a series of events involving a suicidal student that occurred
in February 2017. There was grave concern for the student’s welfare and a staffing meeting
was set to determine how best to address the student’s needs. Mr. Jahn was supposed to
assess the student and have a report for the IEP Team. Despite repeated e-mails from Mr.
Sunderman, Mr. Jahn failed to do so, which put the IEP Team in a “tailspin.” Mr. Jahn also
provided “very little input” at the staffing meeting. Mr. Jahn agreed to have his report
finished by the IEP meeting which was set to occur after the school break.

However, on the Monday after break, Mr. Jahn still had not completed his report.
The next day, on the morning of the IEP meeting, Mr. Sunderman went to Mr. Jahn’s office
to find out about the status of the report. When Mr. Jahn opened the door, he appeared
disheveled, mentioned he had fallen, and his office was in disarray with papers on the floor
and coffee spilled on a $1,000 psychological test kit. Mr. Jahn was pacing back and forth,
scratching his forearms, and Mr. Sunderman was “thrown for a loop.” Mr. Sunderman was
extremely concerned about Mr. Jahn’s welfare and left to inform the principal. When Mr.
Sunderman left Mr. Jahn’s office, the door slammed shut behind him.

After speaking with the principal, Mr. Sunderman returned to Mr. Jahn’s office and it
was “weird.” Mr. Sunderman explained that Mr. Jahn opened the door and it was “like the
prior incident had never happened.” This “bizarre swing of mood” was “disturbing” to Mr.
Sunderman. Mr. Jahn then advised Mr. Sunderman that he would get him the report for the
meeting. Thereafter, during fifth period, Mr. Jahn arrived unannounced to Mr. Sunderman’s
classroom, carrying his computer and his lunch, stating he was there to work on the suicidal
student’s information. Mr. Sunderman told Mr. Jahn that he was teaching his class, but Mr.
Jahn remained, sat among the students, ate his food and worked on his computer. At one
point, Mr. Jahn told Mr. Sunderman’s students to be quiet so he could work. Mr. Sunderman
was upset that Mr. Jahn disrupted his class and told his students to quiet down.

Later that day at the IEP meeting, Mr. Sunderman “watched Mr. Jahn like a hawk”
because he was so disturbed by Mr. Jahn’s behaviors earlier that day. Mr. Jahn did not have
a report prepared, was eating during the meeting, appeared “giddy,” made inappropriate
jokes and gestures, including reenacting shooting his arm with a syringe, and making what
sounded like a comment about signing a death certificate, although he testified at this hearing
that he could not say for sure if Mr. Jahn actually made that statement but thinks that was
what he heard Mr. Jahn say. Mr. Sunderman observed the students’ parents looking at each
other quizzically in response to Mr. Jahn’s statements and presentation. Further, rather than
providing the IEP participants with copies of a finished report, Mr. Jahn reviewed his testing
protocols with the team and the parents, and gave Mr. Sunderman the impression that Mr.
Jahn did not know what he was reading; it was a very unorganized presentation. Moreover,

7
Mr. Jahn did not realize that the student’s father was getting upset because Mr. Jahn was only
sharing his one copy of the protocols with the mother. Recognizing this, Mr. Sunderman
stopped the meeting to switch seats so the father could see the protocols. Typically at IEP
meetings, the school psychologist has several copies of a report, not just one copy of test
protocols, to share with parents and IEP Team members.

Jon Petersen, the former principal at the middle school where Mr. Jahn worked, is
currently the district’s Chief Business Officer. He testified that during that February 2017
IEP meeting Mr. Jahn was speaking more slowly than normally, was struggling to find the
words regarding the student, and appeared to be reading from rating scales that he was
interpreting at the meeting as opposed to having a prepared report. However, what was more
troubling was that Mr. Jahn was continually trying to break the ice by telling jokes which
caused the parents and one of their representatives to continually look at each other
quizzically. Mr. Petersen described Mr. Jahn’s demeanor as “giddy.” Mr. Petersen called
Mr. Huffman immediately after the meeting, telling him that this was “not normal behavior.”
Mr. Petersen agreed that no parents complained about Mr. Jahn but testified that it was not
unusual for special education parents not to have complained about Mr. Jahn’s behavior
because “we rarely have complaints from parents after IEP meetings.”

Mr. Jahn denied telling Mr. Sunderman that he fell in his office, testifying that Mr.
Sunderman’s testimony was simply not true. Mr. Jahn admitted he did not have a report for
the February 28, 2017, IEP meeting. The reason he did not have his report was because he
had not been able to complete his assessment because the student was absent from school on
multiple occasions. Mr. Jahn denied doing the student’s assessment in Mr. Sunderman’s
classroom, although he “could not recall exactly what [he] was doing in Mr. Sunderman’s
class.” Mr. Jahn also denied making jokes, lethal injection motions or any statement about
signing a death certificate during that February IEP meeting.

Mr. Jahn testified that he was on medical leave for approximately five or six weeks
and got a MRSA6 infection. He was released back to work a few days after leaving the
hospital following two surgeries.7 When Mr. Jahn returned to work he was still undergoing
twice a day infusions that he performed at work. He was “wiped” and his workload had
piled up. Although he could perform some of his duties, he could not perform them at “the
level of competency or efficiency” that he normally did. He did not feel “100 percent” until
March 2017, and he did not ask for help because there were other teachers “battling worse
diseases,” he “overestimated his abilities,” and he was “not good at self-advocacy.” In
retrospect Mr. Jahn should have asked for help, additional time to complete his reports, and
more time to get up to speed, especially as he was self-administering antibiotics to himself.
But he thought the district knew he was recovering from a serious illness and that they would
provide accommodations for him even though he returned to work with no restrictions. The
6
MRSA is an abbreviation for Methicillin-Resistant Staphylococcus Aureus, some
bacteria that attacks organisms.
7
The dates of his leaves and returns to work were not made clear at this hearing.

8
district did not hire a replacement to cover his workload and several dozen reports were due
while he was out on leave. All but one or two of those reports were still due when he
returned to work. He explained that once he was behind it was hard to keep up, but he
planned to do so by working extra hours and over school breaks/holidays. However, things
piled up.

The student’s mother testified in support of Mr. Jahn. She claimed that he did not
make any inappropriate jokes or remarks at the February IEP meeting; that she thought he
was honest with her when she had questions regarding the medication the psychiatrist was
recommending for her daughter; that he did not make a needle in his arm injection motion, or
a death certificate comment. The mother testified that she always felt that Mr. Jahn was very
professional in meetings, that he was compassionate and understanding and she liked him
much better than his current replacement. The mother also testified that she received written
reports, but upon further questioning it was clear that what she considered a report was
merely the IEP document setting forth her parental rights in the IEP process.

Mr. Huffman admitted that Mr. Sunderman was the only employee who complained
about Mr. Jahn’s behavior at the February 2017 IEP meeting. Although Mr. Jahn’s attorney
implied in his cross-examinations that Mr. Sunderman was biased against Mr. Jahn, the
evidence did not support that assertion. Mr. Sunderman presented as an excellent witness
with firsthand knowledge of the facts at issue in this case. His testimony was credible; he
answered all questions posed to him in a direct manner, gave a credible accounting of his
observations and concerns, and his answers were persuasive.

The Commission concluded that Mr. Sunderman’s testimony about Mr. Jahn’s bizarre
behavior in his office and in Mr. Sunderman’s classroom was more credible than Mr. Jahn’s
testimony to the contrary. Additionally, Mr. Sunderman’s testimony regarding Mr. Jahn’s
behavior at the IEP meeting where Mr. Jahn appeared giddy, made inappropriate comments,
and was unprepared and disorganized was more persuasive than Mr. Jahn’s and the student’s
mother’s testimony. Mr. Sunderman had good reason to specifically focus his attention
during that IEP meeting on Mr. Jahn because of their earlier encounters that day, as opposed
to the mother who had no knowledge of those events and whose primary focus would be on
the needs of her child. However, the Commission was not convinced that Mr. Jahn made
“syringe in the arm” gestures, although he may have been doing something with his arms
because of the IV injections he was giving himself for his MRSA infection. The
Commission was also not convinced that Mr. Jahn made a death certificate comment because
Mr. Sunderman admitted while testifying that he was unsure if Mr. Jahn made that statement.

Allegations and Findings re: Mr. Jahn’s March 1, 2017, E-mail

12. On March 1, 2017, Mr. Jahn e-mailed Ashlee Salmon, a district education
specialist, and sent copies to eight district employees, including his site principal, informing
Ms. Salmon that he would not be able to make their 1:00 p.m. meeting because he needed to
leave for a doctor’s appointment. Mr. Jahn wrote:

9
 Mr. Jahn denied falling asleep in the March 3, 2017, IEP meeting, explaining that he
did not close his eyes for any longer than a “slow blink.” He also refuted the district’s
contention that he appeared at a meeting that he was not supposed to attend, testifying that
the case manager asked him to attend because she was unable to go to the meeting and a
third-party contract therapist had also asked him to attend. The night before the March IEP
meeting, Mr. Jahn’s girlfriend was in the hospital all night with appendicitis and, although he
was exhausted, he thought it would cause more problems if he stayed home from work and
thought he could get through the day. The student’s parents and therapists were thankful that
Mr. Jahn attended the IEP meeting because he had been able to successfully engage the
student and was able to provide information during the meeting. Mr. Jahn also denied
needing to be driven home following the IEP meeting, testifying he still does not believe it
was necessary for staff to drive him home.

After Mr. Garner was informed by the assistant principal that staff had to drive Mr.
Jahn home, he placed Mr. Jahn on administrative leave. Mr. Sunderman was asked to create
a spreadsheet of all Mr. Jahn’s IEP students and the assessments or reports needed. Mr.
Sunderman testified that doing so made him realize the extent of the work Mr. Jahn had not
completed and that was when the district “hit the panic button.”

Mr. Jahn testified that he was not given advance notice of this forced leave of
absence; he had no time to organize his files or tell others where his reports were located, and
he had no communication with anyone at the district before being placed on leave. Mr. Jahn
denied telling Mr. Huffman that the missing reports were completed and on his laptop; he
recalls telling Mr. Huffman that “they might be on my laptop if they are anywhere,” and
testified, “I did not believe I communicated in any unequivocal way that they were there [on
my laptop].” He further explained that his power cord was at the office, he told staff that he
was unable to access documents on his computer, and he was instructed not to do any work
while on his leave of absence. Mr. Jahn asked a coworker to bring his laptop to the district
and his coworker did.

The Commission concluded that Mr. Sunderman’s account of the March IEP meeting
and the need to drive Mr. Jahn home afterwards was more credible than Mr. Jahn’s testimony
and that of the student’s mother. Again, as a parent she would have no reason to be
specifically observing Mr. Jahn. Moreover, she acknowledged his “red eyes” but attributed
them to allergies. That explanation was not persuasive. Finally, it is highly unusual for staff
to be so concerned about a colleague that they insist on driving the colleague home, thereby
lending further credence to Mr. Sunderman’s testimony about Mr. Jahn’s condition. The
Commission did not find that Mr. Jahn’s statements were dishonest; for whatever reason, he
truly believed he had done the work.

2017 Notice of Unprofessional Conduct

14. On April 20, 2017, district Superintendent Mary Gorsuch, in her official
capacity, issued a Notice of Unprofessional Conduct to Mr. Jahn for his “behavior during the
Spring 2017 school semester.” Superintendent Gorsuch referenced Education Code section

11
44932, subdivision (a)(2),8 which “requires the employee be given 45 calendar days to
correct his or her faults and to overcome the grounds for the charge.” Superintendent
Gorsuch wrote: “This formal notice is designed to give you the opportunity to correct your
behavior and overcome the basis for this Notice.” Superintendent Gorsuch identified the
“Incident of Unprofessional Conduct” as being Mr. Jahn’s failure to timely assess a student
before a February 17, 2017, meeting; his lack of being prepared at the February 17, 2017,
meeting; his failure to prepare the report as promised by February 27, 2017; his interactions
with another teacher to whom he promised the assessment “ASAP”; his disruption of that
teacher’s instructional time when Mr. Jahn appeared and began assessing a student during
class; and his inappropriate behavior during the student’s IEP meeting, including making a
joke about signing a death certificate and gesturing as if he were injecting something in his
arm. Superintendent Gorsuch also referenced Mr. Jahn’s inappropriate e-mail to staff
wherein he provided “a very detailed explanation regarding your criticisms of your medical
doctor” and his odd behavior at a March 3, 2017, IEP meeting for another student that led to
staff driving him home because staff did not think he “was in a position to drive.”

Superintendent Gorsuch noted the prior directives issued to Mr. Jahn and his April 22,
2016, letter in which he “confirmed that [he] reviewed the Board policies and California
standards for the teaching profession and stated that [he was] taking actions to remedy [his]
inappropriate behavior.” Superintendent Gorsuch reiterated Mr. Jahn’s duties to comply
with the California constitution, state laws and board policies, citing to those sources.
Superintendent Gorsuch wrote that Mr. Jahn’s behavior “constitutes inexcusable and
unprofessional conduct” which led her to issue this Notice pursuant to Education Code
section 44938. Superintendent Gorsuch directed Mr. Jahn to “reflect upon the seriousness of
[his] conduct and performance and in order to correct [his] behavior and overcome the basis
for this Notice.” She identified five directives he was to follow:

1. Comply with all previous directives given to you by site or

District administrators. Additionally, you are directed to
comply with any suggestions given to you, by site or District
administrators, following this Notice to assist you in
overcoming the above-mentioned deficiencies;

2. Maintain frequent communication (contact at least once

weekly) with your evaluator/supervisor, Scott Huffman, and
principal, Jon Petersen, to keep them informed of your progress
toward improving upon the aforementioned areas and to seek
guidance/advice and suggestions regarding improving
performance and conduct;

8
It is Education Code section 44938, subdivision (a), that requires that the employee
be given 45 calendar days to overcome the grounds for the charge whenever a district
charges unprofessional conduct pursuant to Education Code section 44932, subdivision
(a)(2).

12
 3. Be prepared for all staffing meetings, including staffing
meetings concerning IEP team meetings; submit
reports/documentation to supervisor prior to the staffing
meetings;

4. Be prepared for all staffing meetings, including completing

psychological assessments and reports in a timely manner and
prior to the day of the IEP team meeting; submit
reports/documentation to supervisor prior to IEP meeting; and

5. Act in a professional manner when interacting with other

District and agency contracted employees, students, parents of
students and representatives of the parents/families.

Superintendent Gorsuch concluded her Notice by advising Mr. Jahn that he had 45
calendar days to “correct [his] faults and overcome the grounds for the charges” or the matter
may be referred to the board for dismissal proceedings.9 Superintendent Gorsuch attached
excerpts from the state constitution, board policies and Mr. Jahn’s May 7, 2017, evaluation.

E-mails after Mr. Jahn Returned from Administrative Leave in Spring 2017

15. On April 22, 2017, Mr. Jahn sent Mr. Huffman an e-mail advising that he had
tested a student on Friday “as much as I could” and would “do so again on Monday,” but the
student’s IEP meeting was “at 8 am on Tuesday.” At this hearing Mr. Huffman agreed that it
would not be reasonable to expect Mr. Jahn to have assessed the student and written a report
before the April 25, 2017, IEP meeting given that he had only just returned to work on April
21, 2017, after being out on administrative leave.

16. On April 24, 2017, Mr. Huffman sent Mr. Jahn an e-mail confirming what had
been discussed with him and his site principal following that morning’s IEP meeting. Mr.
Huffman noted that the three of them discussed Mr. Jahn being on time to work, that he
showed up 14 minutes late to the IEP meeting, and that he appeared sleepy and closed his
eyes during the IEP meeting. Mr. Huffman stated that his behavior was unprofessional. Mr.
Huffman directed Mr. Jahn to be awake and alert at meetings, to share his calendar with Mr.
Huffman, and that as of May 5, 2017, Mr. Jahn was to have all reports to Mr. Huffman five
days before the meetings so that Mr. Huffman could review them. Mr. Huffman thanked Mr.
Jahn for advising him of his inability to complete a report and directed Mr. Jahn to send Mr.
Huffman weekly updates regarding assessments on which he was working and his timelines
for completion. Mr. Huffman testified that he directed Mr. Jahn to provide his reports five
days in advance so Mr. Huffman could review them for completion/accuracy to ensure that
Mr. Jahn looked professional at IEP meetings.

9
The district placed Mr. Jahn on leave before the 45 calendar days lapsed.

13
 17. On April 26, 2017, Mr. Jahn advised Mr. Huffman that he was currently
evaluating a student whose IEP was scheduled for May 1, 2017, and would not be able to
deliver a report five days before the IEP meeting. Mr. Huffman testified that it was
reasonable to expect Mr. Jahn to have accomplished assessing and preparing his IEP report
by the time of this IEP because Mr. Jahn told Mr. Huffman he could do it, and he did not ask
for support to get it accomplished despite Mr. Huffman repeatedly offering support to him.

18. On May 1, 2017, Mr. Huffman sent Mr. Jahn an e-mail summarizing their
meeting “so as to be sure we are on the same page.” Mr. Huffman noted that his expectation
was that Mr. Jahn plan out his testing/assessment schedule, plan in advance, and have his
“pre-meeting reports for review with all evaluations from May 25th and on.”10 Mr.
Huffman’s e-mail further directed Mr. Jahn to continue to be on time, to report his absences
in the system, stay focused on his work, and let Mr. Huffman know if he needed support.
Mr. Jahn replied to that e-mail thanking Mr. Huffman for his “feedback and detailed
instructions.” Mr. Jahn advised that he was unable to login to his work computer to retrieve
a student’s report and had sent in a “tech help ticket.” When Mr. Huffman asked if Mr. Jahn
had submitted a “help desk ticket,” and Mr. Jahn replied, “No. I called tech. yesterday.
Melissa suggested and transferred me to Cort. I left a VM mssg. Was just looking at help
desk login. I’m not sure what my login for that is, so I’m looking for instructions on that.”
In a follow-up e-mail Mr. Jahn wrote: “Done. My help ticket number is 30368.”

19. On Monday, May 1, 2017, Mr. Huffman forwarded a spreadsheet entitled,

“Chris and Flora Caseload” to Mr. Jahn asking him to “please be sure to add to this list all
Psych. Reports that are due until the end of the school year by Wednesday to this list.” Mr.
Jahn replied on May 1, 2017, “Thanks. I will.” On Thursday, May 4, 2017, Mr. Jahn
e-mailed Mr. Huffman that he had “been working on this and will finish it today.” He
advised that he only had “read access” to the list and was requesting “edit access,” and that
he was “finishing a spreadsheet in the format we discussed on Monday with all my
assessments. That document will be done today, and I will share it with you and Mr.
Petersen.”

20. On May 1, 2017, Mr. Huffman sent Mr. Jahn a text advising that he was
waiting in his office for their appointment. Mr. Huffman testified that Mr. Jahn then arrived
for their meeting a few minutes later.

21. On May 10, 2017, Lelani Osugi, a district principal, copied Mr. Huffman on
an e-mail she sent to Mr. Jahn “to touch base about a few reports.” She wrote that she
needed two reports on two students as they were “getting to wrap up things for the end of the
year” and asked if he could “get them to Debbie within the next few weeks . . . .” Mr. Jahn
replied, “Thank you for the heads up on those students. I will take care of that.” Mr.
Huffman directed Mr. Jahn to get those reports to Ms. Osugi “by the end of tomorrow. Let
me know if that will be a problem.” Mr. Jahn replied that he would let Mr. Huffman know if
10
Mr. Huffman acknowledged that Mr. Jahn could not comply with this directive
because Mr. Jahn was no longer working at the district as of May 25, 2017.

14
that would be a problem. Two days later, on Friday, May 12, 2017, Mr. Jahn e-mailed Mr.
Huffman and Ms. Osugi asking, “May I please have until the end of day, Monday, May 15,
2017, to deliver these two items?” Mr. Huffman replied, “Yes.” On Tuesday, May 16, 2017,
Mr. Huffman e-mailed Mr. Jahn, asking if he got “those reports to Leilani Yesterday?” On
Friday May 19, 2017, Mr. Jahn e-mailed the following to Mr. Huffman and Ms. Osugi:
“Sorry for the delay on these two reports. I have worked on them, but not finished them. My
best confident estimated completion date is Friday 5/26. I will try to have them before that.”
Mr. Huffman forwarded the string of e-mails to Mr. Garner with the following note: “Here is
his response on reports that should have been done long long time ago...”

Mr. Jahn’s May 2017 Evaluation

22. Mr. Huffman evaluated Mr. Jahn in May 2017. Mr. Garner approved the
evaluation on May 10, 2017, and Mr. Huffman signed it on May 24, 2017. The section on
the form for Mr. Jahn to sign or add comments was blank. Mr. Garner testified it was blank
because as of May 24, 2017, Mr. Jahn was on administrative leave.

For Standard I, which measured whether the employee “Identifies and evaluates
students with a suspected disability; maintains documentation in screening referrals, SST
logs, evaluation reports, IEP’s and meeting notices,” Mr. Huffman gave Mr. Jahn a “Partially
Meets Standards” score and wrote:

Chris has struggled in the area over the past year in that he has
not been able to organize his documents and reports prior to IEP
meetings on many occasions. Furthermore Chris has struggled
at maintaining documents in an organized fashion. Specifically,
Chris has been unable to provide staff with students [sic] reports
in a timely manner when requested. In some instances Chris has
been unable to find the student assessment reports and has had
to create them in order to provide to the teams that need them.”

For Standard III, which measured whether the employee “Implements the IDEA
consistent with district procedures and policies regarding the provision of special education
services; maintains records/files containing all pertinent and legally [sic] information for
assigned students,” Mr. Huffman gave Mr. Jahn a “Does Not Meet Standards” score and
wrote: “Chris does not implement the IDEA consistent with the district procedures in that he
does a very poor job at maintaining records and files for out [sic] students in the district.”

For Standard IV, which measured whether the employee “Provides consultations and
support to parents and staff in the areas of intervention, preventive crisis management and
students’ social-emotional needs; documents all communication regarding STANDARDs
services and progress of assigned students,” Mr. Huffman gave Mr. Jahn a “Partially Meets
Standards” score and wrote: “Chris has made attempts to support school sites when working
with teams to address students [sic] concerns. Unfortunately Chris [sic] inconsistent

15
attendance and participation in team meetings has hindered his ability to follow through with
teams in this area on a consistent basis.”

For Standard V, which measured “Communicates with students, families, and staff
about student progress toward IEP STANDARDs,” Mr. Huffman gave Mr. Jahn a “Partially
Meets Standards” score and wrote: “During the course of the year Chris has been working
on his ability to maintain effective communication with parents and staff. Chris has made
some progress in the area recently, but continues to struggle with setting up effective systems
of communication with teams and families, either through e-mail, in person or over the
phone to helps [sic] support students and staff within the program.”

In the District Expectations Section Mr. Huffman wrote that Mr. Jahn “Did Not Meet
Standards” for the following categories and commented as follows:

Communicates effectively with parents: “Over the

course of the year Chris has had IEP meetings where parents
and families have been confused and unclear about what Chris
is communicating to them in terms of student assessment results
and social emotional status.”

Demonstrates responsibility in reports: “Chris has

consistently struggled with timely and thorough assessment
reports that are prepared and ready to go for IEP meetings.
There have been a number of times where Chris has been in the
middle of the IEP meeting and writing the report. Additionally
[sic] the assessment reports at times are incomplete due to lack
of follow through on Chris [sic] part in preparing documents
need [sic] to draft reports.”

Demonstrates responsibility in duties: “Chris has

struggled to show that he fully understands his professional
responsibilities while on the job. Chris has been lacking in the
areas of professional communication with staff and parents
during IEP meeting and after, Chris has struggled with being
prepared for meeting [sic] after, Chris has struggled with being
prepared for meetings by having all reports and results ready for
the meetings. Chris has been late to work many times which has
led to meetings being delayed, or disjointed in that he has not
been there to participate in them.”

Demonstrates responsibility in meeting: “Again, Chris

not being prepared to effectively communicate and share his
completed reports with the IEP teams has demonstrated that he
lacks responsibility in meetings.”

16
 Is punctual: “As of late Chris has been on time to work
each day. Prior to the last 3 weeks, Chris has great difficulty
with being at work on time.”

Maintains good attendance: “Chris has been better with

his attendance within the past 3 weeks. Prior to this Chris has
really struggled with this.”

Mr. Huffman gave Mr. Jahn “Meets Standard” ratings for the “Demonstrates
responsibility in supervision of students” category, noting: “Chris has a great connection
with students and does an excellent job building positive relationships with them.”

Mr. Huffman gave Mr. Jahn an “Overall Evaluation” of “Unsatisfactory” and referred
him to Peer Assistance and Review (PAR). Mr. Huffman wrote the following in the
Evaluator Comments section:

At this time it is recommended that Chris participate in PAR.

Chris has struggled over the years to effectively perform his
basic job responsibilities as a school psychologist.

At this [sic] Chris will need to focus on a few key areas in order
to demonstrate that he fit [sic] to perform his duties on a daily
basis. Chris will need to develop systems of organization that
will allow him to create efficient methods of developing timely
and thorough reports for IEP meetings.

He will need to seek out support from the director and site
administrator and adhere to all directives as it [sic] relates to
daily organization of his responsibility that are given to him
[sic]. Furthermore Chris will need to show up to work on time
each day and check in with the site administration to ensure that
he is on campus and present. Chris is expected to be at all
meetings on time and prepared with all proper materials and
documents so that he can meaningfully participate with the team
to support successful student outcomes.

Moving forward Chris will need to show evidence that he has

put systems in place that address timeline compliance with
reports and assessments that have been conducted. Specifically,
Chris will need to set up a weekly appointment with the Director
or Site Principal where he will provide updates about timelines
and assessments in the form of a google [sic] doc spreadsheet
that is shared with both administrators. Additionally, Chris will
need to share his google [sic] calendar and document his daily
activity as means [sic] of demonstrating advanced planning for

17
 testing, general meetings, IEP meetings and other duties as
assigned.

Chris is expected to notify site administration and director of

any absence through e-mail. He is also expected to use the
district electronic sub/absences system when he will be out.

It is important to note that as of late Chris has had some

improvement in being at work on time. Additionally, Chris has
demonstrated a willingness to take direction and advise [sic] on
how to better plan an [sic] prepare for his daily duties and
responsibilities.

If at any time Chris is unable to perform his daily tasks he will

need to seek out support from his site administrator and director
to get guidance on what he should do.

I am hopeful that Chris can develop successful systems and

methods to perform his job as a school psychologist in Valley
Center-Pauma Unified School District in a professional way
moving forward.

May 2017 Administrative Leave

23. On May 24, 2017, less than 45 days after Superintendent Gorsuch issued her
notice of unprofessional conduct, Mr. Garner issued a letter to Mr. Jahn advising him that on
May 23, 2017, Mr. Jahn was placed on paid administrative leave. The purpose of the leave
was to allow the district to “investigate allegations of misconduct.” Accordingly, Mr. Jahn
was unable to follow up on any of the directives contained in his May 2017 evaluation. It
was unclear from the evidence why the district did not give Mr. Jahn an opportunity to
comply with the directives contained in his 2017 evaluation, participate in PAR, or allow the
45 days to run.

Exemplar Psycho-Educational Report

24. The district introduced a January 7, 2016, Psycho Educational Report

Individual Summary of Assessment prepared by Mr. Jahn. The report noted that it was a
triennial report. The district alleged that it was sparse, insufficient, and did not conform to
the templates the district had provided Mr. Jahn. However, the templates were not
introduced in evidence and the Commission was not persuaded that this report was
insufficient or fell below accepted standards.

//

18
Spreadsheets of Mr. Jahn’s Unfinished or Incomplete Reports

25. The district introduced two spreadsheets documenting Mr. Jahn’s unfinished
assessments and reports. Mr. Jahn did not dispute the information contained in the
spreadsheets; rather, he asserted that other school psychologists also had missing reports.
His testimony was not persuasive and the fact that other psychologists may or may not have
had missing reports did not absolve him of his responsibility to complete his work on time.
Witness Testimony

26. Mark Garner, now the Assistant Superintendent of Human Resources, testified
about the role of school psychologists, the 2014 grant the district received to assist special
education students, how school psychologist caseloads are determined in the district and the
“crucial role” school psychologists play on the special education team. In the fall of 2016,
Mr. Garner learned that Mr. Jahn was out on medical leave and that the school psychologists
at other sites performed his work. Mr. Garner did not speak with Mr. Jahn when he returned
to work and Mr. Jahn did not reach out to Mr. Garner to request support.

Before Christmas 2016, Mr. Huffman and Mr. Garner discussed Mr. Jahn’s
incomplete reports and other issues; many of which were documented in the records
introduced at this hearing. Margaret Williams was hired to work Mr. Jahn’s caseload when
he went on medical leave in the spring of 2017 and “from all indications all was being
managed.” Mr. Jahn returned to work with no restrictions, all his work was up to date,
having been performed by Ms. Williams, and the district paid to have Ms. Williams remain
on staff for one week after Mr. Jahn returned to help him transition back to work. Mr. Jahn
never claimed that he was unable to perform his job when he returned.

Mr. Garner and Mr. Huffman had discussions in the spring of 2017 regarding Mr.
Jahn’s poor work performance. Mr. Jahn’s caseload at this time was “significantly less” than
other school psychologists by almost 30 to 50 percent. The district performed an audit of
Mr. Jahn’s caseload and discovered numerous missing evaluations, assessments and reports.
Mr. Garner was very concerned about this because it exposed the district to serious liability
because of its failure to meet IDEA requirements. Mr. Garner described the district’s duty to
provide a free and public education (FAPE) to students in the district and he recommended
that Mr. Jahn be dismissed from the district because the district would “not be doing our job
if we allowed him to continue his employment because he was not completing his job and he
was letting our families down.” However, Mr. Garner admitted that the district has received
no complaints from any families regarding Mr. Jahn.

Mr. Garner’s testimony was consistent with the documents introduced at hearing but
established that he had little to no firsthand knowledge of the acts alleged making his
testimony not very persuasive.

27. Scott Huffman, the district’s Director of Student Support Services, testified
consistent with the documents, describing his interactions with Mr. Jahn and the many efforts
he made to help Mr. Jahn succeed. Mr. Huffman was hired by the district in 2013 and

19
described his duties, including his work implementing SEIS, the district’s special education
tracking system.11 When Mr. Huffman asked Mr. Jahn about missing evaluations and
reports, Mr. Jahn variously claimed that the documents were on his computer, had been
uploaded, had been written in, or were being completed. However, there are several reports
that the district still cannot locate.12 Mr. Huffman described the importance of the school
psychologist’s report because it memorializes the information and helps the IEP team
participate meaningfully at the IEP meeting and going forward. Mr. Huffman explained the
laws regulating special education services for students and the purpose of the IEP meetings,
describing both the procedural and substantive problems that occur when there is no school
psychologist report. Without a report, the district is out of compliance with applicable laws
and it is unprofessional.

Mr. Huffman described the various duties of the IEP team members and the “very
demanding” and time-consuming work a school psychologist performs. Mr. Huffman had
“concerns early on” regarding Mr. Jahn’s job performance and ability to meet deadlines, but
was hopeful they could work through them. As a new director, Mr. Huffman was trying to
look at his staff as individuals, looking at their strengths and having discussions with them
on areas that required improvement. Mr. Jahn always had an issue with being on time, but
Mr. Huffman was hopeful that he could support Mr. Jahn and work on keeping him on track.
Mr. Huffman had discussions with Mr. Jahn regarding his lack of reports and behavior at
meetings, including instructing him to be alert, to actively participate and not to have slurred
speech during meetings. Mr. Huffman testified that he received several calls from site
administrators asking where Mr. Jahn was and when Mr. Huffman spoke with Mr. Jahn
about these issues, he came to believe that this was a bigger issue than what he had originally
thought. Mr. Huffman was concerned about Mr. Jahn, he wanted him to be successful, and
he offered him support.

Mr. Huffman and the special education team developed templates during the 2013-14
school year for the school psychologist’s reports that were made available on Google
documents. Mr. Jahn claimed that he did not have the templates, so Mr. Huffman re-shared
them through Google attachments. On the Thursday before Mr. Jahn returned from leave in
April 2017, Mr. Huffman, Mr. Garner, Mr. Shinoff, Mr. Cadieux, and Mr. Jahn all met.
During that meeting, Mr. Huffman shared his concerns regarding Mr. Jahn’s work
performance and the missing reports that were still needed, testifying that it was about this
time that he started to realize the extent of Mr. Jahn’s missing reports. Before the meeting,
Mr. Jahn told Mr. Huffman that he would provide the reports; at the meeting Mr. Jahn said
the reports were on his computer; and after the meeting Mr. Jahn said that he could not get
them off his computer because he did not have a charger cord or plug. Mr. Huffman told Mr.
Jahn to bring the computer to the district so that they could retrieve the documents. During
the Thursday meeting Mr. Huffman also told Mr. Jahn that he would meet with him as
11
During Mr. Jahn’s internship and initial employment, the district did not have SEIS.
12
Mr. Jahn acknowledged that this may be true, explaining that he thought he had
uploaded the reports, performed the evaluations, or written the reports.

20
frequently as possible so that Mr. Jahn would have all the support he needed when he
returned to work.

Mr. Jahn returned to work on Monday, April 24, 2017, and was scheduled to attend
an IEP meeting that morning. Mr. Huffman also attended the IEP meeting. Despite the
many directives given to him, Mr. Jahn showed up late for the meeting, claiming he had gone
to the teacher’s classroom and not the conference room where the meeting was being held.
Because others had reported that Mr. Jahn fell asleep during IEP meetings, Mr. Huffman
watched him during the meeting and it looked as though Mr. Jahn was falling asleep. During
his testimony, Mr. Jahn explained that he did arrive to work on time but went to the wrong
location because the morning IEP meetings were typically held in the teacher’s classroom,
and not the conference room. Thus, he went to the teacher’s classroom and not the
conference room which made him late to the meeting. The Commission found Mr. Jahn’s
explanation for being tardy to the IEP meeting credible.

Mr. Huffman testified that the district kept Ms. Williams on staff for one week after
Mr. Jahn returned to work to help him transition. Thereafter, Mr. Jahn never asked the
district for any additional support and when asked about his workload Mr. Jahn replied that
he was “comfortable to take it on.” However, during the spring 2017 Mr. Jahn continued to
fall behind in the completion of his reports, repeatedly asking for extensions of time.
Although Mr. Jahn was always respectful and willing to make changes, he never asked for
help or support, instead saying that he would “work on it.” Mr. Jahn continued to have other
difficulties as well, including struggling to stay awake at meetings with Mr. Huffman.

After Mr. Jahn returned to work in April 2017, there were still missing reports for IEP
meetings conducted before he went on leave, as well as there being IEP meetings where Mr.
Jahn merely reported on information but did not have reports. Those reports were not
completed at any time before Mr. Jahn was placed on his final leave from the district.
Currently the district is still missing reports for nine students and Mr. Huffman had to
recently notify the State of California when it conducted its audit that the district does not
have reports for those students. Mr. Huffman testified that he had previously reported to the
state that the district was 100 percent compliant with its special education requirements but
has now found that not to be the case.

Mr. Huffman testified that Mr. Jahn was unfit for his position because he had lied to
Mr. Huffman about completing his reports and consistently exhibited an inability to “pull it
all together” to get his work done, to perform in a timely manner and to do his job despite
“all the supports around him.” Mr. Huffman testified that the district had more supports in
place for Mr. Jahn than any other school psychologist. However, despite those supports, Mr.
Jahn could not comply with the directives given to him.

28. Superintendent Gorsuch testified that although he was a very nice person and
great with students, she recommended Mr. Jahn be dismissed from the district because “the
work was not getting done and I had to stop that.” She admitted that she did not witness any

21
of the alleged incidents; she merely documented what was reported to her. As such, her
testimony, like Mr. Garner’s, was unpersuasive.

29. Ashlee Salmon testified that she was the case manager for 12 or more IEP
meetings with Mr. Jahn during the 2016-17 school year. At one IEP meeting, Mr. Jahn
worked on his assessment report during the meeting and did not appear as knowledgeable
about the subject matters he was presenting as other school psychologists with whom she has
worked. Ms. Salmon described other meetings with Mr. Jahn where his reports were not
available. Mr. Jahn said he would get them to Ms. Salmon after the meetings, but never did.
Ms. Salmon contacted her supervisors regarding Mr. Jahn’s failure to provide reports
because she was concerned about looming IEP deadlines. Ms. Salmon’s supervisors told her
that they were aware of the issues with Mr. Jahn and were working to help him. Ms. Salmon
received the May 1, 2017, e-mail from Mr. Jahn regarding his primary physician, but she did
not have a problem with it other than thinking “his word choice was interesting.”

30. Margaret “Maggie” Williams was retained to cover Mr. Jahn’s caseload when
he was on leave in the spring of 2017. Ms. Williams described the missing information in
Mr. Jahn’s reports and the spreadsheet she created regarding all his pending reports. There
were reports and assessments she was unable to locate. Both Ms. William and Mr. Garner
testified that Ms. Williams completed Mr. Jahn’s reports and assessments such that his
caseload was fully caught up when he returned to work. Mr. Jahn refuted that testimony,
claiming there were reports immediately due upon his return. The evidence in this regard
was unclear and the Commission concluded that the district did not prove that Ms. Williams
completed all of Mr. Jahn’s work while he was on leave.

Ms. Williams remained on staff for one week after Mr. Jahn returned from
administrative leave in April 2017 to provide him any needed assistance. When he returned,
Ms. Williams provided Mr. Jahn with an exemplar of her schedule to assist him with time
management. On May 10, 2017, Ms. Williams e-mailed Mr. Jahn a copy of her “general
daily routine” to assist him with planning his days and Mr. Jahn thanked her, stating her note
was “very helpful.” Ms. Williams was surprised at the amount of input Mr. Jahn needed
prioritizing his workload. She thought perhaps his issues in that regard were due to the leave
he had taken, which she assumed was medically related.

31. Lawrence Gediman has worked with Mr. Jahn for approximately 10 years and
has attended approximately 100 IEP meetings with him. Mr. Gediman never observed Mr.
Jahn falling asleep at meetings, nor did he attend meetings where Mr. Jahn had not assessed
the student. There never was a time that Mr. Gediman could not do his job because Mr. Jahn
had not done his work. However, Mr. Gediman was out on leave for 18 months beginning in
April 2016, returning for the 2017-2018 school year. Thus, the last time Mr. Gediman
attended an IEP meeting with Mr. Jahn was in March 2016; he did not attend any IEP
meetings with Mr. Jahn during the 2016-2017 school year and could provide no information
regarding the meetings at issue in this hearing. Accordingly, Mr. Gediman’s testimony did
little more than establish that prior to the 2016-17 school year Mr. Jahn did not display the
behaviors and poor job performance that he exhibited during the 2016-17 school year.

22
Mr. Jahn’s Testimony

32. Mr. Jahn disputed the accuracy of some of the district’s letters to him. He now
believes that he should have addressed those inaccuracies, but at the time, he did not want to
be looked at in an even more negative light which is “something I need to work on, to
advocate for myself.” He stated that he should refute “allegations with superiors when I do
not think they are correct.”

During his testimony, Mr. Jahn repeatedly stated that he completed reports “to the
best of my ability.” He testified: “I did the very best assessments I can”; “If I do not have all
the pieces to make an assessment I’ll stall for more time, I will not do it without all the
pieces, I ask for more information or testing”; “I am a stickler for protocol, not the pieces of
paper protocol, but for how test takers say how to take or give the test.” When asked about
all his missing reports and failed deadlines, Mr. Jahn repeatedly testified that he should have
advocated more for himself, should have advocated in a stronger manner, and was not good
at self-advocating. He testified that he “did not recall making a conscious decision not to
complete the psychological reports,” explaining that he knew he had to do them, that it was
the best practice, and that he tried to complete them. To the best of his knowledge, there
were not any reports in the 2016-17 school year that he was not able to complete, although he
acknowledged he was not sure if he had done all of the reports that the district listed on its
spreadsheets as missing.

Mr. Jahn “really worked hard,” even working at home to complete his work, and Mr.
Huffman never advised him that he would be fired, as he was under the impression that Mr.
Huffman liked him and that he was doing his job and “all [was] good so far.” When asked
about his 2013-14 evaluation performed by Mr. Huffman after he had been newly hired in
the district, Mr. Jahn explained that he sometimes felt there was a disconnect because his
prior bosses had been trained as school psychologists, as opposed to Mr. Huffman who did
not have that background, and Mr. Jahn felt that there were “finer intricacies of the job or
certain processes that [Mr. Huffman] was not aware of.” Mr. Jahn “was flabbergasted” that
anyone thought he did a poor job at an IEP meeting and he felt that he was being “punished
for doing a good job at a meeting.”

When Mr. Jahn returned to work in April 2017, he was given a number of directives
and “I complied with them to the best of my ability, I was extremely worried.” When he
returned most of his work was still incomplete and there were assessments and reports due.
Mr. Jahn disputed that Ms. Williams completed all of his work while he was on leave. He
was not aware of any reports that Ms. Williams did for him. When he returned, Ms.
Williams, the principal and Mr. Jahn went over a spreadsheet of reports and their due dates.
All his assessments had not been completed while he was out on leave and there were several
open assessment plans pending. Mr. Jahn did “the most thorough job possible to” complete
the assessments. Thereafter, despite being given a notice of unprofessional conduct that
advised him that he had 45 days to comply, he was placed on leave before he could comply.
When asked about e-mails in which he told district employees that he would get reports to
them, Mr. Jahn denied misleading anyone; rather he believed that he could get the tasks

23
accomplished. The Commission determined that the evidence did not establish that Mr. Jahn
was dishonest; rather it was further evidence in support of the Commission’s findings that he
could not perform his job and that he acted unprofessionally. His mistaken belief that he
performed work he had not performed was concerning and showed that the district could not
rely on him to do his job.

Mr. Jahn’s Failure to Return to the Hearing After the Lunch Break

33. On Friday, November 3, 2017, the fourth day of hearing was held at the Office
of Administrative Hearings - San Diego. The hearing recessed for the lunch break with the
parties scheduled to return at 1:30 p.m. However, Mr. Jahn did not return and did not
respond to his attorney’s repeated telephone calls. At 2:30 p.m. the hearing was reset for
November 9, 2017, and the matter was recessed until then. When the hearing reconvened on
November 9, 2017, Mr. Jahn testified that on November 3, 2017, after getting his lunch from
a drive-thru, he drove to his boat at the marina but discovered he did not have his keys to get
into the marina parking lot. He parked on the street, ate his lunch in his car, and fell asleep.
The next thing he knew, he had been awakened by his attorney knocking on his car window.

The district introduced the declaration of Superintendent Gorsuch documenting that

after the parties were dismissed at 2:30 p.m. on November 3, 2017, she “ran along the
harbor” and came upon Mr. Jahn’s parked vehicle with him sleeping inside. Mr. Jahn was
leaning onto the passenger seat. Superintendent Gorsuch contacted Mr. Shinoff who
contacted Mr. Cadieux. Superintendent Gorsuch remained at the scene until Mr. Cadieux
arrived. While she was waiting, Superintendent Gorsuch observed Mr. Jahn sit up, stretch
his arms, lean onto the driver’s side window, and go back to sleep.

LEGAL CONCLUSIONS

Applicable Code Sections Regarding Dismissal Actions

1. A permanent employee may be dismissed for cause only after a dismissal

hearing. (Ed. Code, §§ 44934 and 44944.)

2. Education Code section 44932 provides the grounds for dismissing a

permanent employee. Subdivision (a)(2) authorizes dismissal for unprofessional conduct.
Subdivision (a)(4) authorizes dismissal for dishonesty. Subdivision (a)(6) authorizes
dismissal for evident unfitness for service. Subdivision (a)(8) authorizes dismissal for
persistent violation or refusal to obey regulations and district polices.

3. Education Code section 44944 establishes the right to a hearing, the process
for selecting the three-member Commission on Professional Competence, and sets forth the
Commissions’ authority regarding its final decision.

24
 4. Education Code section 44938 outlines the procedures the governing board
must follow before acting on any charges brought against a permanent employee.

Burden and Standard of Proof

5. The “burden of proof” means the obligation of a party, to convince the trier of
fact that the existence of a fact sought to be proved is more probable than its nonexistence.
(Redevelopment Agency v. Norm’s Slauson (1985) 173 Cal.App.3d 1121, 1128.) The district
has the burden of proof to establish cause to dismiss its employee.

6. The standard of proof in a teacher dismissal proceeding is a preponderance of

the evidence. (Gardner v. Commission on Professional Competence (1985) 164 Cal.App.3d
1035, 1039-1040.) A preponderance of the evidence means that the evidence on one side of
an issue outweighs, preponderates over, and is more than, the evidence on the other side of
the issue, not necessarily in number of witnesses or quantity, but in the convincing effect the
evidence has on those to whom it is addressed. In other words, the term refers to evidence
that has more convincing force than that opposed to it. (People ex rel. Brown v. Tri-Union
Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567.)

Applicable Laws and District Regulations re: IEPs and Reports

7. Title 20 United States Code section 1414(b)(4), titled “Determination of

Eligibility and Educational Need,” states:

Upon completion of the administration of assessments and other

evaluation measures

(A) the determination of whether the child is a child with a

disability as defined in section 1401 (3) of this title and the
educational needs of the child with a disability shall be made by
a team of qualified professionals and the parent of the child in
accordance with paragraph (5); and

(B) a copy of the evaluation report and the documentation of

determination of eligibility shall be given to the parent.

Mr. Garner acknowledged in his testimony that federal law does not contain a
deadline for when these documents must be provided to parents.

8. Education Code section 56043 states in part:

The primary timelines affecting special education programs are

as follows:

25
 (a) A proposed assessment plan shall be developed within 15
calendar days of referral for assessment. . . .

(b) A parent or guardian shall have at least 15 calendar days

from receipt of the proposed assessment plan to arrive at a
decision. . . .

[¶] . . . [¶]

9. The district’s Administrative Regulation, AR 6164.4, provides:

Before the initial provision of special education and related

services to a student with a disability, the district shall conduct a
full and individual initial evaluation of the student. (Education
Code 56320; 34 CFR 300.301)

Upon receipt of a referral of any student for special education

and related services, a proposed evaluation plan shall be
developed within 15 days, not counting days between the
student’s regular school sessions or terms or days of school
vacation in excess of five school days, unless the
parent/guardian agrees, in writing, to an extension. If the
referral is made within 10 days or less prior to the end of the
student’s regular school year or term, the proposed evaluation
plan shall be developed within 10 days after the beginning of the
next regular school year work term. (Education Code 56043,
56321)

[¶] . . . [¶]

Before conducting an initial evaluation, the district shall provide

the parent/guardian with prior written notice in accordance with
34 CFR 300.503. In addition, as part of the evaluation plan, the
parent/guardian shall receive written notice that includes all of
the following information: (Education Code 56329; 34 CFR
300.304, 300.504)

[¶] . . . [¶]

3. A copy of the evaluation report and the documentation of

determination of eligibility shall be given to the parent/guardian.

//

26
Board Policy

10. “Board Policy 4119.21, 4219.21, and 4319.21” sets forth the professional
standards the board expects of its employees. As noted, the board expects district employees
to “maintain the highest ethical standards, follow district policies and regulations,” and their
“conduct should enhance the integrity of the district and advance the goals of the educational
program.” The board further expects its employees to “exercise good judgement and
maintain professional standards and boundaries.”

Relevant Judicial Authority

UNPROFESSIONAL CONDUCT

11. The seminal case for teacher dismissals is Morrison v. State Board of
Education (1969) 1 Cal.3d 214. There the Supreme Court held that where charges of
unprofessional conduct are raised in teacher dismissal cases, the applicable standard is
whether the person is fit to teach. The factors outlined in Morrison must be analyzed to
determine, as a threshold matter, whether the cited conduct indicates unfitness for service.
(Id. at p.229.)

12. Unprofessional conduct has been defined as conduct, measured by the

Morrison factors, which indicates unfitness to teach. (Board of Education v. Jack M. (19 70)
19 Cal.3d 691, 696-697; Perez v. Commission on Professional Competence (1983) 149
Cal.App.3d 1167, 1173-1174.)

DISHONESTY

13. In Fontana Unified School District v. Burman (1988) 45 Cal.3d 208, 220, fn. 12,
the Supreme Court required application of the Morrison factors to the determination of
“dishonesty.” As the Court noted: “Dishonest conduct may range from the smallest fib to the
most flagrant lie. Not every impropriety will constitute immoral or unprofessional conduct, and
not every falsehood will constitute ‘dishonesty’ as a ground for discipline.” (Ibid.)

14. In an often-cited definition, the court stated in Hogg v. Real Estate Commissioner
(1942) 54 Cal.App.2d 712, 717:

Dishonesty necessarily includes the element of bad faith. As

defined in the dictionaries and in judicial decisions, it means
fraud, deception, betrayal, faithlessness. [Citations.] As put by
the court in Alsup v. State, 91 Tex. Cr. 224, ‘dishonesty denotes an
absence of integrity; a disposition to cheat, deceive or defraud;
deceive and betray.’

27
 EVIDENT UNFITNESS FOR SERVICE

15. The applicable standard or determinative test in teacher dismissal cases is

whether the person is fit to teach. “Fitness to teach” is a question of ultimate fact. (Board of
Education v. Commission on Professional Competence (1980) 102 Cal.App.3d 555, 560-
561.)

16. “Evident” is defined as “clear to the vision and understanding.” “Unfit” is

defined as “not fit; not adapted to a purpose, unsuitable; incapable; incompetent; and
physically or mentally unsound” and “unsuitable, incompetent and not adapted for a
particular use or service.” (Palo Verde Unified School District of Riverside County v.
Hensey (1970) 9 Cal.App.3d 967, 972.)

17. In Woodland Joint Unified School Dist. v. Commission on Professional

Competence (1992) 2 Cal.App.4th 1429, the court noted the two parallel, yet contradictory,
lines of cases regarding “unfit for service.” One line of cases equated that term with
“unprofessional conduct” and the other line of cases distinguished the two definitions. In
deciding that the latter line of cases was the correct way to evaluate “unfit to serve,” and
complied with the rules of statutory construction. The Woodland court concluded that
“unprofessional conduct” and “evident unfitness for service” do not mean precisely the same
thing. Although conduct constituting “evident unfitness for service” will often constitute
“unprofessional conduct,” the converse is not always true. Evident unfitness for service
requires that unfitness for service be attributable to defect in temperament, which is not
necessary for a finding of unprofessional conduct. Nevertheless, lower courts may not
disregard the criteria for unfitness set out in Morrison where that court concluded that
“unprofessional conduct” meant conduct showing a teacher was unfit to teach. These criteria
must be analyzed to determine, as a threshold matter, whether the conduct indicates unfitness
for service. If it does, the next step is to determine whether the “unfitness” is “evident”; i.e.,
whether the offensive conduct is caused by a defect in temperament. (Id. at pp.1442-1445.)
A finding of “unfit to serve” can be made if the evidence, taken in the aggregate, shows that
retaining the employee would pose a significant danger of psychological harm to students
and fellow teachers. (Id. at p.1456.)

18. An employee can be dismissed from the teaching profession only upon a
showing that his retention in the profession poses a significant danger of harm to either
students, school employees, or others who might be affected by his actions as a teacher. The
inquiry is whether any adverse inferences can be drawn from the teacher’s conduct as to his
teaching ability, or as to the possibility that publicity surrounding the past conduct may in
and of itself substantially impair his function as a teacher. (Morrison, supra, at p. 235.)

19. To establish a teacher is unfit to teach, Morrison requires a nexus between

government employment and alleged employee misconduct stemming from the principle that
“[n]o person can be denied government employment because of factors unconnected with the
responsibilities of that employment.” (San Diego Unified School District v. Commission on
Professional Competence (2011) 194 Cal.App.4th1454, 1463.)

28
 20. “Unlike ‘unprofessional conduct,’ ‘evident unfitness for service’ connotes a
fixed character trait, presumably not remediable merely on receipt of notice that one’s
conduct fails to meet the expectation of the employing school district.’” (San Diego Unified
School District v. Commission on Professional Competence (2013) 214 Cal.App.4th 1120,
1142-43.)

21. An employee’s actions on a given day may suggest a lack of judgment and
discretion, or may be an isolated act precipitated by an unusual accumulation of pressure and
stress. An absence of any other incidents in the employee’s teaching career suggestive of
lack of judgment or discretion can further distinguish the aberrant character of the act at
issue. In such a case, a fact finder could reasonably conclude that the isolated incident of
poor judgment was overweighed by years of demonstrated teaching competence, and that on
balance the employee possessed the qualities of character necessary for teaching fitness.
(Board of Education v. Jack M. (1977) 19 Cal. 3d 691, 696-701.)

22. In determining whether the teacher’s conduct indicated unfitness to teach, such
matters as (1) the likelihood that the conduct may have adversely affected students or fellow
teachers, (2) the degree of such adversity anticipated, (3) the proximity or remoteness in time
of the conduct, (4) the extenuating or aggravating circumstances, if any, surrounding the
conduct, (5) the likelihood of the recurrence of the questioned conduct, and (6) the notoriety
and publicity accorded the teacher’s conduct may be considered. (Jack M., supra., at p.702,
fn. 5.)

23. The nexus between an employee’s conduct and his fitness to teach is
established when the conduct is detrimental to the mission and functions of the employer.
Factors to consider are whether the acts demonstrate a serious lapse in good judgment, the
teacher failed to recognize the seriousness of his misconduct, the teacher attempted to shift
blame to parents and students who might access his posting, his principal had lost confidence
in his ability to serve as a role model based upon the posting, or, most noteworthy, the
teacher’s testimony that he did not think his postings would have any impact on his ability to
teach his students if any of them had viewed his post and that he did not view his posting as
immoral. The conduct itself, together with the teacher’s failure to accept responsibility or
recognize the seriousness of it, given his position as a teacher and role model, demonstrates
evident unfitness to teach. (San Diego Unified School Dist. v. Commission on Professional
Competence (2011) 194 Cal.App.4th 1454, 1465-66.)

24. One act does not alone demonstrate the unfitness of the teacher, but is simply
one of the factors to be considered. (Board of Education v. Commission on Professional
Competence (1980) 102 Cal. App.3d 555, 561-62.)

25. There must be a nexus between the teacher’s conduct and his usefulness to the
school district and only when so construed can grounds to dismiss for immoral conduct or
unfitness to serve be constitutionally applied. (Board of Trustees v. Judge (1975) 50 Cal.
App. 3d 920, 929.)

29
 PERSISTENT VIOLATION OF OR REFUSAL TO OBEY LAWS

26. A violation of Education Code section 44932, subdivision (a)(7), must also be
established by reference to the Morrison factors. If unfitness to teach is shown, then the district
must further establish that the employee’s refusal to follow the laws or regulations was
“persistent,” i.e., “stubborn and continuing.” (San Dieguito Union High School District v.
Commission on Professional Competence (1985) 174 Cal.App.3d 1176, 1183.) Isolated
incidents or incidents involving an issue unresolved over a period of time are not generally
considered “persistent.” (Bourland v. Commission on Professional Competence (1985) 174
Cal.App.3d 317.)

27. The word “persistent” is defined by lexicographers as “refusing to relent;

continuing, especially in the face of opposition . . . stubborn; persevering . . . constantly
repeated.” (Governing Board of the Oakdale Union School District v. Seaman (1972) 28
Cal.App.3d 77, 82.) Education Codes section 44932, subdivision (7) pertains to
unintentional as well as intentional transgressions, and hence the Legislature has decreed that
a single violation is not sufficient to warrant dismissal, apparently to allow for correction; “it
is the persistent disregard” of school rules that the subdivision is designed to regulate. (Id. at
p.84.)

Morrison Factors

28. In Morrison, supra, the Supreme Court suggested seven factors to consider
when evaluating whether the school employee should be dismissed: (1) the likelihood that
the conduct adversely affected students or fellow teachers and the degree of such adversity;
(2) the proximity or remoteness in time of the conduct; (3) the type of teaching certificate
held by the teacher; (4) the existence of extenuating or aggravating circumstances and
publicity, if any, surrounding the conduct; (5) the praiseworthiness or blameworthiness of the
motives resulting in the conduct; (6) the likelihood of recurrence of the questioned conduct;
and (7) the extent that the discipline may adversely impact or have a chilling effect on the
constitutional rights of the teacher.

29. The Morrison factors may be applied to the charges in the aggregate. When a
camel’s back is broken, the trier of fact need not weigh each straw in its load to see which
one could have done the deed. A trier of fact is entitled to consider the totality of the
offensive conduct. (Woodland Joint Unified School District v. Commission on Professional
Competence (1992) 2 Cal.App.4th 1429, 1456-1457.)

30. Only the pertinent Morrison factors need to be analyzed. (Broney v.

California Commission on Teacher Credentialing (2010) 184 Cal.App.4th 462, 476.)

Other Disciplinary Considerations

31. An administrator’s loss of confidence in the educator and doubt regarding the
educator’s ability to serve as a role model for students are factors that may be considered.

30
(San Diego Unified School District v. Commission on Professional Competence (2011) 194
Cal.App.4th 1454, 1460.)

32. The Commission is vested with discretion not to dismiss an employee even if
grounds for discipline exist. (Fontana Unified School District v. Burman (1988) 45 Cal.3d
209.)

Evaluation of the Charges

33. Mr. Jahn was successfully employed as a school psychologist until the 2013-14
school year when the district hired Mr. Huffman as the Director of Student Support Services.
Based upon the evidence introduced at hearing, Mr. Huffman’s issues seemed to begin soon
after Mr. Huffman arrived at the district. In 2013-14 Mr. Huffman gave Mr. Jahn an
evaluation documenting that Mr. Jahn partially met and did not meet various district standards.
Mr. Huffman presented as a very “no nonsense” supervisor and it was evident that his
management style clashed with Mr. Jahn’s laid back, relaxed demeanor.

Although the dates were not clearly identified at hearing, sometime during the 2016-17
school year, Mr. Jahn was out on medical leave for five to six weeks. Mr. Jahn’s medical
condition was not disclosed at this hearing other than his testimony about his MRSA infection.
He offered no explanation for his failure to perform his job duties other than the “snowball
effect” that resulted when he returned from leave and had pending evaluations to perform and
reports to write. However, his “snowball explanation” did not address all of the issues raised in
this hearing. Further, although Mr. Jahn’s counsel asserted during closing argument that Mr.
Jahn should undergo a medical evaluation, that argument was speculative and presumed that
Mr. Jahn had a medical condition that prevented him from performing his work but no evidence
of a medical condition was presented in this regard. As ALJ Matyszewski ruled during the
motions in limine, Mr. Jahn’s medical condition could not be considered in this hearing because
Mr. Jahn asserted during discovery that he had no medical issues affecting his work
performance. Thus, the Commission made no findings regarding Mr. Jahn’s medical condition.

The overwhelming evidence demonstrated that, for reasons not made clear at this
hearing, in the spring of 2016 Mr. Jahn’s poor work performance was so egregious that he
received a letter of reprimand. In the fall of 2016 he was out on medical leave and when he
returned to work he was unable to meet the demands of his position. However, rather than
seeking accommodations or requesting help, Mr. Jahn continued to inform his supervisors that
he could complete his job tasks even when it became evermore increasingly clear that he was
unable to do so. His inability to perform his duties increased his colleagues’ workloads and
caused them undue stress. Although it was not established that all of Mr. Jahn’s work was
completed by others while he was on leave, as when he returned from leave he had reports and
assessments almost immediately due, Mr. Jahn continued to advise his colleagues that he could
accomplish his tasks and did not seek help or support.

Even more concerning than these failures was Mr. Jahn’s present inability to
acknowledge the issues presented at this hearing. He testified that he did not need to be driven

31
home following a March 2017 IEP meeting despite convincing evidence to the contrary and he
attributed his repeated failure to perform his job duties to his inability to self-advocate. None of
these excuses were sufficient. Further, his failure to return from lunch during this hearing,
because he fell asleep for several hours in his car, was clear evidence that substantiated the
district’s concerns about his current behavior. This is not to say that Mr. Jahn could not
someday perform the work of a school psychologist, or could not be employed as a school
counselor or other type of therapist. In fact, based upon his excellent reviews regarding his
positive interactions with students, Mr. Jahn seems best suited for a school counselor
position. However, Mr. Jahn is presently incapable of performing the work of a school
psychologist and must be dismissed.

Cause Exists to Dismiss Mr. Jahn

34. Cause exists to dismiss Mr. Jahn pursuant to Education Code section 44932,
subdivision (a)(2), because the evidence established that Mr. Jahn engaged in unprofessional
conduct.

35. Cause exists to dismiss Mr. Jahn pursuant to Education Code section 44932,
subdivision (a)(6), because the evidence established that Mr. Jahn was evidently unfit for
service.

36. Cause exists to dismiss Mr. Jahn pursuant to Education Code section 44932,
subdivision (a)(8), because the evidence established that Mr. Jahn persistently violated
district polices and regulations.

Cause Does Not Exist to Dismiss Mr. Jahn for Dishonesty

37. Cause does not exist to dismiss Mr. Jahn pursuant to Education Code section
44932, subdivision (a)(4), because the evidence did not establish that he was dishonest.

//

//

//

//

32
 ORDER

Mr. Jahn’s appeal of his dismissal from employment with the Valley Center-Pauma
Unified School District is denied. The district’s request to dismiss Mr. Jahn is granted. Mr.
Jahn shall be dismissed from the district.

December 12, 2017

DATED: _____________________

____________________
CARMEN MARTINEZ
Commission Member

DATED: _____________________
December 13, 2017

_ ________________________
URSULA SACK, PH.D.
Commission Member

DATED: December
_____________________
13, 2017

______________________________________
MARY AGNES MATYSZEWSI
Administrative Law Judge
Office of Administrative Hearings

33
 BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS AND A
COMMISSION ON PROFESSIONAL COMPETENCE FOR THE
LOS ANGELES UNIFIED SCHOOL DISTRICT
STATE OF CALIFORNIA

In the Matter of the Dismissal of:

OAH No. 2016060348
DENNIS JENKINS (EN 572600),
a permanent certificated employee,

Respondent.

DECISION

The Commission on Professional Competence (Commission) heard this matter in Los

Angeles, California, on November 1, 2, 3, 4, 7, 8, and 9, 2016. The Commission consisted of
Lacey Lemus, designated by the Los Angeles Unified School District (District or
Complainant), John Colombo, designated by Respondent Dennis Jenkins (Respondent), and
Administrative Law Judge (ALJ) Carla L. Garrett, Office of Administrative Hearings, State
of California, who presided.

Reginald Roberts, Attorney at Law, represented the District. Richard J. Schwab and
Rosty Gore, Attorneys at Law, represented Respondent. Respondent appeared on all days of
the hearing.

The parties submitted the matter for decision on November 9, 2016.

Respondent is a permanent certificated employee of the District assigned as a fifth grade

teacher at 15th Street Elementary School. District alleged that Respondent demonstrated
unprofessional conduct (§ 44932, subd. (a)(2)),1 immoral conduct (§§ 44932, subd. (a)(1) and
44949), evident unfitness for service (§ 44932, subd. (a)(6)), persistent violation of or refusal to
obey the school laws of the state or reasonable regulations prescribed for the government of the
public schools by the State Board of Education or by the governing board of the school district
employing him (§ 44932, subd. (a) (8)), and willful refusal to perform regular assignments
without reasonable cause, as prescribed by reasonable rules and regulations of the employing
district (§ 44939). District seeks Respondent’s dismissal.

1
All statutory references are to the Education Code unless otherwise noted.
 As set forth in detail below, the Commission has determined that District has failed to
meet its burden of establishing that Respondent warrants dismissal.

FACTUAL FINDINGS

Jurisdictional and Background Information

1. On June 10, 2016, District served Respondent with an Accusation executed by

Justo H. Avila, Chief Human Resources Officer, acting in his official capacity. On June 1,
2016, Respondent served his Request for Hearing and Notice of Defense.

2. Respondent has been a teacher at 15th Street Elementary School (15th Street
School) since 1998, which is a school comprised of children of Hispanic heritage,
predominantly, and a small percentage of African-American students. Prior, he served as an
outdoor educational assistant for the District in 1986, and a substitute teacher for the District
in 1995, 1996, and 1998. Respondent earned a bachelor’s degree in history from the
University of California at Los Angeles (UCLA) in 1989, a master’s degree in history from
California State University at Long Beach (CSULB) in 1994, and earned his teaching
credential from California State University at Dominguez Hills (CSUDH) in 1998. Over the
years at 15th Street School, Respondent has taught every grade from first through fifth.
During the 2011-2012, 2012-2013, 2013-2014, and 2014-2015 school years, Respondent
taught fifth grade at 15th Street School.

Annual Teacher In-Service

3. At the beginning of each school year, all teachers at 15th Street School were
required to participate in an in-service meeting led by Principal Jennifer Mak (Principal
Mak). Principal Mak, who testified at hearing, has served as 15th Street School’s principal
since the beginning of the 2008-2009 school year. One of her primary duties requires her to
ensure student safety.

4. During these annual teacher in-service meetings, Principal Mak always

provided the teachers with standards, codes, and policies, among other things. Specifically,
Principal Mak provided teachers with the California Standards for the Teaching Profession
(the Standards), the Code of Conduct with Students (Code of Conduct), the Employee Code
of Ethics (Code of Ethics), child abuse reporting policies, and Opening School Bulletins.

5. The Standards covered seven areas, the second of which, Standard 2,

addressed creating and maintaining effective environments for student learning. In that
regard, Standard 2 listed, in pertinent part, the following:

2.1 Promoting social development and responsibility within

a caring community where each student is treated fairly
and respectfully[;]

2
 2.2 Creating physical or virtual learning environments that
promote student learning, reflect diversity, and encourage
constructive and productive interactions among students[;]

2.3 Establishing and maintaining learning environments

that are physically, intellectually, and emotionally safe[;]

[¶]

2.5 Developing, communicating, and maintaining high

standards for individual and group behavior[;]

2.6 Employing classroom routines, procedures, norms,

and supports for positive behavior to ensure a climate
in which all students can learn[;]

2.7 Using instructional time to optimize learning[.]

(Exhibit 6.)

6. The Code of Conduct provided the following in its preamble:

The most important responsibility of the [District] is the

safety of our students. All employees, as well as all
individuals who work with or have contact with students,
are reminded that they must be mindful of the fine line
drawn between being sensitive to and supportive of
students and a possible or perceived breach of
responsible, ethical behavior.

(Exhibit 7.)

7. The Code of Conduct also provided:

While the District encourages the cultivation of positive

relationships with students, employees and all individuals
who work with or have contact with students are expected
to use good judgment and are cautioned to avoid situations
including, but not limited to, the following:

[¶] … [¶]

3. Engaging in any behaviors, either directly or indirectly

with a student(s) or in the presence of a student(s), that are
unprofessional, unethical, illegal, immoral, or exploitative.

3
 [¶]… [¶]

6. Touching or having physical contact with a student(s)

that is not age-appropriate or within the scope of the
employee’s/individual’s responsibilities and/or duties.

(Exhibit 7.)

8. At hearing, Principal Mak explained that she interpreted Item 6 of the Code of
Conduct as “all touching [being] inappropriate.” As such, Principal Mak verbally warned the
teachers at the annual in-service meetings of what she described as her “no-touch policy,”
that “touching students was unacceptable and unprofessional and violated district policy.”
Principal Mak explained she expected teachers not to touch students at any time, except in
emergency situations.

9. The Code of Conduct closed by stating the following:

Even though the intent of the employee/individual may

be purely professional, those who engage in any of the
above behavior(s), either directly or indirectly with a
student(s) or in the presence of a student(s), are
subjecting themselves to all possible perceptions of
impropriety. Employees/individuals are advised that,
when allegations of inappropriate conduct or behavior
are made, the District is obligated to investigate the
allegations and, if warranted, take appropriate
administrative and/or disciplinary action.

(Exhibit 7.)

10. The Code of Ethics provided that employees must keep policies, procedures,
and rules. Specifically, it stated the following:

Our rules, policies and procedures are the foundation

of trust and how our District conducts everyday business.
They define our expectations and evaluation criteria. We
are committed to following our Code of Ethics, laws, and
District rules, regulations, bulletins, policies and procedures,
recommending changes required to make them better, and
will not tolerate improper conduct.

(Exhibit 8.)

11. Principal Mak also distributed to teachers an “Opening School Bulletin” which
discussed District and school policies and procedures. The Opening School Bulletin

4
discussed in detail opening day procedures, enrollment norms, attendance, home-school
communications, work hours, absences, pupil hours, field trip guidelines, student attendance
policy, supervision of students, student records procedures, school-wide discipline plan,
classroom environment, lesson plans, textbooks and instructional materials, supplies, and
equipment and furniture, safety and security, among other things. The Opening School
Bulletin did not address physical contact between teachers and students, and mentioned
nothing about no-touch policies, age-appropriate touching, or any other permissible or
impermissible touching.

12. Principal Mak also reminded her teachers in the in-service meetings that they
were required to complete annual child abuse awareness training. Respondent completed
such training on September 16, 2013, September 3, 2014, and August 24, 2015.

Principal Mak’s Observations

13. During every school year in which Principal Mak has served as 15th Street
School’s principal, she has made it her custom and practice to visit multiple times per month
the classroom of each of her teachers, most times unannounced, and observe her teachers
delivering instruction and managing classroom activities. During the times she visited
Respondent’s classroom, she witnessed him satisfactorily conducting lectures, assisting
students one-on-one, and supervising classroom activities.

14. At no time during her classroom observations of Respondent did she witness
him engage in conduct that she deemed warranting of an issuance of conference memoranda
or the commencement of disciplinary actions.

2011-2012 and 2012-2013 School Years

15. On May 14, 2012, at the end of the 2011-2012 school year, and again on May
21, 2013, at the end of the 2012-2013 school year, Respondent received a performance
evaluation from Principal Mak. In both evaluations, Principal Mak concluded Respondent
met all expectations in the area of classroom performance. She also commented in both
evaluations that Respondent was “aware of and sensitive to the norms of the students’ social,
cultural, and emotional development,” and “model[ed] and promot[ed] fairness, caring,
equity, and respect in his classroom.” (Exhibit G.)

2013-2014 School Year

16. The 2013-2014 school year commenced on August 13, 2013 and ended on
June 4, 2014. Respondent’s fifth grade class was comprised of approximately 25 students.

///

///

5
 A. M.R.2

17. M.R. was a student in Respondent’s fifth grade class during the 2013-2014
school year. M.R., who testified at hearing, explained she felt frustrated for most of the
school year, because Respondent made her feel uncomfortable. Specifically, M.R. explained
that during classroom instruction and/or classroom activities, Respondent hugged her from
behind while she either sat at her desk or stood, and stated Respondent engaged in this
unsolicited activity approximately 10 times per week. M.R. testified that when Respondent
hugged her as she sat at her desk, he would wrap both of his arms around her and rest his
hands on her stomach. During cross-examination, M.R. explained that when Respondent
hugged her from behind at her desk, she would be working on a classroom assignment as
Respondent commented on her work. She also explained the hug would be brief.

18. M.R. also testified Respondent rubbed her shoulders or biceps during class
time, and engaged in this unsolicited conduct approximately twice per week. However,
during cross-examination, M.R. stated Respondent would “touch” (as oppose to “rub”) her
shoulder or bicep for a few seconds, while she worked at her desk. During these instances in
which Respondent touched her shoulders and/or biceps, it would be when Respondent
commenting on her work.

19. M.R. stated she had had male teachers in the past, but Respondent “was much
more physical than [her] other male teachers.”

20. During the period in which M.R. was a student in Respondent’s class, M.R.
never reported to another teacher, Principal Mak, or to her parents that Respondent touched
her inappropriately or in a way that made her feel uncomfortable.

B. I.G. and C.R.

21. I.G. and C.R. were students in Respondent’s fifth grade class during the 2013-
2014 school year. Although neither student testified at hearing, Respondent acknowledged
that during classroom instruction, he gave I.G., C.R., and other students, male and female,
one-armed hugs, also known as “side-hugs,” as a gesture of encouragement or praise. 3
These side-hugs entailed Respondent standing parallel to the student and Respondent
extending his arm to grasp the opposite shoulder or upper arm of the student. Respondent’s
custom of hugging (i.e., side-hugs) did not include frontal hugging.

///

///
2
Students’ initials, in lieu of their names, are used in order to protect their privacy.
3
The Accusation did not specify what kind of hug I.G. and C.R. received from
Respondent.

6
 22. With respect to I.G., the Accusation alleged that she felt uncomfortable when
Respondent hugged her; however, District failed to proffer any competent direct evidence to
establish this, as I.G. did not testify at hearing. The Accusation also alleged I.G. felt
uncomfortable on an occasion(s) when Respondent placed his hand on top of I.G.’s hand as
she wrote; however, District failed to proffer any competent direct evidence to establish this.

2014-2015 School Year

23. Respondent’s fifth grade class for the 2014-2015 school year consisted of
approximately 26 students, 15 males and 11 females.

A. M.M.

24. M.M. was a student in Respondent’s fifth grade class during the 2014-2015
school year. M.M., who testified at hearing, explained that she felt uncomfortable and
unsafe in Respondent’s class, because Respondent would touch her and other female
students. M.M. described the incidents of touching as Respondent touching her neck,
shoulders, lower back, hands, arms, and hugging her from behind.4

25. With respect to her neck, M.M. testified that during class time, Respondent
would rub her neck in a circular motion, using both of his hands, which lasted two to three
minutes each time, while she sat at her desk. During these episodes, Respondent would be
helping M.M. with her classroom assignments. M.M. explained that Respondent would
engage in this conduct approximately twice per week.

26. With respect to her shoulders, M.M. testified that during class time,
Respondent would use both of his hands to rub her shoulders, which last two or three
minutes each time, while she sat at her desk. During these episodes, Respondent would be
helping her with her classroom assignments. M.M. explained that Respondent would engage
in this conduct approximately three times per week. Additionally, Respondent would
sometimes hug her from the side when she stood next to Respondent, and M.M. witnessed
Respondent doing the same with other girls in the classroom.

///

///
4
The Accusation did not allege that Respondent had touched M.M.’s neck, arms, or
had hugged her from behind. As such, the Commission neither considered nor assigned
culpability to Respondent regarding those specific allegations in reference to M.M..
However, the Commission did consider M.M.’s overall testimony, including her claims
concerning Respondent’s touching of her neck and arms, and his alleged incidents of
hugging M.M. from behind, when assessing M.M.’s overall credibility, the credibility of
other charges and allegations, and/or the potential application of aggravating factors under
Morrison v. State Board of Education (1969) 1 Cal.3d 214.

7
 27. With respect to her lower back, M.M. testified that during class time,
Respondent would stand next to or behind her and move his hand down from her upper back
to her lower back. She also testified Respondent would sometimes hug her and then allow
his hand to travel down to the small of her back. M.M. explained that Respondent engaged
in this conduct once or twice per week, and that each such encounter lasted one or two
minutes.

28. With respect to her hands and arms, M.M. testified that during class time,
Respondent would come by her desk and touch or rub the top of her hand and then would rub
her arm up to her shoulder. During these episodes, Respondent would be helping her with
her classroom assignments. M.M. explained that Respondent would engage in this conduct
two or three times per week.

29. With respect to hugging her from behind, M.M. testified that Respondent
sometimes did this as she stood.

30. M.M. further testified that Respondent would rub or touch the other girls in the
classroom the same way in which he rubbed or touched her, and for the same amount of time
(i.e., lasting anywhere from one to three minutes each time). She also stated that Respondent
would place his hand on the thighs of female students when they sat next to him. She stated
Respondent never touched her or any of the other girls in the class when other adults were
present in the classroom, and she was never alone with Respondent. M.M. also explained
that Respondent would position his face close in proximity to students’ faces.

31. The Accusation alleged Respondent “interlocked his hand with M.M.’s when
she raised her hand in class.” Although M.M. did not offer any specific testimony regarding
this allegation, Respondent acknowledged during his testimony5 that during classroom time,
when students, both boys and girls, worked on classwork and raised their hands, he would
sometimes give the students “high-fives,” handshakes, or he would interlace his fingers in
the hand of a student and give the student’s hand a short grip. Respondent explained the
contact lasted a second or two, and the contact would often be accompanied by words of
encouragement, like “good job,” “great,” or “keep working.”

32. The Accusation also alleged that Respondent rubbed his hands across the top
of M.M.’s head; however, District failed to proffer any competent direct evidence to address
or prove this allegation.

///

///

///

5
Respondent’s testimony is discussed in more detail below.

8
 33. M.M. explained that although she felt scared about going to
Respondent’s classroom and felt unsafe overall, she did not tell Respondent or any
other adult how she felt initially. However, she did later tell a campus aide, Jaime
Gutierrez, accompanied by her classmate, A.O., about her discomfort in Respondent’s
class. The circumstances underlying her disclosure to Mr. Gutierrez occurred on
November 6, 2014 during recess,6 when he overheard her talking to A.O. about
Respondent, prompting Mr. Gutierrez to inquire further of her and A.O. about
Respondent’s touching behavior.

B. A.O.

34. A.O. was a student in Respondent’s fifth grade class during the 2014-2015
school year. A.O., who testified at hearing, explained that she felt uncomfortable in
Respondent’s class, because Respondent was “really weird and awkward.” Specifically,
A.O. felt uncomfortable on those occasions when she raised her hand and Respondent
interlocked his fingers with hers. Each such encounter would last approximately three
seconds, but A.O. could not recall the frequency in which those incidents occurred. A.O.
also witnessed Respondent engage in this sort of contact with other female students in the
classroom.

35. Additionally, A.O. felt uncomfortable on those occasions when she needed
help on her work, and Respondent would come to her desk and put his arm around her while
he helped her with her work. These incidents lasted approximately one or two seconds.
A.O. also witnessed Respondent engage in this sort of contact with other female students in
the classroom.

36. Finally, A.O. felt uncomfortable on those occasions when Respondent put his
hands on her shoulders. Sometimes Respondent used one hand and sometimes he used two.
Each incident lasted approximately a second. A.O. also witnessed Respondent engage in this
sort of contact with other female students in the classroom.

37. A.O. also witnessed Respondent hold V.J.’s face by the cheeks, and put his
forehead against hers for approximately three or four seconds. A.O. did not offer any
testimony describing what precipitated this incident, but did testify that Respondent and V.J.
were at the front of the class when it occurred.

38. A.O. testified Respondent never touched her or any of the other girls in the
class when other adults were present in the classroom.

///

///
6
Testimony from Mr. Gutierrez indicated the disclosure occurred during the lunch
period.

9
 39. A.O. claimed to have witnessed Respondent look down the shirt of and stare at
the breasts of her classmate, A.S., as Respondent stood next to A.S. sitting at her desk. A.O.
explained that A.S.’s breasts were large, and when she witnessed Respondent looking down
A.S.’s shirt, he did so for a few seconds. A.O. testified she was approximately 30 feet away
when she witnessed Respondent engage in this conduct.

40. A.O. also testified that on one occasion, Respondent told her that if she wanted
to be a model, she couldn’t be messy. According to A.O., Respondent’s reference to her
becoming a model stemmed from her past experience performing television work.
Respondent then adjusted A.O.’s shirt by buttoning it, and in doing so, his index finger
grazed her chest. The incident occurred after Respondent received a call on the classroom
telephone indicating that the principal wished for A.O. to come to the office, prompting
Respondent to adjust her clothing before A.O. exited the room. A.O. explained that when
this incident occurred, she backed away from Respondent.

41. The Accusation alleged Respondent hugged A.O., ran his hand down A.O.’s
back, inappropriately touched A.O.’s cheek with his fingers, attempted to pull A.O.’s bra
strap from the outside of her clothing, and appeared to favor A.O.; however, District failed to
proffer any competent direct evidence to address or prove these allegations.

42. A.O. testified she never told Respondent how she felt, because she was scared.
She also never told her parents because she feared her parents would create a big scene. She
did not tell any other adult until the campus aide, Mr. Gutierrez, overheard her and her
friends on the school yard talking about Respondent.7 Mr. Gutierrez collectively questioned
her and her friends about what he had overheard.

C. J.G.

43. J.G. was a student in Respondent’s fifth grade class during the 2014-2015
school year. J.G., who testified at hearing, explained that she felt uncomfortable in
Respondent’s class, because sometimes when she raised her hand in class, Respondent would
interlock his fingers with hers. Each such encounter would last seconds, and Respondent
would do it two or three times per class. J.G. also witnessed Respondent engage in this sort
of contact with other female students in the classroom.

7
The number and identity of the students present during the discussion with Mr.
Gutierrez differed between the student witnesses. While M.M. testified that only she and
A.O. were present during the discussion, while A.O. testified that other girls were present as
well, including A.S., J.G., and V.J.. Contrary to A.O.’s testimony, J.G. testified she was not
present during the conversation between Mr. Gutierrez and some of the girls in her class.
Additionally, as set forth in Factual Finding 52 below, S.R. testified she was present during
the discussion with Mr. Gutierrez, but neither M.M. nor A.O. mentioned S.R.’s presence
during their respective testimonies.

10
 44. J.G. also felt uncomfortable on those occasions when Respondent touched or
rubbed her shoulders. 8 Respondent used one hand to rub her shoulder “just for seconds,”
while J.G. sat at her desk. Respondent engaged in this rubbing or touching approximately
four times per week. J.G. also witnessed Respondent engage in this sort of contact with
other female students in the classroom.

45. J.G. never told Respondent that she felt uncomfortable by his actions.

46. J.G. testified Respondent never touched her or any of the other girls in the
class when other adults were present in the classroom.

47. The Accusation alleged Respondent hugged J.G.; however, District failed to
proffer any competent direct evidence to address or prove this allegation.

48. J.G. testified that she witnessed Respondent button up the top two buttons of
A.O.’s shirt when A.O. “went to ask [Respondent] a question.”

D. S.R.

49. S.R. was a student in Respondent’s fifth grade class during the 2014-2015
school year. S.R., who testified at hearing, explained that she felt uncomfortable in
Respondent’s class, because sometimes when she raised her hand in class to ask a question,
Respondent would interlock his fingers with hers. Consequently, S.R. disliked asking
questions in class. Each such encounter would last seconds, and Respondent would interlock
his fingers with hers two or three times per class. S.R. witnessed Respondent engaging in
this sort of contact with other female students in the classroom.

50. S.R. also felt uncomfortable on those occasions when Respondent touched or
massaged her shoulders. Respondent used both hands to rub her shoulders “for about a
couple of seconds,” two or three times per week. During her testimony, S.R. became very
upset and cried as she recounted the discomfort she felt in Respondent’s class.

51. S.R. testified Respondent never touched her or any of the other girls in the
class when other adults were present in the classroom.

///

8
The Accusation did not allege that Respondent had touched or rubbed J.G.’s
shoulders. As such, the Commission neither considered nor assigned culpability to
Respondent regarding those specific allegations in reference to J.G.. However, the
Commission did consider J.G.’s overall testimony, including her claims concerning
Respondent’s touching or rubbing of her shoulders, when assessing J.G.’s overall credibility,
the credibility of other charges and allegations, and/or the potential application of
aggravating factors under Morrison v. State Board of Education (1969) 1 Cal.3d 214.

11
 52. S.R. never told Respondent that she felt uncomfortable by his actions, because
she was scared. S.R. testified she was present with other female students, including M.M.
and A.O., when they described Respondent’s conduct to Mr. Gutierrez.

53. The Accusation alleged Respondent “inappropriately touched S.R.’s face”;

however, District failed to proffer any competent direct evidence to address or prove this
allegation.

E. V.J., A.S., J.L., C.J., and M.C.

54. V.J., A.S., J.L., C.J., and M.C. were students in Respondent’s fifth grade class
during the 2014-2015 school year. Neither V.J., A.S., J.L., C.J., nor M.C. testified at
hearing.

55. With respect to V.J., the Accusation alleged Respondent interlocked his
fingers with V.J.’s when she raised her hand in class, which Respondent admitted during his
testimony. The Accusation also alleged Respondent held V.J.’s head with his hands and
tapped her forehead against his, which A.O. addressed during her testimony. The
Accusation, as a separate allegation, additionally stated that Respondent “inappropriately
touched V.J.’s face with his hand,” presumably in a wholly separate incident, but District
failed to proffer any competent direct evidence to address or prove this allegation.

56. With respect to A.S., the Accusation alleged Respondent stared at “[A.S.’s]
breasts on numerous occasions which made her feel uncomfortable.” District failed to
proffer any competent direct evidence to address or prove that Respondent stared at A.S.’s
breasts “on numerous occasions” or that A.S. felt uncomfortable.

57. With respect to J.L., the Accusation alleged Respondent interlocked his fingers
with J.L.’s when she raised her hand in class, which Respondent admitted during his
testimony. The Accusation also alleged Respondent “inappropriately touched J.L.’s cheeks
with both hands, but District failed to proffer any competent direct evidence to address or
prove this allegation.

58. With respect to C.J., the Accusation alleged Respondent bumped his forehead
with C.J.’s forehead when she was standing in line outside of the classroom. However,
District failed to proffer any competent direct evidence to address or prove this allegation.

59. With respect to M.C., the Accusation alleged Respondent stared at M.C.’s
breasts and rubbed the middle section of M.C.’s back. However, District failed to proffer
any competent direct evidence to address or prove these allegations.

///

///

12
 F. Jaime Gutierrez

60. Jaime Gutierrez, who testified at hearing, has been employed as a campus aide
at 15th Street School for three years. His job duties include, among other things, supervising
children during recess and lunch periods.

61. On November 6, 2014,9 several female students from Respondent’s class,

including M.M., A.O., and J.G., disclosed to him during the lunch period that Respondent
had been touching them in ways that made them feel uncomfortable. Mr. Gutierrez had not
heard any negative information about Respondent before the students’ disclosure to him, and
was unaware of any negative reputation concerning Respondent.

62. Mr. Gutierrez did not know whether the students were being truthful or not
when they made the disclosure to him, but he believed it was his duty to report the students’
disclosure to the administration. In that regard, Mr. Gutierrez reported to Principal Mak that
some female students from Respondent’s class had just disclosed to him that they felt
uncomfortable in Respondent’s class, as a result of Respondent’s physical interactions with
them.10 Principal Mak immediately called law enforcement and had Mr. Gutierrez report to
them the information the female students had shared with him.

63. At no time prior to Mr. Gutierrez’s report had Principal Mak received any
complaints or reports from any parent or student advising of students’ feelings of discomfort
concerning Respondent. Additionally, Philip Earl, a volunteer aide11 who, during the 2013-
2014 and 2014-2015 school years, worked in Respondent’s classroom once per week,
reported no concerns to her. Mr. Earl did not testify at hearing.

Police Investigation

64. On November 13, 2014, Detectives Rachel Saavedra and Maria Valdovinos of
the Los Angeles Police Department (LAPD) commenced investigation into allegations of
possible sexual abuse leveled against Respondent. The detectives first spoke with Principal
Mak and advised her to “remove the accused perpetrator” (i.e., Respondent) from the campus
until the conclusion of the investigation. As such, Respondent was removed from his
classroom on November 13, 2014, and has not been permitted to return.

9
Mr. Gutierrez could not recall the exact date of his discussion with the female
students, but other evidence established the date of disclosure was November 6, 2014.
10
Mr. Gutierrez testified that “a group of kids” approached him, but could not recall
the exact number of students. Principal Mak testified that Mr. Gutierrez reported to her that
two students had approached him.
11
As a volunteer aide, Mr. Earl helped the students with math or reading.

13
 65. The police investigation consisted of interviews of the children alleging the
abuse, individual interviews of all the students in Respondent’s 2014-2015 class, and
individual interviews of students in Respondent’s 2013-2014 class. The investigation
occurred over a series of approximately six months and required one or both detectives to
visit the school approximately seven times to interview the students. Neither detective
interviewed Respondent. Detective Valdovinos found no prior criminal complaints filed
against Respondent.

66. After the completion of the police investigation, the detectives forwarded the
matter to the District Attorney’s office. The District Attorney rejected the case and elected
not to pursue any criminal charges against Respondent. Instead, the District Attorney’s
office forwarded the matter to the City Attorney’s office. Like the District Attorney, the City
Attorney rejected the case and elected not to pursue any criminal charges against
Respondent.

District Action

67. After the LAPD concluded its investigation, it provided the District’s Student
Safety Investigation Team (SSIT) with its report. The SSIT was tasked with investigating
the allegations leveled against Respondent and preparing a report. In that regard, SSIT
interviewed Principal Mak, Mr. Gutierrez, and Mr. Earl. SSIT also interviewed Respondent,
who denied engaging in any inappropriate touching. SSIT did not interview any students.
SSIT prepared a report dated November 10, 2015, which summarized LAPD’s report, and
summarized its interviews of Principal Mak, Mr. Gutierrez, Mr. Earl, and Respondent. SSIT
submitted its report to the District’s Administrator of Operations, Dr. James Noble, and to
Principal Mak.

68. On December 14, 2015, Principal Mak held a conference with Respondent to
“address allegations of inappropriate behavior” during the 2013-2014 and 2014-2015 school
years, and issued a conference memorandum memorializing the discussions raised during the
conference. During the conference, Principal Mak raised allegations that essentially
mirrored the information she reviewed in the SSIT report. Specifically, Principal Mak
alleged that Respondent engaged in physical contact with students, namely M.M., A.O., J.G.,
V.J., S.R., J.L., and M.R., that made them feel uncomfortable.12 This physical contact
included Respondent touching students’ shoulders, placing his arms around students’
shoulders, hugging students, interlocking his fingers with students, and/or massaging the
shoulders of students. Additionally, the conference memorandum stated Respondent ran his
hand down the small of M.M.’s back, touched the top of A.O.’s chest with his index finger as
he manipulated the top of her shirt, told A.O. that she was messy, and stared at A.S.’s
breasts.
12
While the conference memorandum referenced other students in addition to M.M.,
A.O., J.G., V.J., S.R., J.L., M.R., and A.S., the parties presented direct evidence regarding
M.M., A.O., J.G., V.J., S.R., J.L., M.R., and A.S. only. As such, this Decision references
those students only.

14
 69. Principal Mak’s conference memorandum did not include allegations that
Respondent had hugged M.M. from behind, rubbed M.M.’s neck for two or three minutes at
a time, rubbed M.M.’s shoulders for two or three minutes at a time, and rub or touch other
girls in the classroom for one to three minutes at a time.

70. During the conference, Principal Mak provided Respondent with three areas of
assistance, guidance, and directives: (1) Respondent was “not to touch, handle, or grab
students, unless [such contact was necessary for a student’s] immediate safety;” (2)
Respondent was to “maintain appropriate and professional relationships with students at all
times;” and (3) Respondent was to “adhere to . . . District policies at all times,” including the
Code of Conduct, the Standards, the Code of Ethics, the District’s “Sexual Harassment
Policy,” and the District’s “Child Abuse and Neglect Reporting Requirements.”

71. Ms. Mak’s conference memorandum stated that should Respondent fail to
follow her administrative directives, he could be subjected to disciplinary action, including,
but not limited to, a Notice of Unsatisfactory Act(s)/Service, suspension, and/or dismissal
from the District. However, District did not permit Respondent to return to his teaching
assignment to follow Ms. Mak’s administrative directives. Instead, on January 21, 2016,
Principal Mak issued Respondent a Notice of Unsatisfactory Acts, pursuant to Education
Code section 44938,13 charging, among other things, that Respondent engaged in conduct
that made his students feel uncomfortable. Specifically, the Notice of Unsatisfactory Acts
repeated the allegations set forth in Ms. Mak’s December 14, 2015 conference memorandum,
regarding M.M., A.O., J.G., V.J., S.R., J.L., M.R., and A.S.. 14 However, District never
permitted Respondent an opportunity to remediate the alleged deficiencies.

///

13
Education Code section 44938, subdivision (a), provides:

The governing board of any school district shall not act upon
any charges of unprofessional conduct unless at least 45 calendar
days prior to the date of the filing, the board or its authorized
representative has given the employee against whom the charge
is filed, written notice of the unprofessional conduct, specifying
the nature thereof with such specific instances of behavior and
with such particularity as to furnish the employee an opportunity
to correct his or her faults and overcome the grounds for the charge.
The written notice shall include the evaluation made pursuant to
Article 11 (commencing with Section 44660) of Chapter 3, if
applicable to the employee.
14
While the Notice of Unsatisfactory Acts referenced other students in addition to
M.M., A.O., J.G., V.J., S.R., J.L., M.R., and A.S., the parties presented direct evidence
regarding M.M., A.O., J.G., V.J., S.R., J.L., M.R., and A.S. only. As such, this Decision
references those students only.

15
 72. At hearing, Principal Mak testified she knew and understood Education Code
section 44938, which appeared on the Notice of Unsatisfactory Acts she issued to
Respondent;15 but when asked to state her understanding of the statute, Principal Mak could
not. However, she did state that she expected Respondent to rely on Education Code section
44938, because it appeared in the Notice.

73. At hearing, Principal Mak explained that despite learning the police
investigation yielded no evidence of Respondent engaging in sexual abuse or making any
comments of a sexual nature, she believed Respondent’s termination was necessary, as
Respondent failed to adhere to her verbal “no-touch policy” she conveyed to the teachers at
the annual teacher in-service meetings, which resulted in some of Respondent’s students
experiencing discomfort. As such, she recommended to Dr. James Noble that Respondent be
terminated.

74. Dr. Noble, who testified at hearing, is responsible for the safety and welfare of
children in the District’s schools. Dr. Noble reviewed the SSIT report concerning
Respondent, as well as the District’s discipline policy. He also reviewed the Standards, the
Code of Conduct, and the Code of Ethics. Additionally, Dr. Noble considered the absence of
prior complaints and the lack of a disciplinary record concerning Respondent, and
Respondent’s favorable performance evaluations. Thereafter, Dr. Noble decided to sustain
Principal Mak’s recommendation for dismissal, as he felt troubled that Respondent’s
physical contact made some of his students feel uncomfortable.

75. District commenced dismissal proceedings against Respondent, and filed an

Accusation against Respondent on June 10, 2016.

Respondent’s Testimony

76. Respondent testified at hearing. Respondent has resided in South Central Los
Angeles his entire life. He attended high school in Reseda as a participant in a voluntary
busing program. Upon graduation, Respondent attended the UCLA and earned his
bachelor’s degree in history in 1989. Thereafter, he attended CSULB, where he earned his
master’s degree in history in 1994.

77. While he was an undergraduate student at UCLA, Respondent worked at

District during the summer of 1986 as an outdoor education assistant. He also worked at a
bank and later at a credit union. Additionally, Respondent performed volunteer work at a
church in which his father was the minister. Although Respondent enjoyed the banking
industry, he wished to pursue teaching because he enjoyed watching children learn, and,
much like he had as a church volunteer, he wanted to become a positive role model for
African-American youth and for his community. In May 1995, after earning his master’s
degree, Respondent pursued a career in teaching by securing employment with the District as
15
References to Education Code section 44938 were preprinted and appeared on the
first and last pages of the Notice of Unsatisfactory Acts.

16
a substitute teacher, and served in that capacity until August 1996. Respondent then pursued
his teaching credential at CSUDH. Respondent returned to the District as a full-time teacher
in 1998, the same year he obtained his teaching credential, and was assigned to 15th Street
School, where he remained until his removal from the classroom in November 2014.

78. Respondent acknowledged attending annual teacher in-service meetings

conducted by Principal Mak, in which she distributed bulletins, the Standards, the Code of
Conduct, and the Code of Ethics, among other things. During those meetings, Principal Mak
highlighted portions of those handouts, and instructed the teachers to review the remainder of
the handouts on their own. One of the matters highlighted by Principal Mak concerned the
Code of Conduct regarding item 6, cautioning teachers from “touching or having physical
contact with a student(s) that is not age-appropriate or within the scope of the
employee’s/individual’s responsibilities and/or duties.” (Exhibit 7.)

79. Respondent also acknowledged that Principal Mak verbally instructed the
teachers at the annual in-service meetings that “touching students was unacceptable,
unprofessional, and violated district policy.” However, in the context in which Principal
Mak presented her “no-touch policy,” Respondent interpreted the policy as addressing
touching of an inappropriate, sexual, or abusive nature. Respondent did not interpret
Principal Mak’s “no-touch policy” as prohibiting benign touching, such as issuing high-fives,
pats on the back or shoulder, or other appropriate touching of the like. This was because the
Code of Conduct permitted age-appropriate physical contact, and Respondent had witnessed
Principal Mak frequently give students high-fives herself.

80. Consistent with District policy, Respondent tailored his teaching style to
develop an age-appropriate rapport with his students such that they felt supported and
congratulated when they completed tasks or accomplished goals. Respondent made it his
custom and practice to deliver a lesson or instruction to his students, and then circulate
around the classroom to ensure the students remained on task. As he circulated the
classroom, he typically offered words and acts of affirmation and encouragement, such as
saying “good job” or “great” or “keep working,” and by randomly giving his students, both
male and female, a quick pat on the back or shoulder, a handshake or high-five, particularly
when they completed a task well. Occasionally, Respondent would give students side-hugs.

81. When students raised their hands as he circulated the room, Respondent would
sometimes give a student a high-five as his or her hand was raised, or sometimes he would
interlace his fingers in his or her hand and give the student’s hand a short grip, reminiscent of
a champion’s grasp. Occasionally, he would give the student a quick handshake. Each
contact, whether a high-five, an interlaced finger grasp, or a handshake, would last a second
or two, and were generally accompanied by verbal praise or encouragement. Also,
Respondent would occasionally give students a one or two second side-hug for
congratulatory purposes. Although Respondent would not issue high-fives, champion’s
grasps, handshakes, or side-hugs every time he approached a student, such conduct played a
significant part in his interaction with his students. At no time did any student voice any
complaint to Respondent stating such interaction made him or her feel uncomfortable, or

17
pulled away from his grasp during handshakes or interlaced grips. On the contrary, students
in his classroom continued raising their hands his class, and Respondent saw no reduction in
the level of participation of any of his students.

82. In order to recapture the attention of students who had veered off task during
their class assignment, Respondent sometime touched the top of the student’s shoulder or
patted the student’s back. Occasionally, in an effort to show support, Respondent would give
a student’s shoulder a quick squeeze for a second or two. At no time did any student voice
any complaint to Respondent stating such interaction made him or her feel uncomfortable.
On the contrary, students in his classroom appeared content.

83. Respondent did not change his routine or the manner in which he interacted
with the students when Principal Mak or other adults entered his classroom. He rarely knew
in advance when an administrator, teacher, or any other adult would elect to enter is room
during class time, as they generally arrived unannounced.

84. Respondent considered the physical component involved in how he interacted

with his students (i.e, high-fives, interlaced finger grasps, handshakes, side-hugs, shoulder
touches, shoulder squeezes, or back pats) as age-appropriate contact and within the scope of
his responsibilities and duties. By adopting this style of teaching, which he had been
executing for years, it was his sole intent to promote a positive and supportive environment
for his students. In that regard, Respondent felt successful that he was achieving this goal,
because, in his performance evaluations, Principal Mak commended him for his sensitivity to
his students’ social and cultural norms, emotional development, and his modeling and
promotion of fairness, caring, equity, and respect in the classroom.

85. Prior to the investigation, no one, including Principal Mak, any parent, student,
teacher, or other administrator complained to Respondent about how his physical interaction
with his students left them feeling uncomfortable in his class. Additionally, Mr. Earl, who
served as Respondent’s voluntary aide during the 2013-2014 and 2014-2015, and who
witnessed Respondent’s interactions with the students, never reported to Respondent that he
felt uncomfortable about how Respondent interacted with the students or received or
repeated any reports from students that they felt uncomfortable by Respondent’s interactions.
Indeed, during the time in which A.O., M.M., J.G., and S.R. attended Respondent’s class,
they remained good students, experienced no change in grades, and remained enthusiastic
and active.

86. Given Respondent’s intention of creating and promoting a positive and

supportive environment for his students, Respondent suffered great remorse when he learned
on November 14, 2014, the day he was removed from the classroom, that some students felt
uncomfortable. Respondent wished someone had advised him earlier. Had he known, he
would have made adjustments in the manner in which he interacted with his students.
Specifically, he would have adopted new approaches to support students that did not involve
the use of physical contact. Respondent expressed he would still be very willing to modify
his teaching style to omit any touching if afforded an opportunity to return to the classroom.

18
Respondent has already conducted research and read pertinent books highlighting alternative
methods to touching, which similarly encourage and support students.

87. Respondent acknowledged that the Code of Conduct warned that, despite his
professional intent, the District was obliged to investigate allegations of inappropriate
conduct or behavior, and, if warranted, “take appropriate administrative and/or disciplinary
action.” He understood why the District felt it needed to take action against him.
Nevertheless, Respondent wishes he had been afforded an opportunity to return to the
classroom to correct any alleged deficiencies, and endeavor to follow the assistance,
guidance, and directives issued by Principal Mak in her December 14, 2015 conference
memorandum.

Respondent’s Denials

88. While Respondent admitted to some of the allegations set forth in the
Accusation, namely that he issued high-fives, interlaced finger grasps, handshakes, side-
hugs, shoulder touches, shoulder squeezes, or back pats, Respondent categorically denied a
number of other allegations. Specifically, Respondent denied running his hand down the
small of M.M.’s back or down the back any other student. He also denied hugging M.M.
from behind or hugging any other student in that manner, including M.R.. Additionally,
Respondent denied rubbing or massaging the neck or shoulders of M.M. or any other student,
including M.R. and S.R.. Respondent also denied placing his hand on the thighs of female
students, as M.M. testified.

89. Respondent recalled no instance of buttoning A.O.’s shirt, as it was not his
habit of touching or manipulating anybody’s clothes. He also denied touching the chest of
A.O. or any other female student. Respondent also recalled no instance of holding V.J.’s
face and touching his forehead against hers, as A.O. testified. Respondent also denied
staring at the breasts of A.S., as A.O. testified, or the breasts of any other student.

90. Respondent also denied a number of other allegations in the Accusation, but
District failed to proffer any competent direct evidence to address or prove those
allegations.16 Consequently, Respondent’s denial of those allegations is not listed here.

Character Evidence

A. Imelda Cabral

91. Imelda Cabral provided character testimony on Respondent’s behalf. Ms.

Cabral has taught at 15th Street School for more than 21 years, and prior to that, served as a
teacher’s assistant there for approximately six years. Ms. Cabral maintains a positive view of
Respondent, despite the allegations leveled against him, because she has observed

16
See Factual Findings 22, 32, 41, 46, 53, 55, 56, 57, 58, and 59.

19
Respondent interacting with his students, trusts her own daughters (ages 10 and 13) with
him, and he is held in high esteem.

92. The copy machine was located right next door to Respondent’s classroom,
which afforded Ms. Cabral opportunities to stop by Respondent’s classroom and observe him
interact with his students. Ms. Cabral characterized all interactions she witnessed as “pretty
normal” and that the students’ reactions appeared normal. Specifically, she observed
Respondent giving students a pat on the back and giving students high-fives. Nothing about
Respondent’s physical contact struck her as inappropriate, and she never witnessed any
behavior suggesting Respondent had been conducting himself in an inappropriate way.

93. Ms. Cabral’s daughters attended 15th Street School and spent a lot of time in
Respondent’s class, although Respondent did not serve as their teacher. They often visited
Respondent just to say “hi” or to help him in his classroom. Ms. Cabral’s daughters love
Respondent and affectionately refer to him as “Uncle Jenkins.” Ms. Cabral never received
any complaints from her daughters about Respondent, and she witnessed nothing
inappropriate in the manner in which Respondent interacted with her daughters. Ms. Cabral
expressed that she would completely trust Respondent to serve as their fifth grade teacher.

94. Principal Mak respected Ms. Cabral as a teacher.

B. Sylvia Barbas

95. Sylvia Barbas provided character testimony on Respondent’s behalf. Ms.

Barbas has worked at 15th Street School for more than 35 years, and is currently a
categorical program advisor. Prior, she served as a teacher there, and had opportunities to
observe Respondent in his classroom.

96. Ms. Barbas characterized Respondent as a very calm, organized, and

encouraging teacher. She has witnessed Respondent pat students’ backs, both male and
female, as he observed their work. Ms. Barbas considered Respondent’s physical contact
with students as age-appropriate and within the scope of his duties.

97. Ms. Barbas described Respondent as an upstanding, wonderful, encouraging

human being, and would fully trust Respondent to teach her own two children.

98. Principal Mak respected Ms. Barbas as a teacher.

C. Diane Dibrell

99. Diane Dibrell provided character testimony on Respondent’s behalf. Ms.

Dibrell has worked at 15th Street School as a fourth and fifth grade teacher since 1996.

100. Ms. Dibrell’s classroom was located directly across the hall from
Respondent’s. She entered his class unannounced on a daily basis because Respondent’s

20
supply cabinet was routinely stocked with supplies she needed. During those visits, which
lasted approximately five minutes, Ms. Dibrell had opportunities to observe Respondent
interact with his students.

101. Ms. Dibrell witnessed Respondent give his students high-fives, interlace finger
grasps, place his hand on students’ shoulders, or pat students’ backs, and did not see
Respondent engaged in any inappropriate conduct. The students appeared “normal-looking”
when Respondent touched their shoulders or backs, and no student ever complained to her
about Respondent. Ms. Dibrell never witnessed Respondent stare at any student’s breasts,
hug any student from behind, or run his hand down to the lower back of any student.

102. On cross-examination, Ms. Dibrell testified she witnessed Respondent give a

quick shoulder massage with both hands to female students once or twice for encouragement
purposes, which lasted for approximately two or three seconds, but could not recall the name
of those students. She also saw him button a girl’s blouse collar on picture day, but denied
that Respondent touched her chest in doing so. Ms. Dibrell could not recall that student’s
name either, but did recall that the student smiled after Respondent fixed her collar. Ms.
Dibrell found nothing alarming or inappropriate about these or any other instances of
physical contact she witnessed, because “many teachers touch” in her experience. Ms.
Dibrell also acknowledged that she was a mandated reporter and, as such, was required to
report inappropriate contact had she witnessed Respondent engage in it.

103. Principal Mak respected Ms. Dibrell as a teacher.

D. Bradley Mack

104. Bradley Mack provided character testimony on Respondent’s behalf. Mr.

Mack has worked as a teacher at 15th Street School for 21 years, and has taught fifth grade
for the last four years.

105. Mr. Mack and Respondent have observed each other teach class lessons, have
attended class field trips together, and have supervised children on the school yard together.
Mr. Mack witnessed Respondent’s use of physical contact during his interactions with
students, including touching a shoulder when leaning in to see what a student was working
on, issuing a high-five or grabbing a student’s hand, giving a student a squeeze on the neck,
and hugging a student from the side. Mr. Mack considered all of Respondent’s physical
interactions with students as proper and age-appropriate, and acknowledged that teachers use
physical contact with students at school.

106. Principal Mak has come into Respondent’s class while Mr. Mack was present
observing Respondent. Respondent did not change anything about how he interacted with
the students in Principal Mak’s presence, including touching them.

107. Mr. Mack has never witnessed Respondent bring his hand down the small of a
student’s back or approach a female student from behind and put his arms around her.

21
 108. Mr. Mack, who is married to Ms. Cabral, confirmed that their two daughters
(presently, ages 10 and 13) have been alone with Respondent on a number of occasions.
They have never voiced any complaint to Mr. Mack about Respondent.

109. Principal Mak respected Mr. Mack as a teacher.

E. Character Letters

110. In addition to proffering character testimony from some of his colleagues,

Respondent proffered character letters from other colleagues. Specifically, Donna P.
McGary and Cindy Paieda, who serve as teachers at 15th Street School, described
Respondent as a responsible, conscientious, and dedicated teacher, and a very active member
of the school community.

Credibility Findings17

A. Respondent

111. The Commission found credible the overall testimony of Respondent, given
the forthright and transparent manner in which he responded to questions. The Commission
observed Respondent answer questions in a sincere, straight forward manner, without a cloud
of prevarication. Respondent’s credibility was strengthened by his ready admission to a
number of the allegations set forth in the Accusation, including that he gave his students
side-hugs, shoulder touches, shoulder squeezes, back pats, and interlaced finger grasps.

112. Respondent provided persuasive and credible testimony about his

disagreement with the District’s insinuated intent behind his physical interactions with his
students, particularly his female students, and its implication that he engaged in such conduct
for inappropriate, sexual, or predatory purposes. The Commission, too, disagrees with the
District’s implication. The evidence shows that Respondent’s physical contact with his
students was age-appropriate and within the scope of his duties, as collectively attested to by
Ms. Cabral, Ms. Barbas, Ms. Dibrell, and Mr. Mack. The evidence shows that Respondent
17
In this matter, the Commission evaluated the credibility of the witnesses
pursuant to the factors set forth in Evidence Code section 780: the demeanor and manner of
the witness while testifying, the character of the testimony, the capacity to perceive at the
time the events occurred, the character of the witness for honesty, the existence of bias or
other motive, other statements of the witness which are consistent or inconsistent with the
testimony, the existence or absence of any fact to which the witness testified, and the attitude
of the witness toward the proceeding in which the testimony has been given. The manner
and demeanor of a witness while testifying are the two most important factors a trier of fact
considers when judging credibility. The mannerisms, tone of voice, eye contact, facial
expressions and body language are all considered, but are difficult to describe in such a way
that the reader truly understands what causes the trier of fact to believe or disbelieve a
witness.

22
did not engage with his students in any way that was sexualized or harassing or otherwise
inappropriate for their age. Indeed, if Respondent had wished to engage in such immoral
conduct, and was brazen enough to do so in front of the entire class, particularly in the
presence of fellow teachers when they visited his class, it is reasonable to believe one of his
mandated reporter colleagues would have reported the conduct, if not a brave student.

113. The Commission also found credible the deep regret Respondent expressed
upon learning that students in his class felt uncomfortable by his physical contact with them,
especially since his purpose for engaging in such conduct was for the innocent purpose of
supporting and encouraging his students.

B. Principal Mak

114. The Commission considered Principal Mak a devoted and ardent administrator
who cares deeply about the school under her charge. However, the Commission found
concerning the apparent lack of understanding of the plain wording of the District policies
and procedures she touted, and the inconsistent manner in which she testified. In particular,
Principal Mak testified she interpreted Item 6 of the Code of Conduct, which prohibited
employees from “touching or having physical contact with a student(s) that is not age-
appropriate or within the scope of the employee’s/individual’s responsibilities and/or duties,”
as prohibiting all touching. Specifically, she stated that she considered “all touching [as]
inappropriate.” However, the plain language of Item 6 clearly permits teachers to engage in
“age-appropriate” touching with students, as long as it is within the scope of the teacher’s
responsibilities and/or duties. When repeatedly pressed on this issue, and requested to
reconcile her interpretation with the “age-appropriate” wording found in Item 6, she
acknowledged the presence of the “age-appropriate” wording, but applied a narrow definition
of what she considered “age-appropriate touching.” Specifically, she limited “age-
appropriate touching” to physical contact designed “to keep students safe.” Principal Mak’s
attempt to limit the scope of Item 6 contradicted its plain meaning and was wrong.

115. Additionally, the Commission found troubling Principal Mak’s inability to

articulate the meaning of Education Code section 44938 which appeared in the Notice of
Unsatisfactory Acts that she issued to Respondent. Despite her inability to articulate the
meaning of this section of the Education Code, Principal Mak testified she expected
Respondent to rely on it because it appeared in the Notice. Education Code section 44938
addresses, in part, opportunities for individuals to correct or remedy their deficiencies. Yet,
as Principal Mak acknowledged, Respondent was not permitted to return to his teaching
assignment after she issued the Notice of Unsatisfactory Acts.

116. With respect to Principal Mak’s “no-touch policy,” to which she expected all
of her teachers to strictly adhere, she expressed her belief that “touching students was
unacceptable and unprofessional and violated district policy.” However, the weight given
her testimony, and the District’s burden of proof, was undermined by her failure to identify
in any of the materials she distributed to her teachers (i.e., policies, procedures, codes, and
bulletins) any language memorializing her “no-touch policy.”

23
 117. The Commission found that Principal Mak sometimes testified in a halting,
inconsistent, and confusing manner, particularly when pressed to clarify her beliefs and
positions, making it difficult to understand all facets of her testimony. As such, and for the
reasons stated above, Principal Mak’s overall testimony was not afforded the same weight as
testimony and evidence contrary to Principal Mak’s testimony.

C. M.R.

118. The Commission considered M.R. a bright young lady who expressed herself
well, and found her testimony credible as it related to the discomfort she experienced by
Respondent’s physical contact. Specifically, the Commission considered credible M.R.’s
testimony concerning Respondent’s physical contact of her shoulders. While she first
testified that Respondent “rubbed” her shoulders, M.R. clarified during cross-examination
that Respondent “touched” her shoulder or bicep for a few seconds on multiple occasions per
week, when Respondent helped her at her desk. This is consistent with testimony offered by
Respondent, who stated he would sometimes touch or squeeze his students’ shoulders, as
well as with testimony offered by Ms. Dibrell and Mr. Mack, who witnessed Respondent
place his hand on students’ shoulders when leaning in to observe their work.

119. However, the Commission found incredible M.R.’s testimony that Respondent
hugged her from behind, particularly when she stated that Respondent would approach her
while she sat at her desk, wrap both of his arms around her, and rest his hands on her
stomach. No other witness proffered any testimony suggesting that Respondent engaged in
such conduct, despite Respondent purportedly engaging in such conduct in the presence of
the entire class. The only witness who alleged Respondent engaged in similar conduct was
M.M., but, as set forth in more detail below, the Commission found M.M.’s testimony less
than credible on this subject.

D. M.M.

120. The Commission considered M.M. a smart and articulate young lady, and
found her testimony credible as it related to the discomfort she experienced by Respondent’s
physical contact of her and other girls. Specifically, the Commission considered credible
M.M.’s testimony concerning Respondent’s touching of her shoulder and Respondent’s
placing his arm around her shoulder. This testimony was consistent with testimony proffered
by Respondent, who stated he would sometimes place his hand on the shoulder of his
students, as well as give them one-armed side hugs as a gesture of encouragement or praise.

121. However, the Commission did not find credible M.M.’s testimony purporting
that Respondent had run his hand down the small of her back. No other witness proffered
any testimony in that regard, despite Respondent purportedly engaging in such conduct in the
presence of the entire class. Additionally, as discussed above, Respondent’s denial of this
allegation was deemed credible, given the overall transparent and unequivocal manner in
which he testified.

24
 122. In its consideration of M.M.’s testimony that Respondent reserved his acts of
physical contact for the girls in the class only, and that Respondent never touched her or any
of the other girls in the classroom when other adults were present, the Commission
considered A.O.’s, J.G.’s, and S.R.’s testimony, which were similar to M.M.’s in that regard.
However, the Commission also considered the more credible and persuasive testimony of
Respondent, who credibly testified he physically interacted with both the male and female
students in the classroom, and of Ms. Barbas, who credibly testified that she witnessed
Respondent touch both male and female students as Respondent observed their work.
Inherent in their observations, as well as in the credible testimony of Ms. Cabral and Ms.
Dibrell, who also observed Respondent engage in physical contact with the students, is that
Respondent continued to engage in physical touch while adults were present. Indeed,
according to the credible testimony of Mr. Mack, who also testified he witnessed Respondent
engage in physical contact with the students, also witnessed Principal Mak come into
Respondent’s class while Mr. Mack was present, and saw that Respondent did not change
anything about how he interacted with the students in Principal Mak’s presence, including
touching them. These collective testimonies corroborated Respondent’s testimony that he
did not alter his routine when adults entered the room. Balancing these testimonies, the
Commission did not find M.M.’s, A.O.’s, J.G.’s, and S.R.’s versions more persuasive than
Ms. Barbas’, Ms. Cabral’s, Ms. Dibrell’s, Mr. Mack’s, and Respondent’s in this regard.

123. The Commission found incredible M.M.’s testimony that Respondent hugged
her from behind, rubbed her neck for two or three minutes at a time, rubbed her shoulders for
two or three minutes at a time, and rub or touch other girls in the classroom for one to three
minutes each time. It appears M.M. raised such allegations for the first time during hearing,
and not anytime during the six-month investigation conducted by LAPD or during the
dismissal process undertaken by the District. Consequently, no such allegations were
included in Principal Mak’s December 14, 2015 conference memorandum, in the January 21,
2016 Notice of Unsatisfactory Acts, or in the Accusation itself. As such, M.M.’s testimony
in this regard is deemed unreliable.

E. A.O.

124. The Commission considered A.O. an intelligent and dynamic young lady, and
found her testimony credible as it related to the discomfort she experienced by Respondent’s
physical contact of her and other female students. Specifically, the Commission considered
credible A.O.’s testimony concerning instances of Respondent placing his arm around her
shoulder and instances of him interlocking his fingers with hers when she raised her hand in
class. This testimony was consistent with testimony proffered by Respondent, who stated he
would sometimes give his students one-armed side hugs as a gesture of encouragement or
praise. Additionally, Respondent proffered testimony that when students worked on
classwork and would raise their hands, he would sometimes give the students “high-fives,”
handshakes, or he would interlace his fingers in the hand of a student and give the student’s
hand a short grip.

25
 125. Although Respondent could not recall adjusting A.O.’s shirt at one time, the
Commission found credible A.O.’s testimony that Respondent made a reference about the
messiness of her shirt and buttoned her collar, because J.G. corroborated A.O.’s testimony in
that regard. Additionally, although it is not conclusive, the Commission surmises that Ms.
Dibrell witnessed the same when she saw Respondent button a girl’s collar on what she
believed to be picture day. The Commission found understandable Respondent’s failure to
recall this incident, given the time that has elapsed since the incident, the number of students
in his class, and the fact that such an occurrence was a rare one. The Commission declined
to assign an inappropriate meaning to this incident. Specifically, the Commission believed
that when Respondent made reference to the messiness of A.O.’s shirt, he did not mean it in
a demeaning way. Rather, it appeared he wished to take care of his student. Consequently,
when Respondent helped to button A.O.’s shirt, the Commission did not believe Respondent
did so with an inappropriate purpose, especially given the fact that he did so in front of the
entire class, and potentially in front of Ms. Dibrell.

126. Although Respondent could not recall the incident, the Commission found
credible A.O.’s testimony that she witnessed Respondent hold V.J.’s face with his hands and
tap his forehead against hers. The Commission found understandable Respondent’s failure
to recall this incident, given the time that has elapsed since the incident, the number of
students in his class, and the fact that such an occurrence appeared to be a rare one.
However, the District did not proffer any competent direct evidence to explain the context in
which the act took place, other than it occurred at front of the class. Specifically, A.O.
offered no testimony describing what precipitated the act, and the District failed to present
V.J. as a witness to describe the details and effects of the incident. Consequently, the
Commission declined to assign an inappropriate meaning to this conduct, as insufficient
evidence existed to determine whether or not the physical contact occurred within
Respondent’s scope of duties.

127. The Commission found incredible A.O.’s testimony that she witnessed
Respondent look down the shirt of and stare at the breasts of her classmate, A.S. S. The
Commission was unclear what A.O. could see and interpret from her desk, which was
located 30 feet away. Additionally, Respondent’s categorical denial of this allegation
appeared credible, and the District failed to present V.J. as a witness to establish otherwise.

F. J.G.

128. The Commission considered J.G. a smart and pleasant young lady, and found
her testimony credible as it related to the discomfort she experienced by Respondent’s
physical contact of her and other female students. Specifically, the Commission considered
credible J.G.’s testimony concerning instances of Respondent interlocking his fingers with
hers when she raised her hand in class, as Respondent proffered testimony that he would
sometimes interlace his fingers in the hand of a student when the student raised his or her
hand.

///

26
 129. Although the District did not allege in the Accusation that Respondent touched
or rubbed her shoulders “for just seconds,” the Commission found her testimony credible in
that regard, as it was consistent with Respondent’s acknowledgement that he sometimes
touched or squeezed his students’ shoulders, as well as with others’ observations that he did
so only for a few seconds.

G. S.R.

130. The Commission considered S.R. an anxious, though brave, young lady, and
found her testimony credible as it related to the discomfort she experienced by Respondent’s
physical contact of her and other female students. Specifically, the Commission considered
credible S.R.’s testimony concerning instances of Respondent interlocking his fingers with
hers when she raised her hand in class, as Respondent proffered testimony that he would
sometimes interlace his fingers in the hand of a student when the student raised his or her
hand. Additionally, the Commission considered credible S.R.’s testimony concerning
instances of Respondent touching her shoulders, as it is consistent with Respondent’s
testimony that he would sometimes touch or squeeze the shoulders of his students.

H. Ms. Cabral, Ms. Barbas, Ms. Dibrell, and Mr. Mack

131. The Commission found credible the testimony of Respondent’s colleagues,

Ms. Cabral, Ms. Barbas, Ms. Dibrell, and Mr. Mack, given the clear, concise, and direct
manner in which they individually testified, buttressed by the corroborating nature of their
collective testimonies, and their individual and collective experience in the teaching
profession. As such, the Commission afforded great weight to the testimony of these
witnesses.

LEGAL CONCLUSIONS

Burden of Proof

1. Absent a statute to the contrary, the burden of proof in disciplinary

administrative proceedings rests upon the party making the charges. (Parker v. City of
Fountain Valley (1981) 127 Cal.App.3d 99, 113; Evid. Code, § 115.) The “burden of proof”
means the obligation of a party, if he or she is to prevail on a particular fact, to establish by
evidence a requisite degree of belief or conviction concerning such fact. (Redevelopment
Agency v. Norm’s Slauson (1985) 173 Cal.App.3d 1121, 1128.) The burden of proof in this
proceeding is on the District to prove the charging allegations.

2. The standard of proof in this proceeding is a preponderance of the evidence.

(Gardner v. Commission on Professional Competence (1985) 164 Cal.App.3d 1035, 1039-
1040; Evid. Code, § 115.) “The phrase ‘preponderance of evidence’ is usually defined in
terms of probability of truth, e.g., ‘such evidence as, when weighed with that opposed to it,

27
has more convincing force and the greater probability of truth.’ (BAJI (8th ed.), No. 2.60.)”
(1 Witkin, Evidence, Burden of Proof and Presumptions § 35 (4th ed. 2000).)

Section 44938 Considerations

3. Section 44938, subdivision (a), provides:

The governing board of any school district shall not act upon
any charges of unprofessional conduct unless at least 45
calendar days prior to the date of the filing, the board or its
authorized representative has given the employee against
whom the charge is filed, written notice of the unprofessional
conduct, specifying the nature thereof with such specific
instances of behavior and with such particularity as to furnish
the employee an opportunity to correct his or her faults and
overcome the grounds for the charge. The written notice shall
include the evaluation made pursuant to Article 11 (commencing
with Section 44660) of Chapter 3, if applicable to the employee.

4. Respondent asserts that, in light of section 44938, he should have been given
an opportunity to return to his teaching assignment and correct any perceived deficiencies.
Courts have held that the Commission may consider the lack of opportunity to correct
deficiencies during its evaluation of the evidence. (Blake v. Commission on Professional
Competence (1989) 212 Cal.App.3d 513 (Blake); Crowl v. Commission on Professional
Competence (1990) 225 Cal.App.3d 334 (Crowl).)

Dismissal Authority

5. A permanent District employee may be dismissed for cause only after a

dismissal hearing. (§§ 44932, 44934, and 44944.)

6. Under section 44944, subdivision (c), the dismissal hearing must be conducted
by a three-member Commission on Professional Competence, unless waived by the parties.
Two members of the Commission must be non-district teachers, one chosen by the employee
(Respondent) and one by the governing board (District), and the third member of the
Commission must be an administrative law judge from the Office of Administrative
Hearings.

7. When a school board recommends dismissal for cause, the Commission may
only vote for or against it. The Commission may not dispose of a charge of dismissal by
imposing probation or an alternative sanction. (§ 44944, subd. (d)(3).)

///

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28
 8. Section 44932 provides, in pertinent part:

(a) No permanent employee shall be dismissed except for one or

more of the following causes:

(1) Immoral conduct, including, but not limited to, egregious

misconduct. For purposes of this chapter, “egregious
misconduct” is defined exclusively as immoral conduct that is
the basis for an offense described in Section 44010 or 44011 of
this code, or in Sections 11165.2 to 11165.6, inclusive, of the
Penal Code.18

(2) Unprofessional conduct.

[¶] . . . [¶]

(6) Evident unfitness for service.

[¶] . . . [¶]

(8) Persistent violation of or refusal to obey the school laws of the

state or reasonable regulations prescribed for the government of
the public schools by the State Board of Education or by the
governing board of the school district employing him or her.

9. Unprofessional conduct as used in § 44932, subd. (a)(2), may be

defined as conduct that violates the rules or ethical code of a profession or is
unbecoming a member of a profession in good standing. (Board of Ed. v. Swan (1953)
41 Cal.2d 546, 553, overruled in part, on another ground, in Bekiaris v. Board of Ed.
(1972) 6 Cal.3d 575, 588, fn. 7.)

10. The term “immoral conduct” has been defined to include conduct
inconsistent with rectitude, or indicative of corruption, indecency, depravity,
dissoluteness; or as willful, flagrant, or shameless conduct showing moral
indifference to the opinions of respectable members of the community, and as an
inconsiderate attitude toward good order and the public welfare. (Board of Ed. of San
Francisco Unified School Dist. v. Weiland (1960) 179 Cal.App.2d 808, 811.)

///

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18
Education Code section 44010 addresses sex offenses. Education Code section
44011addresses controlled substance offenses. Penal Code sections 11165.2 to 11165.6,
inclusive, address child abuse and neglect reporting offenses.

29
 11. “Evident unfitness for service” means clearly not fit, not adapted to or
unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.
(Woodland Joint Unified School District v. Commission on Professional Competence (1992)
2 Cal.App.4th 1429, 1444.) “‘Evident unfitness for service’ connotes a fixed character trait,
presumably not remediable merely on receipt of notice that one’s conduct fails to meet the
expectations of the employing school district.” (Id.)

12. “Persistent violation of or refusal to obey the school laws of the state or
reasonable regulations prescribed for the government of the public schools by the State
Board of Education or by the governing board of the school district employing her,” which
concerns Education Code, section 44932, subdivision (a)(8), requires a “showing of
intentional and continual refusal to cooperate.” (San Dieguito Union High School District v.
Commission on Professional Competence (1985) 174 Cal.App.3d 1176, 1196.) In order for a
teacher to be terminated under Education Code section 44932(a)(8), for violations of law or
school rules, the violations must be either “persistent” or “motivated by an attitude of
continuous insubordination.” (Governing Board of the Oakdale Union School Dist. v.
Seaman (1972) 28 Cal.App.3d 77, 81 (Seaman).) “The word ‘persistent’ is defined by
lexicographers as ‘refusing to relent; continuing, especially in the face of opposition …
stubborn; persevering … constantly repeated.’ And, in the judicial decisions of this, as well
as other states, the word has been interpreted to mean ‘continuing or constant.’” (Id. at p.
82.) It is the persistent disregard of school rules that the subdivision is designed to regulate.”
(Id.)

13. Section 44939, subdivision (b), provides in part:

Upon the filing of written charges, duly signed and verified

by the person filing them with the governing board of a
school district, or upon a written statement of charges
formulated by the governing board, charging a permanent
employee of the district with immoral conduct, . . . with
willful refusal to perform regular assignments without
reasonable cause, as prescribed by reasonable rules and
regulations of the employing school district, . . . the
governing board may, if it deems such action necessary,
immediately suspend the employee from his duties and
give notice to him of his suspension, and that 30 days
after service of the notice, he will be dismissed, unless
he demands a hearing.

14. Even where immoral conduct or evident unfitness for service are established, it
must also be established that such immoral conduct or evident unfitness renders the
Respondent unfit to teach. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 229-
230 (Morrison); Fontana Unified School District v. Burman (1988) 45 Cal.3d 208
(Fontana); Woodland, supra, 4 Cal.App.4th at 1444-1445.) In Morrison, the California

30
Supreme Court set forth guidelines (eight factors) to aid in determining whether the conduct
in question indicates such unfitness:

(1) The likelihood that the conduct may have adversely affected students,
fellow teachers, or the educational community, and the degree of such
adversity anticipated.

(2) The proximity or remoteness in time of the conduct.

(3) The type of credential held by the person involved.

(4) The extenuating or aggravating circumstances surrounding the conduct.

(5) The praiseworthiness or blameworthiness of the motives resulting in

the conduct.

(6) The likelihood of the reoccurrence of the questioned conduct.

(7) The extent to which disciplinary action may inflict an adverse impact or
chilling effect upon the constitutional rights of the teacher involved or
other teachers.

(8) The publicity or notoriety given to the conduct.

15. Not all “Morrison factors” need be present for the Morrison test to be
satisfied. (Governing Board of ABC School District v. Haar (1994) 28 Cal.App.4th 369.)
Moreover, the Morrison analysis need not be conducted on each individual fact established,
but rather can be applied to the accumulated facts established collectively. (Woodland Joint
Unified School District v. Commission on Professional Competence (1992) 2 Cal.App.4th
1429, 1457.)

Analysis

16. District failed to establish, by a preponderance of the evidence, that

Respondent engaged in unprofessional conduct (§ 44932, subd. (a)(2)), immoral conduct
(§ 44932, subd. (a)(1) and § 44939), evident unfitness for service (§ 44932, subd. (a)(6)),
persistent violation of or refusal to obey reasonable regulations (§ 44932, subd. (a)(8)), and
willful refusal to perform regular assignments without reasonable cause (§ 44939). As such,
as set forth in more detail below, no cause exists to dismiss Respondent from his position as
a permanent certificated employee of District.

///

///

31
 A. Unprofessional Conduct

17. As set forth in Legal Conclusion 9, unprofessional conduct may be defined as

conduct that violates the rules or ethical code of a profession or is unbecoming a member of
a profession in good standing. District contends Respondent engaged in unprofessional
conduct by individually and/or collectively violating Principal Mak’s “no-touch policy,” the
Code of Ethics, the Code of Conduct, and the Standards. Each argument is discussed below.

1. “No-Touch Policy”/ Code of Ethics

18. District asserts Respondent engaged in unprofessional conduct when he failed

to adhere to Principal Mak’s “no-touch policy,” which led to the discomfort and frustration
felt by several female students in his class. Such defiance, District contends, not only
demonstrated unprofessional conduct, but it subjected the students to conduct negatively
impacting their learning environment and overall experience as a student. Additionally,
District asserts that such conduct violated its Code of Ethics requiring employees to keep
policies, procedures, and rules. A minority of the Commission agrees with District’s
assertion in this regard.

19. The majority of the Commission rejects the notion that Principal Mak’s verbal
“no-touch policy” was, in fact, a District rule or policy. Although Principal Mak testified
that she told her teachers that she considered touching to be “a violation of District policy,”
the evidence simply does not support that assertion. The record shows that Principal Mak
could not identify, in any of the policies, procedures, codes, and bulletins distributed to
teachers, any language memorializing her “no-touch policy.” That’s because no such
language existed. The Commission majority maintains that converting or elevating a
principal’s verbal edicts to a policy or rule recognizable under Education Code dismissal
provisions circumvents an essential purpose of the Code: to prevent arbitrary firing of
tenured teachers. If principals are permitted to characterize their self-described codes of
conduct as district or state policy, it could encourage arbitrary and capricious personnel
decisions, and undermine basic due process protections.

20. Additionally, Respondent’s dedicated and credible colleagues, Mr. Mack, Ms.
Barbas, Ms. Dibrell, and Ms. Cabral, affirmed a culture of supporting 15th Street School
students through the practical application of age-appropriate physical touch, despite Principal
Mak’s “no-touch policy,” evident from their collective testimonies. They affirmed that
teachers sometimes use physical contact with students, and acknowledged that such contact
in the form of side-hugs, shoulder touches, shoulder squeezes, back pats, interlaced finger
grasps, high-fives, and handshakes, was age-appropriate and within the scope of duties.
Indeed, Principal Mak herself frequently issued high-fives to students, according to
Respondent’s credible testimony. The existence of such commonly used affirmations gives
credence to Respondent’s belief that when Principal Mak discussed no touching, it was in
reference to touching of an inappropriate, sexual, or abusive nature.

///

32
 2. Code of Conduct

21. District asserts that as a result of Respondent’s conduct, which caused the
discomfort and frustration of several female students, Respondent violated the Code of
Conduct. A minority of the Commission agrees with District’s assertion in this regard.

22. With respect to the Code of Conduct, District contends that Respondent’s
conduct, which violated Principal Mak’s “no-touch policy”, demonstrated a disregard for the
warnings set forth in its preamble and closing. Specifically, District asserts Respondent
ignored its preamble reminding employees that “they must be mindful of the fine line drawn
between being sensitive to and supportive of students and a possible or perceived breach of
responsible, ethical behavior.” (Exhibit 7.) Additionally, District asserts Respondent
ignored its closing, advising that “the District is obligated to investigate allegations and, if
warranted, take appropriate administrative and/or disciplinary action” should “allegations of
inappropriate conduct or behavior” be leveled against an employee. (Exhibit 7.) In other
words, District contends that Principal Mak made Respondent aware of the potential
consequences should Respondent or any other teacher violate specific items of the Code of
Conduct, particularly as related to violations of her “no-touch policy;” yet, Respondent
assumed the risk and violated her policy anyway.

23. However, irrespective of these warnings, the majority of the Commission finds
District failed to establish by a preponderance of the evidence that Respondent, in fact,
violated any item of the Code of Conduct, notwithstanding his failure to adhere to Principal
Mak’s verbal “no-touch policy.” Contrary to District’s claim, insufficient evidence exists to
establish that Respondent violated Item 6, as District has claimed, which prohibits “touching
or having physical contact with a student(s) that is not age-appropriate or within the scope of
the employee’s/individual’s responsibilities and/or duties.” Insufficient evidence also exists
to demonstrate that Respondent violate Item 3 of the Code of Conduct, which prohibits
employees from “engaging in any behaviors, either directly or indirectly with a student(s) or
in the presence of a student(s), that are unprofessional, unethical, illegal, immoral, or
exploitative.” The overwhelming evidence established by the record demonstrates
Respondent engaged in age-appropriate physical contact with his students, male and female,
as discussed in detail above. Age-appropriate contact under the Code of Conduct cannot
simultaneously be considered unprofessional, unethical, illegal, immoral, or exploitative
contact under a different section of the same District code.

3. The Standards

24. With respect to the Standards, which addresses creating and maintaining
effective environments for student learning, District contends Respondent violated six
subsections of Standard 2. Specifically, District asserts Respondent violated subsections 2.1,
2.2, 2.3, 2.5, 2.6, and 2.7 by engaging in physical contact that caused the girls to feel
uncomfortable, thereby negatively impacting the promotion of a socially caring environment;
the creation of an environment promoting student learning; the maintenance of a physically,
intellectually, and safe learning environment; the development of maintaining high

33
standards; the employment of classroom routines, procedures, norms, and supports ensuring
a climate in which students can learn; and the utilization of instructional time to optimize
learning. A minority of the Commission agrees with District’s position.

25. The Commission majority cannot deny the significance of students feeling
uncomfortable in their own classroom, and the overall impact it must have had on them.
However, the totality of the record suggests that of Respondent’s classes during the 2013-
2014 and 2014-2015 school years, which included a total of approximately 50 students, a
very small minority expressed feelings of discomfort, according to the credible direct
evidence presented at hearing. Specifically, only five students testified at hearing and
expressed their experiences in Respondent’s class. However, an equal number of witnesses
(i.e., Mr. Mack, Ms. Dibrell, Ms. Cabral, Ms. Barbas, and Respondent) provided persuasive
testimony describing the supportive and encouraging environment Respondent promoted.
Indeed, Respondent, who had been working at 15th Street School since 1998 with an
unblemished disciplinary record, received multiple performance evaluations from Principal
Mak describing Respondent as “aware of and sensitive to the norms of the students’ social,
cultural, and emotional development.” Principal Mak also stated Respondent “model[ed]
and promot[ed] fairness, caring, equity, and respect in his classroom.” Given these factors,
the Commission majority finds no violation of the Standards.

26. In light of the foregoing, District has failed to meet its burden of establishing
Respondent engaged in unprofessional conduct under Education Code section 44932,
subdivision (a)(2).

B. Immoral Conduct

27. While District established that Respondent’s physical interaction with his
students left some of his female students feeling uncomfortable, the Commission
unanimously determined that District failed to establish that such physical interaction
constituted conduct inconsistent with rectitude, indicative of corruption, indecency,
depravity, dissoluteness, or shameless conduct showing moral indifference to the opinions of
respectable members of the community, as describe in Legal Conclusion 10. The evidence
showed that Respondent gave his students side-hugs, shoulder touches, shoulder squeezes,
back pats, interlaced finger grasps, high-fives, and handshakes, conduct objectively viewed
as appropriate and within the purview of his role as a teacher, according to the credible
testimony of Ms. Cabral, Ms. Barbas, Ms. Dibrell, and Mr. Mack. While District implied
that Respondent’s intent behind his interactions with his female students stemmed from an
inappropriate, sexual, or predatory purpose, District simply did not prove that assertion.
Instead, the evidence established Respondent incorporated physical contact into his teaching
style to help create a supportive and encouraging environment for his students. Given the
above, District failed to establish Respondent engaged in immoral conduct under Education
Code sections 44932, subdivision (a)(1) and 44939.

///

34
 C. Evident Unfitness for Service

28. As set forth in Legal Conclusion 11, evident unfitness for service addresses
whether a teacher is unfit or unsuitable for teaching, by reason of temperamental defect or
inadequacies. Legal Conclusion 11 also describes unfitness for service as that which
connotes a fixed character trait, presumably not remedial upon receipt of notice that one’s
conduct fails to meet the expectation of the District. While District expressed concern about
how some of Respondent’s female students felt in Respondent’s class as a result of his
physical contact with them, the Commission unanimously determined that such concern does
not constitute a demonstration that Respondent suffered a temperamental defect, inadequacy,
or a fixed character trait resistant to remediation. On the contrary, as set forth in more detail
below, the Commission strongly believes District’s perceived concerns about Respondent’s
conduct can be remedied very easily by a simple modification of his teaching style, which he
testified he would be willing to implement. Given the above, District failed to establish
Respondent’s evident unfitness for service under Education Code section 44932, subdivision
(a)(6).

D. Persistent Violation of or Refusal to Obey School Laws

29. As set forth in Legal Conclusion 12, cases interpreting whether a teacher has
persistently violated or refused to obey school laws require a showing of intentional and
continual refusal to cooperate. Here, the Commission unanimously determined that the
evidence did not demonstrate a showing that Respondent persistently violated or refused to
obey school laws or intentionally or continually refused to cooperate, though for two
different reasons. The same Commission majority that concluded Respondent engaged in no
unprofessional conduct, reasoning Respondent had not violated any official District codes or
policies, has hence concluded that Respondent, by definition, could not have committed a
violation of the present cause. In other words, District failed to meet its burden of
establishing that Respondent engaged in the persistent violation of or the refusal to obey
school laws, because it failed to establish that Respondent violated any official school laws
or policies in the first place.

30. The Commission minority that concluded Respondent had engaged in

unprofessional conduct for violating Principal Mak’s “no-touch policy,” the Code of
Conduct, the Code of Ethics, and the Standards, also concluded District failed to meet its
burden of proving Respondent committed a violation of the present cause. Specifically, the
minority reasoned that a violation of Education Code section 44932, subdivision (a)(8),
requires a “showing of intentional and continual refusal to cooperate.” (San Dieguito Union
High School District v. Commission on Professional Competence (1985) 174 Cal.App.3d
1176, 1196.). The minority concluded there was no showing of an intentional and continual
refusal to cooperate, because Respondent had been teaching for years, had been receiving
positive evaluations from Principal Mak, and District proffered no evidence demonstrating
that any administrator, colleague, student, or parent had advised him that any pertinent facet
of his teaching style required remediation. Given the above reasons, District failed to

35
establish Respondent’s persistent violation of or refusal to obey school laws under Education
Code section 44932, subdivision (a)(8).

E. Willful Refusal to Perform Regular Assignments

31. As set forth in Legal Conclusion 13, a teacher’s willful refusal to perform
regular assignments is actionable when done without reasonable cause. The Commission
unanimously finds that District presented no evidence that Respondent refused to perform
regular assignments without reasonable cause. On the contrary, the evidence showed that
Respondent was fully dedicated to his role as a teacher, and performed accordingly, as
evidenced by Respondent positive performance evaluations. Given the above, District failed
to establish Respondent willfully refused to perform regular assignments under Education
Code section 44939.

Conclusion

32. Based on the foregoing, District failed to demonstrate Respondent engaged in

unprofessional conduct (§ 44932, subd. (a)(2)), immoral conduct (§ 44932, subd. (a)(1) and
§ 44939), evident unfitness for service (§ 44932, subd. (a)(6)), persistent violation of or
refusal to obey reasonable regulations (§ 44932, subd. (a)(8)), and willful refusal to perform
regular assignments without reasonable cause (§ 44939). Accordingly, District’s Accusation
shall be dismissed.

Morrison Factors

33. Usually when deciding whether cause for dismissal exists, it also must be
established that a teacher’s misconduct relates to his fitness to teach, within the meaning of
Morrison v. State Board of Education (1969) 1 Cal.3d 214, 227-230. In Morrison v. State
Board of Education (1969) 1 Cal.3d 214, 235, the California Supreme Court held that “an
individual can be removed from the teaching profession only upon a showing that his
retention in the profession poses a significant danger of harm to either students, school
employees, or others who might be affected by his actions as a teacher.” The court
concluded that a teacher’s conduct cannot abstractly be characterized as “immoral,”
“unprofessional,” or “involving moral turpitude” unless the conduct indicated that a teacher
is unfit to teach. (Id. at p. 229.) The court set forth guidelines to aid in determining whether
the conduct in question indicated this unfitness.

34. In this case, because it was not established that Respondent’s conduct
supported any of the charges, examination of the Morrison factors is unnecessary.
Nonetheless, it is doubtful that the Morrison factors would support cause for discipline if
applied to any of the causes, including the cause for unprofessional conduct. Specifically,
while it is evident that some students felt negatively impacted by the physical component of
Respondent’s teaching style,19 Respondent’s conduct was not driven by any negative or
19
See Legal Conclusion 14, Morrison factor (1).

36
impure intent.20 On the contrary, Respondent’s conduct was driven by a desire to provide his
students with a positive, encouraging, and supportive environment. 21 In that regard, and as
further example of his commitment to his students, Respondent has researched and explored
alternative teaching methods that will help in the furtherance of his endeavor to promote a
positive environment and meet District expectations. 22

ORDER

The Accusation against Respondent Dennis Jenkins is dismissed. Respondent shall

be retained by the Los Angeles Unified School District as a permanent certificated employee.

DATED: February 17, 2017

CARLA L. GARRETT
Administrative Law Judge
Office of Administrative Hearings
Commission on Professional Competence

DATED: February 16, 2017

LACEY LEMUS
Commission Member
Commission on Professional Competence

DATED: February 17, 2017

JOHN COLOMBO
Commission Member
Commission on Professional Competence

20
See Legal Conclusion 14, Morrison factor (5).
21
See Legal Conclusion 14, Morrison factor (5).
22
See Legal Conclusion 14, Morrison factor (6).

37
 BEFORE THE
COMMISSION ON PROFESSIONAL COMPETENCE
AND THE OFFICE OF ADMINISTRATIVE HEARINGS
OF THE STATE OF CALIFORNIA

In the Matter of the Dismissal of:

OAH No. 2012060614.1
JAMES KELLEY,
A Permanent Certificated Employee,

Respondent.

DECISION AFTER REMAND

The Commission on Professional Competence (Commission) heard this matter on

March 11 through 15 and 18 through 21, and September 18 through 20 and 24, 2013, in
Signal Hill, California. The Commission consisted of Scott Chodorow, Doug Thompson, and
Howard W. Cohen, Administrative Law Judge (ALJ) with the Office of Administrative
Hearings (OAH), State of California. ALJ Cohen presided.

Anthony De Marco and Heather Dozier, Attorneys at Law with Atkinson, Andelson,
Loya, Ruud & Romo, represented complainant Christopher Steinhauser, Superintendent of
Human Resource Services for the Long Beach Unified School District (District), who at all
relevant times acted through his designee, Ruth Perez Ashley, Assistant Superintendent of
Human Resource Services for the District.

Richard J. Schwab, Attorney at Law with Trygstad, Schwab & Trygstad, represented
respondent James Kelley, who was present.

Oral and documentary evidence was received and argument was heard. Respondent
moved Exhibit BBB into evidence. The District objected, and the matter was taken under
submission. The ALJ subsequently admitted Exhibit BBB.

The record was closed and the matter was submitted for decision on September 24,
2013.

The Commission considered the matter in executive session. After due consideration
of the entire record, the Commission made factual findings and legal conclusions and issued
a Decision dated December 11, 2013. The Commission reviewed the District’s allegations
that respondent engaged in more than 30 instances of dealing inappropriately with students,
parents, or school administration. The Commission unanimously agreed that (a) the evidence
supported the District’s allegations with respect to eight of those instances, in whole or in
part, (b) respondent’s acts constituted unprofessional conduct but did not constitute
unsatisfactory performance, evident unfitness for service, or persistent violations of school
laws or regulations, and (c) respondent’s dismissal was not warranted.

SUBSEQUENT PROCEDURAL HISTORY

The District filed a writ of mandate petition with the Superior Court of the State of
California, County of Los Angeles. In a judgment entered on March 17, 2015, in case
number NC059306, the superior court served a peremptory writ of mandate. The court found
that, apart from the eight allegations of unprofessional conduct the Commission sustained
against respondent, the evidence established five additional instances of unprofessional
conduct, and that two of the instances the Commission found established in part were
established in whole. Thus, ruled the court, “[t]here are a total of 13 out of 32 events that
were established. When taken as a whole, there is clear unprofessional conduct.”1 The court
set aside the Commission’s December 2013 decision and remanded the matter to the
Commission to be reconsidered in light of the court’s findings.

Respondent appealed the court’s findings as to three of the five additional instances of
unprofessional conduct. On June 17, 2016, the Court of Appeal of the State of California,
Second Appellate District, in case number B263703, issued a decision reversing the Superior
Court’s findings with respect to one of those instances (the “participation category
incident”), and affirming the Superior Court’s findings with respect to the other two
instances (the “uniform violation incident” and the “skateboard incident”) and with respect to
the order remanding the case to the Commission. The Court of Appeal described the
disposition of the case on appeal as follows: “The judgment granting the petition for writ of
mandate is reversed to the extent that it found the participation category incident established,
and is otherwise affirmed.” (Ibid.)

In its decision, the Court of Appeal wrote that, “because the determination of the
appropriate penalty is within the discretion of the Commission, we cannot usurp the
Commission’s discretion by determining, at the appellate level, the severity of the penalty to
be imposed.” On August 24, 2016, the Court of Appeal issued a notice that its June 17, 2016
decision had become final.

In a minute order dated December 13, 2016, the Superior Court ruled that “Judgment
has been entered. The case has not been remanded to this Court. The remittitur of the Court
of Appeal modifies the judgment as a matter of law without further action by this Court.”

1
The court did not rule that any of the 13 established acts provides a basis for any
statutory ground for dismissal other than the ground of unprofessional conduct. The
District’s argument to the contrary finds no support in the Superior Court judgment or in the
Court of Appeal decision.

2
 On February 6, 2017, OAH ordered the District to prepare transcripts of the hearing
for the Commission to review on remand, and to designate a new commissioner to replace
Commissioner Chodorow, who died after the December 2013 decision issued. On February
21, 2017, the District provided notice of its inability to designate a replacement
commissioner. On April 14, 2017, OAH provided notice to the parties that the Los Angeles
County Office of Education had designated Roger Espinosa to sit on the Commission, as the
designee on behalf of the District, under Education Code section 44944, subdivision (c)(3).
The parties made no objection to the appointment.

The Commission met in May 2017 and reviewed the administrative record, including
the hearing transcripts and documentary evidence, in accordance with the Superior Court’s
March 2015 judgment, the Court of Appeal’s June 2016 decision, and the Superior Court’s
December 2016 minute order.

On May 17, 2017, OAH notified the parties that the Commission would reopen the
record to hear oral argument on the issues on remand.

On July 27, 2017, the record was reopened and the Commission heard oral argument
from counsel for both parties at OAH in Los Angeles. The record was again closed and the
matter was submitted for decision on the same date.

The Commission considered the matter in executive session. After due consideration
of the entire record, the Commission makes the following factual findings, legal conclusions,
and order. Factual Findings 17, 19, 20, 23, 35, 43, and 46 have been modified in accordance
with the reviewing courts’ directions. The Commission’s analysis of the modified facts and
its determination of the appropriate penalty to impose are reflected in Legal Conclusions 7,
10, 12, 15, 16, 19(a) and (f), and 21, and in the Order.

FACTUAL FINDINGS

1. Complainant brought the First Amended Accusation and First Amended

Statement of Charges, through his designee, in his official capacity.

2. Respondent is a permanent certificated employee of the District, presently on

paid leave status.

3. On May 10, 2012, complainant, through his designee, filed a Statement of

Charges against respondent with the Board of Education of the Long Beach Unified School
District (Board). The Board adopted a resolution finding that the charges constituted grounds
for dismissal and ordering that respondent be given notice of dismissal, the dismissal to take

3
effect 30 days from the date of service of the notice unless respondent timely requests a
hearing.2

4. On May 11, 2012, complainant’s designee served respondent with a Notice of

Intent to Dismiss, accompanied by, among other documents, the Statement of Charges.

5. On May 22, 2012, respondent’s counsel objected in writing to the Statement of

Charges and Notice of Intent to Dismiss and requested a hearing.

6. On May 31, 2012, the District filed and served on respondent a Notice of
Accusation and Accusation. Respondent’s counsel timely served a Notice of Defense.

7. On December 18, 2012, complainant, through his designee, filed a First

Amended Statement of Charges (FASOC) with the Board. The Board adopted a resolution
finding that the charges constituted grounds for dismissal and ordering that respondent be
given notice of dismissal, the dismissal to take effect 30 days from the date of service of the
notice unless respondent timely requests a hearing.

8. On December 19, 2012, complainant’s designee served respondent with a

Notice of Intent to Dismiss, accompanied by, among other documents, the FASOC.

9. On January 4, 2013, respondent, in writing, requested a hearing.

10. On January 8, 2013, the District filed and served on respondent a Notice of
First Amended Accusation and First Amended Accusation. Respondent’s counsel timely
served a Notice of Defense.

The District’s Charges Against Respondent

11. In the First Amended Accusation and FASOC against respondent, the District
alleged that it has cause to dismiss respondent from his employment as a permanent
certificated employee of the District for:

2
Respondent raised a jurisdictional challenge on the ground that there is insufficient
evidence of the Board’s adoption of the resolution in compliance with the law. Ashley,
complainant’s designee, testified that she was present in the closed session at the May 10,
2012, Board meeting, during which the Board adopted the resolution by a vote of five to
none. The subsequent actions taken by the District and its Board, and complainant, are
entirely consistent with Ashley’s account. Nor is Ashley’s testimony in any way contradicted
by the Board minutes of May 10, 2012, as urged by respondent. Those minutes confirm a
finding that the Board met in closed session on that date. Although the minutes state that “no
reportable actions were taken in Closed Session” (Ex. BBB), action taken in a closed session
to dismiss a public employee is not to be reported “until the first public meeting following
the exhaustion of administrative remedies . . . .” (Gov. Code, §§ 54957, 54957.1, subd.
(a)(5).) Respondent’s administrative remedies are not exhausted until this Decision issues.

4
 a. Unprofessional conduct, under Education Code section 44932,
3
subdivision (a)(1);

b. Unsatisfactory performance, under sections 44932, subdivision (a)(4);

c. Evident unfitness for service, under section 44932, subdivision (a)(5);

and

d. Persistent violation of or refusal to obey the school laws of the state or

reasonable regulations prescribed for the government of public schools by the State Board of
Education or by the governing board of the school district employing him, under section
44932, subdivision (a)(7).

12. In its FASOC, the District charged respondent with misconduct based on more
than 30 alleged separate acts and omissions from the 2008-2009 school year through the
2011-2012 school year.

Respondent’s Background

13. At all relevant times, respondent taught graphic arts at Wilson Classical High
School (Wilson High). Respondent has worked for the District in various capacities for over
30 years; he was first assigned to teach woodshop at Franklin Middle School in 1982. For the
last 18 years, since 1995, respondent has worked for the District at Wilson High, teaching
computer applications classes, computer diagnostics, graphic design, and printmaking. He
has a master’s degree from California State University, Long Beach, and has a clear single
subject credential in industrial and technology education.

14. Respondent was under some personal stress due to his father’s illness during
the 2011-2012 school year; respondent took a bereavement leave in the second semester of
that year, when his father died. No evidence was submitted of a prior history of discipline
against respondent.

The 2008-2009 School Year

15. The District alleged (FASOC, ¶ 10) but did not establish that, late in the 2008-
2009 school year, respondent seized a male student’s skateboard and forcefully banged it
against the wall of Building 500. Former Wilson High Principal Lew Kerns testified that he
witnessed the alleged act. Kerns’s testimony was not credible. He did not document the
alleged incident until the second semester of the following school year, and only did so at the
current principal’s request. His testimony that he just happened upon the alleged incident as
he turned a corner conflicts with respondent’s more credible version of the event, in which he
described using the skateboard to demonstrate to Kerns an action taken by a student.

3
All statutory references are to the Education Code, unless otherwise specified.

5
The 2009-2010 School Year

16. The District alleged (FASOC, ¶ 11) and established that on January 25, 2010,
respondent unprofessionally displayed his temper when he threw a skateboard belonging to
student G.P.4 out of the classroom door. The evidence further established that respondent
threw the skateboard only a short distance into a raised planter, and that he did not damage
the skateboard or the planter or cause any injury to person or property.

The 2010-2011 School Year

17. The District alleged (FASOC, ¶ 12) and established that respondent used
inappropriate force by grabbing the leg of a stool, which caused student A.M., who was
perched on the stool, to fall on the floor and hit his head on a desk. More specifically, on
December 13, 2010, during respondent’s fourth period class, respondent noticed that A.M.
had his head down on his desk and appeared to be sleeping. Respondent approached A.M.,
who was, in fact, asleep, and woke him by rapping on the desk with his hand. A.M. raised his
head, but again put his head down to go to sleep. Respondent told A.M. to stand up, touching
A.M.’s shirt as A.M. rose. Respondent directed A.M. to stand near the wall. A.M. did so, but
then took a stool and sat on it. When respondent observed that A.M. was no longer standing,
respondent approached A.M. and said that he had told A.M. to stand. Respondent grabbed
two of the stool legs, causing A.M. to lose his balance, fall, and hit his head. Respondent
expressed no concern for the student’s condition after the fall. Respondent testified that he
did not pull the stool legs until he thought A.M. was standing up, and that he did not intend
to cause A.M. to fall. The evidence established, to the contrary, that respondent acted angrily
and aggressively and intended to cause A.M. to fall.

18. The District alleged (FASOC, ¶ 13) but did not establish that respondent
violated the directives of Assistant Principal Debbie Broadway by failing to make himself
available for telephone calls and by failing to provide adequate lesson plans while on paid
administrative leave. Broadway called respondent at home and left him a voicemail message;
respondent called back within a reasonable time. Respondent provided the requested lesson
plans; the Board did not establish that they were inadequate. Although the substitute teacher
responsible for respondent’s classes requested explanation of some of the details of those
plans, respondent was prohibited from contacting the substitute teacher to explain those
details.

The 2011-2012 School Year

19. The District alleged (FASOC, ¶ 14) and established that, on October 10, 2011,
respondent responded inappropriately to a student’s uniform violation. Respondent noticed
that student J.M. was wearing his pants low, in violation of school policy. Respondent
directed student J.M. to wait outside the classroom, and kept student J.M. outside for 25 to

4
To maintain confidentiality, this decision identifies students and their parents by
their initials.

6
35 minutes before joining him. Respondent told student J.M. that he was violating the school
dress code, pulled up student J.M.’s shirt and exposed the student’s abdomen, made student
J.M. tuck in his shirt despite the absence of any dress code requirement that he do so, and
told the student he was acting “stupid,” all of which embarrassed student J.M.

20. The District alleged (FASOC, ¶ 15) and established that, on October 17, 2011,
respondent treated a student disrespectfully by failing to follow proper procedures and return
the student’s property in a timely manner. Respondent confiscated a skateboard from student
B.L. during the lunch period, in accordance with the school’s skateboard policy;
respondent’s uncontroverted testimony was that he saw a friend of student B.L.’s waving the
skateboard in the air and slamming it down on a concrete planter. Respondent told B.L. he
could retrieve the skateboard after school from school administration. Respondent stored the
skateboard in his classroom until the end of the school day. At the end of the school day,
B.L. asked a school administrator for the skateboard; the administrator said he did not have
it. B.L. then asked respondent for it; respondent refused to return it to B.L. or turn it over to
the school administrator, telling B.L. he was going to a meeting. Respondent kept the
skateboard in his classroom until the next morning, when the skateboard was returned to the
student.

21. The District alleged (FASOC, ¶ 16) and established that, on October 21, 2011,
respondent made students uncomfortable by taking photographs of them at lunchtime
without permission. The group of students was eating lunch outside; there was litter on the
ground around them. Rather than ask for the students’ names, respondent took photographs
of the students, telling them that he would “send the pictures in” if they did not pick up the
trash in the area.

22. The District alleged (FASOC, ¶ 17) but did not establish that, on November 9,
2011, respondent prevented his students from using the classroom computers. Only student
J.B. testified that he was unable to use the computer that day, which, he claimed, resulted in
his being unable to timely submit an assignment. The District alleged that respondent marked
down the student’s grade for turning the assignment in late, but the evidence did not establish
that the student lost any points.

23. The District alleged (FASOC, ¶ 18) and established that, on November 28,
2011, when student E.D. turned in an assignment, respondent threw the assignment on the
floor and called it “garbage” because it was unstapled.

24. The District alleged (FASOC, ¶ 19) but did not establish that, in November
2011, respondent deducted points from student J.B.’s grade for carrying his baseball
equipment into his classroom.

25. The District alleged (FASOC, ¶ 20) and established that, on December 1,
2011, respondent responded to Principal of Instruction Gonzalo Moraga’s e-mail request to
meet regarding parent complaints with, “Does this crap ever end?”

7
 26. The District alleged (FASOC, ¶ 21) and established that, on December 9,
2011, respondent told a parent during a meeting to discuss a student’s grade that he did not
want to continue to hold the meeting while Moraga was present. The District alleged but did
not establish that respondent told the parent, “Mr. Moraga is out to get me,” and, “I don’t
want to say anything because he is going to write me up.”

27. The District alleged (FASOC, ¶ 22) but did not establish that, on February 29,
2012, there were deficiencies in respondent’s classroom performance. The evidence did not
establish that respondent failed to post an objective on the board, or that he failed to review
the purpose, objective, or expectations for an assignment prior to directing students to work
on the computers. The evidence did not establish that respondent failed to provide a deadline
for completion or explain how the assignment would be graded. Several students were unable
to access a computer, as 15 computers were out of commission, but the evidence did not
establish that the students were unable to do their assignments; there were non-computer
based elements to the assignment. The evidence did not establish that respondent failed to
check for understanding; there was evidence that respondent was reviewing students’
computer work while at his desk, on his computer, and that he also repeatedly walked around
the classroom and checked students’ work.

28. The District alleged (FASOC, ¶ 23) and established that, on March 12, 2012,
respondent refused to follow a verbal directive from Moraga. Moraga called respondent’s
classroom and directed respondent to allow student S.B., whom respondent had sent to
Moraga’s office, back into the classroom with his baseball bat and equipment bag.
Respondent refused, saying he would take a sick day instead. Moraga kept the baseball
equipment in his office, and student S.B. returned to respondent’s classroom. Two days later,
on March 14, 2012, Moraga met with respondent and directed him not to confiscate sports
equipment from students, send students out of his classroom for carrying sports equipment,
or discipline students for carrying sports equipment into his class.

29. The District alleged (FASOC, ¶ 24) but did not establish that, on March 16,
2012, respondent willfully refused to follow Moraga’s March 14, 2012, directive. Student
S.B. brought his baseball bat and equipment bag into class again. Respondent told S.B. that
he would have to store the bat in the office or an unobtrusive area of the classroom.
Respondent did not confiscate the equipment, send S.B. out of the classroom, or discipline
S.B. for carrying his baseball equipment into the classroom. The District also alleged but did
not establish that respondent suspended S.B. to the Alternate Classroom Experience (“ACE”)
program and deducted 20 points from S.B.’s participation grade in defiance of Moraga’s
March 14 directive.

30. The District alleged two separate acts in this charging allegation. (FASOC,
¶ 25.)

a. The District alleged and established that, on April 2, 2012, respondent

submitted lesson plans to Mr. Moraga with an inappropriate statement regarding his recent

8
administrative leave. Although the lesson plans were shown only to Moraga, not to the
students, respondent’s written comment about his “foolish suspension” was inappropriate.

b. The District alleged but did not establish that respondent refused to
submit additional lesson plans in defiance of Moraga’s directives. Respondent was excused
from submitting additional lesson plans, pending an investigation, and the evidence did not
establish that respondent never submitted additional lesson plans.

31. The District alleged (FASOC, ¶ 26) but did not establish that, on April 2,
2012, respondent asked Moraga to leave his class because Mr. Moraga might “write him up.”
Respondent asked Moraga not to enter the classroom because the computer network was
inoperative. The District also alleged but the evidence failed to establish that students were
not working on any assignments while the network was down.

32. The District alleged (FASOC, ¶ 27) but did not establish that, on at least two
occasions during the 2011-2012 school year, respondent forced students to sit at their desks
the entire block period, not allowing them to log onto the computers to submit their
assignments.

33. The District alleged (FASOC, ¶ 28) but did not establish that, during the 2011-
2012 school year, respondent frequently insulted students and responded inappropriately to
minor student issues or requests.

a. Respondent did not “belittle[] all of the students, telling them, they will
be living on the streets, when they are 18.” The alleged statement was taken out of context;
respondent’s actual statement was not belittling.

b. Parent T.C. reported to Moraga that respondent belittled her son; she
never spoke to respondent about it, as Moraga had told her to do, and the evidence does not
establish that respondent’s criticism of student K.C.’s work was unjustified or improper.

c. L.S., parent of student Z.S., reported that respondent intimidated and

insulted students and that respondent threatened her son with detention for asking a question.
Student Z.S.’s testimony did not corroborate his mother’s complaint.

34. The District alleged (FASOC, ¶ 29) but did not establish that, during the 2011-
2012 school year, respondent deducted ten points from two students’ participation grades for
using Photoshop after completing an assignment and when he directed the students to sweep
the classroom. With respect to this incident, the evidence was controverted and did not
establish that respondent’s actions were in any way inappropriate.

35. The District alleged (FASOC, ¶ 30) and established that, during the 2011-2012
school year, respondent told student J.R. that the work he had done on an assignment was
“crap.” The District alleged and established that respondent belittled students in his classes.

9
 36. The District alleged (FASOC, ¶ 31) but did not establish that, during the 2011-
2012 school year, respondent ordered student J.S. to “rip [his] paper in half in front of the
class” because he had misread the assignment directions. The evidence did not establish
either that respondent ripped up the assignment himself or told student J.S. to do so.

37. The District alleged (FASOC, ¶ 32) but did not establish that, during the 2011-
2012 school year, respondent retaliated against students when they or their parents
complained about respondent to administration or questioned his instruction. The allegation
is based on the unsubstantiated and controverted statement of Parent J.R.

38. The District alleged (FASOC, ¶ 33) but did not establish that, during the 2011-
2012 school year, respondent pushed a chair over in class. There was no evidence to support
an unsubstantiated allegation about a chair being pushed over that was written by a student’s
parent who did not claim to have witnessed the alleged act.

39. The District alleged (FASOC, ¶ 34) but did not establish that, during the 2011-
2012 school year, respondent failed to respond to parent concerns.

a. Contrary to the District’s allegations, the evidence showed that

respondent did respond to parents’ concerns. Student B.R.’s claim that respondent told
students that he would not listen to parent complaints was unsubstantiated and controverted.

b. Parent M.B. felt respondent was unwilling to help her son by meeting
with him outside of class hours. The evidence showed that respondent had posted office
hours when he was available to meet with students after school, and that he did meet with
students after school. The evidence did not establish that respondent was required to make
himself available at other times more convenient for M.B.’s son.

40. The District alleged (FASOC, ¶ 35) but did not establish that, during the 2011-
2012 school year, respondent withheld the use of computers from all students as a form of
discipline for one class period and informed the students that the three assignments due that
day, each of which required use of a computer, would be recorded with scores of zero. There
was insufficient evidence to show that respondent caused the computers to be unavailable as
a form of discipline, or that the students were not given work to do during that class period.

41. The District alleged (FASOC, ¶ 36) but did not establish that, during the 2011-
2012 school year, respondent acted improperly when he spent 45 minutes trying to operate a
malfunctioning TV/VCR. The District alleged that, while respondent was attempting to
operate the TV/VCR, students were not engaged in guided instruction or working
independently on assignments, and that students were required to but could not complete an
assignment based on the video respondent was attempting to play because the video was not
shown in its entirety. The evidence did not establish any misconduct on respondent’s part.
The evidence established that the students were occupied with assignments during the class
period; as for the video assignment, the average score received by students in the class was
approximately 76 percent, and some students received an A grade.

10
 42. The District alleged (FASOC, ¶ 37) but did not establish that, during the 2011-
2012 school year, respondent improperly refused to lend relevant texts, such as Art Talk, to
students or make copies of the texts for students to study. The evidence demonstrated that the
texts in question were not relevant, were not assigned, and in any event were available for
use by students in the classroom after class.

43. The District alleged (FASOC, ¶ 38) and established that, during the 2011-2012
school year, respondent insulted and belittled a student when he informed the student that his
assignment “look[ed] like something my 7 year old would draw.” Respondent’s comment
was part of a continuing pattern of insulting and belittling his students (see, e.g., Factual
Finding 35).

44. The District alleged (FASOC, ¶ 39) but did not establish that, during the 2011-
2012 school year, respondent failed to effectively communicate grading policies and
assignment expectations to students and parents, that he assigned students zero scores on
assignments based on content respondent failed to teach, and that he deducted points from
student work in a manner that did not comport with the assignment evaluation information
provided to students. The evidence was insufficient to establish that respondent failed to post
his grading policy, that the policy was unclear, or that grades were based on untaught content
or reflected improper point deductions.

45. The District alleged (FASOC, ¶ 40) but did not establish that, during the 2011-
2012 school year, respondent failed to provide a class agenda or assignment criteria to
students and parents, that he was inconsistent in providing handouts on key concepts, grading
criteria, and expectations, and that he was inflexible about assignment due dates. The
evidence showed that respondent did provide handouts and posted the necessary information
on the school website, and that respondent was flexible and did extend due dates for
assignments.

46. The District alleged (FASOC, ¶ 41) and established that, during the 2011-2012
school year, respondent added a “participation” category into student grades. The evidence
did not establish that the participation category was intended to punish students or did, in
fact, constitute punishment.

Notices and Warnings Issued to Respondent

47. Respondent was provided with:

a. A Notice of Unprofessional Conduct and Unsatisfactory Performance

on May 19, 2011, which included a Performance Improvement Plan with nine directives;

b. A written summary of an October 27, 2011 conference between

respondent, Gonzalo Moraga, Chris Callopy, Assistant Executive Director of the Teachers
Association of Long Beach (TALB), and Bill Salas, dated October 28, 2011, in which
respondent was warned regarding his alleged unsatisfactory performance and unprofessional
conduct, and which included nine directives; and

11
 c. A Notice of Unprofessional Conduct and Unsatisfactory Performance
on March 2, 2012, which included a Performance Improvement Plan with eighteen
directives.

These notices and warnings were inadequate means for helping respondent remediate or
understand any deficiencies. Administration essentially issued commands to respondent; it
did not work with respondent, develop a meaningful plan, or provide resources to help
respondent achieve specified directives.

48. On April 26, 2012, Moraga prepared an evaluation rating respondent’s

performance as unsatisfactory. The evaluation was based on Moraga’s observations of
respondent’s classroom instruction on December 8, 2011, and February 29, 2012. Moraga
wrote that respondent “is not recommended for continued service.” (Ex. 2, Tab 27.)

LEGAL CONCLUSIONS

Jurisdiction

1. The Commission has jurisdiction to proceed in this matter under section

44944. (Factual Findings 1 through 10.)

Burden of Proof

2. The District has the burden of proof in this matter, since it is seeking to
dismiss respondent from employment as a certificated employee. The District must prove its
case by a preponderance of the evidence. (Gardiner v. Commission on Prof. Competence
(1985) 164 Cal.App.3d 1035, 1040.)

Statutory Grounds for Dismissal

3. The governing board of a school district may dismiss a permanent certificated

employee if one or more of the causes enumerated in section 44932, subdivision (a), are
established. In the First Amended Accusation and FASOC, the District alleged four of those
enumerated causes: unprofessional conduct, unsatisfactory performance, evident unfitness
for service, and persistent violation of school laws or regulations. (Factual Finding 11.)

4. The District’s First Amended Accusation and FASOC charged respondent

with numerous acts. The First Amended Accusation and FASOC set forth specifically, for
only some but not all of the factual allegations, which allegations relate to which of the
alleged bases for dismissal under section 44932, subdivision (a) (that is, unprofessional
conduct, unsatisfactory performance, evident unfitness for service, or refusal to obey the
school laws or regulations). The District alleged in the FASOC, however, that the alleged
acts and omissions support one or more of the four bases for discipline and support
respondent’s dismissal

12
 5. The Commission has examined each charge to determine whether it was
proven, and for those proven has determined, as set forth below, whether the charges were a
violation of one or more of the statutory bases for dismissal as alleged.

Unprofessional Conduct

6. “Unprofessional conduct,” as used in section 44932, subdivision (a)(1), may

be defined as conduct that violates the rules or ethical code of a profession or that is
unbecoming a member of a profession in good standing. (Board of Ed. v. Swan (1953) 41
Cal.2d 546, 553, overruled on other grounds in Bekiaris v. Board of Ed. (1972) 6 Cal.3d 575,
588, fn. 7.)

7. Of the charged acts found by the Commission to have been committed by

respondent, 11 constitute unprofessional conduct within the meaning of section 44932,
subdivision (a)(1), as set forth in Factual Findings 16, 17, 19, 20, 21, 23, 25, 28, 30, 35, and
43.5

Unsatisfactory Performance

8. “Unsatisfactory performance,” which is not defined in the Education Code or

in case law, means something other than unprofessional conduct. (See § 44938, subd. (c); In
re Maes (2010) 185 Cal.App.4th 1094, 1110.) Cause for discipline may be established if a
certificated employee performs unsatisfactorily in the opinion of his or her employing school
district. An employing school district cannot, however, arbitrarily or capriciously decide that
a certificated employee has performed unsatisfactorily. (Bakersfield Elementary Teachers
Assn. v. Bakersfield City School Dist. (2006) 145 Cal.App.4th 1260, 1293, fn. 20, citing 56
Cal.Jur.3d (2003) Schools, § 411, p. 757) (purpose of statute giving tenure to teachers is to
ensure efficient permanent teaching staff whose members are not dependent on caprice for
their positions).

9. The evidence did not establish most of the alleged acts that, according to the
District, constituted unsatisfactory performance and for which the District provided
respondent notice (see Factual Findings 47 and 48). Those alleged but mostly
unsubstantiated acts related to respondent’s assignments and grading system, his presentation
of lessons and supervision of students, and his statements to students in the classroom and
responses to parents. (Factual Findings 11-48.)

10. Nor do the acts that the Commission found respondent, in fact, committed
(Factual Findings 16, 17, 19, 20, 21, 23, 25, 28, 30, 35, and 43) constitute unsatisfactory
performance within the meaning of section 44932, subdivision (a)(4). The Commission
found that respondent threw a skateboard into a planter, grabbed the legs of a stool a student

5
The Commission determined that the action of respondent set forth at Factual
Finding 26 was not an instance of unprofessional conduct or of any other statutory ground
for dismissal.

13
was sitting on and caused the student to fall, took photographs of some students, called an
unstapled assignment “garbage,” wrote “Does this crap ever end” about inquiries from
Moraga concerning parent complaints, requested that Moraga not be present for a parent
meeting, refused to comply with a verbal directive about a student with a baseball bat,
characterized his suspension as “foolish” on a draft lesson plan submitted to Moraga, and
told a student that the work he had done on an assignment was “crap.” The Commission has
already found that most of those acts constitute unprofessional conduct. The evidence did not
support an additional finding that Moraga’s dissatisfaction with respondent established the
charge of unsatisfactory performance. Respondent and Moraga were frequently at odds
during Moraga’s first year as principal at Wilson High, the 2011-2012 school year. The fact
that the evidence did not substantiate most of the acts alleged in Moraga’s notices of
unsatisfactory performance suggests that the administration’s expressions of dissatisfaction
with respondent’s conduct were, at least to some degree, the result of a personal dispute
between respondent and the principal, rather than respondent’s failure to meet the District’s
reasonable, non-arbitrary expectations. The District’s failure to work constructively with
respondent to correct perceived deficiencies lends support to that suggestion. (Factual
Finding 47.)

Evident Unfitness for Service

11. “Evident unfitness for service,” within the meaning of section 44932,
subdivision (a)(5), means clearly not fit or suitable for teaching, ordinarily by reason of a
temperamental defect or inadequacy. (Woodland Joint Unified School Dist. v. Commission
on Prof. Competence (1992) 2 Cal.App.4th 1429, 1444-1445.) Evident unfitness for service
requires that unfitness be attributable to a defect in temperament that “connotes a fixed
character trait, presumably not remedial upon receipt of notice that one’s conduct fails to
meet the expectations of the employing school district.” (Id. at p. 1444.)

12. Of the charged acts found by the Commission to have been committed by
respondent (Factual Findings 16, 17, 19, 20, 21, 23, 25, 28, 30, 35, and 43), none constitutes
evident unfitness for service.

13. The evidence did not establish that respondent’s acts of unprofessional
conduct reflect an irremediable character trait rendering respondent unfit to teach. The
Commission determined, therefore, that cause does not exist to dismiss respondent for
evident unfitness for service under section 44932, subdivision (a)(5).

Persistent Violation of School Laws or Regulations

14. Under section 44932, subdivision (a)(7), a permanent employee may be

dismissed from employment for persistent violation of school laws or reasonable regulations
prescribed by the government of public schools by the State Board of Education or by the
governing board of the school district employing him. The violation or refusal to obey
reasonable regulations must be persistent or “motivated by an attitude of continuous
insubordination.” (Governing Bd. of the Oakdale Union School Dist. v. Seaman (1972) 28
Cal.App.3d 77, 81-82.) Isolated events or incidents involving an issue unresolved over a

14
period of time are generally not considered persistent. (Bourland v. Commission on Prof.
Competence (1985) 174 Cal.App.3d 317, 320 (absent violation of school rules, lengthy
private debate between teacher and principal does not indicate continual insubordination
seriously affecting school discipline).) Cause for discipline may be based on the violation of
school rules, but requires a showing of intentional and continual refusal to cooperate. (San
Dieguito Union High School Dist. v. Commission on Prof. Competence (1985) 174
Cal.App.3d 1176, 1180-1181.)

15. The charged acts found by the Commission to have been committed by
respondent (Factual Findings 16, 17, 19, 20, 21, 23, 25, 28, 30, 35, and 43), do not constitute
a persistent violation of laws or regulations. While the act established at Factual Finding 28
violated a directive from Moraga, for instance, complainant did not establish anything more
than isolated incidents, and did not establish that respondent persistently violated school
rules, the District code of conduct, or any other directive, policy, law, or rule set by the
District or the State Board of Education.

Analysis of the Morrison Factors

16. In Morrison v. State Bd. of Education (1969) 1 Cal.3d 214, 235 (Morrison),
the California Supreme Court held that “an individual can be removed from the teaching
profession only upon a showing that his retention in the profession poses a significant danger
of harm to either students, school employees, or others who might be affected by his actions
as a teacher.” The Court concluded that a teacher’s conduct cannot abstractly be
characterized as “unprofessional” unless the conduct indicated that a teacher is unfit to teach.
(Id. at p. 229.) The court set forth factors to consider in determining whether the conduct in
question indicated unfitness. As it has been determined in this case that most of the alleged
conduct did not occur, it is only necessary to discuss the “Morrison factors” as they relate to
acts that the Commission has found did occur and constituted unprofessional conduct.6 That
conduct is set forth in Factual Findings 16, 17, 19, 20, 21, 23, 25, 28, 30, 35, and 43.

17. The Morrison factors for the trier of fact to analyze in determining whether a
teacher is unfit to teach are: (1) the likelihood of the conduct adversely affecting students or
fellow teachers and the degree of such adversity; (2) the proximity or remoteness in time of
the conduct; (3) the type of teaching certificate held by the teacher; (4) the existence of
extenuating or aggravating circumstances and publicity, if any, surrounding the conduct; (5)
the praiseworthiness or blameworthiness of the motives resulting in the conduct; (6) the
likelihood of recurrence of the questioned conduct; and (7) the extent that the discipline may
adversely impact or have a chilling effect on the constitutional rights of the teacher.

18. Not all Morrison factors need be present for the Morrison test to be satisfied.
(Governing Bd. of ABC School Dist. v. Haar (1994) 28 Cal.App.4th 369, 384.) Moreover, the
6
The Morrison analysis does not apply to causes for dismissal for unsatisfactory
performance or for persistent violation of laws and regulations. (Morrison, supra, 1 Cal.3d at
pp. 227-230.) It is presumed that such conduct is related to fitness to teach.

15
Morrison analysis need not be conducted on each individual fact established; it can, rather,
be applied to the accumulated facts established collectively. (Woodland Joint Unified School
Dist. v. Commission on Prof. Competence (1992) 2 Cal.App.4th 1429, 1457.)

19. Applying the Morrison factors in this case, taking into consideration the
Commission’s factual findings and the reviewing courts’ directives, the Commission finds as
follows:

a. Complainant established the likelihood that the conduct set forth in

Factual Findings 16, 17, 19, 20, 21, 23, 25, 28, 30, 35, and 43 would adversely affect
students or fellow teachers. Though respondent engaged in unprofessional conduct in the
2009/2010 and 2010/2011 school years, his pattern of insulting and belittling students was
concentrated in the 2011/2012 school year, his most recent year teaching for the District. It
affected not only those students involved but other students who witnessed respondent’s
behavior, and likely other students who only heard about the behavior. A good deal of
respondent’s supervisor’s time was consumed in managing issues concerning respondent.
Although many of those issues were not well-founded, and respondent had cause to feel that
the school administration was not working with him to correct perceived deficiencies,
respondent made some poor choices in defying his supervisor (see Factual Findings 20, 28,
and 30(a)) that could have an adverse effect on students and other teachers.

b. Because some of the misconduct is relatively proximate in time, in that

it occurred two to three years before the hearing on this matter, it can be established as
grounds for a finding of unfitness to teach.7

c. The evidence did not establish respondent’s unfitness to teach classes

in the subject matter for which he is credentialed. (See Factual Findings 13, 18, 22, 27, 30,
32-34, 36, 37, 39-46.)

d. The evidence did not establish the existence of aggravating

circumstances surrounding respondent’s conduct. There was some evidence of mitigating
circumstances during the 2011-2012 school year, when respondent’s father was ill. (Factual
Finding 14.)

e. For most of the acts of unprofessional conduct set forth in Factual

Findings 16, 17, 19, 20, 21, 23, 25, 28, 30, 35, and 43, respondent did not have motives
sufficiently praiseworthy to excuse his conduct. At various times, when respondent’s motive
was to enforce school policies, respondent acted angrily, aggressively, or unfairly, and used
inappropriate methods to enforce those policies. On various occasions, where students’
conduct or performance was lacking, respondent did not work with those students
constructively to reshape their behavior, but repeatedly insulted and belittled them.

7
As of the date of this Decision on Remand, however, even students who were
freshmen in 2012 would likely no longer be students at the high school.

16
 f. Based on evidence on the record, it is likely that respondent will
continue to display anger and aggression toward students, to inappropriately enforce certain
school policies, to engage in a pattern of belittling conduct toward students, and to defy
administrators with whom he disagrees.

g. The Commission did not find that discipline is likely to cause an

adverse impact or chilling effect upon the constitutional rights of respondent or other
teachers.

Disposition

20. Even where cause for dismissal has been established, the Commission has
broad discretion to determine whether such discipline is actually warranted. (Fontana
Unified School Dist. v. Burman (Fontana) (1988) 45 Cal.3d 208, 220-222.) “The
Commission has broad discretion in determining what constitutes unfitness to teach . . . , and
whether dismissal or suspension is the appropriate sanction. [Citing Fontana, supra, 45
Cal.3d at pp. 220-222.] ‘[A] disciplinary discharge often involves complex facts and may
require a sensitive evaluation of the nature and seriousness of the misconduct and whether it
warrants the grave sanction of dismissal.’ [Citation].” (California Teachers Assn. v. State of
California (1999) 20 Cal.4th 327, 343-344.)

21. In this case, the District established that respondent’s dismissal is warranted.
(Factual Findings 11-48 and Legal Conclusions 1-20.) The Commission members agree
unanimously. The Commission finds that respondent engaged in acts of unprofessional
conduct that, in the aggregate, demonstrate his unfitness to serve as a teacher. Based on the
evidence on the record, respondent has had no other disciplinary history with the District,
and his conduct did not constitute unsatisfactory performance or persistent violations of
school laws or regulations. Nevertheless, the Commission believes that dismissal is
necessary to protect students, school employees, or others or to further deter respondent from
engaging in similar conduct in the future.8

//

//

//

//

//

8
The substantive, procedural, and evidentiary issues raised by respondent regarding a
grievance procedure and a collective bargaining agreement are not properly considered in
this forum.

17
 ORDER

The First Amended Accusation and First Amended Statement of Charges against
respondent James Kelley are affirmed. Respondent’s employment with the Long Beach
Unified School District is terminated.

DATED: October 13, 2017

________________________________
HOWARD W. COHEN
Administrative Law Judge
Office of Administrative Hearings

I concur with the Decision and Order set forth above:

DATED: October 16, 2017

________________________________
ROGER ESPINOSA
Commission Member

I concur with the Decision and Order set forth above:

DATED: October 16, 2017

_________________________________
DOUG THOMPSON
Commission Member

18
 BEFORE A
COMMISSION ON PROFESSIONAL COMPETENCE
SAN JOSE UNIIFED SCHOOL DISTRICT
COUNTY OF SANTA CLARA
STATE OF CALIFORNIA

In the Matter of the Statement of Charges

Against: OAH No. 2017020208

CHRIS MICHELETTI,

A Permanent Certificated Employee,

Respondent.

DECISION

A Commission on Professional Competence convened to hear this matter on June

12-15, 2017, in San Jose, California. Commission members are Beth Kanaly, Coreen
Aldapa, and Administrative Law Judge Regina Brown, State of California, Office of
Administrative Hearings, who served as the Chair of the Commission.

Ingrid A. Meyers, Attorney at Law, Dannis Woliver Kelley, represented complainant

J. Dominic Bejarano, Assistant Superintendent, San Jose Unified School District.

Joseph A. Cisneros, Attorney at Law, Biegel Law Firm, represented respondent Chris
Micheletti, who was present throughout the hearing.

The record closed and the matter was submitted for decision on June 15, 2017.1

1
On April 26, 2017, a protective order (which is part of the administrative record)
was issued, per stipulation of the parties, designating all documents identifying students
and/or their parents as confidential and outlining the circumstances under which the
confidential materials may be disclosed.
 FACTUAL FINDINGS

Jurisdiction and Allegations

1. Respondent Chris Micheletti has been a certificated employee of the San Jose
Unified School District (District) since August 29, 2014, where he worked as a seventh grade
co-ed physical education (PE) teacher at Herbert Hoover Middle School (Hoover).
Respondent taught five class periods daily with up to 35 students in each class.

2. On December 9, 2016, J. Dominic Bejarano, Assistant Superintendent,

Administration Services, on behalf of the District, served respondent with a Statement of
Charges and Recommendation for Dismissal and for Immediate Unpaid Suspension.
Respondent filed a timely Notice of Defense and Request for Hearing, and this hearing
followed.

3. The Statement of Charges seeks respondent’s dismissal based upon alleged

immoral conduct, dishonesty, evident unfitness for service, and persistent violation of or
refusal to obey the school laws of the state or reasonable regulations prescribed for the
government of the public schools by the State Board of Education and/or by the governing
board of the District. The Statement of Charges alleges that during the 2015-2016 and
2016-2017 school years, female students reported that respondent looked at them
inappropriately, touched their bodies while pretending that it was an accident, and treated
them differently from the male students. The Statement of Charges also alleges that
respondent had erections while speaking to female students. In addition, the Statement of
Charges alleges that respondent lied in his application for employment with the District and
he was dishonest with District administrators on multiple occasions when asked about the
location of his District-issued laptop when he was placed on administrative leave.2

4. Credibility determinations are at the heart of this case. Respondent denied the
allegations made against him regarding his interactions with students. The claims made by
the female students against respondent were established by the consistent and persuasive
testimony of multiple female students, and a male student. In light of the solid, credible and
persuasive evidence establishing that he treated female students differently from male
students and that he had erections in front of female students, respondent’s denial of any
wrongdoing lacked credibility and candor. Accordingly, as set forth below, the conduct
alleged and proven at the hearing established cause for respondent’s dismissal as sought in
the Statement of Charges.

2
At hearing, the District withdrew the allegations in the Statement of Charges that
the District discovered nude photographs on respondent’s District-issued laptop and that
respondent attempted to delete nude photographs from the laptop.

2
 5. At all times relevant to the Statement of Charges, the following District
policies or guidelines, which respondent received and was aware of, were in effect:

a. Code of Ethics: Pursuant to District Board Policy 4119.21, subdivision

(a), the Board expects employees “to maintain the highest ethical standards, to follow district
policies and regulations, and to abide by state and national laws. Employees conduct should
enhance the integrity of the district and the goals of the education program.”

b. Duties of Personnel: Pursuant to District Board Policy 4119.3, the

Board expects that “[a]ll employees shall fulfill the duties and responsibilities set forth in
their job descriptions and shall comply with Board policies, administrative regulations,
applicable employee agreements, and local, state and federal laws.”

c. Discrimination and Harassment: Pursuant to District Board Policies

0410, 5137, 5145.3, discrimination and harassment of students is prohibited, and the focus
should be on creating “an orderly, caring and nondiscriminatory learning environment in
which all students can feel comfortable and take pride in their school and their
achievements.” The Board also “encourages staff to teach students the meaning of equality,
human dignity, and mutual respect. . . .”

d. Sexual Harassment: Pursuant to District Board Policy 5145.7,

harassment and discrimination in the school environment is specifically prohibited. “Sexual
harassment includes, but is not limited to, unwelcome leering, sexual flirtations or
propositions; unwelcome sexual slurs and leering; massaging, grabbing, fondling, stroking,
or brushing the body; and sexual pictures, obscene gestures or computer-generated images of
a sexual nature.”

Background

2014-2015 School Year

6. On May 7, 2015, Hoover principal Donald V. McCloskey received a

complaint from a student (M.L.)3 that respondent had erections while teaching his PE class.
This student named other students who also observed respondent have erections during class.
Respondent was placed on paid administrative leave.

7. On May 8, 2015, respondent sent an email to McCloskey, stating:

Wow, why was this exactly? Is this related to the recent

swimming issue from a few girls in 5th period, whose
complaints are completely unfounded, which we discussed and
basically was resolved a day later with each of the girls
swimming having fun in the pool the very next day??? FYI that

3
The names of the minor students are confidential to protect their privacy.

3
 was very embarrassing today and rather uncalled for having to
be escorted [off] the premises like that. He even said in front of
others both students and colleagues that I’m being put on paid
leave and need to gather my belongings. This should have been
done before 1st period or after 6th, that was ridiculous. What is
this about exactly Don? I still have no idea why. Do I need to
contact my attorney?

8. Officer R. Cardenas is a police officer with the San Jose Police Department
(SJPD) and he has worked in the District for the past five years. Officer Cardenas was
assigned to conduct the investigation into the allegations against respondent. He interviewed
three students. The students told Officer Cardenas that respondent looked at female students
while having an erection which he did not attempt to hide and this made the female students
feel uncomfortable. A female student told Officer Cardenas that respondent made her feel
uncomfortable when she wore her bathing suit during swimming class and she did not want
to be in his class. A male student (S.M.) told Officer Cardenas that he observed respondent
have erections four to five times per week and saw him staring at female students when they
bent over to stretch. S.M. told Officer Cardenas that he did not have any problems with
respondent, but he felt uncomfortable when these things happened. Officer Cardenas asked
each student if he or she had personal issues with respondent. They each responded that they
were not failing respondent’s class and that they were not “out to get” respondent. Officer
Cardenas found the students to be credible. Officer Cardenas did not interview respondent.

9. Officer Cardenas prepared a report and turned it over to the SJPD sexual
assault investigation unit. The matter was not sent to the district attorney for prosecution
because it was determined that respondent having erections in front of his female students
was not a criminal offense.

10. On August 3, 2015, respondent was taken off paid administrative leave and he
returned to his teaching assignment at Hoover for the 2015-2016 school year. The District
did not reprimand respondent for any conduct. There were no complaints filed against
respondent during the 2015-2016 school year. He passed his two-year probationary period.

11. The candid and credible testimony of witnesses McCloskey, Cardenas, S.M.
and supporting documentary evidence, established the facts set forth in Factual Findings 6
through 10. It was established that respondent had erections while teaching his PE class
during the 2014-2015 school year, as alleged in the Statement of Charges in paragraph 11.B.4

2016-2017 School Year

12. In the 2016-2017 school year, several seventh grade female students were in a
support group for social/emotional issues with Karen Kochenburg, a student support
4
At hearing, the District noted an error in the Statement of Charges that there were
two paragraphs numbered 11, and changed them to paragraphs 11A and 11B.

4
counselor, who has worked at Hoover for over nine years. During a group session, female
students in respondent’s 4th period PE class mentioned that respondent had erections during
class. One student stated that she did not want to go to respondent’s class because of his
conduct. Kochenburg told the students to talk to the principal and their parents. Kochenburg
also gave the students information about how to start a petition.

13. Female students (A.P., E.V., M.G., H.M.) created and circulated a petition and
obtained approximately 100 signatures of female and male students. Not all of the signers
were in respondent’s PE class, but they signed the petition to support the female students
who were in his class. The petition stated, in relevant part, that:

We the female students of Hoover have felt violated by Mr.

Micheletti. He has looked at bodys (sic) inappropriately and has
touched girls bodies pretending to be on accident. We have all
noticed that he treats us girls differently than boys. We believe
Mr. Micheletti has gotten away with a lot and had had no
consequences. We believe Mr. Micheletti should face some
consequences for his actions. He also has gotten erections while
talking to female students.

14. In November 2016, the students gave the petition to principal McCloskey, who
initiated an investigation. First, he conducted a group meeting with the female students who
created the petition. They told McCloskey that respondent treated the female students
differently, that he had erections while teaching the class and that he looked inappropriately
at the female students. Next, McCloskey interviewed A.P., E.V., and H.M. separately and
asked each of them the same questions. Again, they confirmed respondent’s conduct in
class. Each indicated that respondent had not touched them inappropriately. McCloskey
also spoke to Kochenburg.

15. During his interviews, McCloskey found A.P. to be credible. She had never
made any other claims against respondent. She also had no discipline referrals. McCloskey
found E.V. to be credible and she was not a problem student. McCloskey also found H.M. to
be credible, although she had been in trouble before and had a lot of issues. However, H.M.
had never made prior complaints against any adult at the school. Overall, McCloskey had no
reason to believe that they were making up the allegations. McCloskey believed the female
students and that the incidents had occurred.

16. McCloskey also randomly interviewed every ninth student that signed the
petition. These students happened not to be in respondent’s PE class, but had signed the
petition in support of the female students. McCloskey notified Assistant Superintendent
Bejarano about the petition. Bejarano interviewed three additional students who
corroborated what was stated in the petition, except the allegation that respondent had
inappropriately touched female students.

5
 17. The candid and credible testimony of witnesses McCloskey, Kochenburg,
Bejarano, A.P., H.M., E.V., and supporting documentary evidence established the facts set
forth in Factual Findings 12 through 16. It was established that respondent looked at female
students inappropriately, treated female students differently, and had erections while teaching
his PE class during the 2016-2017 school year, as alleged in the Statement of Charges,
paragraphs 12 through 16.

18. The evidence was insufficient to establish that respondent touched female
students’ bodies while pretending it was an accident, as alleged in the Statement of Charges.

Dishonesty Regarding Location of Respondent’s District-Issued Laptop

19. On November 7, 2016, respondent attended a meeting with Bejarano and was
placed on administrative leave. Bejarano asked respondent to turn in his District-issued
laptop. Respondent said that the laptop was in the PE office. Back at Hoover, when
McCloskey went to retrieve the laptop, it was not in the PE office.

20. On November 15, 2016, Bejarano and Assistant Superintendent Stephen

McMahon met with respondent and his union representative, Debbie Baker, to discuss the
allegations. Respondent denied the allegations. He was informed that he would be
dismissed. Respondent stated that he did not know where his laptop was, but that it might be
in his vehicle. When respondent went to retrieve the laptop, it was not in his vehicle.

21. On November 16, 2016, District Chief of Police Jesse Toscano went to
respondent’s residence to retrieve the laptop. Initially, respondent told Toscano that he did
not have the laptop. When Toscano told respondent that he was a peace officer and the
District’s technology department had “pinged” the laptop at his residence, respondent stated
that he would get the laptop from his home office. Respondent asked Toscano to wait while
he transferred personal data from the laptop onto a hard drive. Toscano allowed him to do
so. Toscano turned the laptop over to District Technology Director Emalle McGuiness.
Toscano prepared a statement regarding his interactions with respondent.

22. The candid and credible testimony of witnesses Bejarano, McCloskey,

Toscano, McGuiness, and supporting documentary evidence, established the facts set forth in
Factual Findings 19 through 21.

Dishonesty on Respondent’s Employment Application

23. Bejarano oversees the District’s human resources department. However, he

did not participate in the initial hiring of respondent. During his interviews of the students
regarding the petition, a male student told Bejarano that he had heard a rumor about
respondent when he worked at another school. In response, Bejarano reviewed respondent’s
personnel file.

6
 24. Bejarano determined that on July 30, 2014, respondent submitted a District
Certificated Employment Application (application) to the District. The application had a
question, “Have you ever resigned from any teaching/administrative position.” Respondent
marked the box, “No.” For the question, “have you ever been dismissed, or asked to resign,
from any teaching/administrative position” respondent marked the box, “No.” For the
question, “have you ever been non-reelected,” respondent marked the box, “No.” By signing
the application, respondent certified that all statements made in the application were true and
correct. The application specifically stated that “any omission or falsely answered statement
made by me on this application, or any supplement to it will be sufficient grounds for failure
to employ or for my discharge should I become employed with the district/County Office.”

25. According to respondent’s resume, he taught science at Brier Elementary in

2011-2012. He was a PE teacher at Shirakawa Elementary in 2009-2010, and St.
Christopher School in 2008-2009. He worked as a substitute teacher between 2004-2007 for
the District, the Oak Grove School District and the Diocese of San Jose. He was also a youth
soccer coach/trainer from 2000 to 2010.

26. Bejarano compared respondent’s resume with his application and found
discrepancies. Bejarano found that respondent had resigned (or was released from his
employment contract) at Fremont Unified in February 2012. On his application, respondent
indicated that he had worked 12 months for the Fremont Unified School District from 2011
to 2012, as a science teacher. But, according to the employment verification submitted by
the employer, respondent did not work a total of 12 months and Fremont Unified indicated
that they would not employ respondent again. Also, there was a discrepancy for the dates of
his employment with the Diocese of San Jose, where on his application he wrote that he
worked 12 months from 2009 to 2010. However, the employment verification from the
Diocese of San Jose indicated that respondent did not work a full year. Also, his application
indicated that he worked for the Orchard School District for 24 months from 2012 to 2014.
However, the employment verification only confirmed that he worked during the 2013-2014
school year. Bejarano concluded that respondent was dishonest on his application.

27. The candid and credible testimony of witness Bejarano, and supporting
documentary evidence, established the facts set forth in Factual Findings 23 through 26.

Additional Evidence

28. McCloskey has been the principal at Hoover for four years and an employee
with the District for 24 years. He saw respondent daily wear either sweat pants or above the
knee athletic shorts. McCloskey evaluated respondent as part of the first two years of full
evaluation cycles in 2014-2015 and 2015-2016. McCloskey found that respondent did not
meet performance standards because he thought respondent could improve his relationship or
interaction with students. McCloskey also felt that respondent had a harsh tone, and as
reported by other staff and students, respondent could lose his temper. Also, respondent
“rubbed people the wrong way” because he protected his PE class and he did not see the
broader aspects of school. For example, if a student was pulled out of his class for speech

7
therapy or to see a counselor, respondent became annoyed because he did not believe that a
student should miss his class. McCloskey was aware that Kochenburg had a dispute with
respondent regarding scheduling counseling sessions during PE class time. During this time
period, McCloskey heard comments from male and female students that respondent was
being unfair. The female students felt that they were being picked on in class. McCloskey
did observe respondent treat female students differently where he would have them run
separately or play different games than the male students. He discussed this with respondent
as there was no reason to separate the female students from the male students. McCloskey
expected improvement from respondent. Although he completed the performance reviews,
McCloskey had no input on making respondent a permanent teacher.

29. McCloskey had no input in respondent’s return to the classroom for the
2015-2016 school year. He had concerns about respondent’s return and whether rumors
would spread causing difficulty with his success with students. If the allegations against
respondent were untrue, McCloskey did not want respondent labeled incorrectly.
McCloskey did not hear any rumors about respondent during the 2015-2016 school year.
McCloskey states that prior to receiving the petition in November 2016, no student
approached him with complaints about respondent.

30. McCloskey states that teachers have a responsibility to prepare students for
high school. In doing so, middle school teachers must show students how to contribute to
society. McCloskey expects teachers to be respectful to students.

31. McCloskey is concerned with respondent returning to Hoover if his dismissal

is not upheld because this recurring conduct occurred in two separate school years involving
different students. McCloskey feels that he needs to protect his students and if respondent
returns to Hoover, it would not be in the students’ best interest.

32. Bejarano testified that he can no longer trust respondent around students based
on his being dishonest about the location of his laptop on two occasions, the recurring
accusations involving inappropriate conduct with female students, and information obtained
from respondent’s former employers that differed from what he provided to the District prior
to his employment.

Respondent’s Evidence

33. Respondent received three single subject teaching credentials in history/social

science, PE, and general science from National Hispanic University in 2007. He graduated
from San Diego State University with a degree in anthropology in 2004.

34. Respondent denies all of the students’ allegations. Respondent states that he
wore regular PE attire and sunglasses because of the glare of the sun off the pool and the
black top outside. Respondent described the two-week swimming class. According to
respondent, he monitored the students and walked around the edge of the pool providing
instruction on technique and making sure there was no negative behavior by the students.

8
Respondent states that he was not checking out the bodies of female students while they were
swimming. Respondent also described running laps as part of the curriculum. Respondent
would stand where he could see the students while they ran and write down their lap times.
He states that he did not have an erection while students ran and he never looked at female
students in a sexual manner while they ran or exercised. Respondent states that he is not
attracted to females under the age of 18.

35. Respondent opined about the students who testified at hearing.

a. Respondent described S.M. as a good student who participated in class

and received good grades. Respondent believes that S.M. was the boyfriend of the student
that made the allegation against him in the 2014-2015 school year.

b. Respondent described E.V. as a quiet, shy, and good student. He did

not have any issues with her. Respondent states that he was not mean to her and he never
looked at her in a sexual way.

c. Respondent described H.M. as nice, but different and she kept to

herself; she refused to participate in class sometimes. He said that he had no personal issues
with her. Respondent states that he never spent five minutes staring at H.M. or other female
students.

d. Respondent described A.P. as introverted, quiet, shy, and polite. He

states that he had no issues with her. He did not believe that she liked PE. Respondent states
that “I don’t think that I ever made the comment ‘shake that money maker,” which A.P. said
he did. Respondent stated that he never looked at A.P. inappropriately.

36. Respondent stated that he first became aware of the rumor in Spring 2015
because it was on social media. He found this very embarrassing. Respondent
acknowledged that it is unusual for a PE teacher to have an erection around female students.

37. Regarding the allegation that he was dishonest about the location of his
District-issued laptop, respondent stated that when he was called to the District office and
placed on paid administrative leave that they did not give him a reason. He stated that he
asked for a reason three times. He believed that the District handled the matter in an
extremely unprofessional manner. Respondent stated that he was emotionally distraught and
that he did “nothing wrong or illegal whatsoever.” So, he was not focused and said that his
laptop “might” be in the PE office. Two weeks later, respondent was told that they had
completed their investigation (although they never questioned respondent), and they still did
not give him a specific reason for why there were dismissing him. They told him that his
laptop was not in the PE office, as he said. Respondent said that “maybe” he left it in his car;
although, it was not there.

9
 Respondent stated that when Officer Toscano came to his home to retrieve the laptop,
he told Officer Toscano that he was “not sure” where it was. Then, Officer Toscano said it
was “pinged” at his residence. Respondent stated that it was at that point that he “realized
that the laptop must be in [his] home office through the process of elimination.” Respondent
asked to transfer personal files to a hard drive, did so, and gave the laptop to Officer
Toscano.

38. Regarding the allegation that respondent treated female students different than
male students, he stated that he never discriminated against females students. Respondent
stated that he “may have been nicer to the girls.” He stated that he always gave the students
a choice to do co-ed or mixed games. Sometimes the students decided to play separately
when playing an aggressive game; some girls would say that they did not want to play with
the boys. Respondent said, “I was softer on the girls, if anything, I have a tendency to run
boys harder than the girls.” Respondent stated that he did not make the female students run
more than the males and only when a student misbehaved was the consequence to run more
laps.

39. Respondent addressed the allegation that he lied on his application.

Respondent stated that he had his interview at same time that he completed the application
and he had to complete it in a rush. He admitted that he made mistakes on the application.
He attributed this to not having his resume with him at the interview. He stated that he
should have put less than 12 months for his experience with Fremont. He stated that he was
teaching six science classes without preparation time and ended up working until midnight; it
was rigorous and demanding, with no support from the principal. He was given the option to
resign in February 2012, after he was told that Fremont would be non-reelecting him.
Respondent stated that during the interview, he informed the panel of this information. This
was not corroborated at hearing.

Respondent’s Witnesses at Hearing

40. Aaron Lilly is a PE teacher at Hoover, who was hired a year before
respondent. Lilly states that he never saw respondent have an erection. Lilly never saw
respondent treat female students harder than the males and he never saw respondent look at
female students inappropriately. Lilly admits that he was not with respondent all the time.
Lilly was not aware of any of the rumors about respondent. Lilly states that as a male PE
teacher himself, it is unusual to have erections around female students. Also, he believes that
it is not appropriate to have an erection in class and it is not appropriate to treat students
differently.

41. Kristy Cross is a consulting teacher and probationary supervisor and evaluator
of new teachers. Cross monitors a teacher’s progress and effectiveness in the classroom
before that teacher can become a permanent employee. Cross was respondent’s evaluator
during the 2015-2016 school year and observed him with the students. Cross never saw
respondent get an erection, did not observe him treat males differently from females, and did
not observe him look inappropriately at female students. Cross admitted that respondent had

10
a reason to be on his best behavior though when she was present. Cross found that
respondent met the performance standards.

42. Mario Galicia has been a PE teacher at Hoover for over 20 years. Galicia
never saw respondent have an erection, never saw him treat female students differently,
never saw him stare at female students; and never saw him behave inappropriately with
female students. Galicia believes that it is inappropriate for a male PE teacher to get an
erection in class, to treat students differently, and to look inappropriately at female students.
Galicia was not in a position to directly observe respondent teach his class from Galicia’s
location; he taught 6th grade PE. Galicia is concerned about the petition filed against
respondent because students could start a petition on anyone. However, Galicia
acknowledges that the female students should have filed a petition if the allegations were
true.

43. Respondent has no prior history of disciplinary action taken by the District.
Also, the District did not reprimand him in 2015, so according to respondent, the District
must have believed that he was a valuable employee despite the rumors.

44. Respondent has a recommendation letter written by McCloskey when he was

the principal at Bret Harte Middle School. McCloskey did not recall writing the
recommendation letter, but he states that it is possible that he wrote it if respondent worked
as a student teacher as part of a credentialing program.

Respondent’s Contentions

45. Respondent states that the District’s case is filled with rumor and innuendos.
He points to inconsistencies in the testimony of the students. Respondent believes that
Kochenburg encouraged the students to create the petition because of the animosity between
respondent and Kochenburg. He contends that McCloskey is a biased district employee and
conducted a flawed investigation because he started the investigation with a group interview;
he asked leading questions that suggested the answers; and he did not interview other
students that respondent had taught. Respondent’s contentions have been considered and are
found to be without merit, as established above and in the credibility findings below.

Credibility Findings

46. The students’ statements throughout the District’s investigations and their
testimony have been overall consistent that respondent had erections during PE class. It is
important to emphasize that the students generally did not harbor any ill will against
respondent which could be perceived to bias or taint their statements or testimony. The
students’ testimony generally was candid, frank, and honest, and their demeanors evidenced
sincerity and truthfulness. Of course some of the students’ testimony was slightly
inconsistent with prior statements. However, this is not unexpected of middle school
students and due to the length of time that has passed since the incidents occurred. In

11
totality, the students’ testimony was credible and consistent with the facts that were
discovered during the District’s investigation.

47. S.M. credibly testified that he had no issues with respondent personally.
Respondent corroborated that S.M. had no behavior issues in the classroom. S.M. credibly
testified that he personally saw respondent have erections in class and respondent would use
his hands or arm to cover his erection. S.M. stated that he “felt awkward,” but he did not
report it to anyone because S.M. is not the type of person to tell other people.

48. E.V. credibly testified that she was aware of the prior allegations against
respondent when she was in the 6th grade. He would look at the female students running and
stand with his hands on his hips with an erection that “popped out of his shorts” and not
attempt to cover it up. She described another time when they were doing squats, and he
stood behind them and had an erection. E.V. said that she would try and stand in a way that
he could not see her. E.V. states that she felt weird when respondent had an erection, “Like
why in the class.” She stated that respondent would look at female students “butts and
boobs” which made her feel uncomfortable. Although he wore sunglasses, she could still see
his eyes. She stated that no one told them to write the petition and they needed to do
something as they felt violated because it was not right for respondent to have erections
during class. E.V. stated that she has no reason to make this up.

49. H.M. credibly testified that she observed respondent have an erection two
times in the class through his sweat pants as he stood near the edge of the pool. She would
ask to go to the office or see the counselor and make an excuse to get out of class because
she felt uncomfortable. H.M. stated that she observed respondent look at girls
inappropriately during the swimming class as he looked at their bodies for a long time. H.M.
also testified that respondent would grab female students around the waist when doing the
pushups. She stated that she did not report respondent to the principal because she felt that
nothing would be done. She stated that she has no reason to make this up. As corroborated
by respondent, she had no issues with respondent.

50. A.P. was only in respondent’s PE class for part of the year before she switched
to a dance class. Prior to being in his class, she had heard rumors that respondent was a
“perv,” but she did not believe the rumors. A.P. observed respondent have an erection while
wearing sweat pants with his hands in his pockets as he stood near the pool. On one or two
occasions, A.P. saw respondent looking at female student’s “breasts and butts” during
swimming class which made her feel uncomfortable. She also heard him on one occasion
make a remark, “shake that money maker,” as they were running which made her feel
uncomfortable. She states that she has no reason to make this up.

51. Respondent consistently denied the allegations in the Statement of Charges.

He categorically denies that he ever had an erection during class. Respondent’s categorical
denial of all charges, in light of the credible testimony and statements of multiple students
from his PE class, is simply not believable. The evidence clearly established that respondent

12
looked at female students inappropriately, he treated female students differently from the
male students, and he had erections in front of female students.

LEGAL CONCLUSIONS

Burden and Standard of Proof

1. The District has the burden of proof in this matter and the standard of proof in
a teacher dismissal proceeding is a preponderance of the evidence. (Gardner v. Commission
on Professional Competence (1985) 164 Cal.App.3d 1035, 1038-1040.) Proof by a
preponderance of the evidence requires a showing that it is more likely than not to be true.
In other words, the evidence is more convincing than that which is offered in opposition.
(People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567.)

2. A permanent employee may be dismissed for cause only after a dismissal

hearing. (Ed. Code, §§ 44932, 44934, and 44944.) When a school board recommends
dismissal for cause, a Commission on Professional Competence may only vote for or against
the dismissal; the Commission may not dispose of a charge seeking dismissal by imposing
probation or an alternative sanction. (Ed. Code, § 44944, subds. (c)(1)-(3).) The
Commission’s decision is deemed to be the final decision of the District’s governing board.
(California Teachers Ass’n v. State of California (1999) 20 Cal.4th 327, 331.) “The
Commission has broad discretion in determining what constitutes unfitness to teach . . ., and
whether dismissal or suspension is the appropriate sanction.” (Id. at pp. 343-344.) Thus,
even where cause for dismissal has been established, a Commission still has broad discretion
to determine whether such discipline is actually warranted. (Fontana Unified School Dist. v.
Burman (1988) 45 Cal.3d 208, 222.)

3. The causes alleged in this matter are immoral conduct, dishonesty, evident
unfitness for service, and persistent violation of the school laws of the state. As set forth
below, dismissal is appropriate in the instant case on each of the grounds alleged. Each
ground provides a separate and independent basis for dismissal.

Determination of Charges

I. Immoral Conduct

4. Cause exists to dismiss respondent for immoral conduct pursuant to Education

5
Code section 44932, subdivision (a)(1), by reason of Factual Findings 3 through 32, and 46-
51.

5
All further statutory references are to the Education Code unless noted otherwise.

13
 5. “Immoral conduct,” pursuant to sections 44932, subdivision (a)(1), and 44939,
has been defined to mean conduct that is willful, flagrant, or shameless, conduct showing
moral indifference to the opinions of respectable members of the community, and as an
inconsiderate attitude toward good order and the public welfare. It is sometimes used as
synonymous with “dishonesty” or a high degree of unfairness. (Bd. of Education of the San
Francisco Unified School Dist. v. Weiland (1960) 179 Cal.App.2d 808, 811.) Immoral
conduct can be construed according to common usage. “The term ‘immoral’ has been
defined generally as that which is hostile to the welfare of the general public and contrary to
good morals. Immorality has not been confined to sexual matters, but includes conduct
inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness;
or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of
respectable members of the community, and as an inconsiderate attitude toward good order
and the public welfare.” (Palo Verde Unified School Dist. of Riverside v. Hensey (1970) 9
Cal.App.3d 967, 972.)

6. The Commission may “accept part of the testimony of a witness and reject
another part even though the latter contradicts the part accepted.” (Stevens v. Parke Davis &
Co. (1973) 9 Cal.3d 51, 67.) The trier of fact, here the Commission, may also “reject part of
the testimony of a witness, though not directly contradicted, and combine the accepted
portions with bits of testimony or inferences from the testimony of other witnesses thus
weaving a cloth of truth out of selected material.” (Id., at 67-68, quoting from Neverov v.
Caldwell (1958) 161 Cal.App.2d 762, 767.) And, the testimony of “one credible witness
may constitute substantial evidence,” including a single expert witness. (Kearl v. Bd. of
Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052.)

7. A preponderance of the evidence established that respondent’s conduct as

alleged in paragraphs 4 through 17 of the Statement of Charges constituted immoral conduct.
Respondent lied on his employment application. Respondent had erections in front of female
students during PE class and looked at female students inappropriately. Statements and
testimony by his former students were particularly persuasive regarding these allegations.
Respondent’s categorical denial of these incidents was not supported by the evidence. Had
respondent admitted this conduct and offered justification for his actions, i.e., that he
suffered from a medical condition, respondent actions, although in violation of the District’s
policies, may have been explainable or understood. However, his steadfast denial of the
incidents, coupled with his dishonesty about his application and the location of his laptop,
suggest a nefarious intent by respondent.

8. Of significance and particularly disturbing is that evidence establishing that

respondent committed his misconduct with only the female students in his class. On these
facts, the preponderance of the evidence established that respondent engaged in immoral
conduct with female students in his seventh grade class during the 2014-2015 and 2016-2017
school years.

14
 II. Dishonesty

9. Cause exists to dismiss respondent for dishonesty pursuant to section 44932,

subdivision (a)(4), by reason of Factual Findings 19 through 32, and 46-51.

10. In the context of employee discipline, California courts have concluded that
the term “dishonesty” connotes a “disposition to deceive,” an “absence of integrity; a
disposition to cheat, deceive, or defraud.” (Gee v. State Personnel Bd. (1970)
5 Cal.App.3d 713, 718-719, quoting from Midway School Dist. v. Griffith (1946)
29 Cal.2d 13, 18 and Hogg v. Real Estate Commissioner (1942) 54 Cal.App.2d 712, 717.)

11. A preponderance of the evidence established that respondent committed acts

of dishonesty pursuant to section 44932, subdivision (a)(4), as alleged in paragraphs 4
through 20 of the Statement of Charges. In addition, respondent’s dishonesty to the district
regarding his misconduct was aggravated by his dishonest testimony at hearing.

III. Evident Unfitness For Service

12. Cause exists to dismiss respondent for evident unfitness for service pursuant to
section 44932, subdivision (a)(6), by reason of Factual Findings 3 through 32, and 46-51.

13. Section 44932, subdivision (a)(6), provides that the District may suspend or
dismiss a permanent employee for “evident unfitness for service.” “Evident unfitness for
service,” within the meaning of section 44932, subdivision (a)(5), means clearly not fit or
suitable for teaching, ordinarily by reason of a temperamental defect or inadequacy.
(Woodland Joint Unified School Dist. v. Commission on Professional Competence (1992) 2
Cal.App.4th 1429, 1444-1445.) Evident unfitness for services requires that unfitness be
attributable to a defect in temperament which “connotes a fixed character trait, presumably
not remedial upon receipt of notice that one’s conduct fails to meet the expectations of the
employing school district.” (Ibid.)

14. Here, respondent engaged in multiple acts of misconduct, as alleged in

paragraphs 4 through 23 of the Statement of Charges. The evidence at hearing established
that respondent is evidently unfit for service. Respondent lied on his employment
application and about the location of his laptop. Respondent had erections in front of female
students during PE class; he looked at female students inappropriately; and he treated the
female students differently than the male students. Again, his dishonesty at hearing about his
misconduct substantiates that he is unfit for service as a certificated employee.

15. Based on these multiple incidents of misconduct, the District has established
that respondent suffers from a temperamental defect and inadequacy that connotes a fixed
character trait that is presumed not remedial. Accordingly, the District established by a
preponderance of the evidence that respondent is evidently unfit for service.

15
 IV. Application of The Morrison Factors

16. To terminate a teacher on grounds of immoral conduct, dishonesty, or evident

unfitness for service, it must also be established that the conduct renders the teacher unfit to
teach. (Morrison v. State Bd. of Education (1969) 1 Cal.3d 214, 229-230.) The Morrison
analysis does not apply to causes for dismissal for unsatisfactory performance or persistent
violation of school rules, laws or policies because such causes of action, by definition, have a
direct nexus to teaching. (Id., at pp. 227-230.) “[A]n individual can be removed from the
teaching profession only upon a showing that his retention in the profession poses a
significant danger of harm to either students, school employees, or others who might be
affected by his actions as a teacher.” (Id., at p. 235.) Thus, a determination of unfitness
requires an analysis based on criteria set forth in Morrison.

17. In Morrison, the Supreme Court held that the determination of whether a
person is fit to teach must be based on an objective and analytical approach, consisting of a
review of the teacher’s conduct and an assessment of a variety of specific factors. “In
determining whether the teacher’s conduct thus indicates unfitness to teach the board may
consider such matters as the likelihood that the conduct may have adversely affected students
or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in
time of the conduct, the type of teaching certificate held by the party involved, the
extenuating or aggravating circumstances, if any, surrounding the conduct, the
praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood
of the recurrence of the questioned conduct, and the extent to which disciplinary action may
inflict an adverse impact or chilling effect upon the constitutional rights of the teacher
involved or other teachers.” (Morrison v. State Bd. of Education, supra, 1 Cal.3d at pp.
227-230.) In reaching a conclusion that grounds exist to dismiss a certificated employee on
the basis of evident unfitness for service, not all Morrison factors need be examined, only the
pertinent ones. (Governing Bd. of ABC School Dist. v. Haar (1994) 28 Cal.App.4th 369,
384.) Moreover the Morrison analysis need not be conducted on each individual fact
established, but rather can be applied to the accumulated facts established collectively.
(Woodland Joint Unified School Dist. v. Commission on Professional Competence, supra, 2
Cal.App.4th at p. 1457.)

18. In this case, application of the Morrison factors demonstrate that respondent
engaged in conduct that is related to teaching and renders him unfit to teach as follows:

(a) The likelihood that the conduct adversely affected students or fellow
teachers: Respondent’s conduct adversely students who no longer wanted to be in
respondent’s PE class. Several students expressed that they were made uncomfortable by
respondent’s conduct. Ultimately, respondent’s conduct made the affected students feel that
their only recourse was to circulate a petition so that the conduct would cease.

16
 (b) The degree of such adversity anticipated: Some female students did
not want to attend respondent’s PE class because of his inappropriate conduct. Again,
students believed that their only recourse was to circulate a petition about respondent’s
inappropriate conduct. Also, the school administrators no longer trust respondent.

(c) The proximity or remoteness in time of the conduct: Respondent’s

conduct occurred in the 2014-2015 and 2016-2017 school years. Thus, it is not remote in
time within the meaning of Morrison.

(d) The type of teaching credential held by the party involved: Respondent
has single subject teaching credentials in PE, history/social science, and general science
which places him in elementary or middle school classrooms with young students that would
be at risk for the inappropriate behaviors that have been established in this case. In addition,
his PE credential gives him access to females in bathing suits and gym clothes, who are at
varying stages of maturity.

(e) The extenuating or aggravating circumstances, if any, surrounding the

conduct: Respondent’s categorical denial of all allegations is of particular concern.
Respondent also engaged in conduct in which he had erections in front of vulnerable and
impressionable pre-teen female students. In aggravation of his misconduct, respondent’s
testimony at hearing lacked credibility and candor.

(f) The praiseworthiness or blameworthiness of the motives resulting in

the conduct: Respondent attempted to establish a motive for the students’ allegations by
stating that the counselor instructed them to create the petition in 2016. However, this
motive was not substantiated. Also, it does not address his immoral conduct in 2015.
Respondent’s conduct is blameworthy.

(g) The likelihood of the recurrence of the questioned conduct: It is highly

likely that respondent would again engage in inappropriate activity in the future. Respondent
accepted very little responsibility for his conduct, categorically denying the charges.

(h) The extent to which disciplinary action may inflict an adverse impact
or chilling effect upon the constitutional rights of the teacher involved or other teachers:
This factor is not at issue. There is no constitutional right that would be adversely affected
by the District imposing discipline for respondent’s misconduct.

19. All factual findings and legal conclusions have been considered in reaching
the determination that respondent is unfit to teach under the Morrison factors, and that
dismissal of respondent from his position as a certificated teacher with the District is
warranted pursuant to section 44932, for immoral conduct, evident unfitness for service and
dishonesty.

17
 V. Persistent Violation Or Refusal To Obey School Laws Or Regulations

20. Cause exists to dismiss respondent for persistent violation of or refusal to obey
school laws or regulations pursuant to section 44932, subdivision (a)(8), by reason of Factual
Findings 3 through 32 and 46-51.

21. Persistent violation of or a refusal to obey school laws or regulations under

section 44932, subdivision (a)(8), requires that the violation be either “persistent” or
“motivated by an attitude of continuous insubordination.” (Governing Bd. of Oakdale Union
School Dist. v. Seaman (1972) 28 Cal.App.3d 77, 81-82.) Isolated events or incidents
involving an issue unresolved over a period of time are generally not considered persistent.
(Bourland v. Commission on Professional Competence (1985) 174 Cal.App.3d 317.) Cases
interpreting section 44932, subdivision (a)(8), require a “showing of intentional and
continual refusal to cooperate.” (San Dieguito Union High School Dist. v. Commission on
Professional Competence (1985) 174 Cal.App.3d 1176, 1196.) Cause for discipline may be
based on the violation of school rules. (Id., at pp. 1180-1181.)

22. Here, respondent was aware of the school policies prohibiting engaging in
inappropriate conduct with students. These policies include District Board Policy 4119.21
(a), where the Board expects employees “to maintain the highest ethical standards, to follow
district policies and regulations, and to abide by state and national laws. Employees conduct
should enhance the integrity of the district and the goals of the education program”; District
Board Policy 4119.3, where the Board expects that “[a]ll employees shall fulfill the duties
and responsibilities set forth in their job descriptions and shall comply with Board policies,
administrative regulations, applicable employee agreements, and local, state and federal
laws;” District Board Policies 0410, 5137, 5145.3, which prohibits the discrimination and
harassment of students; and District Board Policy 5145.7, which prohibits harassment and
discrimination in the school environment.

Respondent’s conduct, as established by the preponderance of evidence in this case,

violated these District policies. It was established that respondent committed acts
demonstrating a persistent violation of or refusal to obey the school laws of the state or
reasonable regulations prescribed for the governance of the public schools by the State Board
of Education or by the governing board of the District employing him pursuant to section
44932, subdivision (a)(8), by reason of, among other things, his violations of the District’s
policies regarding sexual harassment. Such violations were repeated and occurred over a
protracted period of time. (See Governing Bd. of the Oakdale Union School Dist., supra, 28
Cal.App.3d 77, 82.)

Disposition

23. Respondent’s misconduct with his seventh grade female students is a serious
concern for the District. Respondent’s students were adversely impacted by his conduct,
ultimately requiring one student to avoid going to his PE class altogether. Although
respondent had no prior history of disciplinary action prior to the charges alleged in this

18
proceeding, respondent’s conduct clearly shows that he is unfit to continue teaching with the
District. Under these circumstances respondent’s dismissal from the District is the
appropriate disposition in this case.

24. The Commission on Professional Competence concludes that cause exists to

dismiss respondent based on immoral conduct, dishonesty, evident unfitness for service, and
persistent violation of or refusal to obey school laws or regulations. The Commission
reached this decision on a unanimous vote.

ORDER

Respondent Chris Micheletti is dismissed from his position as a permanent

certificated employee of the San Jose Unified School District due to immoral conduct,
dishonesty, evident unfitness for service, and a persistent violation of and refusal to obey the
school laws of the state or reasonable regulations prescribed for the government of the public
schools by the State Board of Education or by the governing board of the school district,
pursuant to Legal Conclusions 4, 9, 12, and 20, jointly and individually.

September 18, 2017

DATED: ____________________

_______________________________________
BETH KANALY
Commission Member

September 18, 2017

DATED: ____________________

_______________________________________
COREEN ALDAPA
Commission Member

September 18, 2017

DATED: ____________________

_______________________________________
REGINA BROWN
Chair, Commission on Professional Competence
Administrative Law Judge

19
 BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS AND THE
COMMISSION ON PROFESSIONAL COMPETENCE FOR THE
LOS ANGELES UNIFIED SCHOOL DISTRICT
STATE OF CALIFORNIA

In the Matter of the Dismissal of:

OAH No. 2016070474
MARIA MIGLIORE (EN 725968),
A Permanent Certificated Employee,

Respondent.

DECISION

The Commission on Professional Competence (Commission) heard the above-

captioned matter in Los Angeles on December 12 and 13, 2016. The Commission members
were Renae Roberts, Helen Shepherd, and Joseph D. Montoya, Administrative Law Judge
(ALJ), Office of Administrative Hearings (OAH).

Complainant was represented by Cherrie Moe, Assistant General Counsel, and My T.

Huynh, Associate General Counsel, Los Angeles Unified School District (LAUSD or
District).

Respondent Maria Migliore appeared with her attorney, Richard Schwab, Trygstad,
Schwab, & Trygstad.

During the hearing, exhibit 52 was ordered sealed to protect confidential information.
A separate written order will issue sealing that exhibit.

The matter was submitted for decision on December 13, 2016. Thereafter, the ALJ
ordered the matter reopened so that he could review the status of the documentary evidence
with counsel for both parties. A telephonic conference was held on March 7, 2017, and the
matter again re-submitted for decision on that date. The Commission hereby makes its
factual findings, legal conclusions, and order.

INTRODUCTION AND STATEMENT OF THE CASE

In this proceeding the District took steps to terminate Respondent, and she demanded
a hearing on the matter. Six statutory grounds were asserted in the Amended Accusation as
justifying termination: unprofessional conduct (Ed. Code, § 44932, subd. (a)(2)); immoral
conduct (Ed. Code, § 44939); evident unfitness for service (Ed. Code § 44932, subd. (a)(6));
dishonesty (Ed. Code, §44932, subd. (a)(4)); persistent violation or refusal to obey state laws
or regulations, or the district’s regulations, for the governance of schools (Ed. Code, §44932,
subd. (a)(8)); and willful refusal to perform regular assignments without reasonable cause, as
prescribed by reasonable rules and regulations of the District (Ed. Code, § 44939).1

In the main, it is alleged that on two occasions Respondent took paid sick leave, and
represented and agreed not to be employed elsewhere during her regular work hours, but then
worked for a school district in Florida during each leave period. When requested leave,
stated in writing and under penalty of perjury, that she had not and would not be so
employed.

Respondent provided evidence regarding the facts and circumstances of the events
referenced in the Amended Accusation, and asserted she should be retained by the District.
However, the District proved the vast majority of the allegations against Respondent, and the
Commission finds and concludes, unanimously, that cause for termination has been
established.

FACTUAL FINDINGS

The Parties and Jurisdiction

1. Complainants Marjorie Josaphat and Jose R. Cantu, Ed.D. each executed the
Accusation and the Amended Accusation in this matter while acting in their official
capacities as Co-Lead Chief Human Resources Officers of the District.

2. The District commenced this proceeding on May 27, 2016, when Justo H.
Avila signed a Statement of Charges against Respondent. Avila was then Chief Human
Resources Officer of the District. That Statement of Charges was filed with the District's
governing board, which thereafter voted to terminate Respondent.

3. On June 14, 2016, the District gave Respondent written notice of its intent to
terminate her, and it served Respondent with a copy of the Statement of Charges.
Respondent made a timely request for hearing, which led to the issuance of the Accusation,
on July 19, 2016. Respondent then filed a Notice of Defense, and this proceeding ensued.
On September 12, 2016, Complainant filed the Amended Accusation. By operation of law,
Respondent is deemed to have denied the allegations of the Amended Accusation. All
jurisdictional requirements have been met.

///

1
All further statutory references are to the Education Code.

2
 4. Respondent is a certificated teacher employed by the District, and at the times
relevant to this decision was teaching second grade students. Respondent holds a multiple
subject teaching credential, and she is credentialed for social work. She is separately
credentialed or certificated to teach elementary school classes in New York, New Jersey,
Connecticut, and Florida. During the time relevant to this proceeding—January through
November 2015—Respondent was assigned to teach at 93rd Street Elementary School (93rd
Street).

Other Procedural History

5. Respondent was issued a Notice of Unsatisfactory Acts and a Notice of

Suspension for 15 days on February 12, 2016. It is not clear from the record if she actually
served the suspension, in that she otherwise taught during the balance of the second semester
of the 2015-2016 school year. The Notice of Unsatisfactory Acts asserted that Respondent
had engaged in unprofessional and immoral conduct, dishonesty, persistent violation of
school laws or reasonable District regulations, and willful refusal to perform regular
assignments. These claims were based on assertions that Respondent had been employed in
Florida as a teacher on various days while she was on paid illness leave from the District.
Other charges, also the subject of this proceeding, were asserted.

6. After Respondent was served with the Notice of Unsatisfactory Acts and
Notice of Suspension, she was given notice that the District intended to conduct an
Administrative Review hearing, with the purpose of allowing her a chance to respond to the
Notices. The hearing, referred to at times in this proceeding as a “Skelly” hearing, or “the
Skelly,” was initially scheduled for March 18, 2016, but was reset to April 14, 2016.2

7. (A) The Skelly hearing occurred on April 14, 2016, and was conducted by Dr.
James Noble, Administrator of Operations for the District’s Local District South. During the
proceeding, Respondent was provided with a number of documents pertinent to the matter,
including copies of pay records. Respondent and her attorney stated her position, including a
claim that she did not work in Florida during her regular work hours for the District, and that
the amount of work she did was minimal.

(B) On April 21, 2016, Dr. Noble wrote to Respondent and informed her that
notwithstanding Respondent’s assertions and arguments, he intended to recommend her
dismissal to the District’s governing board. The District’s Statement of Charges followed.

8. From the time of the Notice of Unsatisfactory Acts through the end of the
2015-2016 school year in June, Respondent continued to teach at 93rd Street.

2
This is the shorthand reference typically used to cite the case Skelly v. State
Personnel Board (1975) 15 Cal.3d 194, where the California Supreme Court held that before
a permanent employee could be disciplined, some preliminary steps must be taken to ensure
due process.

3
Findings on the Allegations of the Amended Accusation

9. (A) It was established, as alleged, that on January 12, 2015, Respondent

signed a District Certificated Request for Leave of Absence form (Certificated Request for
Leave) requesting leave from January 13, 2015 through May 30, 2015. Near the bottom of
the document, set out in a box, it states in part: “I certify I was not and will not be employed
elsewhere during my regular work hours within the time period claimed on this certification”
(Ex. 48.)

(B) The certification statement was clearly set out above the place on the
Certificated Request for Leave where Respondent signed the document. The last line of text
above Respondent’s signature states: “I declare under the penalty of perjury that I have read
the paragraph above, and it is true and correct.” (Ex. 48, underline in original.)

10. Thereafter, Respondent went to Florida, and worked for the Collier County
Public Schools (Collier Schools). She worked for the Collier Schools on 16 days between
February 19, 2015, and May 26, 2015. The dates she worked for Collier Schools are:
February 19 and 23; March 2, 3, 6, and 27; April 6, 23, and 24; May 1, 7, 12, 13, 15, 19, and
26, 2015. Each of these work days were during the period of paid leave that was granted to
Respondent after she submitted the January 2015Certificated Leave Request.

11. On February 6, 2015, Respondent took and completed two training programs
for the Collier Schools. One course was entitled “Diversity Awareness: Staff to Staff.” The
other was entitled “Blood Borne Pathogen Exposure Prevention.”

12. On June 1, 2015, Respondent returned to the District from her paid leave and
returned to work. She then worked for four days, from June 1 to June 5, 2015, which was the
end of the 2014-2015 school year. Thereafter, on the first day of the next school year (2015-
2016), August 17, 2015, Respondent started another paid leave.

13. (A) In August 2015, Respondent submitted another Certificated Request for
Leave. As with her January Certificated Request for Leave, Respondent certified that “I was
not and will not be employed elsewhere during my regular work hours within the time period
claimed on this certification.” (Ex. 23.) As with the January Certificated Leave Request, the
last text before Respondent’s signature states: I declare under the penalty of perjury that I
have read all of the paragraph above, and it is true and correct.” (Ibid., underline in original.)

(B) Respondent’s second Certificated Request for Leave was signed by

Respondent on August 14, 2015. The second page of the document, however, acknowledges
that request for leave was received on August 12, 2015. Respondent requested leave from
August 17, 2015 to January 11, 2016, and her request for leave was granted.

14. Meanwhile, in August 2015, Respondent accepted an offer of employment

from the Collier Schools, to work as a second grade teacher, at Village Oaks Elementary
School. She worked as a second grade teacher for the Collier Schools on August 7, 2015, at

4
Village Oaks Elementary School. Later that day, she rescinded her acceptance of
employment with Collier Schools. However, on August 8, 2015, she contacted Collier
Schools, and enquired if the teaching position was still open. Collier Schools informed
Respondent that the position had been filled.

15. On August 12, 2015, Respondent submitted a District Certification of Health

Care Provider form to the District. The form stated that Respondent’s initial date of
incapacity was June 18, 2015, and that her anticipated day of return to the District was
January 11, 2016.3

16. On November 4, 2015, Respondent submitted another document to the

District, a District Request to Return from Leave. It stated Respondent was not available to
work until November 20, 2015.

17. During the period from August 15, 2015 until November 20, 2015,
Respondent worked on the following days for Collier Schools, even though she was on paid
leave from the District, based on her second Certificated Request for Leave. Those days that
she worked are: October 22, November 4, 6, 10, and 13, 2015.

18. During 2015, Respondent earned over $1,400 from working for Collier
Schools.

19. (A) It was not established, as alleged, that Respondent applied for work with
the Collier Schools on February 6, 2015. However, she did apply for work with the Collier
Schools in September 2015. She was then on paid leave from the District. The application
asked if she was then “currently employed.” Respondent answered “no.” (Ex. 23, p. 1.) The
application is clearly dated in September 2015 at the end of the document, and she stated she
could start work during that time period. It appears that the February 6, 2015 date, which
runs across every page of the application, may be a reference to when the form was
generated by the Collier Schools.

(B) As part of her application to the Collier Schools, Respondent gave the
following information regarding her work experience and teaching experience:

(i) Dates of employment, 7/2011 to 8/2014

(ii) School District, Los Angeles Unified
(iii) Grade & Subjects, Second grade/all subjects
(iv) Reason for Leaving, Need to live closer to my mother and
grandmother.

3
As noted in Factual Finding 13(B), the District acknowledged request for leave on
August 12, 2015. That date may reflect the submission of the Certification of Health Care
Provider.

5
 (C) Other parts of the application, however, indicated that Respondent was
still employed by the District. For example, in response to a question as to how much notice
she would have to give her current employer, she provided a date. And, in a section that set
out some of her job history, she stated that she was “currently in Los Angeles.” (Ex. 25, p.
3.)

(D) Respondent testified that she wanted to appear available for employment
by Collier Schools so stated that she was not employed, but did state she needed to give a
month’s notice. On balance, Respondent’s statement to the Collier Schools to the effect that
she was not then employed while she was on leave was potentially misleading, but not
dishonest.

20. (A) It was established, as alleged in Paragraph 10 (a) of the Amended

Accusation, that all District teachers were (and are) obligated, as part of their employment, to
avoid conflicts of interest and improper outside income. It was further established that such
obligations were part of Respondent’s regular assignment as a teacher in the District, and that
she failed to comply with her obligations, without reasonable cause, by taking employment
in another school system while she was on paid leave from the District.

(B) It was established, as alleged in Paragraph 10 (c) of the Amended

Accusation, that demonstration of professional responsibility, integrity, and ethical conduct
is a regular assignment of all District teachers, and that Respondent failed to comply with
that obligation, without reasonable cause, by taking employment in another school system
while on paid leave from the District.

(C) By twice signing a Certificated Request for Leave, and stating therein that
she would not and had not worked during regular school hours, Respondent acted
unethically, and evinced a lack of integrity. This is especially the case regarding the second
of the two Certificated Requests for Leave, because it was signed after she had worked for
Collier Schools while on a previous leave. Thus her certified statement, that she had not and
would not work elsewhere, looking back was false, and looking forward was made false by
her working for Collier Schools in the fall of 2015.

(D) Respondent’s actions constituted violations of the District’s Ethic’s

Policy. Her actions constituted a violation of the California Standards for the Teaching
Profession as well.

Respondent’s Assertions

21. (A) Respondent asserted that she did not necessarily work in Florida during
her regular District work hours, relying on the time difference of three hours between
Florida, and Los Angeles. That assertion was made at the Skelly and during this proceeding.
However, the documentary evidence indicates that most of the days when she worked at
Collier Schools did overlap with work hours in Los Angeles. Respondent testified that her
typical work day at 93rd Street School started at 7:50 to 8:00 a.m., and that if she worked

6
beginning at 8:15 in the morning Florida time, a full day in Florida would overlap with
Respondent’s normal work hours for the District. That is, if she worked seven hours in
Florida, beginning at 8:00 a.m. Florida time, and left work at 3:00 Florida time, she was
working in Florida from 8:00 a.m. until noon Los Angeles time.

(B) Respondent worked seven hours or more for Collier Schools on 13 days:
February 19 and 23; March 3, 27, and 30; April 6, 23, and 24; May 1, 7, 15, and 19; and
November 6, 2015. She worked four or more hours, which would have created a smaller
overlap, on March 2 and 6, May 8, and October 22, 2015.

(C) Relying (after the fact) on the time differences between Los Angeles and
Collier County, Florida, is antithetical to the obvious conditions and representations made by
Respondent in the January and August 2015 Certificated Leave Requests.

22. (A) Respondent testified she did not read the provisions of either of the
Certificated Requests for Leave closely, as it was “fine print.” Respondent also testified that
she read the document to mean that she could not take a job or sign a contract to work for
another entity, implying she believed part-time work was acceptable. She testified on direct
exam that “it was hard to understand if I could work, [or] not work. I don’t think I read it
correctly. It’s hard to read as well.”

(B) The Commission finds that Respondent’s written certifications that she
had not and would not work elsewhere during her regular District work hours, to be clear and
legible, and obvious to any reasonable teacher signing the form near the statement.4
Furthermore, in each Certificated Request for Leave Respondent stated under the penalty of
perjury she had read the paragraph containing the certification, and that everything she stated
was true and correct. As shown above, that statement was underlined, drawing the eye to
that oath.

(C) Respondent testified that she had signed other Certificated Requests for
Leave after 2012 and prior to the two that are in issue in this case. She said she did not fully
read them, and had not asked District personnel about the meaning of the statement
pertaining to not working during regular work hours. If that is true, her consistent negligence
is hardly a defense to making false statements.

23. Respondent’s credibility suffered as a result of her protestations. Her

misconduct occurred over a period of months, and she appeared to have little remorse,
except, perhaps, for being found out.

///

4
The Commissioners were able to read a less-than-perfect photocopy of each
Certificated Request for Leave. It is fairly inferred that the originals were somewhat easier
to read.

7
The Morrison Factors

24. (A) Where there is conduct that might justify termination of a teacher, an
examination must still be made of whether or not that conduct indicates that the teacher in
question is unfit to teach. The misconduct must be shown to have some rational connection,
some nexus, to the teacher’s ability to teach in the District.

(B) This requirement was first set forth in Morrison v. State Board of
Education (1969) 1 Cal.3d 214, 229. In that case a teacher had been discovered to be
homosexual, though there had been no inkling of that fact within the school. The California
Supreme Court held that such alone was not enough to discipline his teaching credential,
requiring that some connection of his private conduct be made to his job duties and
performance had to be shown. The court listed a number of factors that might be considered
in determining whether or not unfitness to teach had been established, but the court
ultimately did not find a sufficient connection between the conduct and fitness to teach.

25. (A) The first factor to consider is the likelihood that the conduct may have
adversely affected students or fellow teachers. While the principal at 93rd Street asserted
that Respondent’s actions hurt students, there is little or no hard evidence of such. On the
other hand, there may have been an impact on the District or other teachers, in that while
Respondent was living and working part time in Florida, the District must have arranged to
have other teachers covered her assignment at 93rd Street.

(B) Another factor is the proximity or remoteness in time of the conduct. In

this case the misconduct occurred fairly recently, in 2015. In this regard, it should be noted
that Respondent twice signed Certificated Requests for Leave.

(C) Another factor is the type of certificate held by the teacher, which in this
case is a multiple subject credential allowing Respondent to teach elementary school
students.

(D) Extenuating or aggravating circumstances is another Morrison factor. In

this case there are few extenuating circumstances. Respondent provided evidence that she
has had significant medical problems, and personal problems, but that does not excuse or
justify false statements to the District. In aggravation Respondent had notice of District
policies, including its Ethics Code and other policies. She had executed Certificated
Requests for Leave prior to signing the two in question. Finally, her second 2015
Certificated Request for Leave falsely implied that she had not previously worked elsewhere
during her regular District work hours.

(E) The praiseworthiness or blameworthiness of the motives resulting in the

conduct should be considered. There is no praiseworthiness to the Respondent’s conduct,
but it was blameworthy to make false statements to the District, and to work, even part time,
while on paid illness leave.

8
 (F) Another factor is the likelihood that the conduct in question will recur.
The Commission believes that there is a significant likelihood that the Respondent’s
dishonest conduct would recur. While it might not recur in the context of working while on
leave, it is likely she could exhibit dishonesty in another context. As noted by the Court of
Appeal, dishonesty is not readily compartmentalized. (Windham v. Board of Medical
Quality Assurance (1980) 104 Cal.App.3d 461, 470.)

LEGAL CONCLUSIONS

Legal Conclusions Generally Applicable To All Claims:

1. The Commission has jurisdiction to proceed in this matter, pursuant to

Education Code section 44944, and Factual Findings 1 through 3.

2. (A) It is settled that the trier of fact may “accept part of the testimony of a
witness and reject another part even though the latter contradicts the part accepted.” (Stevens
v. Parke Davis & Co. (1973) 9 Cal.3d 51, 67.) The trier of fact may also “reject part of the
testimony of a witness, though not directly contradicted, and combine the accepted portions
with bits of testimony or inferences from the testimony of other witnesses thus weaving a
cloth of truth out of selected material.” (Id., at 67-68, quoting from Neverov v. Caldwell
(1958) 161 Cal.App.2d 762, 767.) Further, the fact finder may reject the testimony of a
witness, even an expert, although not contradicted. (Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 890.) And, the testimony of “one credible witness may constitute
substantial evidence,” including a single expert witness. (Kearl v. Board of Medical Quality
Assurance (1986) 189 Cal.App.3d 1040, at 1052.)

(B) The rejection of testimony does not create evidence contrary to that which
is deemed untrustworthy. That is, disbelief does not create affirmative evidence to the
contrary of that which is discarded. That the trier of fact may disbelieve the testimony of a
witness who testifies to the negative of an issue does not of itself furnish any evidence in
support of the affirmative of that issue, and does not warrant a finding in the affirmative
thereof unless there is other evidence in the case to support such affirmative. (Hutchinson v.
Contractors’ State License Bd. (1956) 143 Cal.App.2d 628, 632-633, quoting Marovich v.
Central California Traction Co. (1923) 191 Cal. 295, 304.)

(C) “On the cold record a witness may be clear, concise, direct, unimpeached,
uncontradicted—but on a face to face evaluation, so exude insincerity as to render his
credibility factor nil. Another witness may fumble, bumble, be unsure, uncertain, contradict
himself, and on the basis of a written transcript be hardly worthy of belief. But one who
sees, hears and observes him may be convinced of his honesty, his integrity, his reliability.”
(Wilson v. State Personnel Board (1976) 58 Cal.App.3d 865, at 877-878, quoting Meiner v.
Ford Motor Co. (1971) 17 Cal.App.3d 127, 140.)

9
 3. “Unprofessional conduct” as used in section 44932, subdivision (a)(1), may be
defined as conduct which violates the rules or ethical code of a profession or is such conduct
that is unbecoming of a member of a profession in good standing. (Board of Education v.
Swan (1953) 41 Cal.2d 546, 553.) However, the conduct in question, to amount to
unprofessional conduct, must indicate unfitness to teach. (Perez v. Commission on
Professional Competence (1983) 149 Cal.App.3d 1167, 1174.)

4. “Evident unfitness for service” as used in section 44932, subdivision (a)(5),

properly means “clearly not fit, not adapted to or unsuitable for teaching, ordinarily by
reason of temperamental defects or inadequacies.” Unlike “unprofessional conduct,”
“evident unfitness for service” connotes a fixed character trait, presumably not remediable
merely on receipt of notice that one's conduct fails to meet the expectations of the employing
school district. (Woodland Joint Unified School Dist. v. Commission on Professional
Competence (Zuber) (1992) 2 Cal.App.4th 1429, at 1444.)

5. “Immoral conduct,” of which Respondent has been accused, is not confined to

sexual matters. It has been defined to mean that which is hostile to the welfare of the general
public and contrary to good morals. It includes conduct inconsistent with rectitude, or
indicative of corruption, indecency, depravity, and dissoluteness. Or, it can be conduct that
is willful, flagrant, or shameless, conduct showing moral indifference to the opinions of
respectable members of the community, and as an inconsiderate attitude toward good order
and the public welfare. (Board of Education of the San Francisco Unified School District v.
Weiland (1960) 179 Cal. App.2d 808, 811 (Weiland); San Diego Unified School Dist. v.
Commission on Professional Competence (2011) 194 Cal.App.4th 1454, 1466.)

6. “Dishonesty” needs no especial definition, as it is an ordinary term known to

the members of the Commission. However, within the context of these proceedings, not
every act of dishonesty will constitute grounds for discipline. (Fontana Unified School
District v. Burman (1988) 45 Cal.3d 208 (Fontana).)5

7. In order for a teacher to be terminated under section 44932, subdivision (a)(7),

for persistent disobedience of applicable rules and regulations, it must be established that
there has been continuous and constant refusal to obey, or behavior motivated by an attitude
of continuing insubordination; a single instance of disobedience is insufficient. (Governing
Bd. of the Oakdale Union School Dist. v. Seaman (1972) 28 Cal.App.3d 77, 81-82.) It is
reasonable to apply such reasoning to section 44939.

8. As noted in the Factual Findings, even where grounds to terminate have been
established, such as immoral conduct, dishonesty, evident unfitness for service, or refusal to
follow rules and regulations are established, it must also be established that such conduct
5
As stated in Fontana, “Dishonest conduct may range from the smallest fib to the
most flagrant lie. Not every impropriety will constitute immoral or unprofessional conduct,
and not every falsehood will constitute ‘dishonesty’ as a ground for discipline.” (Fontana,
supra, 45 Cal.3d at 220, fn. 12.)

10
renders the Respondent unfit to teach. (Morrison v. State Board of Education (1969) 1
Cal.3d 214, 229-230; Fontana, supra, 45 Cal.3d 208; Zuber, supra, 4 Cal.App.4th 1429,
1444-1445; See Bourland v. Commission on Professional Competence (1985) 174
Cal.App.3d 317, 321.)

Legal Conclusions Pertaining to the Specific Allegations of the Accusation

9. It was established that Respondent was dishonest in violation of Education

Code section 44932, subdivision (a)(4), based on Factual Findings 9 through 23. She twice
made false written statements to the District, and she made a somewhat misleading statement
to the Collier Schools. This Conclusion is based on Factual Findings 9 through 19, 21 and
22, and Legal Conclusions 1, 2, and 6. (See also Bassett Unified School District v.
Commission on Professional Competence (1988) 201 Cal.App.3d 1444, 1452 [any
reasonably competent person knows you can’t be paid by two employers for working the
same hours].)

10. It was established that Respondent violated or refused to obey the school laws
of the state, or reasonable regulations of the Board. Her violations were persistent, as they
occurred on many days over a period of months. Therefore, she violated section 44932,
subdivision (a)(8), based on Factual Findings 9 through 23, and Legal Conclusions 1, 2, and
7.

11. (A) It was established that Respondent engaged in unprofessional conduct by

making false statements to the District in obtaining leave, and by working for another
District while on paid leave, in violation of section 44932, subdivision (a)(1). This
Conclusion is based on Factual Findings 9 through 23, and Legal Conclusions 1, 2, and 3.

(B) The Code requires that a teacher that has allegedly engaged in
unprofessional conduct be given 45 days’ notice of the unprofessional acts, so that the
teacher may mend his or her behavior. (Ed. Code, § 44938, subd. (a).) The District may not
act on a charge of unprofessional conduct until that 45-day period has run. (Id.) The District
gave such a notice, and allowed 45 days to run before filing the Statement of Issues. (Factual
Findings 2, 3, and 5.) Thus, there is no jurisdictional failing of the type found in Tarquin v.
Commission on Professional Competence (1978) 84 Cal.App.3d 251.

(C) There is no evidence of other unprofessional acts of the type alleged in the
period following the service of the Notice is Unprofessional Acts, which occurred on
February 12, 2016. On the other hand, Respondent did not seek any paid leave, and with the
District’s knowledge of her behavior, she had every motive not to engage in further dishonest
conduct. Given the Commission’s concern that some other dishonest conduct could occur, it
is difficult to find or conclude that Respondent has mended her ways. Her teaching during
the period after February 12, 2016 is an evidentiary matter, to be weighed against other
evidence in the case. (Blake v. Commission on Professional Competence (1989) 212
Cal.App.3d 513, 517.)

11
 12. It was not established that Respondent is evidently unfit to teach within the
meaning of section 44932, subdivision (a)(6), based on Legal Conclusion 4. There was
insufficient evidence regarding her temperament; that she remained in her assignment after
she received her Notice of Unsatisfactory Acts indicates that her temperament was not and is
not an issue.

13. It was not established that Respondent has engaged in immoral conduct within
the meaning of section 44939, based on Legal Conclusion 5. While her conduct was not
honest, it was not depraved or so rising to the level contemplated by the cases cited in Legal
Conclusion 4.

14. It was not established that Respondent refused to perform regular assignments
without reasonable cause, as prescribed by the reasonable rules and regulations of the
District. At bottom, her leave had been approved, and the record showed, for the second
leave period, a medical justification.

15. The Morrison factors indicate that Respondent is not fit to teach in the District.
(Factual Findings 23 & 24.) Based on all the foregoing, the Commission finds and concludes
that Respondent should be terminated from her position as a certificated employee of the
District.

ORDER

Respondent Maria Migliore shall be terminated as a certificated employee of the Los

Angeles Unified School District, forthwith.

DATED: March 11, 2017

_______________________
RENAE ROBERTS
Commission Member

DATED: March 16, 2017

____________________________
HELEN SHEPHERD
Commission Member

DATED: March 10, 2017

___________________________
JOSEPH D. MONTOYA
Administrative Law Judge
Office of Administrative Hearings

12
 BEFORE A
COMMISSION ON PROFESSIONAL COMPETENCE
FOR THE OCEANSIDE UNIFIED SCHOOL DISTRICT

In the Matter of the Suspension of:

ROBYN MIZOGUCHI, OAH No. 2016120176

A Permanent Certificated Employee,

Respondent.

DECISION

On April 3, 4, and 5, 2017, a Commission on Professional Competence (Commission)

heard this matter in Oceanside, California. The Commission consisted of the following
members: Kimberly J. Belvedere, Administrative Law Judge; Carolyn Friedman; and
Rebecca McQuestion, Ed.D.

Daniel Shinoff and Amanda Johnston, Attorneys at Law, represented complainant,

Cheri Sanders, Assistant Superintendent, Human Resources, Oceanside Unified School
District.

Jon Vanderpool, Attorney at Law, represented respondent, Robyn Mizoguchi, who

was present throughout the hearing.

The record was held open to permit the committee to deliberate and reach a decision.
The record was closed and the matter submitted on April 14, 2017.

PROTECTIVE ORDER

The names and images of all children referred to in this matter are subject to a
protective order. Any document received as evidence in this matter that contains the name of
a minor shall, before any disclosure to the public, be redacted and replaced by the initials of
the minor’s first and last name. No court reporter or transcription service shall transcribe the
names of the minors but shall instead refer to each minor by his or her initials.

1
 ISSUE

Did Mr. Mizoguchi engage in the conduct alleged in the Notice of Charges on
September 16, 2016, concerning the control of students? If so, did his conduct constitute
immoral conduct and evidence unfitness for service warranting the imposition of a two-day
suspension without pay?

SUMMARY

A preponderance of the evidence did not establish that, on September 16, 2016, Mr.
Mizoguchi engaged in the conduct alleged in the Notice of Charges. Although Mr.
Mizoguchi used a degree of physical contact to control a chaotic situation outside the
classroom of another teacher, the amount of physical contact established by the evidence was
appropriate under the circumstances and allowed by law. It was not established that the
physical contact violated district policy, professional standards, or various cited provisions of
the Penal Code and Education Code pertaining to corporal punishment. Accordingly, Mr.
Mizoguchi’s conduct did not constitute immoral conduct or show unfitness for service, and
the Notice of Charges is dismissed.

FACTUAL FINDINGS

Jurisdiction

1. On October 31, 2016, complainant signed the Notice of Charges in her official
capacity advising Mr. Mizoguchi of the board’s intention to suspend him for two days without
pay under Education Code section 44932.

2. The Notice also advised that the district will send a Notice of Unprofessional
Conduct, pursuant to Education Code section 44938, to Mr. Mizoguchi, indicating that he had
45 days to “correct his faults and overcome the grounds for charges . . . or the district [would]
move for further discipline . . . .”

3. The Notice of Charges and other jurisdictional documents were served on Mr.
Mizoguchi, who timely filed a notice of defense; this hearing ensued.

Mr. Mizoguchi’s Background

4. Mr. Mizoguchi has held a Clear Multiple Subject Teaching Credential since
1998. He also holds a Clear Resource Specialist Certificate of Competence, authorizing him
to provide instruction to special education students.

5. Mr. Mizoguchi has been teaching for 19 years, 14 of which have been within
the Oceanside Unified School District. His current assignment, where he has been for four

2
years, is Jefferson Middle School. His primary duty is to teach special education students.
However, he provides support to other teachers in their classrooms. When functioning in
that capacity, the general education teacher delivers the lessons to the students, and Mr.
Mizoguchi supports his special education students as well as students who are not qualified
to receive special education services but who may be struggling.

6. Mr. Mizoguchi’s most recent personnel evaluation indicated he met standards

expected of him. The author of the document made the following comments on his
personnel evaluation:

I have observed Mr. Mizoguchi in a variety of settings: in-class

support teacher in 8th grade Algebra, Learning Center/Study
skills with small groups and conducting IEP meetings
throughout the year. The words like: Professional, Caring,
Organized, Methodical, and Well-Prepared, come to mind when
I am around Mr. Mizoguchi. He is very consistent with his
support within the classroom and carries it over during learning
center time. This has been a valuable support for our 8th grade
students. He has also shown great respect, humility and support
when meeting with parents during IEP meetings. Mr.
Mizoguchi has made sure to have all pertinent data at hand in
order to present the best information that is used to draft the
goals that support and ensure student learning and success.

7. Mr. Mizoguchi has never been accused of misconduct in connection with his
employment and has never been disciplined.

The District’s Investigation

8. Christy Dayhoff is an Educational Support Services Coordinator for the

district. At the time of the September 16, 2016, incident, she was the principal at Jefferson
Middle School. She had been appointed principal in July 2016 just before the start of the
academic year, and left in December 2016.

Ms. Dayhoff testified that on the date of the incident, she heard over the school radio
(handheld) that something had occurred outside Mr. London’s classroom. Shortly thereafter,
she received a call to contact the student health clerk, Herlinda Ahmad. When Ms. Dayhoff
arrived at the health room, she saw a student, L.R., crying. L.R. told her his back hurt and
that he had been “thrown against a wall.”

Ms. Ahmad, who has been a health clerk at Jefferson Middle School for 23 years, also
testified at the hearing. Ms. Ahmad authenticated an entry she made in the Aeries system
(computerized school records for each student) on September 16, 2016, regarding L.R. That
entry stated:

3
 Student reports that he was grabbed by a male teacher and
slammed against a wall with his back. No visible injury. Cold
compress applied. Principal C. Dayhoff and AP- C. Coscuna
informed.

Ms. Ahmad testified at the hearing, consistent with her entry, that she did not see any
bruising, redness, or injuries anywhere on L.R. Photographs admitted into evidence at the
hearing did not show any bruising, marks, or injuries. Ms. Ahmad said that Ms. Dayhoff
took the photographs; Ms. Dayhoff said she did not know who took the photographs.

After she left the health office, Ms. Dayhoff contacted human resources and spoke
with Todd McAteer, the Director of Human Resources for certificated personnel. Mr.
McAteer told her to speak to adult witnesses and L.R. Ms. Dayhoff spoke to teachers Joel
London and Rasela Mendez, as well as several students. She also filed a report with Child
Protective Services as required by law. The students were provided with “Witness
Declaration/Incident Report” forms so they could write their own statements; the adult
witnesses, with the exception of the school security guard, were not provided with those
forms. During the investigation, Ms. Dayhoff learned that another student, J.M., claimed to
have been “grabbed by the shirt and pulled” by Mr. Mizoguchi for “misbehaving.”

Witness Testimony Concerning the September 16, 2016, Incident

MR. LONDON’S TESTIMONY

9. Mr. London is credentialed to teach multiple subjects and has taught in the
district for several years. On September 16, 2016, he was assigned to Jefferson Middle
School and taught math. On that date, he was outside his classroom with the door open
attempting to have his students line up for class. The students were not complying, and he
was having a hard time getting them to comply. Mr. London saw Mr. Mizoguchi coming up
the stairs with J.M., who was late to class. Mr. Mizoguchi was holding on to J.M.’s baggy
sweater. He explained that Mr. Mizoguchi was not pulling or grabbing at J.M.; rather, the
two were walking up the stairs simultaneously. J.M. was wearing a backpack and was
smiling. Mr. London would poke his head in and out of the classroom because there were
some students inside his classroom. He said there were about 20 students inside his
classroom and 10 outside refusing to line up. He continued to give commands for students to
line up, and Mr. Mizoguchi was helping him. He heard L.R. say something like “fool, you
can’t tell me what to do” or “you can’t do that” to Mr. Mizoguchi. Mr. London said L.R.
was instigating students to not comply with the line-up order. Mr. London heard Mr.
Mizoguchi tell L.R. to have a seat between two double doors on the second floor landing on
the opposite side of his classroom. Mr. London demonstrated and explained that Mr.
Mizoguchi held his arms open in a manner like a “basketball player would play defense” and
“ushered” L.R. to the doorway. Mr. London was adamant that Mr. Mizoguchi did not touch
L.R. However, as Mr. Mizoguchi tried to usher L.R. to the double doors with open arms,
L.R. was pacing back and forth and yelling things at Mr. Mizoguchi. Eventually Mr.
Mizoguchi was able to usher L.R. to the area of the double doors. Mr. London said Mr.

4
Mizoguchi did not grab L.R., did not throw L.R. against the wall, and did not push L.R. Mr.
London also never saw L.R. lying on the ground as L.R. claimed.

At some point, Ms. Mendez –whose classroom is next to the double doors where L.R.
was standing – came out and asked what was going on. Once Ms. Mendez came out, Mr.
London went back to his classroom. Shortly after that, L.R. came into his class and asked to
go to the health office. L.R. was not crying.

Mr. London testified that he has never seen Mr. Mizoguchi act inappropriately with
any students. He said that Mr. Mizoguchi is “like a father” to the students.

Mr. London’s testimony was sincere, credible, and forthright.

MS. MENDEZ’S TESTIMONY

10. Rasela Mendez has taught 8th grade math at Jefferson Middle School for 10
years. Her classroom is on the second floor across from Mr. London’s classroom. On
September 16, 2016, she was sitting at her desk, which is 20-25 feet from the door. She
could see the students on the second floor landing, but she could not see Mr. London. She
heard Mr. London shouting “listen to your teacher.” She said it was just the typical volume
of noise one hears when trying to settle students and get them into the classroom. On this
date, however, the noise continued a “little longer than normal,” and she heard Mr. London
constantly repeating “listen to your teacher.” Ms. Mendez said she respects her colleagues
and did not want to intervene, so she waited a few seconds before coming outside. She did
not hear any banging noises or any noises that sounded like someone being thrown up
against a door. She did see L.R. “shifting” back and forth trying to get around Mr.
Mizoguchi. She could not see Mr. London from where she was seated at her desk.

When Ms. Mendez walked outside her classroom, she saw L.R. standing by the
double doors next to her classroom. She waited until Mr. Mizoguchi was able to get L.R. to
settle down, and then she walked over to L.R. to assist. She said L.R. looked agitated,
frustrated, and upset, but he was not crying. When she began to talk to L.R., L.R. did not tell
her he was injured in any way, and she never observed him lying on the ground. She said
Mr. Mizoguchi did not appear angry. Ms. Mendez told L.R. he needed to resolve whatever
his issues were with Mr. Mizoguchi and apologize to Mr. London for not listening. L.R. then
walked up to Mr. Mizoguchi, who had moved away from the double doors while Ms.
Mendez was speaking to L.R., and said something quietly to Mr. Mizoguchi. Ms. Mendez
trusted her colleagues to handle the situation, so she went back to her classroom.

Ms. Mendez’s testimony was sincere, credible, and forthright.

//

5
 STUDENT TESTIMONY

11. Several students testified about what they claimed to have observed on the
landing during the incident. All students were properly qualified and determined to
understand the difference between the truth and a lie prior to giving testimony.

12. J.M. is 12 years old and is in Mr. Mizoguchi’s special education class. The
September 16, 2016, incident occurred on the second floor landing outside Mr. London’s
class. He said he was standing near the railing wearing his backpack. Students were outside
the classroom “being bad.” He said the students were not standing in line and were talking
very loud. J.M. said Mr. Mizoguchi grabbed his jacket and backpack on one side with one
hand but that it was “not a hard tug” and “only moved [him] a little.” Mr. Mizoguchi told
him not to be like the other kids and moved him back in line. He did not recall Mr.
Mizoguchi saying anything like what L.R. wrote in his statement, to the effect of “don’t be
like the other kids they are fools.” He did hear L.R. say “let him go” and remembered Mr.
London telling L.R. that Mr. Mizoguchi was “just doing his job.” He also remembered Mr.
Mizoguchi telling him to make good choices. When he demonstrated how Mr. Mizoguchi
interacted with L.R., he demonstrated a slight push with one hand but did say L.R.’s back
“hit” the wall.

J.M.’s written declaration stated the following:

So I was walking upstairs and I wasn’t in line and Mr.

Mizoguchi pulled my jacket and backpack and he pulled me on
the rail and he told me to not be like my other friends he pulled
me in line and he also did the same to . . . but he pushed . . . on
the wall and Mr. Mizoguchi was trapping him.

13. Student E.S. is 13 years old. On September 16, 2016, she was in Mr.
London’s 6th grade math class. The incident occurred on the second floor landing outside
Mr. London’s math class. She was not standing in line as students were supposed to be
doing; she was standing off to the side. Mr. London did not let students come inside. She
testified Mr. London “usually picks on the kids that are bad and makes the bad kids stay
outside.” She described “bad” kids as the ones who do not pay attention and have bad
behavior. At some point, she heard Mr. Mizoguchi yell, “get in line.” Some students
listened; others did not. A quarter then fell out of her hand, so she started walking down the
stairs to get it. Mr. Mizoguchi told her to go back upstairs, and she complied. It was at that
point that she saw Mr. Mizoguchi “grab” L.R. by the “front” of his shirt and push L.R.
against the double doors. She also remembered that Mr. Mizoguchi grabbed J.M.’s “elbow
or something” while J.M. was standing near the stairs. She thought the interaction between
L.R. and Mr. Mizoguchi happened before the interaction between Mr. Mizoguchi and J.M.
Afterwards, Ms. Mendez came out of her classroom and told everyone to get in line.

E.S.’s statement was not consistent with her written declaration taken the date of the
incident. In that statement, she did not say anything about trying to walk downstairs to get a

6
quarter and did not say anything about the interaction with J.M. To the contrary, her
declaration stated L.R. and J.M. were yelling, and Mr. Mizoguchi “pulled” one of them (it is
unclear) by the “head” and then pulled someone to the “side.” She stated that L.R. “just
wanted to go back in line,” but Mr. Mizoguchi blocked his way and L.R. ended up against
the wall. Thus, her testimony at the hearing was significantly more detailed than the
statement she made on the day of the incident, when the events would have been fresh in her
memory.

14. Student N.B. was 12 years old on September 16, 2016, and is in 6th grade.
Mr. London was his math teacher at that time. N.B. testified that the incident occurred on
the second floor landing outside Mr. London’s math class where everyone was lining up. He
said the students were loud and noisy, so Mr. London would not let them into the classroom,
although Mr. London had let some students in the classroom. He saw Mr. Mizoguchi come
upstairs and saw him “grab” J.M. away from railing (by the arm) and push J.M. on the front
of his chest to get him back in line. He then heard someone say “shut up.” He thinks it was
L.R. who made that statement. He said Mr. Mizoguchi “pulled” L.R. and “cornered” him
against a wall. When he demonstrated the contact, he demonstrated a light pull of the shirt
by the shoulder area and a light push. N.B. testified that L.R. “tried to leave” and Mr.
Mizoguchi would not let him leave. N.B. said he did see L.R.’s back against the wall.
Shortly thereafter, Ms. Mendez came outside to see what was happening. N.B.’s testimony
was generally consistent with his written declaration taken the date of the incident.

15. Student S.U. is in seventh grade and is in Mr. Mizoguchi’s special education
class. Mr. London is his math teacher. On September 16, 2016, he was inside Mr. London’s
classroom before the incident occurred. Students were talking while Mr. London was trying
to speak, and they generally were not listening to directions. He remembered Mr. Mizoguchi
coming up the stairs to the second floor landing outside Mr. London’s classroom, and he
“heard” Mr. Mizoguchi telling the students to stop talking and be quiet. He then heard one
of the students yell “shut up.” After that, he “heard” L.R. talking back to Mr. Mizoguchi.
S.U. testified that Mr. Mizoguchi “made him go” towards the double doors. He then
clarified his statement and noted that Mr. Mizoguchi “grabbed” L.R.’s shirt and “pulled”
L.R. towards the double door area. He also contended that Mr. Mizoguchi “pushed” L.R.
“towards” the wall. S.U. said that immediately before the interaction with L.R., there was an
incident between J.M. and Mr. Mizoguchi. He said J.M. was talking back to Mr. Mizoguchi,
and Mr. Mizoguchi pushed J.M. “against the rail,” while telling him to be quiet and get back
in line. When S.U. demonstrated what Mr. Mizoguchi did to J.M., he demonstrated a push
with both hands against the chest.

16. L.R. is 12 years old and is a student at Jefferson Middle School. On

September 16, 2016, he was in Mr. London’s math class when Mr. London said the students
needed to go outside and line up because they were being loud. He said he went outside, and
J.M. also came outside. He said Mr. London stayed inside the classroom, and Mr.
Mizoguchi came outside the classroom. L.R. said J.M. was standing in and out of line, so
Mr. Mizoguchi told him to get back in line and stop talking. J.M. would not listen, so Mr.
Mizoguchi grabbed him and pulled him by the arm, told J.M. not to do that, and “tried to

7
push him back into line” by placing hands on J.M.’s back. L.R. said that, when he saw Mr.
Mizoguchi trying to “drag” J.M. out of line, he “screamed” to let J.M. go. He said he was
about seven feet away from where J.M. and Mr. Mizoguchi were standing.

L.R. said Mr. Mizoguchi started walking towards him. L.R. said he tried to avoid Mr.
Mizoguchi, but Mr. Mizoguchi became angry, “grabbed” him by the shirt, and “pushed” him
into the wall next to the double doors. L.R. said he “pushed” Mr. Mizoguchi’s hands away at
one point prior to being pushed against the wall. L.R. said that, when he was pushed against
the double doors, it hurt, and he started to cry. L.R. said he sat down. After he sat down,
Ms. Mendez came outside, “tried to cheer [him] up,” and told him that it would “all be OK.”
L.R. said Mr. Mizoguchi walked away. L.R. said he went to the health clerk’s office and got
some ice. He said he was still crying while at the health clerk’s office.

L.R.’s testimony was inconsistent with the testimony of Mr. London, Ms. Mendez,
and Mr. Mizoguchi with respect to what occurred between him and Mr. Mizoguchi. L.R.’s
testimony regarding what occurred between Mr. Mizoguchi and J.M. was also not consistent
with what other student witnesses said. L.R. not only instigated the chaos on the second
floor landing, but his own written statement and testimony confirmed he pushed Mr.
Mizoguchi’s hands away from him as Mr. Mizoguchi tried to control the situation.

Mr. Mizoguchi’s Testimony

17. Mr. Mizoguchi has been a teacher for 19 years. He has never been disciplined
or accused of wrongdoing. He did not recall whether he has had formal training regarding
when it is appropriate to place hands on students but understands putting hands on students
to control them is not a first option unless safety is an issue. Mr. Mizoguchi said that he does
touch students because, especially in special education, there are often self-control issues.
For example, sometimes students cannot hold still or touch other students at a time when the
other students are not desirous of being touched. He also has had students speaking out,
throwing things, or doing things to get attention. Mr. Mizoguchi said he will sometimes
place his hand on a student’s shoulder to calm the student down.

On September 16, 2016, Mr. Mizoguchi was heading up the stairs to Mr. London’s
classroom. He could see the students on the second floor landing and observed that Mr.
London was having a difficult time controlling them. J.M. began running down the stairs as
Mr. Mizoguchi was heading up the stairs. Mr. Mizoguchi yelled to J.M. and asked him what
he was doing. J.M. tried to sidestep him and continue going downstairs so Mr. Mizoguchi
reached out and held the loop on J.M.’s backpack to keep him from going downstairs. J.M.
is not permitted to mill about the campus on his own; he must always be accompanied. Mr.
Mizoguchi testified J.M. started making excuses as to why he had to go downstairs, but Mr.
Mizoguchi told J.M. he needed to go back upstairs. Mr. Mizoguchi said he did not grab,
squeeze, or pinch anything on J.M.; he merely held J.M. by his sweater and began walking
up the stairs with him.

8
 Once he reached the second floor landing, Mr. Mizoguchi saw students engaged in
“horseplay.” Some students were leaning on the railing. Some students were banging on the
elevator door. Mr. London was having difficulty getting them under control. Mr. Mizoguchi
“felt alarmed” by the students’ challenging Mr. London. Mr. Mizoguchi saw J.M. start to
engage in horseplay with the other boys on the landing. He called out to J.M. repeatedly.
Eventually, Mr. Mizoguchi said he “touched” J.M. to “move” him. He said at one point J.M.
was bent over the railing spitting, so he held J.M.’s backpack and pulled him back from the
railing. As he was speaking with J.M. about his behavior, Mr. Mizoguchi said L.R. came
within a foot of his face and started screaming that he could not touch students, calling him a
molester, and saying Mr. Mizoguchi was gay. The statements did not anger Mr. Mizoguchi
because he has heard much worse in his career. Once L.R. started yelling, the other boys on
the landing started yelling the same thing. Thus, L.R.’s conduct escalated the intensity of the
problems on the landing.

At that point, Mr. Mizoguchi turned to L.R. because he thought it was a good idea to
get L.R. away from the other boys. Mr. Mizoguchi ordered L.R. to go to the opposite side of
the landing away from Mr. London’s classroom. Mr. Mizoguchi pointed to the double door
area and told L.R. to “sit down over there.” He did not place any hands on L.R., who did not
comply.

Because L.R. continued yelling and would not comply, Mr. Mizoguchi put his arms
out (in the same manner as described by Mr. London) and tried to guide L.R. towards the
double doors. L.R. kept trying to shift left and right so Mr. Mizoguchi shifted his position to
block L.R. At some point, L.R. hit Mr. Mizoguchi’s hand. Mr. Mizoguchi was successful in
getting L.R. to move to the double door area. However, he never touched L.R, never pushed
L.R., and did not shove L.R. onto the ground.

After L.R. was standing by the double doors, Ms. Mendez called out to some of the
boys to “knock it off” and then started speaking to L.R. Once he saw Ms. Mendez talking to
L.R., Mr. Mizoguchi backed up and let her handle L.R. Once Ms. Mendez released L.R., he
came up to Mr. Mizoguchi and said he was sorry and walked into Mr. London’s classroom.

Mr. Mizoguchi said that at the November 1, 2016, meeting when they notified him he
would be facing discipline, he was in a “state of disbelief.” He said he could not believe he
was being accused of child abuse and may have commented how difficult the job is
becoming. He did not, however, state that he needed to put his hands on students to do his
job. He also did not recall apologizing at the meeting because none of his actions were
physically aggressive.

Mr. Mizoguchi regrets the situation that occurred and said that looking back he
realizes he might have been able to handle things differently. He said he realizes now that
his colleagues – like Ms. Mendez – are very willing to help in situations like the one that
occurred on the landing. Mr. Mizoguchi reflected that perhaps he should be more willing to
ask for help in the future. He also said that in the future perhaps it might be a better idea to

9
take more time to assess the situation and make an assessment as to what superiors might
desire.

Mr. Mizoguchi’s testimony was sincere and credible. His testimony was consistent
with that of Mr. London, Ms. Mendez, and J.M. Mr. Mizoguchi’s testimony was also
consistent with a written statement he sent to Ms. Sanders on December 16, 2016, after he
had been notified of the allegations against him.

District Actions Following the Incident

18. Cheri Sanders is the Associate Superintendent of Human Resources and

testified at the hearing. According to Ms. Sanders, she spoke with Mr. McAteer following
the incident. They made a determination to place Mr. Mizoguchi on paid administrative
leave, which became effective September 19, 2016. Mr. McAteer told her he was going to
conduct follow-up interviews with the students, which he did.

19. Mr. McAteer did not testify at the hearing, and his notes regarding the
interviews he conducted constituted administrative hearsay and were generally not helpful.
Some of the notes indicated that they were summaries. Other portions of the notes did not
contain dates of interviews. One of the dates, October 2, 2016, was actually a Sunday, and
was therefore not a correct date. Moreover, because Mr. McAteer did not testify, it is not
known whether the words he used in his notes are direct quotes or paraphrased statements.
Thus, Mr. McAteer’s notes concerning his interviews were not relied on in forming
conclusions concerning credibility of witnesses or in making findings of fact.

20. Mr. Mizoguchi reported back to full duty at the school on October 12, 2016.

21. According to Ms. Sanders, following the investigation, she presented the board
with the Notice of Charges and statements provided by the student witnesses, Ms. Dayhoff’s
paraphrased notes, and photographs of L.R. However, Mr. London’s statements concerning
the incident were not attached; Ms. Mendez’s statements concerning the incident were not
attached; and Mr. Mizoguchi’s statements concerning the incident were not attached. Those
statements generally were helpful to Mr. Mizoguchi, provided credible accounts of the
incident, and called the credibility of the student statements into question. Ms. Sanders did
not know why those statements were not included and said nothing requires that every
investigation document be provided to the board.

22. On November 2, 2016, a meeting occurred among Mr. Mizoguchi, Ms.

Sanders, Mr. McAteer, and Jennifer Skellet (President of the California Teacher’s
Association). The purpose of the meeting was to review the Notice of Charges with Mr.
Mizoguchi. Ms. Sanders testified that, when Mr. Mizoguchi was presented with the packet
containing the Notice of Charges and what had been provided to the board, he was surprised
and upset. Ms. Sanders testified that Mr. Mizoguchi commented that he could not do his job
if he could not put hands on students. Ms. Sanders found this statement troubling, as she
personally believes the only time a teacher should ever touch a student is in self-defense. In

10
response to Mr. Mizoguchi’s concerns regarding the fact that not all of the witness
statements were provided to the board, Ms. Sanders stated there is no rule that requires
everything be provided to the board.

LEGAL CONCLUSIONS

Burden and Standard of Proof

1. The standard of proof in a teacher disciplinary proceeding is a preponderance

of the evidence. (Gardner v. Commission on Professional Competence (1985) 164
Cal.App.3d 1035, 1039-1040.)

Relevant Statutory and Constitutional Authority

2. Education Code section 44932, subdivision (a), provides in part:

A permanent employee shall not be dismissed except for one or

more of the following causes:

(1) Immoral conduct, including, but not limited to, egregious

misconduct. For purposes of this chapter, “egregious
misconduct” is defined exclusively as immoral conduct that is
the basis for an offense described in Section 44010 or 44011 of
this code, or in Sections 11165.2 to 11165.6, inclusive, of the
Penal Code.

[¶] . . . [¶]

(6) Evident unfitness for service.

3. Education Code section 44934 permits a district to seek suspension or

dismissal for a violation of provisions of Education Code section 44932.

4. Under the California Constitution, students and employees “have the

inalienable right to attend campuses which are safe, secure and peaceful.” (Const. art. 1,
§28.) It is an explicit duty of teachers to reasonably control the conduct of students to
maintain a safe and healthy learning environment. (Ed. Code, § 44807).

5. Education Code section 49000 et seq., sets forth the law regarding the
prohibition of utilizing corporal punishment in schools. Section 49001, subdivision (a),
provides:

For the purposes of this section “corporal punishment” means

the willful infliction of, or willfully causing the infliction of,

11
 physical pain on a pupil. An amount of force that is reasonable
and necessary for a person employed by or engaged in a public
school to quell a disturbance threatening physical injury to
persons or damage to property, for purposes of self-defense, or
to obtain possession of weapons or other dangerous objects
within the control of the pupil, is not and shall not be construed
to be corporal punishment within the meaning and intent of this
section. Physical pain or discomfort caused by athletic
competition or other such recreational activity, voluntarily
engaged in by the pupil, is not and shall not be construed to be
corporal punishment within the meaning and intent of this
section.

6. Penal Code section 11165.3, provides:

As used in this article, “the willful harming or injuring of a child

or the endangering of the person or health of a child,” means a
situation in which any person willfully causes or permits any
child to suffer, or inflicts thereon, unjustifiable physical pain or
mental suffering, or having the care or custody of any child,
willfully causes or permits the person or health of the child to be
placed in a situation in which his or her person or health is
endangered.

7. Penal Code section 11165.4, provides:

As used in this article, “unlawful corporal punishment or injury”

means a situation where any person willfully inflicts upon any
child any cruel or inhuman corporal punishment or injury
resulting in a traumatic condition. It does not include an amount
of force that is reasonable and necessary for a person employed
by or engaged in a public school to quell a disturbance
threatening physical injury to person or damage to property, for
purposes of self-defense, or to obtain possession of weapons or
other dangerous objects within the control of the pupil, as
authorized by Section 49001 of the Education Code. It also
does not include the exercise of the degree of physical control
authorized by Section 44807 of the Education Code. It also
does not include an injury caused by reasonable and necessary
force used by a peace officer acting within the course and scope
of his or her employment as a peace officer.

12
 8. Education Code section 44807 provides:

Every teacher in the public schools shall hold pupils to a strict

account for their conduct on the way to and from school, on the
playgrounds, or during recess. A teacher, vice principal,
principal, or any other certificated employee of a school district,
shall not be subject to criminal prosecution or criminal penalties
for the exercise, during the performance of his duties, of the
same degree of physical control over a pupil that a parent would
be legally privileged to exercise but which in no event shall
exceed the amount of physical control reasonably necessary to
maintain order, protect property, or protect the health and
safety of pupils, or to maintain proper and appropriate
conditions conducive to learning. The provisions of this section
are in addition to and do not supersede the provisions of Section
49000. [Emphasis added].

Relevant Board Policies

9. The applicable board policy for professional standards cited in the Notice of
Charges, section 4119.21, provides:

The Board of Education expects district employees to maintain

the highest ethical standards, exhibit professional behavior,
follow district policies and regulations, and abide by state and
federal laws. Employee conduct should enhance the integrity of
the district and advance the goals of the district’s educational
programs. Each employee should make a commitment to
acquire the knowledge and skills necessary to fulfill his/her
responsibilities and should focus on his/her contribution to the
learning and achievement of district students.

Relevant Judicial Authority

10. In Morrison v. State Board of Education (1969) 1 Cal.3d 214, 235, the Supreme
Court held that “an individual can be removed from the teaching profession only upon a
showing that his retention in the profession poses a significant danger of harm to either students,
school employees, or others who might be affected by his actions as a teacher.” The court
delineated the following criteria to determine whether a teacher’s conduct indicates that he or
she is not fit to teach: (1) the likelihood that the conduct may have adversely affected students
or fellow teachers; (2) the degree of such adversity anticipated; (3) the proximity or remoteness
in time of the conduct; (4) the type of teaching certificate held by the teacher; (5) the
extenuating or aggravating circumstances, if any, surrounding the conduct in question; (6) the
praiseworthiness or blameworthiness of the motives resulting in the conduct; (7) the likelihood
of the recurrence of the conduct in question; and (8) the extent to which disciplinary action may

13
inflict an adverse impact or have a chilling effect upon the constitutional rights of the teacher
involved or other teachers. (Id., at pp. 229-230.)

Unfitness for Service

11. Unfitness for service under Education Code section 44932, subdivision (a)(6), is
established by conduct demonstrating that the teacher is “clearly not fit, not adapted or suitable
for teaching, ordinarily by reason of temperamental defects or inadequacies.” (Woodland Joint
Unified School District v. Commission on Professional Competence (1992) 2 Cal.App.4th
1429, 1444.) As a threshold matter, the Morrison criteria must be examined to ascertain
whether the conduct in question indicates unfitness for service. “If the Morrison criteria are
satisfied, the next step is to determine whether the ‘unfitness’ is ‘evident,’ i.e., whether the
offensive conduct is caused by a defect in temperament.” (Id., at 1445.) A Commission has
broad discretion to determine what constitutes unfitness to teach and to decide whether the
teacher should be sanctioned. (California Teachers Association v. State of California (1999) 20
Ca1.4th 327, 343.)

12. In Board of Education v. Jack M. (1970) 19 Cal.3d 691, the Supreme Court
detailed the process to be considered in determining fitness to teach. This opinion upheld the
standard established in Morrison that a discharged teacher is entitled to a fitness hearing in
which not only his conduct but also these factors are analyzed: (1) likelihood of recurrence
of the questioned conduct; (2) the extenuating or aggravating circumstances, if any; (3) the
effect of notoriety and publicity; (4) impairment of teachers’ and students’ relationships; (5)
disruption of educational process; (6) motive; (7) proximity or remoteness in time of
conduct. (Id., at f.n. 5.)

A Preponderance of the Evidence did not Establish Immoral Conduct or Evident Unfitness for
Service

13. A preponderance of the evidence did not establish that Mr. Mizoguchi’s
conduct on September 16, 2016, violated any provisions of the Penal Code or Education
Code, violated any policies of the school district, or constituted corporal punishment, as
alleged in the Notice of Charges. Therefore, cause does not exist to suspend Mr. Mizoguchi
for two days without pay pursuant to Education Code sections 44932, subdivision (a)(1), and
44932, subdivision (a)(6) [immoral conduct and evidence unfitness for service].

Mr. Mizoguchi has been teaching for 19 years. His most recent evaluation noted
exemplary conduct. Mr. Mizoguchi has never been disciplined. Thus, the conduct alleged in
the Notice of Charges is entirely out of character with Mr. Mizoguchi’s background. Mr.
Mizoguchi credibly denied any inappropriate contact with both J.M. and L.R. The student
witnesses tell another story.

The student witnesses all generally agree that Mr. Mizoguchi had some form of
physical contact with J.M. and L.R. However, the manner and degree in which that contact
occurred varied widely. The student witnesses used terms in their statements to school

14
personnel and during testimony like “slammed, pushed, grabbed, and touched.” To the
contrary, Mr. London, who was in a position to view the interactions with both students,
testified credibly that Mr. Mizoguchi simply held J.M. to guide him up the stairs and also
guided him into line. J.M., who was credible, corroborated that version of events. Mr.
London also saw Mr. Mizoguchi, with his arms outstretched, trying to guide L.R. – who was
belligerent, yelling, and instigating – into a corner away from the other students. Mr.
Mizoguchi’s credible testimony corroborated what Mr. London observed with respect to the
interaction between respondent and L.R. Ms. Mendez also credibly testified that she came
outside her classroom during the commotion and saw respondent speaking to L.R. who was
still being disrespectful, and she did not see respondent push L.R. She did not hear anything
unusual. She did not see L.R. crying. She did not see L.R. on the ground. Ms. Mendez’s
observations directly contradict L.R.’s testimony that he was on the ground and crying after
respondent “slammed” him into the wall by the double doors. Indeed, Ms. Mendez’s
classroom was right next to the double doors, yet she heard nothing, placing L.R.’s account
and/or recollection of what occurred in doubt. L.R. had no injuries, and the photographs
provided showed no evidence of redness or bruising.

The version of events related by Mr. Mizoguchi, Ms. Mendez, and Mr. London is
much more plausible and consistent than the version of events presented by the student
witnesses. A preponderance of the evidence did not establish that Mr. Mizoguchi engaged in
immoral conduct or that he is unfit for service. A preponderance of the evidence did not
establish that Mr. Mizoguchi violated any professional standard, student discipline
requirement, or provisions of the Penal Code and Education Code. Mr. Mizoguchi acted
reasonably in his minimal physical contact with J.M. and L.R., as permitted by Penal Code
section 44807, to maintain control of the situation on the landing outside Mr. London’s
classroom on September 16, 2016.

There may have been a variety of ways that the situation on the landing could have
been handled differently. Mr. Mizoguchi – or Mr. London – could have called security.
Other teachers, like Ms. Mendez, could have been summoned to assist. Or perhaps, the
principal could have been called. Perhaps additional training for all teachers would be of
assistance as none of the faculty witnesses expressed a clear standard of what they believe
the district expects of them. Nonetheless, it is not the job of the Commission to decide what
other options should have been selected to maintain control of the situation; the only issue
before us is whether the evidence established that Mr. Mizoguchi engaged in immoral
conduct or demonstrated unfitness for service. On this record, he did not.

//

//

15
 ORDER

The Notice of Charges against Robyn Mizoguchi is dismissed.

May 11, 2017

DATED:

___________________________________
KIMBERLY J. BELVEDERE
Administrative Law Judge
Office of Administrative Hearings

___________________________________
CAROLYN FRIEDMAN
Certificated Special Education Teacher, Retired
Chino Valley Unified School District

_______________________________________
REBECCA MCQUESTION, Ed.D.
Certificated Special Education
Teacher/Administrator
Bonsall Unified School District

16
 BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS AND A
COMMISSION ON PROFESSIONAL COMPETENCE
NEWPORT-MESA UNIFIED SCHOOL DISTRICT
STATE OF CALIFORNIA

In the Matter of the Dismissal of:

OAH No. 2014010104
LIANNE PFISTER,
A Permanent Certificated Employee,

Respondent.

DECISION

This matter was heard by the Commission on Professional Competence

(Commission) in Costa Mesa on March 10-13, 17-20, 24-26, 30, 2015; April 1-2, 2015; June
13-17 and 20-22, 2016; and August 8-10, 2016. The Commission consisted of Christianne
Off, M.A., CCC-SLP; Susan Svendsen, M.S., CCC-SLP; and Erlinda G. Shrenger,
Administrative Law Judge, Office of Administrative Hearings, State of California, who
presided.

Anthony P. De Marco, Esq., and Barbara J. Ginsburg, Esq., Atkinson, Andelson,

Loya, Ruud & Romo, represented Newport-Mesa Unified School District (District). Daniel
J. Kolodziej, Esq., Trygstad, Schwab & Trygstad, represented Lianne Pfister (Respondent).

Oral and documentary evidence was received, and the hearing was concluded on
August 10, 2016. The record was held open for the submission of written closing briefs as
follows: the District's brief was due by August 26, 2016, Respondent's brief was due by
September 26, 2016, and the District's reply brief was due by October 7, 2016. The parties
timely filed their briefs. The District's closing brief was marked as Exhibit 58 and its reply
brief was marked as Exhibit 59. Respondent's closing brief was marked as Exhibit 1518.
The record was closed and the case was submitted for decision on October 7, 2016.

FACTUAL FINDINGS

Parties and Jurisdiction

1. Respondent is a permanent certificated employee of the District.

 2. On November 12, 2013, a Statement of Charges was filed with the District's
governing board by John Caldecott, Executive Director of Human Resources for the District.
The District's governing board adopted a resolution on November 12, 2013, indicating its
intent to dismiss Respondent from employment based on the acts and conduct described in
the Statement of Charges.

3. On November 15, 2013, the District served respondent with a Notice of Intent
to Immediately Suspend Without Pay and Dismiss, which notified Respondent of the
District's intent to dismiss her within 30 days unless she demanded a hearing. On December
6, 2013, Respondent filed a Request for Hearing. On December 17, 2013, the District served
Respondent with a Notice of Accusation, Accusation, and related documents. Respondent
filed a Notice of Defense. All jurisdictional requirements have been met.

Respondent's Background

4. Respondent is 58 years old. She is of Hawaiian descent and was born and
raised in Hawaii. She is married and has two sons (ages 25 and 19). Her younger son has
high functioning autism.

5. Respondent received her bachelors of science degree in speech pathology and

audiology from the University of Hawaii in 1980. She received her master's degree in
speech pathology and audiology from California State University, Los Angeles. In 2005, she
began a Ph.D. program through Walden University. Respondent progressed through the
Ph.D. program up to the point of doing her dissertation but her progress was delayed for
reasons not specified in her testimony. Respondent testified that she is allowed to include in
her title the initials "ABD," which means "all but dissertation."

6. Respondent holds a Certificate of Clinical Competence (CCC) from the

American Speech-Language-Hearing Association (ASHA). She holds a California state
license to practice as a speech language pathologist. She also holds a Clinical Rehabilitative
Services Credential with Special Class Authorization and a certificate of school audiometry.

7. Since 2013, Respondent has worked for Chapman University as an adjunct

professor of communication disorders and sciences. She teaches in the post-baccalaureate
program. She also supervises master's degree students when they are in the field to get hours
needed for their licensure. Respondent is authorized to supervise the students in various
activities such as assessment, providing therapy, and writing reports. In addition,
Respondent works in a private practice office and per diem for home health care agencies
and in hospital settings.

8. Respondent has approximately 29 years' experience working as a speech

language pathologist (SLP) in public schools. She began her career working in preschools
and elementary schools in various school districts. Respondent did itinerant SLP work in
those settings for many years but what she really wanted to do was work in high schools
because she felt her skills were best served in that setting. Respondent was hired by the

2
District as an SLP on August 23, 2006. She worked at Corona Del Mar High School for five
years prior to her assignment to Mariners Elementary School (Mariners) for the 2012-2013
school year.

Position and Duties

9. The District's Special Education Procedural Handbook (Handbook) "provides

special and general educators information regarding the process and procedures for students
with special needs who require special education services." (Exh. 1, p. 175.)

10. The basic functions of an SLP for the District are to "screen, assess and
provide specialized speech and language services and assistance for children and young
adults with communication disorders who qualify for services as established by State
Standards; participate in developing and implementing Individual Education Plans (IEPs) for
students who qualify for Designated Instruction and Services (DIS); provide speech and
language therapy to individuals and/or groups of students." (Exh. 1, p. 347) These basic
functions are performed by the SLP "[u]nder the direction of the Principal and Director of
Special Education." (Id.)

11. The representative duties of an SLP for the District include, but are not limited
to, providing "specialized services and assistance with the assessment and screening of
children and young adults with speech and language disorders; utilize age-appropriate
standardized and non-standardized testing and assessment tools; provide phonological,
language voice and fluency training in individual or small groups of students"; "[p]repare,
type and maintain a variety of related records and reports, such as IEP's, annual assessment
reports, daily speech logs, attendance register, notes and files." (Exh. 1, p. 347.)

12. A "case carrier" is the IEP team member who is in charge of a student's IEP and
schedules and runs the IEP meetings, prepares all IEP documentation, maintains the student's
records, and ensures that services and supports are being implemented in accordance with the
IEP. In short, the person designated as a student's case carrier is responsible for all aspects of
that student's IEP. In general, an SLP will be designated a student's case carrier when the
only service the student is receiving is for speech and language. However, when the student
has needs in academic areas, a special education teacher will be designated the case carrier.
In that situation, the SLP participates as an IEP team member only with respect to the
student's needs in the area of communication and has no case carrier responsibilities.

Confidential Files

13. The District maintains a "confidential file" (also referred to as a "brown file"
or "legal file") for each special education student. The District requires that "[a]ll
confidential special education files beginning with an initial IEP must be organized in the
manner detailed [in the Handbook]." (Exh. 1, p. 277.) The procedures to organize the
confidential file include the following:

3
 "1. The student's case carrier is responsible for maintaining the ONE
Confidential file at the student's school site. [¶] . . .[¶]

"4. Case carrier and team members (SLP, Psych, APE, OT) will place ALL
original documents, i.e. all original correspondence, IEP documents, all
protocols, etc. in the appropriate sections (see Confidential File Organization
chart; no duplicates). [¶] … [¶]

"6. ALL protocols, from the last 6 years, are to be placed in a manila
envelope and stored at the back of the Brown File. Protocols beyond 6 years
are to be placed in manila envelopes, labeled with the student's name and birth
date, and sent to Special Education Records, Attn: Student Records
Technician, at the District Office.

"7. This file is considered the ONLY Confidential [file] for each student. It
contains ALL original documents and is to be stored in a common area in the
front office of the school where the student attends. It is to be kept in a cabinet
that can be locked. [¶] … [¶]

"9. When an IEP meeting is held, the case carrier will bring the
CONFIDENTIAL file to the meeting, and will be responsible for the [sic]
maintaining an organized file. [¶] … [¶]

"11. Zone Coordinators will need to rely on Genesea [now Synergy, discussed
below] for IEP information and will travel to school sites when needing access
to the Confidential File. It [is] imperative that ALL information be entered
into Genesea (including notes) ensuring that Coordinators and attorneys have
access to current data."

(Exh. 1, p. 277 [bold and italics in original].)

Synergy Computer System

14. An SLP for the District must have knowledge of, among other things, record-
keeping techniques, and must have the ability to, among other things, maintain records and
prepare reports, operate a computer terminal to enter data, maintain records and generate
reports, and maintain current knowledge of program rules, regulations, requirements and
restrictions. (Exh. 1, p. 348.)

15. The District's computer system for entering data, maintaining records, and
generating documents and reports is called Synergy.1 Synergy is a web-based program for

1
Synergy was formerly known as Genesea. An example of the Synergy screen is
found at Exhibit 1, page 637.

4
generating IEPs and all related and supporting documents for an IEP, such as IEP meeting
notices and assessment plans. Synergy keeps track of when IEPs are due. Every case carrier
has a "portfolio" in Synergy which lists all of the students that the case carrier is servicing
and keeps track of all IEP dates and deadlines. The program will send alarms or signals as
IEP related dates and deadlines approach.

16. Workflow is a section of Synergy that keeps track of the steps for completing
an IEP. Once the case carrier has the assessment plan signed by the parent, the case carrier
initiates the Workflow process through Synergy. The Workflow screen guides the case
carrier through the various steps for preparing an IEP and ensuring that none of the required
steps in the process are missed. The case carrier enters the date each step in the IEP process
is completed and/or the status of the particular step. For example, the case carrier will input
the date that the student's parent responded to an IEP meeting notice and agreed to a meeting
date; the date the IEP meeting was convened and whether the parent attended; the date the
parent gave full consent to the IEP; and the date the "IEP is finalized as current or FAPE
offer."2 The data entered in the Workflow section of Synergy is not reported to the State.

17. CASEMIS is another section of the Synergy program.3 The information in

CASEMIS is reported by the District to the State two times per school year, in December and
June, as required under special education law. When an IEP is finalized in Synergy, data
from the IEP will auto-populate the fields in CASEMIS. For example, the "effective date"
shown in CASEMIS is supposed to match the date the IEP is finalized and approved and
consented to by the parent. The "effective date" in CASEMIS is used to determine whether
the IEP complies with IEP timelines. A report or alarm goes out if the "effective date" in
CASEMIS indicates non-compliance with IEP timelines for the particular student's IEP.
Although the "effective date" in CASEMIS is auto-populated by data from the finalized IEP,
the "effective date" can also be manually changed, for example, to a date that gives the
appearance that an IEP is timely or to prevent alarms indicating the IEP is untimely.

Mariners Elementary School

18. Mariners is a school with approximately 800 students. It has one preschool
special day class (SDC) and classrooms for kindergarten through sixth grade (K-6). At all
relevant times, Pam Coughlin was the principal at Mariners.

19. At all relevant times, Heidi McDowell was a special education zone coordinator
for the District. The District is divided into zones. McDowell was the zone coordinator for
the zone that included Mariners. In general, the duties of a zone coordinator are to act as a
special education administrator for the schools within their zone, provide support to staff,
parents, and site administrators, attend IEP meetings, and work with staff on compliance
2
Examples of the Workflow screen are found at Exhibit 1, pages 598, 639, 649, 665,
and 690.
3
Examples of the CASEMIS screen are found at Exhibit 1, pages 595, 635, and 638.

5
preparing for IEPs and other special education issues that may arise at a school site. The
zone coordinator's duties also include supervising the SLPs assigned to schools within their
zone. McDowell was Respondent's supervisor when she was the SLP assigned to Mariners.

20. McDowell has over 20 years' experience working in special education. She has
a general education credential, a special education credential, and an administrative
credential. She also has a master's degree in special education. McDowell is not an SLP.

21. McDowell first became familiar with Respondent when they both worked at
Lincoln Elementary School. At that time, McDowell was a program specialist and was not
Respondent's supervisor. They interacted during the course of attending IEP meetings.
McDowell's impression of Respondent as the SLP at Lincoln was that Respondent was very
good. She did interesting things with therapy and was very cutting edge in using technology
as part of her therapy. There were many students with autism at Lincoln. Respondent was
very knowledgeable about autism and did a nice job working with those students.

22. Respondent and Lindsey Murphy were the assigned SLPs at Mariners for the
2012-2013 school year. The SLPs assigned to Mariners in the prior school year (2011-2012)
were Mimi Turgeon and Kathy Murphy. At the end of the 2011-2012 school year, Mimi
Turgeon retired and Kathy Murphy was reassigned to Corona Del Mar High School. Mimi
Turgeon had been the SLP at Mariners for over 20 years before she retired. Principal
Coughlin was good friends with Turgeon and held her in high regard.

23. Respondent worked five days per week at Mariners while Lindsey Murphy only
worked one day per week (Tuesday) at Mariners. Jessica Haffar was a graduate student at
Chapman University. She worked as a graduate student intern at Mariners three days per
week and assisted Respondent and Lindsey Murphy during therapy sessions. Respondent
was Haffar's graduate student supervisor. Haffar worked at Mariners for the first half of the
2012-2013 school year until December 13, 2012.

2012-2013 School Year

24. Respondent and Lindsey Murphy were both new SLPs to Mariners. In early
September, they sent a letter to the parents of Mariners students introducing themselves and
student intern Jessica Haffar and expressing that they were looking forward to working
collaboratively with the parents and teachers. (Exh. 1040.)

25. The school hours at Mariners were from 8:35 a.m. to 3 p.m. The schedules for
the library, physical education, computer lab, music, science, and RSP groups, were
distributed the week of September 5, 2013. (Exh. 1043.) Respondent and Lindsey Murphy
prepared the speech schedule for the students on the SLP caseload. (Exh. 1070.) On the
speech schedule, starting from 9:15 a.m., the school day was divided into 30-minute blocks
of time, with each block designed for a particular speech activity, push-in sessions, pull-out
sessions, group sessions, assessments, consults, Synergy and Medi-Cal billings. The speech
schedule for Tuesday, when Respondent and Lindsey Murphy were both at the Mariners

6
campus, indicated that therapy sessions with Lindsey Murphy occurred in Room C and
therapy sessions with Respondent occurred in Room D. Teachers were expected to direct
their students to the correct room.

26. According to emails between Respondent and Heidi McDowell in September

2012, the SLP caseload at Mariners consisted of 13 SDC preschoolers and 65 K-6 students,
for a total of 78 students. (Exh. 1049.) In the emails, Lindsey Murphy was identified as case
carrier for 13 students, and Respondent was identified as case carrier for the remaining 65
students. This division of caseload accounted for the fact that Lindsey Murphy was at
Mariners only one day per week while Respondent was at Mariners five days per week. For
students who required more than one speech therapy session per week, Lindsey Murphy
would provide therapy on Tuesday and Respondent would provide the additional therapy
sessions on other days of the week.

27. Respondent and Lindsey Murphy worked with all students and did not
differentiate between preschool SDC students and the K-6 students. This was in contrast to
the division of work between Mimi Turgeon and Kathy Murphy in the previous school year.
Kathy Murphy was at Mariners two days per week and all of preschool students were
assigned to her caseload. Mimi Turgeon was the full-time SLP and only had K-6 students on
her caseload.

28. At the start of the 2012-2013 school year, Respondent and Lindsey Murphy
found that SLP Mimi Turgeon had qualified many students for speech services solely on the
basis of articulation issues. Both Respondent and Lindsey Murphy were of the impression
that many of the articulation-only students should not have been qualified for speech. They
felt that those students' issues should have first been addressed through interventions
provided by their teachers in the classroom. Respondent and Lindsey Murphy exited many
students from speech at the start of the school year, either because the student's speech issue
had resolved itself or there were no longer any speech issues with the student.

29. Respondent and Lindsey Murphy implemented a new procedure for teachers to
refer students for speech services. Respondent notified the teachers of the new procedures in
an email dated September 26, 2012, which read: "Aloha Awesome Mariners teachers! [¶] If
you have a student you want to refer for speech consult (i.e. to determine if we need to
pursue further action), I will have a stack of forms in my mailbox for you to access and fill
out for documentation. If a child has other issues other than speech/articulation sounds, they
should go through the SST process as there may be other factors involved that possibly need
to be addressed. Let me know if you have any questions or need additional assistance.
Thanks for your patience!!!" (Exh. 1053.)

30. As the 2012-2013 school year unfolded, there was some confusion about the
new speech procedures implemented by the SLP team. For example, on October 10, 2012,
Respondent sent an email to Mariners teachers to address the situation that "some students
are being sent to speech at their unscheduled times leading to some confusion." (Exh. 1058.)
Respondent's email reminded the teachers that on Tuesdays, speech students have to be

7
directed to a specific speech therapy room, either Room D (for sessions with Respondent and
student intern Jessica Haffar) or Room C (for sessions with Lindsey Murphy). The room
assignments for Tuesday were indicated on the speech schedule. Respondent believed that
some of the "confusion" was due to students not going to the correct assigned room.

31. Some teachers complained to Principal Coughlin about Respondent. They did
not first speak with Respondent before complaining to the principal. For example, one
teacher complained that her students went to the speech room for therapy on Wednesday and
Respondent was not there. (Exh. 1064.) As it turned out, the teacher had sent her students to
the speech room on the first Wednesday of the month. Respondent had previously informed
all teachers that she had an SLP meeting at the district office on the first Wednesday of every
month from 1:00 p.m. to 3:00 p.m., but she was available on other Wednesdays for make-up
sessions. Other teachers complained that their speech referrals were not being handled
promptly. Respondent explained to the teachers the new procedure and that Lindsay Murphy
would handle all speech referrals in the order received. According to Respondent, Principal
Coughlin came to the speech room and was angry because of the complaints she had
received from the teachers.

32. Respondent had asked Principal Coughlin if the SLP team could do an in-
service training for the teachers and staff at Mariners to introduce the SLP team and explain
the new speech procedures. The principal's response was to allow the SLP team to provide
in-service training to teachers on an individual basis, which Respondent thought was
impractical. However, later on, the principal allowed the SLP team to do an in-service but
only for the kindergarten teachers.

33. On October 16, 2012, the SLP team (i.e., Respondent, Lindsey Murphy, and
Jessica Haffar) was coming back from lunch and entered the main office. The SLP team's
scheduled lunch time was from 12:00 p.m. to 12:40 p.m., and then they had collaboration
time scheduled from 12:40 p.m. to 1:00 p.m. The SLP team returned from lunch and entered
the main office at 12:55 p.m. Principal Coughlin called out all of the SLP team for returning
late from lunch in front of everyone who was in the main office. The SLP team members
were shocked and offended by the principal's angry tone and how she berated them in front
of everyone who was in the main office. The team had been discussing speech cases over
lunch and during the drive back to school. Later, Lindsey Murphy spoke with Principal
Coughlin about the incident. During that conversation, Principal Coughlin stated she
received complaints from six teachers that Respondent was not seeing students according to
the speech schedule, which Respondent disputed. The principal stated she was going to be
checking every day whether Respondent was back from lunch at 12:40 p.m. and students
were being seen according to the speech schedule. Lindsey Murphy's impression was that
Principal Coughlin was listening to the teachers' reports but not speaking to Respondent
about them. (Exhs. 1071, 1077.)

34. For the first half of the 2012-2013 school year, Respondent felt unduly stressed
and overwhelmed by the SLP workload at Mariners. She felt hostility and resistance from
Principal Coughlin and certain teachers. Respondent was handling all SLP duties almost

8
single-handedly since Lindsey Murphy was at Mariners only on Tuesday. All of the duties
and tasks related to student IEPs, providing therapy to students, conducting assessments, etc.,
fell on Respondent. By emails to Heidi McDowell and others, Respondent requested help to
address the SLP issues and concerns that were arising at Mariners. (E.g., Exhs. 1054, 1104.)
By December 2013, Respondent requested to be transferred to another school site. (Exhs.
1144, 1149.) The subject line on her December 19, 2012 email to Denise Knutsen was "Still
needing help." (Exh. 1152.) Respondent was not transferred and continued as the SLP at
Mariners for the second half of the 2012-2013 school year.

35. In January 2013, Respondent was working on IEPs that she acknowledged
were "a bit late." (Exh. 1156.) She communicated by email with Lindsey Murphy about
evaluations and recommendations for exiting some of the students from speech. (Exhs.
1155, 1156, 1159.)

36. As noted in Finding 26, above, Lindsey Murphy was identified in September
2012 emails as the carrier for 13 students. (Exh. 1049.) However, Lindsey Murphy
apparently was not identified as a case carrier in Synergy. This was confirmed in Lindsey
Murphy's email to Heidi McDowell on March 5, 2013, in which she wrote that she "was not
the case carrier for any cases at Mariners" and Respondent "does them all since I am only
one day." (Exh. 1163.)

37. Teacher complaints about Respondent continued. For example, on March 12,
2013, a teacher complained to Principal Coughlin that she saw students playing with Legos
during speech therapy. (Exh. 1167.) The teacher did not first speak with Respondent before
complaining to the principal. Respondent denied the students were "playing." She explained
the students were helping the kindergartners to build a structure that they were problem
solving. The kindergartners had come to the speech office 10 minutes early. According to
Respondent, the teacher "swung the door open, saw the children helping the kinders, and did
not say ONE word then closed the door --- she could have easily called me instead." (Exh.
1167.) Respondent later emailed the teacher to explain that the students were not simply
"playing" with Legos and that she uses Legos or other manipulatives during therapy. (Exh
1183.) Teachers continued to complain to Principal Coughlin that Respondent was absent or
not in the speech office when they sent their students for therapy. (Exh. 1171.) According to
Respondent, there were some teachers who sent their students to speech before their
scheduled therapy time.

38. (A) On March 22, 2013, Heidi McDowell, Special Education Coordinator,
held a conference with Respondent to discuss issues related to maintaining compliance with
IEPs. McDowell called the meeting with Respondent after receiving email alerts in Synergy
of overdue IEPs for students with Respondent designated as the case carrier. The conference
is summarized in a memorandum dated March 28, 2013. (Exh. 1, p. 712.)

(B) During the conference, McDowell and Respondent discussed that

CASEMIS data indicated Respondent had 16 overdue IEPs as of March 18, 2013.
Respondent admitted she was not in compliance with IEP timelines for the IEPs for seven

9
students: KB, SD, KG, LN, ZP, ZR, and BW.4 Respondent acknowledged the problems with
the IEPs and that she understood the importance of complying with IEP timelines, and she
agreed that in the future her IEPs would meet required deadlines. McDowell directed
Respondent to complete all of her overdue IEPs by no later than April 12, 2013. That gave
Respondent three weeks to complete all of her late IEPs. (Spring Break was April 15-19,
2013.) During the conference, Respondent indicated she could get the paperwork in order
and complete the overdue IEPs by the April 12, 2013 deadline.

39. On March 22, 2013, Lindsey Murphy notified McDowell that she had taken
over as case carrier for four students. (Exh. 1184.) On May 1, 2013, McDowell moved eight
more students from Respondent to Lindsey Murphy as case carrier. (Exh. 1213.)

40. (A) Patti White (White) is an SLP who has been employed by the District
since June 2004. She has known Respondent for 17 years. Respondent was her daughter's
SLP. White became an SLP because of Respondent, who mentored her. White wrote a
character reference letter for Respondent dated June 1, 2012. (Exh. 1248, p. 19.) White
testified credibly at this hearing.

(B) On April 29 and 30, 2013, White went to Mariners to help Respondent.
White finished work at her assigned school site at 1:30 p.m., so she went to Mariners in the
afternoon. Mariners was just down the street from White's assigned school site. White
helped to organize Respondent's files, which were in disarray. White was "shocked" that
Respondent's speech office was so disorganized and there were piles of papers everywhere.
White could not open the bottom drawer of the filing cabinet. White found that students
confidential files were incomplete and missing documents, such as notices, assessment plans,
and signature pages. She also found that IEPs were indicated as current on Synergy but were
not printed out and placed in the confidential files. White printed out 10 of the IEPs to help
get things organized. (Exhs. 1208; 1194, 1202.) She printed out the IEPs at her assigned
school site and brought the documents back to Mariners. Although White was focused on
getting the paperwork in order, she did notice there were also CASEMIS errors in
Respondent's records. White testified that Respondent was good working with the students.
But when she saw the paperwork in Respondent's office, White felt like Respondent was
using her to clean up her mess.

(C) On May 6, 2013, at Heidi McDowell's request, White returned to Mariners

to assist with providing therapy and screening students for speech. Many of the teachers
wanted their students screened for articulation errors. White worked at Mariners at least
three to four times per week in May and June, after Respondent had been removed.
According to White, there were at least four others who worked on fixing the problems with
Respondent's files and records.

41. On May 2, 2013, Respondent was placed on paid administrative leave. (Exh.
1, p. 714.) A conference was held with Respondent and her union representative Nicholas
4
Students are identified by their initials to protect their privacy.

10
Dix. Respondent indicated that documents missing from student confidential files might be
at her home. Respondent and Dix retrieved documents from Respondent's home and brought
them to the District. They brought back at least one bankers box, although the evidence was
not clear on the exact number of boxes. Respondent estimated that she retrieved
approximately 2,000 pages of documents from her home.

42. Heidi McDowell reviewed the materials in the boxes from Respondent's home.
She placed documents that she could identify as pertaining to a specific student in that
student's confidential file. All other remaining documents she left in the box. McDowell
testified the boxes contained random papers and materials. At the hearing, Respondent and
her counsel raised issues that the District did not properly maintain the box or boxes of
Respondent's documents. Respondent testified that documents missing from the confidential
files of students were in the boxes retrieved from her home or in the speech office. She did
not have an opportunity to organize or review the contents of the boxes from her home after
she was placed on administrative leave on May 2, 2012. Respondent claimed she would
have been able to identify which students her notes belonged, even though she did not write
student names on her notes, because she knew her students so well and could recognize them
from the information in the notes.

43. After Respondent had been placed on administrative leave, the Director of
Special Education requested Heidi McDowell to review some of Respondent's student files at
Corona Del Mar High School, where Respondent was assigned in the prior school year
before her assignment to Mariners. McDowell reviewed a sampling of files. Three of the
charges in the Accusation (Charges 11, 12, and 13) are based on McDowell's findings at
Corona Del Mar High School.

44. The factual allegations for the charges in the Accusation are based on the
findings of Heidi McDowell's review of the confidential files and Synergy records for the
students on Respondent's caseload. McDowell reviewed the confidential files and records in
the spring of 2013.

Assessments and Protocols

45. As used in this Decision, the term "protocol" refers to the preprinted booklet
provided with the testing and assessment materials from the testing company for the purpose
of recording identifying student information, the date of assessment, etc., and for recording
data, and calculating scores and assessment results. Typically, the protocols include
instructions to be followed by the assessor in administering the assessment. The cover page
of the protocol includes space for indicating the name of the student being assessed and other
identifying information, the date of assessment, and recording and tallying scores. Protocols
may have practice questions to be administered to the student before the actual testing
begins.5
5
Examples of protocols are found at Exhibit 1, pages 370-389 and 390-421 and
Exhibits 4-14.

11
 46. Under special education law, assessments are to be administered according to
instructions provided by the producer of the assessment. The District is required by law to
retain, as mandatory interim pupil records, records of participation in special education
programs, including required tests. The District requires original protocols to be placed in
the student's confidential file and organized according to the detailed procedures set forth in
the Handbook.

47. A Psychological-Educational Multidisciplinary Assessment (PEMA) report is

a written report that reviews all assessments and testing conducted with the student and
reports the results. The PEMA report interprets the results of that testing and then applies
that testing to determine the eligibility of a student for special education. It also would
identify the areas of unique needs for the student. There are multiple designated specialists
working to compile that report. The PEMA report is presented and discussed at the student's
IEP meeting. Respondent's contribution to the PEMA report would be the section of the
report that listed the speech and language assessments given, reporting on the findings and
results of the speech and language assessments, and presenting the analysis to determine if
there was a speech and language impairment.

Charge 3 – Student DC6

48. On September 28, 2012, a written PEMA report was prepared for student DC.
As the student's SLP, Respondent indicated that she administered the Test of Language
Development -Primary: Fourth Edition (TOLD-4) and the Comprehensive Assessment of
Spoken Language (CASL), and reported raw scores, scaled scores, and percentile rank.
However, as of spring 2013, student DC's confidential file contained blank protocols for the
TOLD-4 and CASL, except that the student's name, the date tested, and the notation "3rd
grade" was written on the cover page of the TOLD-4 protocol, and the cover page for the
CASL protocol showed the student's name and sex, his school, Respondent as the examiner,
and the reason for testing was "triennial," but the space for providing the date of the testing
was blank. The cover pages for both protocols provided spaces for recording data and
calculating scores but those spaces were blank. Respondent admitted she did not use the
preprinted protocols but instead recorded data and scores on a separate notepad. Her intent
was to transfer the data from her notepad to the protocols at a later date when she had time to
do so. She testified her notes should have been in the speech office or among the documents
she and Nicholas Dix retrieved from her home on May 2, 2013.

49. It was established that Respondent failed to retain assessment protocols as

required by special education laws and the Handbook. The blank protocols for the TOLD-4
and CASL, with only sparse information on the protocol cover pages, were not sufficient.

6
The acts and omissions that are the basis of the District's charges against Respondent
are set forth in the Accusation at paragraphs 3 through 26, which are referred to in this
Decision as Charges 3 through 26.

12
 50. It was established that Respondent failed to properly assess student DC as
required by special education laws and the Handbook. She did not administer the TOLD-4
and CASL in accordance with instructions provided by the producer of the assessments, in
that she used a separate notepad instead of the preprinted protocols for recording data and
calculating the student's scores. In addition, because the protocols contained no scoring data,
the confidential file contained no substantiating data for the scores and percentiles
Respondent reported in the PEMA. The TOLD-4 and CASL are standardized tests. Proper
assessment using standardized testing requires that data substantiating the reported scores
must be in the student's confidential file. Such was not the case with Respondent's
assessment of DC.

Charge 4 – Student ME

51. On January 9, 2013, Respondent prepared a Speech-Language Diagnostic

Report for student ME in which she indicated having administered the Early Functional
Communication Profile (EFCP) and reported her observations and interpretation of the
student's behavior during the assessment. However, student ME's confidential file contained
an EFCP protocol that was blank. For example, there was no data reported in the spaces on
the cover page for identifying categories of skills as "emerging" and "mastered." Respondent
testified that she made notes of her observations on a separate notepad and then typed
information from her notes directly into the Speech-Language Diagnostic Report.
Respondent appears to have used a "cut-and-paste" method to copy and transfer information
from the EFCP protocol into her Speech-Language Diagnostic Report.

52. It was not established that Respondent failed to retain an assessment protocol
for the EFCP. The EFCP is a criterion referenced assessment tool, and not a standardized
test. Consequently, it was appropriate for Respondent to make notes on a separate notepad
and then type her observations directly into the Speech-Language Diagnostic Report and
copy applicable portions of the assessment tool into the Report. Respondent was not
required to place her notes in the student's confidential file.

53. It was not established that Respondent failed to properly assess student ME
using the EFCP. The Commission finds the evidence insufficient to make that
determination. Insufficient evidence was presented about student ME and the copy of the
Speech-Language Diagnostic Report was incomplete. However, there were email
communications between Respondent and Lindsey Murphy on January 7 and 8, 2013,
regarding their respective observations about student ME. (Exhs. 1261, 1262, and 1263.)
Based on the information presented, the Commission finds that Respondent's observations of
student ME, as reported in the Speech-Language Diagnostic Report, appear to be proper and
appropriate.

Charge 5 – Student JL

54. On April 11, 2013, a written PEMA report was prepared for student JL.
Respondent contributed to the Speech and Language Assessment section which indicates she

13
administered 10 diagnostic assessments. (Exh. 1, p. 447.) Although not identified in the list
of 10 diagnostic assessments, the PEMA report also included raw scores, standards scores,
and percentile ranks for the CASL and the Test of Auditory Processing and Reasoning
(TARPS). (Exh. 1, p. 449.)

55. It was not established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the Informal Speech and Language
Sample diagnostic assessment, the Pragmatic Language Skills Checklist (ABC Unified), the
Informal Oral Motor Evaluation assessment, and the Damaico Clinical Discourse Analysis
assessment. None of those assessments have protocols.

56. It was established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the Peabody Picture Vocabulary
Test, Fourth Edition (PPVT-4) and the Expressive Vocabulary Test, Second Edition (EVT-
2). Respondent reported raw scores, scaled scores, and percentile ranks for the PPVT-4 and
the EVT-2 in the PEMA report. However, in the student's confidential file, the protocols for
those two assessments were blank except that student JL's first name and his sex were
indicated on the cover pages of the protocols. (Exh. 1, pp. 454, 462.) There was no data
recorded in the protocols to substantiate the scores and percentile ranks that Respondent
reported in the PEMA report. Respondent testified that the data for these assessments were
recorded on a separate notepad, and those notes should have been in the speech office or
among the documents she and Nicholas Dix retrieved from her home on May 2, 2013.

57. It was established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the CASL and TARPS. Those two
assessments have preprinted protocols to be used for recording data and calculating scores.
Respondent reported raw scores, scaled scores, and percentile ranks for these two
assessments. However, the student's confidential file contained no completed protocols to
substantiate the scores and percentile ranks for the CASL and TARPS reported in the PEMA
report. Respondent testified that she recorded data for the CASL and TARPS on a separate
notepad, and those notes should have been in the speech office or among the documents she
and Nicholas Dix retrieved from her home on May 2, 2013.

58. It was established that Respondent failed to use and/or retain a protocol, as
required by special education laws and the Handbook, for the Clinical Evaluation of
Language Fundamentals, Fourth Edition (CELF-4). A protocol for the CELF-4 was
presented at the hearing showing student JL's name handwritten on the cover page, although
it did not indicate the date of the testing. (Exh. 1284.) The protocol is incomplete, as it does
not include scoring calculations in the spaces provided on the cover page. Respondent
testified this was the protocol she completed for the CELF-4 scores she reported in the April
11, 2013 PEMA.

59. It was established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the Pragmatic Language
Observation Scale (PLOS). In the PEMA report, Respondent reported a total score of 110, a

14
percentile of 75, and a descriptive term of "average" for the PLOS. (Exh. 1, p. 452.) Only
the Summary Sheet and Rating Scale page for the PLOS protocol were presented at the
hearing. (Exh. 1286.) The Summary Sheet is blank except for student JL's name
handwritten in the section for the student's identifying information. The Summary Sheet has
spaces for recording and interpreting scores and data. The Rating Scale page has ratings
indicated for "Descriptor Items" numbered 1 through 30. Respondent testified that the scores
she reported in the PEMA report for student JL are based on notes she took on a separate
notepad and the ratings shown on the Rating Scale page. Respondent testified her notes
should have been in the speech office or among the documents she and Nicholas Dix
retrieved from her home on May 2, 2013.

60. It was not established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the Language Processing Test-
Revised (LPT-R) assessment and the Social Language Development Test-Elementary
assessment. Although the two assessments were listed in the PEMA report among the
diagnostic assessments administered by Respondent, the PEMA report contains no scores or
data or discussion for these two assessments.

61. (A) It was established that Respondent failed to properly assess student JL
using standardized tests for which she reported scores and data in the PEMA report, namely,
the PPVT-4, EVT-2, CELF-4, TARPS, and CASL. For standardized tests, a proper
assessment consists of properly completed protocols which provide the data and evidence to
support the standardized test scores reported. The absence of protocols, blank protocols, or
incomplete protocols, do not constitute a proper assessment. Respondent provided no
interpretation in the PEMA report of the TARPS scores she reported, and her interpretation
of the CASL scores, that the student recalled and formulated sentences in the average range,
does not match the percentile ranks she reported for the recall sentences and formulated
sentences subtests, which were not in the average range. (Exh. 1, p. 449.)

(B) Further, it was established the Respondent failed to properly assess student
JL with the aforementioned five standardized assessments in addition to the PLOS. Proper
assessment requires administering the assessment according to the testing company's
instructions, which in this case required use of protocols for recording scores and data, which
Respondent did not do. Finally, it was established that Respondent failed to properly assess
student JL with the Pragmatic Language Skills Checklist (ABC Unified), in that she reported
a total score of 89, but there is no data reported in the PEMA or contained in the student's
confidential file that explains the basis for that score or how it was calculated. A proper
assessment requires that substantiating data for reported scores must be maintained in the
student's confidential file.

62. Respondent testified that she recorded data and made notes on a separate
notepad when she administered the PPVT-4, EVT-2, TARPS, CASL, and PLOS, which she
intended to transfer to the preprinted protocols when she had time. Respondent did not keep
her notes in the student's confidential file. Respondent testified that she kept her notes in the
speech office at school, or they were among the documents that she and Nicholas Dix

15
retrieved from her home on May 2, 2013. The Commission finds that Respondent's practice
of recording data and scores on a separate notepad instead of the preprinted protocol
provided by the testing company does not comply with special education laws requiring that
assessments are to be administered according to the testing company's instructions.
Administering an assessment not in accordance with the testing company's instructions does
not constitute a proper assessment.

Charge 6 – Student DP

63. On April 21, 2013, Respondent completed a Speech-Language Assessment

report which indicates she administered seven diagnostic assessments. (Exh. 1, p. 489.) She
reported raw scores, standard scores, and/or percentile ranks for the PPVT-4, EVT-2, CELF-
4, LPT-R, and the Goldman-Fristoe Test of Articulation Competence (Goldman-Fristoe),
which are standardized tests. She reported her observations for the Informal Speech and
Language Sample and the Oral Motor Peripheral Examination.

64. It was not established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the Informal Speech and Language
Sample and the Oral Motor Peripheral Examination. Neither of those assessments has a
preprinted protocol nor involves standardized test scores.

65. It was established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the raw scores, standard scores,
and/or percentile ranks she reported in the Speech-Language Assessment report for the
PPVT-4, EVT-2, CELF-4, LPT-R, and the Goldman-Fristoe assessment. These assessments
have preprinted protocols. However, respondent recorded data for these assessments on a
separate notepad, and her notes were kept in the speech office at school or were among the
documents she and Nicholas Dix retrieved from her home on May 2, 2013.

66. By failing to use the preprinted protocols for recording data and scores for the
standardized assessments in Finding 65, above, Respondent failed to administer the
assessments according to the testing company instructions and, thus, failed to properly assess
the student in accordance with special education laws and the Handbook. The Commission
finds that Respondent's practice of recording data and scores on a separate notepad instead of
the preprinted protocol provided by the testing company does not comply with special
education laws requiring that assessments are to be administered according to the testing
company's instructions and, therefore, do not constitute proper assessments. For
standardized tests, a proper assessment consists of properly completed protocols which
provide the data and evidence to support the standardized test scores reported. The absence
of protocols, blank protocols, or incomplete protocols, do not constitute a proper assessment.

Charge 7 – Student IP

67. On January 18, 2013, a written PEMA report was prepared for student IP.
Respondent contributed to the Language and Communication Skills section of the report.

16
She listed seven diagnostic assessments as having been administered for this report. (Exh. 1,
p. 498.) Two of the assessments listed -- the Informal Speech and Language Sample and the
Oral Motor Speech Evaluation -- are not standardized tests and do not have preprinted
protocols for recording and calculating standardized scores.

68. Respondent reported a raw score, standard score, and percentile rank for the
EVT-2. (Exh. 1, p. 500.) The confidential file for student IP contained a protocol for the
EVT-2, but the evidence was unclear if the protocol was an original or a copy. (Exhibit 1,
pp. 504-523.) The cover page of the protocol was only partially completed. The test date is
incomplete, in that the month and year are indicated (i.e., January 2013) but the day is
missing. The section entitled, "Calculating the Raw Score," was incomplete, in that a "Total
Raw Score" of 78 was recorded, but no data for the "Ceiling Item" and "Total Number of
Incorrect Items" for calculating the raw score was provided. There was data recorded in the
"Score Summary" section, but no indication of the source of the data in the protocol. Except
for the cover page, the rest of the protocol was blank. Respondent testified that the data for
the scores reflected on the protocol cover page were recorded on her separate note pad, and
those notes were either kept in the speech office or were among the documents retrieved
from her home on May 2, 2013.

69. Respondent reported a raw score, scaled score, standard score, and percentile
rank for the TARPS. (Exh. 1, p. 501.) The confidential file for student IP contained only the
cover page for the TARPS protocol. (Exh. 1, p. 524.) Respondent completed the "Test
Results" section of the cover page, but no other pages from the protocol were retained in the
confidential file. Respondent admitted that the TARPS protocol consists of more than the
cover page. Respondent testified that the scores reported in the "Test Results" section were
based on data she had recorded during the assessment on a separate note pad, and those notes
were either kept in the speech office or were among the documents retrieved from her home
on May 2, 2013. She calculated the scores from the data in her notes and in reference to the
TARPS manual. Respondent testified the District did not regularly stock protocols for the
TARPS, so she borrowed a TARPS protocol from her private practice office.

70. Respondent reported raw scores, standard scores, and percentile ranks for the
PPVT-4 and for the various subtests on the CELF-4. (Exh. 1, pp. 499, 500.) Student IP's
confidential file contained completed protocols for the PPVT-4 and CELF-4 assessments.
(Exhs. 1307, 1308.)

71. In the PEMA report, Respondent reported information for the Goldman-
Fristoe Test of Articulation Competence related to student IP's speech and articulation skills.
Respondent testified she did not complete the protocol for this assessment. She testified that
she used the Goldman-Fristoe assessment solely to gather information about the student's
initial consonant sounds. Respondent testified she used the assessment "informally" and not
for generating standardized scores.

72. The confidential file for student IP contained a protocol for the LPT-R. The
cover page for the protocol contained raw scores, age equivalencies, percentile ranks, and

17
standard scores for six subtests, but the date of testing was not indicated. (Exh. 1, pp. 526-
531.) The LPT-R was not listed in the January 18, 2013 PEMA report as one of the
diagnostic assessments administered by Respondent, and there was no reference to the LPT-
R in the report.

73. It was established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the EVT-2 and TARPS, in that the
protocols for those assessments contained in student IP's confidential file did not contain
complete information and/or pages.

74. It was not established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the Informal Speech and Language
Sample and the Oral Motor Speech Evaluation, because those assessments do not have
protocols for recording and calculating standardized scores. Also, it was not established that
Respondent failed to use and/or retain protocols, as required by special education laws and
the Handbook, for the PPVT-4 and the CELF-4 because completed protocols for those
assessments were found in the student's confidential file. Finally, it was not established that
Respondent failed to use and/or retain protocols, as required by special education laws and
the Handbook, for the Goldman-Fristoe assessment, because she used that assessment
informally to gather information about the student's articulation and not to generate
standardized test scores. The Commission finds that Respondent's use of the Goldman-
Fristoe assessment in that manner was appropriate and did not require completion of a
protocol.

75. It was established that Respondent failed to properly assess student IP using
the EVT-2 and the TARPS assessments, when she recorded data from the assessment on a
separate note pad instead of using the preprinted protocols from the testing company, thereby
administering the assessment not according to instructions of the testing company, as
required by special education laws and the Handbook. For standardized assessments, such
as the EVT-2 and the TARPS, a proper assessment consists of properly completed protocols
which provide the data and evidence to support the standardized test scores reported. The
absence of protocols, blank protocols, or incomplete protocols do not constitute a proper
assessment.

Charge 8 – Student JS

76. On November 14, 2012, a written PEMA report was prepared for student JS.
Respondent contributed to the Language and Communication Skills section of the report.7
She listed 11 diagnostic assessments as having been administered for this report. (Exh. 38, p.
4217.)

7
Exhibit 1, pages 533-539, is an excerpt of the PEMA report and does not include the
entire section regarding speech. A complete copy of the PEMA report is found at Exhibit 38,
and the Language and Communication Skills section starts at page 4217.

18
 77. The Informal Speech and Language Sample and the Oral Motor Speech
Evaluation are not standardized tests and do not have preprinted protocols for recording and
calculating standardized scores. Respondent testified that the Theory of Mind Development
Chart does not have a formal protocol. Respondent did not report results for the PLOS,
except to say that "[r]esults are pending completion of surveys from classroom teacher and
parents at this time." (Exh. 38, p. 4223.)

78. In the PEMA report, Respondent reported raw scores, standard scores, and
percentile ranks for the PPVT-4, the Expressive Vocabulary Test (EVT), and the CASL,
which are standardized assessments. The confidential file for student JS did not contain
completed protocols with supporting data for those scores. Respondent testified that she
recorded data and scores on a separate note pad instead of using the preprinted protocols
provided by the testing company. She testified her notes were in the speech office or among
the documents that she and Nicholas Dix retrieved from her home on May 2, 2013.
Respondent testified she utilized the Goldman-Fristoe assessment informally, to gather
information about the student and not to generate standardized scores. She did not complete
a protocol for the Goldman-Fristoe assessment.

79. In the PEMA report, Respondent reported results on the Social Development
Language Test – Elementary assessment that student JS "demonstrated skills generally
within the low average range at this time." She also reported results for the Damaico Clinical
Discourse Analysis that the student's skills were "[g]enerally within normal limits" and his
expressive skills were "within the low average range at this time." These results are
expressed as standardized scores. As such, the student's confidential file must contain data to
substantiate the standardized scores. There was no such data in the confidential file for
student JS.

80. In the PEMA report, Respondent reported a raw score of 65/70 for the
"Pragmatic Skills Checklist – Interpersonal Skills." (Exh. 38, p. 4223.) However, there was
no data in the confidential file of student JS to substantiate this standardized score or explain
how it was calculated.

81. It was established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the PPVT-4, the EVT, and the
CASL, which are standardized assessments with preprinted protocols for recording data and
calculating standardized scores. Respondent recorded her data and scores on a separate note
pad instead of the protocols provided by the testing company. The student's confidential file
contained no data to substantiate the standardized scores reported by Respondent.

82. It was established that Respondent failed to properly assess student JS with the
PPVT-4, the EVT, and the CASL, in that she did not administer the assessments according to
the testing company's instructions as required by special education laws and the Handbook,
and thus did not properly assess student JS. For standardized assessments, a proper
assessment consists of properly completed protocols which provide the data and evidence to

19
support the standardized test scores reported. Protocols that are missing, blank, or
incomplete do not constitute a proper assessment.

83. It was established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the Social Development Language
Test-Elementary and the Damaico Clinical Discourse Analysis. There was no data in the
student's confidential file to substantiate the standardized results Respondent reported in the
PEMA report. Consequently, it was also established that Respondent failed to properly
assess student JS using these two assessments.

84. It was not established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the Goldman-Fristoe assessment
and the PLOS. Respondent used the Goldman-Fristoe assessment informally to gather
information about the student's articulation and not to generate a standardize score. Thus, a
completed protocol was not required. No completed protocol was required for the PLOS
because the results for the PLOS were reported in the PEMA as still pending.

Charge 9 – Student AT

85. On April 10, 2013, a written PEMA report was prepared for student AT.
Respondent contributed to the Language and Communication Skills section of the report.
Respondent reported a raw score, standard score, and percentile rank for the Goldman-
Fristoe assessment. (Exh. 1, p. 545.) She also reported results for the TARPS that student
AT scored below the 7th percentile in certain areas. (Exh. 1, p. 546.) The confidential file
for student AT did not contain completed protocols or supporting data for the Goldman-
Fristoe and TARPS scores reported in the PEMA. Respondent testified that she recorded
data and scores for the TARPS using a separate note pad instead of the preprinted protocol
and her notes were in the speech office at school or among the documents she and Nicholas
Dix retrieved from her home on May 2, 2013. Respondent testified she used the Goldman-
Fristoe informally to gather information but not to generate a standardized score. But the
PEMA report includes standardized scores for the Goldman-Fristoe assessment (i.e., a raw
score, standard score, and percentile rank).

86. It was established that Respondent failed to use and/or retain protocols, as
required by special education laws and the Handbook, for the TARPS and Goldman-Fristoe
assessment. Because she reported standardized scores for both assessments, she was
required to have completed protocols in the student's confidential file with data to
substantiate the standardized scores she reported. There were no such protocols in student
AT's confidential file.

87. It was established that Respondent failed to properly assess student AT with
the TARPS and Goldman-Fristoe assessment. Respondent did not use the protocols for these
assessments to generate the standardized scores she reported in the PEMA report. By not
using the protocols, Respondent failed to administer the assessments according to the testing
company's instructions, as required by special education laws and the Handbook, and thus

20
did not properly assess student AT. For standardized assessments, a proper assessment
consists of properly completed protocols which provide the data and evidence to support the
standardized test scores reported. The absence of protocols, blank protocols, or incomplete
protocols do not constitute a proper assessment.

Charge 10 – Student KW

88. On April 29, 2013, a written PEMA report was prepared for student KW. The
findings of the PEMA report were discussed at student KW's IEP meeting on April 29, 2013,
which the student's parent attended. (Exh. 40.) Respondent contributed to the PEMA report
as the SLP for student KW. The PEMA report lists six diagnostic assessments administered
by Respondent: Informal Speech and Language Sample, Damaico Clinical Discourse
Analysis, Michelle Garcia-Winner Double Interview, Conversational Effectiveness Profile,
CASL, and Social Responsiveness Scale. The District contends that the confidential file for
student KW contained no substantiating data and/or protocols for the assessment information
reported by Respondent in the PEMA report. Respondent testified that she administered all
of the diagnostic assessments listed in the PEMA report, and also administered the PLOS but
did not report results in the PEMA report.

89. The Informal Speech and Language Sample and Damaico Clinical Discourse
Analysis are not standardized assessments and do not have a protocols for recording data to
generate standardized scores. All information and observations from Respondent's notes for
the two assessments are contained in the PEMA report. Similarly, the Michelle Garcia-
Winner Double Interview is not a standardized assessment and does not have a protocol.
Respondent testified that the information in the PEMA report for this assessment came from
her notes, which she did not keep because all of the information from the notes is contained
in the PEMA report.

90. Respondent reported on the Social Responsiveness Scale. She testified that
she administered this assessment and recorded raw scores and T-scores in the spaces
provided on the cover page of the protocol. (Exh. 1326.) Respondent testified that the
scores are based on her notes and information reported by the parents. Respondent testified
that she had information available to her to complete the entire protocol by May 2, 2013, if
she had been given an opportunity to do so.

91. Respondent reported standard scores and percentile ranks for the CASL, which
is a standardized assessment with a protocol for recording data and calculating standardized
scores. Respondent recorded her data and scores on a separate note pad instead of the
protocol provided by the testing company. The student's confidential file contained no data
to substantiate the standardized scores reported by Respondent in the PEMA report.

92. The Conversational Effectiveness Profile is listed in the PEMA report as one
of the diagnostic assessments administered. However, results from that assessment are not
mentioned in the PEMA report. Respondent testified she administered the Conversational
Effectiveness Profile but gave two possible explanations as to why the results were not

21
included in the PEMA report. Her first explanation was that the results of the Conversational
Effectiveness Profile justified or corroborated the results of the other assessments given, so
Respondent determined, in her judgment, that it was not necessary to include the
Conversational Effectiveness Profile in the PEMA report. Respondent's second explanation
was that she prepared her section of the PEMA report ahead of time and included items she
anticipated completing but did not update the document to account for changed
circumstances. The Commission finds both of Respondent's explanations reasonable and
plausible.

93. Respondent testified that she administered the PLOS as she indicated in
testimony regarding other students. She recorded data on a separate note pad, and her notes
were in the speech office at school or were among the documents that she and Nicholas Dix
retrieved from her home on May 2, 2013. Two pages from a PLOS protocol were retrieved
from Respondent's home. (Exh. 1, pp. 560-561.) The Summary Sheet is blank except that
student KW's first name is handwritten in the space for the student's name. The Rating Scale
contains ratings for the Descriptor Items numbered 1-30 and handwritten notations next to
some of the items. Respondent did not report scores or provide information about the PLOS
in the PEMA report.

94. It was established that Respondent failed to utilize and/or retain protocols, as
required by special education laws and the Handbook, for the CASL, which has a preprinted
protocol to be used for recording data and calculating scores. Respondent reported standard
scores and percentile ranks for this assessment. However, the student's confidential file
contained no completed protocols to substantiate the scores and percentile ranks for the
CASL reported in the PEMA report. Respondent testified that she recorded data for the
CASL on a separate notepad, and those notes should have been in the speech office or among
the documents she and Nicholas Dix retrieved from her home on May 2, 2013.

95. It was not established that Respondent failed to utilize and/or retain protocols,
as required by special education laws and the Handbook, for the Informal Speech and
Language Sample, Damaico Clinical Discourse Analysis, Michelle Garcia-Winner Double
Interview, Conversational Effectiveness Profile, and Social Responsiveness Scale. These
assessments do not involve standardized testing. The Commission finds it was appropriate
for Respondent to record her observations on a separate note pad and then transfer the
information into the PEMA report, which she did. It was not necessary that Respondent
maintain her notes in the student's confidential file, where the information is reflected in the
PEMA report.

96. It was not established that Respondent failed to properly assess student KW
using the assessments identified in Charge 10, except for the CASL. Respondent's failure to
use and retain the protocol for the CASL constitutes a failure to administer an assessment in
accordance with the testing company's instructions, as required by special education laws and
the Handbook, and thus, constitutes a failure to properly assess the student. For standardized
tests, a proper assessment consists of properly completed protocols which provide the data

22
and evidence to support the standardized test scores reported. The absence of protocols,
blank protocols, or incomplete protocols, does not constitute a proper assessment.

Review of Files at Corona Del Mar High School

97. Heidi McDowell testified that, after Respondent was placed on administrative
leave, she was asked by the Director of Special Education to go to Corona Del Mar High
School and review some of the triennial assessments Respondent conducted to determine if
Respondent's difficulty at Mariners "was a more chronic problem." As directed, McDowell
reviewed nine triennial assessments that Respondent had conducted and found "very similar
issues" as had occurred at Mariners, namely, no protocols or blank protocols in the
confidential files to substantiate reported assessment data and results. The factual allegations
of the following Charges 11, 12, and 13, involve the confidential files for students at Corona
Del Mar High School when Respondent was the assigned SLP.

98. Respondent testified that she completed all assessments as reported in the
PEMA reports for the Corona Del Mar students and, as far as she knew, all completed
protocols were in the confidential files for each student. She testified she administered all
assessments stated in the PEMA reports and completed all required protocols. In response to
Heidi McDowell's findings, Respondent argues that she had no access to the student files
after she left Corona Del Mar High School at the end of the 2011-2012 school year. She
does not know who else may have had access to the student files. The Commission is not
persuaded by Respondent's contention that her case files at Corona Del Mar High School
may have been tampered with or sabotaged. This argument is pure speculation, as no
evidence was presented of any person having any motive to tamper with or sabotage the
confidential files of Respondent's students. Respondent herself claimed she was happy
working at Corona Del Mar High School and there was no evidence of any difficulty in her
relationships with the staff there.

Charge 11 - Student CL

99. Student CL was a student at Corona Del Mar High School when Respondent
was the assigned SLP. On May 2, 2011, a written PEMA report was prepared for student
CL. Respondent contributed to the report as the SLP. She indicated having administered 10
diagnostic assessments listed in the PEMA report, and reported data and results for each
assessment.

100. Four of the assessments listed in the PEMA report are not standardized
assessments and do not have protocols used for generating standardized scores. The
assessments are: Informal Speech-Language Sample, Oral Motor Peripheral Examination,
Functional Communication Profile-Revised, and Pragmatic Language Skills Rating Form
(ABC USD). No data for these assessments was found in the student's confidential file in the
spring of 2013. Respondent was not required to utilize and/or retain protocols for these non-
standardized assessments. Her findings were contained in the PEMA report.

23
 101. The remaining six diagnostic assessments listed in the PEMA report are
standardized tests with protocols. They are: Goldman-Fristoe Test of Articulation
Competence, PPVT-4, EVT-2, Structured Photographic Expressive Language Test-II
(SPELT-II), Test of Oral Language Development-Primary, 3rd edition (TOLD-P:3), and the
Preschool Language Scale-4th edition (PLS-4). Respondent reported raw scores, standard
scores, percentile ranks, and/or age equivalents for those assessments. No data or completed
protocols were found in the student's confidential file in the spring of 2013.

102. It was established that Respondent failed to utilize and/or retain protocols, as
required by special education laws and the Handbook, for the PPVT-4, EVT-2, SPELT-II,
TOLD-P:3, and PLS-4. Because Respondent reported standardized scores or age-equivalents
for those assessments in the PEMA report, she was required to retain completed protocols
containing the data which substantiates the reported scores. Such data was not found in the
student's confidential file during Heidi McDowell's review in spring 2013. However,
Respondent was not required to retain the protocol for the Goldman-Fristoe assessment
because she did not report any standardized scores for that assessment.

103. It was established that Respondent failed to properly assess student CL. She
failed to use and retain the protocols for the standardized assessments in Finding 102, which
constitutes a failure to administer an assessment in accordance with the testing company's
instructions, as required by special education laws and the Handbook, and thus, constitutes a
failure to properly assess the student. For standardized tests, a proper assessment consists of
properly completed protocols which provide the data and evidence to support the
standardized test scores reported. The absence of protocols, blank protocols, or incomplete
protocols, does not constitute a proper assessment.

Charge 12 – Student AM

104. Student AM was a student at Corona Del Mar High School when Respondent
was the assigned SLP. On October 21, 2011, a written PEMA report was prepared for
student AM. Respondent contributed to the report as the SLP. She indicated having
administered five diagnostic assessments listed in the PEMA report: Informal Speech and
Language Sample, Damaico Clinical Discourse Analysis, Michelle Garcia-Winner Double
Interview, CASL, and the Social Language Development Test-Adolescent (SLDT-A). In the
PEMA report, Respondent reported data and results with respect to each of these assessments
(including scores, observations, and/or percentiles). Heidi McDowell reviewed student AM's
confidential file and found no protocols to substantiate the five assessments.

105. It was established that Respondent failed to utilize and/or retain protocols for
the CASL and SLDT-A, as required by special education laws and the Handbook. These are
standardized assessments for which Respondent reported standardized scores and percentiles.
As such, she was required to retain completed protocols with data to substantiate the
standardized scores reported. Further, by failing to utilize the protocols, Respondent failed to
administer the assessments according to the testing company's instructions, as required by
special education laws and the Handbook, and thus failed to properly assess the student. For

24
standardized tests, a proper assessment consists of properly completed protocols which
provide the data and evidence to support the standardized test scores reported. The absence
of protocols, blank protocols, or incomplete protocols, does not constitute a proper
assessment.

106. The Commission finds there was no failure to utilize and/or retain protocols,
and no failure to properly assess, with regard to the Informal Speech and Language Sample,
Damaico Clinical Discourse Analysis, and the Michelle Garcia-Winner Double Interview.
These are not standardized assessments. Respondent observations from these assessments
are reflected in the PEMA report.

Charge 13 – Student KP

107. The confidential file for student KP contained a written PEMA report prepared
on May 14, 2012. Respondent contributed to the report as the SLP. She reported having
administered the 11 diagnostic assessments listed in the report. (Exh. 1, p. 583-584.) She
reported data and results with respect to each assessment. Heidi McDowell reviewed student
KP's confidential file in or about May 2013 and found no completed protocols.

108. It was not established that Respondent failed to utilize and/or retain protocols,
as required by special education laws and the Handbook, for the Informal Speech and
Language Sample, Oral Motor Evaluation, [PLOS,] Michelle Garcia-Winner Double
Interview, Damaico Conversational Profile, and Theory of Mind Checklist. These
assessments do not have protocols for recording data and generating standardized scores. It
was sufficient for Respondent to make notes of her observations on a separate note pad, and
input the information from her notes directly to the PEMA report, which she did. She was
not required to retain her notes in the student's confidential file.

109. It was not established that Respondent failed to utilize and/or retain protocols,
as required by special education laws and the Handbook, for the Goldman-Fristoe Test of
Articulation Competence. Respondent did not report a standardized score for this assessment
in the PEMA report. Respondent used the Goldman-Fristoe assessment informally, to gather
information and to explain her observations and clinical judgment about the student. It was
appropriate for Respondent to write her observations directly into the PEMA report. She was
not required to retain her notes in the student's confidential file.

110. It was established that Respondent failed to utilize and/or retain protocols, as
required by special education laws and the Handbook, for the PPVT-4, EVT, TOLD-4,
Social Language Development Test-Adolescent (SLDT-A). For these assessments,
Respondent reported raw scores, standard scores, percentiles, and/or age equivalents in the
PEMA report. As such, she was required to maintain completed protocols with data to
substantiate the scores reported. Heidi McDowell's review in or about May 2013 found no
protocols for these assessments in the student's confidential file.

25
 111. It was established that Respondent failed to properly assess student KP.
Respondent failed to administer the assessments in Finding 110 according to testing
instructions when she failed to use protocols. For standardized tests, a proper assessment
consists of properly completed protocols which provide the data and evidence to support the
standardized test scores reported. The absence of protocols, blank protocols, or incomplete
protocols, does not constitute a proper assessment.

Charge 14 - Student AA

112. Charge 14 involves student AA's exit from special education. On November
7, 2012, student AA's mother signed an Assessment Plan in which she agreed to an exit
assessment of her child. (Exh. 1, p. 593-594). On November 20, 2012, student AA was
assessed by graduate student intern Jessica Haffar, who administered the Goldman-Fristoe
Test of Articulation. (Exh. 1408.) An exit IEP meeting was subsequently held on December
4, 2012. Student AA's mother attended the meeting and signed the IEP, thereby indicating
her consent for AA to be exited from special education. (Exh. 1409, p. 3773.) On
CASEMIS, Respondent entered student AA's exit date from special education as December
4, 2012. (Exh. 1, p. 595.)

113. It was not established, as alleged in Charge 14, that Respondent failed to
conduct a speech assessment regarding student AA, failed to prepare a written report, and
failed to provide any documentation explaining why the student was to be exited from
special education. Student AA was assessed on November 20, 2012, by intern Jessica
Haffar. Student AA scored in the 24th percentile on Goldman-Fristoe assessment. (Exh.
1408.) Respondent testified that a student is ready for dismissal with a score above the 7th
percentile. The December 4, 2012 IEP indicates the reason for student AA's exit from
special education is that he met his goals for articulation, he no longer demonstrates an
articulation disorder, and he produces target sounds with 100 percent accuracy in
conversational and spontaneous speech. The IEP also notes that the Goldman-Fristoe was
used to assess AA's articulation skills. (Exh. 1409, p. 3771.)

114. It was not established, as alleged in Charge 14, that Respondent failed to
obtain written consent from student AA's parent for the IEP meeting held on December 4,
2012. Written consent for a meeting must be obtained from the parent at least 10 days prior
to the meeting date. No evidence was presented of written consent having been obtained
from student AA's parent at least 10 days prior to the December 4, 2012 meeting. However,
the absence of evidence of the parent's prior written consent to the December 4, 2012
meeting date is mitigated by the fact that student AA's mother actually showed up and
attended the meeting on December 4, 2012, and signed the IEP at that meeting. (Exh. 1, p.
592; Exh. 1409, p. 3773.)

115. It was established, as alleged in Charge 14, that Respondent failed to obtain
the signature of an administrator or otherwise qualified local educational agency
representative on the Participants and Consent page of the December 4, 2012 IEP. (Exh. 1,
p. 592; Exh. 1409, p. 3773). It was also established, as alleged in Charge 14, that

26
Respondent herself failed to sign the IEP on that date. The Commission finds there were
mitigating circumstances. The Meeting Notes for the December 4, 2012 IEP indicate that
Mrs. Overstreet was introduced at the meeting as the administrative designee. (Exh. 1409, p.
3771.) Respondent testified that Mrs. Overstreet had to leave the meeting early due to a
family emergency. The Commission finds it understandable that Respondent did not get
signatures on the IEP before the meeting concluded, given Mrs. Overstreet's unexpected
emergency and the typical rush of activity at an IEP meeting. It is not uncommon that
participants at an IEP meeting forget to sign the IEP document before they leave.
Respondent's failure to sign the IEP herself does not invalidate the IEP, when, as here, the
parent consented to and signed the IEP.

116. It was not established, as alleged in Charge 14, that Respondent exited student
AA from special education services effective December 4, 2012, without notice to or consent
from student AA's parent. As discussed above, student AA's mother attended the IEP
meeting on December 4, 2012, and signed and initialed the IEP to indicate her consent that
AA was no longer eligible for special education. (Exh. 1, p. 592; Exh. 1409, p. 3773)
Respondent testified that, prior to December 4, 2012 meeting, student AA's mother had
indicated to her that she wished to have AA exited from speech. No evidence was presented
that student AA's mother made any complaint about her child being exited from special
education without her consent.

117. It was not established, as alleged in Charge 14, that Respondent failed to
properly notice, obtain consent, and/or complete documentation for an IEP dated December
21, 2012. In the CASEMIS record for student AA, Respondent entered December 21, 2012,
as the "Last IEP Date." Respondent, in her testimony, could not explain the December 21,
2012 entry in CASEMIS. However, the IEP documents for student AA contain no reference
to any meeting on December 21, 2012, and no evidence was presented that Respondent held
any meeting for student AA on that date. In short, there was no meeting on December 21,
2012, for which Respondent was required to give notice, obtain consent, and complete
documentation.

Charge 15 - Student JA

118. Student JA and student AA (discussed in Charge 14, above) are siblings. As
discussed above, their mother attended an IEP meeting on December 4, 2012, for student
AA. During that meeting, their mother expressed that she also wanted student JA exited
from special education. Both children were discussed at the December 4, 2012 meeting.
According to Respondent, the mother had indicated, prior to the December 4, 2012 meeting,
that she wanted both of her children exited from special education.

119. It was established, as alleged in Charge 15, that Respondent failed to properly
notice and obtain consent from the parent for a December 4, 2012 IEP meeting for student
JA. In mitigation, the mother was present for an IEP meeting on December 4, 2012, that was
arranged specifically to discuss student AA's exit from special education, but student JA's
exit was also discussed. The mother wanted both of her children exited.

27
 120. It was established, as alleged in Charge 15, that Respondent failed to complete
documentation regarding an IEP for student JA for December 4, 2012. There are no
signatures of required IEP team members on the IEP for student JA. (Exh. 1, p. 597; Exh.
45, p. 3832.) The IEP is mostly blank. (Exh. 45.) The IEP cover page does not indicate that
the purpose of the meeting was to exit student JA from special education (see Exh. 45, p.
3823), in contrast to student AA's IEP which stated on the cover page that the purpose of the
meeting was "Exit from special ed." (Exh. 1409, p. 3764.)

121. It was established, as alleged in Charge 15, that Respondent negligently

recorded data in Workflow. It was not established, however, that Respondent falsified data
in Workflow. Respondent made entries in Workflow for the date November 19, 2012,
indicating that student JA's mother attended a meeting on November 19, 2012, where she
gave full consent to the IEP on that date. Respondent testified that she used Workflow as a
calendar for her assessments. Respondent testified that she considered Workflow dates to be
"irrelevant" because only the CASEMIS data is reported to the State. The Commission finds
that Respondent's Workflow entries for November 19, 2012, constitute negligent recording
because they do not reflect actual events, namely, that student JA's mother attended an IEP
meeting and gave consent on December 4, 2012. Respondent's use of Workflow as her own
internal calendar does not excuse her failure to enter accurate dates in Workflow.

Charge 16 – Student IB

122. On December 12, 2012, an IEP meeting was held for student IB, who was a
student on Respondent's caseload receiving only speech-related services. The IEP document
indicates a meeting was held on December 12, 2012, where Respondent, administrative
designee Mrs. Overstreet, and student IB's father were present. (Exh. 1417, p. 3975) The
IEP indicated that the purpose of meeting was to exit IB from special education and speech
services. (Exh. 1417, pp. 3968, 3975.) There are no signatures on the Participants and
Consent page of the IEP. (Exh. 1417, p. 3977.)

123. It was established, as alleged in Charge 16, that Respondent failed to properly
notice and obtain consent for the December 12, 2012 meeting. Respondent testified that the
father was present at the December 12, 2012 meeting, but he did not sign the IEP document
at meeting because he wanted to discuss it first with student IB's mother before signing.
Respondent's testimony that the father was present at December 12, 2012 meeting is
unconvincing as there was no signature by the father on the Participants and Consent page of
the IEP. Respondent admitted that it would have been better if she had obtained the father's
consent in writing for student IB's exit from special education/speech services.

124. It was established, as alleged in Charge 16, that Respondent failed to complete
documentation regarding an IEP for student IB. The 2012 IEP looks like a copy of 2011
IEP. The teacher for 2012 was Stephanie Parole [Exh. 1, p. 600] and the teacher for 2011
was Pat McLaughlin [Exh. 46, p. 3987], yet the "Input from General Education Teacher" in
the 2012 and 2011 IEPs is identical. (Compare Exhibit 46, page 3969 [2012 IEP] with page
3979 [2011 IEP].)

28
Charge 17 – Student SK

125. It was established, as alleged in Charge 17, that Respondent failed to properly
notice, obtain consent, and complete documentation regarding an IEP for student SK. An
IEP meeting for student SK was due by January 8, 2013. Respondent was the case carrier for
student SK, and she does not dispute that she failed to hold an IEP meeting for student SK by
that date. Student SK's parent testified she did not attend a meeting with Respondent and did
not receive notice of any meeting with Respondent.

Charge 18 – Student CAL

126. On January 15, 2013, an IEP meeting was held where it was determined that
student CAL "is not eligible for special education services." (Exh. 1, p. 619.) The IEP states
that student CAL met his goals and demonstrated skills within normal limits, and he was
found not eligible for special education. (Exh. 1428, pp. 4160, 4152.) The IEP was signed
on January 15, 2013, by Respondent as case carrier, Lindsey Murphy as SLP, an
administrator designee, and a general education teacher. The IEP was not signed by student
CAL's parent. (Exh. 1, p. 619; Exh. 1428.) As of April 2013, there was still no IEP signed
by the parent in student CAL's confidential file regarding his exit from special education.

127. The Synergy records indicate student CAL was exited from special education
with an exit date of January 15, 2013. The transfer/exit screen indicated student CAL's exit
from special education was "certified by" Respondent, meaning that Respondent entered the
exit information in Synergy, including the exit date of January 15, 2013. (Exh. 1, p. 620.)

128. The confidential file for student CAL contained an IEP meeting notice dated
January 7, 2013, which proposed meeting dates of January 15, 2013, and January 22, 2013.
(Exh. 1, pp. 617-618.) The IEP meeting notice indicates that the parent's response should be
returned to Respondent. (Exh. 1, p. 618.) In the parent response section of the IEP meeting
notice, the box is checked for the response "I will not attend but proceed without me and
forward a copy of the IEP for my review and signature." The response, however, was not
signed and dated by the parent. (Exh. 1, p. 618.) As of April 2013, there was no IEP
meeting notice signed by the parent confirming the parent's consent for the January 15, 2013
meeting to go forward without the parent's attendance.

129. Respondent testified that Lindsey Murphy was the case carrier for student
CAL and was responsible for the dates entered in Synergy and preparing the IEP
documentation and obtaining the parent's signatures. Respondent's testimony is not
supported by the evidence. The Commission finds, despite Respondent's claims to the
contrary, that Respondent was the case carrier for student CAL and responsible for all
aspects of his IEP. Respondent signed the January 15, 2013 IEP which identifies her as the
case carrier. (Exh. 1, p. 619.) Lindsey Murphy was not case carrying any students until
March 5, 2013, when she notified Heidi McDowell that she would be case carrying four
students. In April 2013, Respondent wrote a note reminding Lindsey Murphy to follow up

29
with student CAL's case. Respondent would not have needed to give such a reminder if
Lindsey Murphy was, in fact, the case carrier for the student.

130. Respondent testified that she prepared the IEP meeting notice for the January
15, 2013 meeting. She testified that she already knew the parent had agreed to student
CAL's dismissal from special education and that the parent would not be attending the
January 15, 2013 meeting. Respondent testified that she expected Lindsey Murphy to make
sure the IEP documents were sent to student CAL's parents, and that Lindsey was responsible
for obtaining the parent's signature for the IEP documents. Nonetheless, Respondent was
still the case carrier for student CAL and responsible for all aspects of his IEP.

131. It was established, as alleged in Charge 18, that Respondent, as case carrier,
failed to properly notice, obtain consent, and complete documentation regarding student
CAL's IEP and his exit from special education services. Respondent failed to give proper
notice to the parent regarding the January 15, 2013 IEP meeting. The IEP meeting notice
was not signed by the parent. Respondent's testimony that the parent waived their right to
attend the meeting is uncorroborated and, thus, insufficient to establish a waiver.
Respondent failed to obtain parental consent to exit student CAL from special education.
The IEP for the student's exit was not signed by the parent, yet Respondent went ahead and
entered data in Synergy for an exit date of January 15, 2013. Respondent failed to complete
IEP documentation for student CAL, as the IEP for January 15, 2013, was still not signed by
the parent as of April 2013. Notwithstanding the foregoing, it is noted that no evidence was
presented of student CAL's parent making a complaint that CAL was exited from special
education without the parent's consent.

Charge 19 – Student MG

132. On March 26, 2013, an IEP meeting was held for student MG for the purpose
of exiting the student from special education. The IEP indicates that the persons who
attended the meeting were Respondent, administrative designee Susan Overstreet, general
education teacher Joan Duncan, and student MG's mother. (Exh. 1, p. 632.) The IEP states
that Respondent, as SLP, recommended MG's dismissal from speech services, noting that
MG met all of his speech goals. (Exh. 1, p. 632.) The IEP indicates the assessments used
were "T-Mac, auditory discrimination test, and oral motor exam." (Exh. 1, p. 628.) The IEP
contains no signatures by the meeting attendees to evidence their participation at the March
26, 2013 meeting. However, the Participant and Consent page of the IEP was signed on
April 26, 2013, by student MG's mother, administrative designee Susan Overstreet, and
Respondent, but there is no signature by the general education teacher Joan Duncan. (Exh. 1,
p. 634.) Student MG's mother signed and initialed the IEP on April 26, 2013, to indicate her
agreement that MG was no longer eligible for special education and giving consent for MG's
exit from special education. (Exh. 1, p. 634) Student MG's mother testified she did not
recall signing an IEP on April 26, 2013, but admitted that the signature on the document
appeared to be her signature. (Exh. 1, p. 634.) Student MG's mother testified she attended
IEP meeting on June 18, 2013, and MG was exited from speech. (Exh. 49, p. 4031.)

30
 133. There are discrepancies with the dates reflected in the IEP and CASEMIS.
The "Last IEP Date" indicated in CASEMIS was February 27, 2013, which should match the
"Date of This Meeting" on the IEP cover page, which in this case shows a date of March 27,
2013. (Exh. 1, pp. 622, 635.) The dates do not match. Further, the IEP itself shows
different meeting dates. The IEP cover page indicates a meeting date of March 27, 2013,
whereas the IEP meeting notes indicate the meeting occurred on March 26, 2013. (Exh. 1,
pp. 621, 622.) Finally, the CASEMIS record shows student MG's exit date from special
education was April 2, 2013. However, student MG's mother did not sign the IEP for his exit
until April 26, 2013. The exit date in CASEMIS should be the date the IEP meeting was
held and the parent consented to the exit, which in this case was April 26, 2013. Respondent
entered the exit date of April 2, 2013, in CASEMIS, which was prior to the student's mother
giving consent on April 26, 2013.

134. Respondent testified that she had an IEP meeting scheduled with student MG's
mother for February 27, 2013, but the mother could not attend. The meeting had to be
rescheduled to a time that mother could attend. Respondent testified the meeting was
rescheduled to March 2013. Respondent attributed the different meeting dates shown in the
IEP (i.e., March 26 versus March 27) to either her mistake or that she prepared the IEP ahead
of time with the intent to update the meeting date later in Synergy and CASEMIS once the
meeting date was finalized. Respondent testified MG's mother was very busy and had to
rush out of the meeting, but she verbally consented to MG's exit from speech as of March 26,
2013. Student MG kept coming to speech. Respondent entered April 2, 2013, as the exit
date in CASEMIS because that was the date student MG finally stopped coming to speech.
Respondent testified she did not wait for the mother's signature on the IEP before entering
the April 2, 2013 exit date in CASEMIS since the mother had previously given verbal
consent to the exit. Respondent denied that she attempted to deceive anyone about missed
deadlines by entering incorrect dates in CASEMIS.

135. It was established, as alleged in Charge 19, that Respondent failed to properly
complete documentation regarding an IEP for student MG and his exit from special
education. Respondent failed to properly complete IEP documentation by failing to obtain
signatures of the participants at the March 26 meeting, failed to obtain signatures of the
participants for at the February 27 meeting which the parent did not attend, and failed to
obtain the signature of the general education teacher even though IEP meeting notes
indicated the teacher attended the March 26 meeting. Further, Respondent made inaccurate
entries in CASEMIS showing the exit date as April 2, 2013, when the mother's consent was
not given until she signed the IEP on April 26, 2013.

136. It was not established, as alleged in Charge 19, that Respondent failed to
properly notice and obtain consent regarding an IEP for student MG and his exit from special
education services. The Commission finds the evidence was insufficient to establish this
charge. Student MG's mother testified that she has no record indicating that she attended an
IEP meeting on March 26, 2013, and does not know why the IEP meeting notes would
indicate otherwise. Mother testified she did not recall signing and dating an IEP on April 26,

31
2013, but admitted that the signature on the document appeared to be her signature. The
mother's testimony for this charge is inconclusive.

Charge 20 – Student ZR

137. Student ZR's annual IEP meeting was due to be held by March 5, 2013. (Exh.
1, p. 637.) The CASEMIS record for student ZR showed an "Effective Date" of March 5,
2013, which indicated March 5, 2013, was the date that the student's last IEP was put into
effect. (Exh. 1, p. 638.) In Workflow, Respondent made entries that she convened an IEP
meeting on February 28, 2013, which the parent attended, and that partial consent was
received from the parent on March 5, 2013. (Exh. 1, p. 639.) Respondent prepared an IEP
document showing March 5, 2013, as the "Date of This Meeting" on the IEP cover page.
(Exh. 1, p. 640.) However, the meeting notes for the IEP indicate the meeting took place on
March 27, 2013. (Exh. 1, p. 641.) There is no explanation in the IEP meeting notes whether
the meeting occurred on March 5, March 27, or on both dates. The IEP Participants and
Consent page was not signed and dated until April 3, 2013. (Exh. 1, p. 644.) The IEP was
signed by the parent on April 3, 2013. The IEP contains no signatures from the participants
for a March 5 and/or March 27 meeting.

138. Laurie Smith was student ZR's third grade teacher for the 2012-2013 school
year. Smith attended an IEP meeting for ZR in March 2013, where Respondent and
administrative designee Susan Overstreet were present. The purpose of the meeting was to
exit student ZR from special education services. Student ZR's mother did not arrive at the
scheduled meeting time. Smith suggested that Respondent call ZR's mother, as Smith had
known the mother to be prompt to meetings. Respondent responded that it was not necessary
to call the mother because she had spoken to the mother two days earlier and the mother gave
approval to exit ZR from services. At Smith's insistence, during the meeting, Respondent
purportedly telephoned ZR's mother and, afterwards, stated that ZR's mother verbally
consented for her son to be exited. Respondent indicated to Smith and the administrative
designee that they should sign the IEP paperwork, which they did. Smith asked if it was
proper to sign without the parent present at the meeting, and Respondent indicated it was.
Later, Smith spoke with student ZR's mother, who was volunteering in Smith's classroom.
According to Smith, the mother indicated she had received no call from Respondent.

139. Student ZR's mother testified that she did not have any recollection of
attending meetings in March 2013 or April 2013. She did not recall speaking by telephone
with Respondent or giving verbal consent to exit her son, ZR, from special education
services. However, student ZR's mother testified that, in the 2012-13 school year, she agreed
that student ZR and her other son should both be exited from speech.

140. Respondent contends that the IEP meeting was held on April 3, 2013, student
ZR's mother gave consent over the phone for her son's exit from special education on that
date, and the mother signed the IEP as of April 3, 2013. Respondent testified that the March
5, 2013 meeting date on the IEP cover page, and the March 27, 2013 meeting date in the IEP
meeting notes, were mistakes which she should have corrected. Respondent testified that the

32
IEP meeting for student ZR occurred on April 3, 2013, and any other date indicated as the
meeting date would be incorrect and the result of human error.

141. During the March 22, 2013 conference with Heidi McDowell, Respondent
admitted that the IEP for student ZR was late and not in compliance with IEP timelines.
(Exh. 1, p. 712.) The Commission finds that the District's argument that Respondent
falsified dates in CASEMIS and Workflow to hide that student ZR's IEP was late was not
persuasive.

142. It was established, as alleged in Charge 20, that Respondent failed to properly
notice, obtain consent, and complete documentation for an IEP for student ZR and his exit
from special education services. Respondent failed to properly complete IEP
documentation. She prepared an IEP showing a meeting date of March 5 on the cover page,
and a meeting date of March 27 in the meeting notes, both dates she admits were incorrect
and the IEP should have reflected a meeting date of April 3, 2013. Respondent failed to
properly obtain consent for an IEP meeting on April 3, 2013. She created an IEP meeting
notice dated March 21, 2013, which proposed a meeting date of April 3, 2013. (Exh. 1, p.
645). The IEP meeting notice indicates the parent's response should be completed and
returned to Respondent. (Exh. 1, p. 646.) In the parent response section, the box is checked
for the response "I will not attend but proceed without me and forward a copy of the IEP for
my review and signature." (Exh. 1, p. 646.) Respondent failed to obtain a parent signature
on the consent form for an April 3, 2013 meeting. The student's confidential file did not
contain a parent signature on the IEP meeting notice to indicate the parent's consent to the
April 3, 2013 meeting being held without them. In mitigation, although the IEP meeting
notice is not signed, the parent did sign the IEP participant and consent page on April 3,
2013.

Charge 21 – Student BW

143. Student BW's annual IEP meeting was due to be held by March 7, 2013 (i.e.,
within one year of the prior year's IEP). (Exh. 51, p. 3701.) The confidential file for student
BW contained an IEP for a meeting date of March 27, 2013. The purpose of the meeting was
to exit student BW from special education. (Exh. 1, p. 650.) The IEP meeting notes indicate
that student BW's mother attended the meeting by telephone conference. (Exh. 1, p. 657.)
The Participants and Consent page contains signatures by Respondent and student BW's
parent dated April 2, 2013, and a signature by administrative designee Susan Overstreet
dated April 12, 2013. (Exh. 1, p. 659.) There are no signatures indicating participation at a
meeting on March 27, 2013. Respondent admitted to Heidi McDowell, at their conference
on March 22, 2013, that she was not in compliance with IEP timelines for student BW's IEP.
144. The Workflow record indicates that the student's parents responded to an IEP
meeting notice on February 18, 2013, and agreed to a meeting date, and that an IEP meeting
was convened on February 18, 2013, which the parents attended. (Exh. 1, p. 649.) The
District contends that the February 18, 2013 meeting date in Workflow gives the impression
that the IEP was timely held, given that the due date for the IEP was March 7, 2013.

33
 145. The Workflow data and the IEP are inconsistent. The Workflow record
indicates that full consent was received on February 18, 2013, which was not possible if the
IEP meeting was not actually held until March 27, 2013, or the IEP was signed by the parent
on April 2, 2013. Further, the IEP indicates that the meeting notice was sent on March 14,
2013. (Exh. 1, p. 659.) Such a meeting notice, however, could not have been sent for a
February 18, 2013 meeting.

146. Respondent testified that she scheduled an IEP meeting for March 27, 2013.
She used Workflow informally and considered dates entered in Workflow "did not matter"
because they were not reported to the State. Respondent admitted that the March 27, 2013
meeting date shown on the IEP cover page [Exh. 1, p. 650] was not accurate and needed to
be updated, given that the meeting participants signed the IEP on April 2, 2013 [Exh. 1, p.
659].

147. It was established, as alleged in Charge 21, that Respondent failed to properly
notice, obtain consent, and accurately complete documentation regarding an IEP for student
BW. The IEP documentation prepared by student BW was not accurate, as evidence by the
date discrepancies in the IEP itself and the Workflow record. Respondent admitted that the
dates shown in the IEP were not accurate and needed to be updated.

148. It was established, as alleged in Charge 21, that Respondent negligently

recorded data in Workflow, but it was not established that Respondent falsified data in
Workflow. The Commission finds that Respondent's informal use of Workflow as her own
personal calendar constitutes negligent recording of data. The Commission is not persuaded
that Respondent falsified data in Workflow to hide her noncompliance with IEP timelines,
given that she admitted to Heidi McDowell that she was late in completing student BW's
IEP. (Exh. 1, p. 712.)

Charge 22 – Student MM

149. Claudell Gapultos is employed by the District as a lead occupational therapist.

He has been assigned to Mariners for the past seven years. Tiffany Lang has been a teacher
for 11 years. She is presently assigned to Mariners as a second grade teacher. On April 29,
2013, Gapultos and Lang arrived at Respondent's speech office at 3:15 p.m. for an IEP
meeting for student MM. They had each received an email invitation from Respondent for
an IEP meeting at that date and time. Student MM's parent was not present, which Lang
thought was unusual because she knew that both of the student's parents were very involved
with their child. Respondent, as case carrier, conducted a meeting with Gapultos and Lang,
who each gave their input about student MM. During the meeting, neither Lang nor
Gapultos asked Respondent about student MM's parents not being present. At the end of the
meeting, Respondent had Gapultos and Lang sign and date an IEP Participants and Consent
page for the April 29, 2013 meeting, which they did. Gapultos and Lang left Respondent's
office. They checked their email and noted that Respondent had sent them a cancellation
notice at 3:07 p.m. for the meeting they had just attended. Lang sent an email to student
MM's mother asking if she knew that Respondent held an IEP meeting that day for MM.

34
Student MM's mother responded that she was not aware of an IEP meeting scheduled for
April 29, 2013. Respondent denied that she attempted to hold an IEP for student MM
without the parents' presence or consent.

150. Respondent's IEP documentation and related Workflow records for student
MM contain discrepancies. On March 14, 2013, Respondent sent an IEP meeting notice to
student MM's parents which proposed meeting dates of March 22, April 12, or April 26,
2013. (Exh. 1, p. 661.) The parent response section of the IEP meeting notice contains no
signature by the parents to confirm their attendance at a meeting or to indicate their
agreement that the meeting could proceed without them. (Exh. 1, p. 663.) The Workflow
record for student MM indicates that the parents responded to an IEP meeting notice on
February 27, 2013, and agreed to a meeting date; Respondent convened an IEP meeting on
March 13, 2013, which the parents did not attend; Respondent contacted the parents on
March 14, 2013; and the IEP meeting could proceed in the parents' absence on April 29,
2013. (Exh. 1, p. 664.) It is noted that the April 29, 2013 meeting date in Workflow is not
one of the proposed meeting dates in the March 14, 2013 IEP meeting notice. The IEP for
student MM shows a meeting date of March 13, 2013. (Exh. 1, p. 666.) However, the IEP
meeting notes indicate the meeting was held on March 12, 2013. (Exh. 1, p. 673.) The IEP
indicates that the IEP meeting notice was sent to the parents on March 14, 2013 [Exh. 1, p.
675], which does not match the Workflow record indicating that the parents responded to an
IEP meeting notice on February 27, 2013. Logically, the parents could not have responded
on February 27, 2013, to an IEP meeting notice sent on March 14, 2013.

151. It was not established, as alleged in Charge 22, that Respondent failed to
properly notice, obtain consent, and/or complete documentation regarding an IEP for student
MM or to exit student MM from speech-related services. The Commission finds that the
meeting on April 29, 2013, was not an IEP meeting because essential members of an IEP
team were missing, namely, the student's parent and an administrative designee. The
Commission finds that it would not be reasonable for Gapultos and Lang to conclude the
meeting they attended on April 29, 2013, was an IEP meeting. In any event, student MM
could not be exited from speech-related services at the conclusion of the April 29, 2013
meeting because it was not an IEP meeting and there was no consent for exit given by the
student's parent. The Commission finds that the April 29, 2013 meeting was nothing more
than a staffing meeting.

Charge 23 – Student KB

152. It was established, as alleged in Charge 23, that Respondent failed to conduct a
timely IEP meeting for student KB. The student's IEP meeting was due to be held prior to
March 6, 2013. At her conference with Heidi McDowell on March 22, 2013, Respondent
admitted that she was not in compliance with IEP timelines for student KB's IEP. However,
the Commission finds that the evidence was insufficient to establish that Respondent
manually falsified data and/or negligently altered data in CASEMIS to reflect an effective
date of March 5, 2013, so as to avoid audit for failure to timely conduct an IEP meeting for
this student. There was no reason for Respondent to hide that student KB's IEP was late, as

35
she admitted the IEP was late to Heidi McDowell. There was evidence that Respondent had
delegated to Lindsey Murphy the responsibility for completing student KB's IEP, although
Respondent was still listed in the Synergy as the case carrier for student KB. Lindsey
Murphy testified that student KB's IEP was unremarkable and she did not recall creating the
IEP or entering dates in CASEMIS. The Commission cannot determine from the evidence
presented whether Respondent or Lindsey Murphy entered the March 5, 2013 effective date
in the CASEMIS record for student KB.

Charge 24 – Student ZP

153. Student ZP was a student who came to the District with an IEP from his prior
school district in Alaska. In January 2013, the District approved an interim placement
request for student ZP. During the 30-day period after approval of the interim placement, the
District was required to provide services comparable to the services provided under student
ZP's last agreed upon IEP from Alaska, review the student's IEP needs and goals, and hold an
IEP meeting for development of a new IEP by the District. Student ZP's IEP from Alaska
was based on his disability of speech/language impairment.

154. The 30-day interim placement period for student ZP had a projected start date
of January 10, 2013, and an end date of February 8, 2013. (Exh. 1, p. 689.) Respondent was
required to complete her review of the student's IEP needs, goals, and services, and hold the
30-day IEP for student ZP, in or about February 2013. The exact date in February cannot be
determined by the evidence because the interim placement request was not signed by student
ZP's parent, although the space for the parent's signature shows a typewritten date of January
17, 2013. (Exh. 1, p. 689.)

155. The confidential file for student ZP includes an IEP which shows that
Respondent convened an IEP meeting on March 15, 2013, to discuss student ZP's interim
placement. According to the IEP meeting notes, present for this meeting were Respondent,
administrative designee Susan Overstreet, and general education teacher Brenda Khoury.
Student ZP's parent was not present. The Participants and Consent page for the IEP was not
signed by any of the participants identified in the meeting notes. A box on the Participants
and Consent page is checked to indicate that the meeting was not completed and a follow up
meeting would be scheduled to finalize the IEP. The IEP indicates that an IEP meeting
notice was sent to student ZP's parent on March 5, 2013. (Exh. 1, p. 695.)

156. The Workflow record for student ZP indicates that student ZP's parent
responded on January 17, 2013, to the IEP meeting notice and agreed to a meeting date; an
IEP meeting was convened on January 18, 2013, which the parent attended; partial consent
was received on February 15, 2013 ; and the IEP was finalized on March 15, 2013. (Exh. 1,
p. 690.)

157. It was established that Respondent failed to obtain consent and complete
accurate documentation regarding an IEP for student ZP. The IEP for the March 15, 2013
meeting is not consistent with the data entered by Respondent in the Workflow record for

36
student ZP. Respondent admitted to Heidi McDowell, at their conference on March 22,
2013, that she was not in compliance with IEP timelines for student ZP's IEP. (Exh. 1, p.
712.)

Charge 25 – Student JI

158. Respondent was the case carrier for student JI. The annual IEP meeting for
student JI was due to be held by no later than March 6, 2013 (i.e., within one year of the prior
year's IEP which was dated March 7, 2012). (Exh. 55, p. 3748.)

159. Heidi McDowell reviewed the confidential file for student JI on or about May
9, 2013. The brown file contained an IEP meeting notice dated March 11, 2013, which
proposed an IEP meeting date of March 19, 2013. (Exh. 1, pp. 698-699.) In the parent
response section of the IEP meeting notice, a box is checked off indicating that the parent
will attend the scheduled meeting on March 19, 2013. The space provided for the parent's
signature is blank. The date of March 18, 2013, is typewritten in the space for indicating
"Date Signed" and in the space for indicating the date the parent response was received.
Heidi McDowell did not find a version of the IEP meeting notice actually signed by student
JI's parent in the brown file. The absence of a signed IEP meeting notice, however, is
mitigated by evidence that the parent gave verbal consent on March 12, 2013, to have the
meeting held the following week (i.e., March 19, 2013). (Exh. 1485.) The parent also
signed, but did not date, the Participants and Consent form for the IEP. (Exh. 1, p. 701.)

160. The confidential file contained an IEP for student JI which indicated an IEP
meeting was held on March 19, 2013. (Exh. 1, pp. 700-701.) This IEP was not timely, as the
deadline for student JI's annual IEP meeting was March 6, 2013. Respondent did not sign
the Participants and Consent form, and she failed to have the parent and general education
teacher date the form next to their signatures. (Exh. 1, p. 701.) However, the administrative
designee, Susan Overstreet, signed and dated the IEP on March 19, 2013. The Commission
finds that an IEP meeting for student JI was held on March 19, 2013.

161. The Workflow record for student JI indicates that Respondent convened an
IEP meeting on March 13, 2013, the parent attended, full consent was received from the
parent, and the IEP was finalized. (Exh. 1, p. 699). The Workflow record is not accurate, as
the IEP meeting was actually held on March 19, 2013.

162. It was established that Respondent failed to conduct a timely annual IEP for
for student JI; failed to sign the Participants and Consent form; and failed to have the parent
and general education teacher date the form. Although it was established that Respondent
failed to obtain a signed response from student JI's parent to the IEP meeting notice for a
March 19, 2013 meeting, the failure to obtain the parent's signature is mitigated by evidence
that the parent consented to the meeting and signed the Participants and Consent section of
the IEP document.

//

37
Charge 26 – Student SD

163. Student SD's mother wrote a letter dated March 24, 2013, addressed to Heidi
McDowell, in which she requested SD's removal from speech therapy. (Exh. 1, p. 710.) In
the letter, the mother explained that SD attended speech therapy during his classroom's math
time and she felt it was more important for SD to be in the classroom during that learning
time. Heidi McDowell received the letter by SD's mother on April 4, 2013.

164. On April 9, 2013, Heidi McDowell reviewed the brown confidential file and
the CASEMIS and Workflow records for student SD. The CASEMIS record indicated that
student SD's IEP had an effective date of April 2, 2013, and his special education exit date
was April 2, 2013. However, the confidential file did not contain an IEP for student SD for
an exit date of April 2, 2013. The only IEP document in the confidential file was a "draft"
IEP that did not indicate a meeting date on the cover page or in the meeting notes section.
For the 2012-2013 school year, the annual IEP meeting for SD was due to be held by no later
than February 27, 2013. The Workflow record included an entry for March 13, 2013, that
SD's parent had responded to an IEP meeting notice and agreed to a meeting date. However,
there was no entry in the Workflow record indicating that an IEP meeting was actually held
for student SD. During her March 22, 2013 conference with Heidi McDowell, Respondent
identified student SD's IEP as one of the IEPs for which she was not in compliance with IEP
timelines.

165. It was established that Respondent failed to timely complete student SD's
annual evaluation by February 27, 2013, and failed to complete an IEP and obtain signatures
on the IEP Participants and Consent page by that date. As of April 9, 2013, there was no
documentation in the confidential file and no entries in the CASEMIS and Workflow records
establishing that an IEP meeting was actually held by the February 27, 2013 deadline.
Respondent herself admitted she was not in compliance with the IEP timelines for student
SD's IEP during her March 22, 2013 conference with Heidi McDowell.

166. It was established that Respondent failed to accurately document and report
student SD's exit from speech-related services.

Other Findings

167. Respondent testified that she will change and modify her practices in using
and maintaining assessment protocols, managing student confidential files, and using
Synergy, CASEMIS, and Workflow. She appears to have learned her lesson from the
documentation and recordkeeping deficiencies that were the basis of the District's charges in
this case. She appeared sincere in expressing that she will be diligent in performing her
duties related to recordkeeping and documentation in accordance with the District's policies
and procedures.

//
//

38
 LEGAL CONCLUSIONS

1. The Commission has jurisdiction to proceed in this matter, pursuant to

Education Code section 44944 and Factual Findings 1-3.8

2. The District has the burden of proof in this matter and the standard of proof is
preponderance of the evidence. (Gardner v. Commission on Professional Competence
(1985) 164 Cal.App.3d 1035, 1038-1039.)

3. Pursuant to section 44932, the grounds for dismissal alleged by the District
against Respondent are for immoral conduct [subdivision (a)(1)], dishonesty [subdivision
(a)(4)], evident unfitness for service [subdivision (a)(6)], and persistent violation of or refusal
to obey school laws or reasonable regulations [subdivision (a)(8)]. The District also alleges
the ground for immediate suspension in section 44939, subdivision (b), of willful refusal to
perform regular assignment without reasonable cause.

Immoral Conduct

4. Grounds do not exist for Respondent's dismissal, pursuant to section 44932,

subdivision (a)(1), for immoral conduct. (Factual Findings 1-167.)

5. The term "immoral conduct" has been defined to include conduct inconsistent
with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as willful,
flagrant, or shameless conduct showing moral indifference to the opinions of respectable
members of the community, and as an inconsiderate attitude toward good order and the
public welfare. (Board of Ed. of San Francisco Unified School Dist. v. Weiland (1960) 179
Cal.App.2d 808, 811.) The Commission finds that Respondent's conduct established by the
evidence in this case did not rise to the level of immoral conduct, e.g., it was not established
that Respondent willfully entered false data into IEPs or computer programs or attempted to
mislead any parent or school staff.

Dishonesty

6. Grounds do not exist for Respondent's dismissal, pursuant to section 44932,

subdivision (a)(4), for dishonesty. (Factual Findings 1-167.)

7. Dishonesty "connotes a disposition to deceive" and "necessarily includes the

element of bad faith." It means "fraud, deception, betrayal, faithlessness," and "denotes an
absence of integrity; a disposition to cheat, deceive or defraud; deceive and betray."
(Midway School District v. Griffith (1946) 29 Cal.2d 13.)

8
All further statutory references are to the Education Code unless otherwise
indicated.

39
 8. In this case, Respondent's deficient compliance with special education laws
and the Handbook did not constitute dishonesty, because her conduct did not result from a
purpose or intention to deceive or defraud the District, Mariners staff, or any students and
their parents. The Commission is not persuaded by the District's contention that Respondent
was dishonest by entering false information in Synergy to disguise and hide her non-
compliance with IEP timelines and requirements. Respondent admitted to Heidi McDowell
that she was not in compliance with IEP timelines and was late in completing IEPs for her
students. The discrepancies in Respondent's documentation and computer records were due
to many factors, such as her use of Workflow as her own personal calendar, her failure to
update records and documents to account for changes in meeting dates and failure to include
explanations in the IEP meeting notes, her practice of writing assessment data on notepads
and then later having to take time to transfer the information to the protocols, and her feeling
overwhelmed by the Mariners workload and stress from her difficult relationship with the
principal and Mariners staff. The totality of the circumstances led to Respondent's sloppy,
inaccurate, and incomplete documentation. The Commission does not find Respondent
engaged in conduct with a dishonest purpose or intent.

Evident Unfitness for Service

9. Grounds do not exist for Respondent's dismissal, pursuant to section 44932,

subdivision (a)(6), for evident unfitness for service. (Factual Findings 1-167.)

10. Evident unfitness for service means "clearly not fit, not adapted to or
unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies."
(Woodland Joint Unified School Dist. v. Commission on Professional Competence (1992) 2
Cal.App.4th 1429, 1444.) Evident unfitness for service "connotes a fixed character trait,
presumably not remediable merely on receipt of notice that one's conduct fails to meet the
expectations of the employing school district." (Id.)

11. To determine evident unfitness for service, "the criteria [for unfitness set out in
Morrison v. State Board of Education (1969) 1 Cal.3d 214] must be analyzed to determine,
as a threshold matter, whether the cited conduct indicates unfitness for service. If the
Morrison criteria are satisfied, the next step is to determine whether the 'unfitness' is
'evident'; i.e., whether the offensive conduct is caused by a defect in temperament."
(Woodland Joint Unified School Dist. v. Commission on Professional Competence, supra, 2
Cal.App.4th at 1445.)

12. The Morrison case sets forth the following factors for determining a teacher's
fitness to teach: (1) the likelihood that the conduct may have adversely affected students or
fellow teachers; (2) the degree of such adversity anticipated; (3) the proximity or remoteness
in time of the conduct; (4) the type of certificate held by the teacher; (5) extenuating or
aggravating circumstances surrounding the conduct; (6) the praiseworthiness or
blameworthiness of the motives resulting in the conduct; (7) the likelihood that the conduct
in question will recur; and (8) the extent that discipline will cause an adverse chilling impact

40
on the constitutional rights of the teacher involved or other teachers. (Morrison v. State
Board of Education, supra, 1 Cal.3d at 229.)

13. (A) In applying the Morrison factors, it appears the likelihood that
Respondent's conduct adversely affected students was minimal. The District contends that
Respondent's conduct adversely affected special education students in that they were left
with files and records that were incomplete and inaccurate. There is no evidence that special
education students were deprived of services or unable to pursue their due process rights
because of incomplete or inaccurate records. However, Respondent's conduct did adversely
affect the SLPs and other Mariners staff in that they were given additional work to bring
Respondent's files and records into compliance with special education laws and the
Handbook. Respondent's conduct was recent, having occurred during the 2012-2013 school
year. Respondent, as case carrier, was responsible for the files and records of her students,
and any failures in the completeness and accuracy of those files and records were properly
attributed to her.

(B) The Commission finds, however, that Respondent's workload issues at

Mariners created extenuating or mitigating circumstances for her conduct. Respondent's case
carrying duties created a heavy workload, especially since SLP Lindsey Murphy was at
Mariners only one day per week and spent that day primarily providing therapy. Respondent
had case carrying duties related to IEPs which were very labor intensive and involved,
among other things, contacting all IEP team members (including parents) to schedule a
mutually agreeable meeting day, preparing IEP meeting notices and other required IEP
documents; convening the meeting, and updating the Synergy, Workflow, and CASEMIS
records. In addition, Respondent, as SLP, was providing therapy to students, conducting
assessments, completing Medi-Cal billing, and handling inquiries and other matters for the
SLP team. The Commission is not suggesting that Respondent's busy case load and
workload excused her documentation and recordkeeping deficiencies and non-compliance
with IEP requirements; it does not. However, the labor intensive nature of Respondent's SLP
duties and workload at Mariners helps to explain why some of Respondent's deficient and
non-compliant conduct occurred, and also refutes the District's characterization of
Respondent's conduct as motivated by dishonesty or deceit. The Commission believes that
Respondent's deficient and non-compliant conduct is fixable, in part, by adjusting her
workload to a reasonable level. Based on the foregoing, the Commission concludes that
Respondent's conduct at issue in this case does not indicate she is unfit for service.

14. Even assuming, arguendo, that Respondent was found to be unfit for service
under the Morrison factors, the Commission finds that any unfitness is not due to any defect
in temperament. The Commission finds that the deficient and non-compliant conduct is
remediable and fixable. Respondent's incomplete files were due in large part to her practice
of recording data and scores on a separate note pad instead of using the protocols provided
with assessments. Respondent's practice created more work for herself, as she needed
additional time to transfer information from her notes to the protocols. The discrepancies in
Respondent's Synergy, CASEMIS, and Workflow records were due, in part, by her use of
Workflow as her own personal calendar and not as the District intended it to be used. The

41
Commission believes that Respondent's conduct is not due to a defect in temperament.
Respondent has expressed during her testimony that she will correct and modify her practices
so that these issues will not recur in the future.

Persistent Violation of School Laws and Regulations

15. Grounds exist for Respondent's dismissal, pursuant to section 44932,

subdivision (a)(8), for persistent violation of school laws and regulations, in that Respondent
engaged in persistent violation of special education laws and the Handbook in performing
her SLP duties at Mariners for the 2012-2013 school year. (Factual Findings 1-167.)

16. (A) In Governing Board of Oakdale Union School District v. Seaman (1972)
28 Cal.App.3d 77, 82, the court stated: "The word 'persistent' is defined by lexicographers as
'refusing to relent; continuing, especially in the face of opposition . . . stubborn; persevering
. . . constantly repeated.' (Webster's New World Dict. (College ed.); see Webster's Third
New Internat. Dict.) And in the judicial decisions of this, as well as other states, the word
has been interpreted to mean 'continuing or constant.' [citations omitted]."

(B) The court in Seaman further explained that "a single violation of a school
board's rules is not of itself cause for the dismissal of a permanent teacher under subdivision
(g) of section 13403 [now section 44932, subdivision (a)(8)]. The subdivision pertains to
unintentional as well as intentional transgressions, and hence the Legislature, apparently to
allow opportunity for a correction, has decreed that a single violation is not sufficient to
warrant dismissal; 'it is the persistent disregard' of school rules that the subdivision is
designed to regulate." (28 Cal.App.3d at 84 [citation omitted].)

17. Education Code section 56320, subdivision (b)(3), provides, in part, that tests
and other assessment materials must be "administered in accordance with any instructions
provided by the producer of the assessments." (Exh. 1, p. 56.) Section 56320, subdivision
(f), provides that assessments shall be conducted in accordance with 34 Code of Federal
Regulations (CFR) sections 300.304 and 300.305. (Exh. 1, p. 57.) 34 CFR 300.304,
subdivision (c)(1)(v), requires that assessments and other evaluation materials used to assess
a child "[a]re administered in accordance with any instructions provided by the producer of
the assessments." (Exh. 1, p. 153-154.) Title 20 United States Code section 1414,
subdivision (b)(3), provides that assessments "are administered in accordance with any
instructions provided by the producer of such assessments." (Exh. 1, p. 123.)

18. School districts are required to retain special education assessment protocols
containing student information as mandatory interim student records. (Cal. Code Regs., tit.
5, § 432 [Exh. 1, pp. 132-133].) Mandatory interim student records include records of
"[p]articipation in special education programs including required tests, case studies,
authorizations, and actions necessary to establish eligibility for admission or discharge."
(Ibid.) Parents and guardians of students have a legal right to inspect such records upon
request. (Exh. 1, pp. 134-147.)

42
 19. During the 2012-2013 school year at Mariners, Respondent engaged in
persistent violations of special education laws and the District's policies and procedures set
forth in the Handbook by failing to utilize and retain protocols, failing to administer
assessments according to instructions, failing to complete IEP documentation, failing to
comply with IEP timelines, entering incomplete and/or inaccurate data in Workflow and
CASEMIS, and failing to organize and maintain confidential files according to the
procedures set forth in the Handbook. These violations were not one-time, isolated
occurrences but, rather, involved multiple student files over the course of the school year.
Similar violations were discovered from a review of a sample of Respondent's student files at
her prior school site, Corona Del Mar High School. The violations can be construed as
"persistent," in light of Respondent's knowledge of IEP requirements from her 29 years'
experience working as an SLP in public schools and her knowledge of the District's policies
and procedures from having worked as an SLP for the District since 2006.

Willful Refusal to Perform Regular Assignments

20. Grounds do not exist for Respondent's suspension, pursuant to section 44939,
subdivision (b), for willful refusal to perform regular assignments without reasonable cause.
No evidence was presented of Respondent willfully refusing to perform her assignment as an
SLP at Mariners or Corona Del Mar High School. She did perform her SLP duties but not to
the satisfaction of her employer, the District. (Factual Findings 1-167.)

Morrison Factors

21. Cause for discipline against a teacher must relate to her fitness to teach within
the meaning of the factors enumerated in the case of Morrison v. State Board of Education,
supra, 1 Cal.3d 214. Here, the Commission has found cause exists to dismiss Respondent
pursuant to section 44932, subdivision (a)(8), for persistent violation of school laws and
regulations. With regard to that cause for dismissal, the Commission considered all of the
factors suggested by the Morrison case and compared them to the facts established above.
Not all Morrison factors need be present for the Morrison test to be satisfied. (Governing
Board of ABC School District v. Haar (1994) 28 Cal.App.4th 369, 384.) Moreover, the
Morrison analysis need not be conducted on each individual fact established but, rather, can
be applied to the accumulated facts established collectively. (Woodland Joint Unified School
Dist. v. Commission on Professional Competence, supra, 2 Cal.App.4th at 1457.) For the
same reasons set forth in Legal Conclusions 12 and 13, above, the Commission finds that,
under the Morrison factors, Respondent's conduct in this case does not demonstrate unfitness
for service as an SLP for the District.

Disposition

22. “The Commission has broad discretion in determining what constitutes

unfitness to teach . . . , and whether dismissal or suspension is the appropriate sanction.”
(California Teachers Association v. State of California (1999) 20 Cal.4th 327, 343-344.)

43
Thus, even where cause for dismissal has been established, the Commission still has broad
discretion to determine whether such discipline is actually warranted. (Fontana Unified
School District v. Burman (1988) 45 Cal.3d 208, 222.)

23. Respondent is an experienced and skilled clinician. She has worked as an SLP
in public school settings for 29 years. She is an adjunct professor at Chapman University
and supervises master's degree students. She is innovative in her use of technology and other
manipulatives as a way to engage students in therapy. She presents a demeanor indicative of
a personable and knowledgeable clinician. No evidence was presented in this case that any
parent made a complaint about the quality of Respondent's speech therapy services. She has
no prior record of discipline with the District.

24. However, the evidence established that during her assignment at Mariners for
the 2012-2013 school year, Respondent had serious deficiencies in her documentation and
recordkeeping and her compliance with IEP timelines. The Commission recognizes that
documentation and recordkeeping are an important part of an SLP's duties in a public school
setting. The Commission believes that Respondent's documentation and recordkeeping
deficiencies are remediable. For instance, Respondent can make sure she enters accurate
dates in Workflow and ceases using it as her own personal calendar for assessments. She can
also record assessment data in protocols instead of her time-consuming practice of
transferring data from her notepad to the protocols, which itself creates additional work on
Respondent's already busy workload. She can also change her practices with regard to
maintaining original documents in the confidential file in accordance with the Handbook.
The Commission finds the District removed Respondent from her position as SLP without
giving her the time and assistance to correct her deficient files and records. Respondent's
requests for help during the first half of the school year were not adequately addressed by
administrators. Respondent was ultimately given three weeks to bring her late IEPs into
compliance, but she was not given assistance to do that until the week before she was placed
on administrative leave, when Patti White was allowed to help for two days at the end of
April. Assistance was finally brought in to remedy Respondent's files and records, but only
after she was already removed and placed on administrative leave. Respondent testified that
she will change her practices that resulted in the charges that are the basis of this disciplinary
action. The Commission believes her.

25. Based on the foregoing, the decision of the Commission in this case is that
Respondent shall not be dismissed from employment with the District.

//
//
//
//
//
//
//
//

44
 ORDER

Respondent Lianne Pfister shall not be dismissed and shall remain employed with the
Newport-Mesa Unified School District.

January 6, 2017
DATED: _________________
__________________________________
CHRISTIANNE OFF, M.A., CCC-SLP
Commissioner
Commission on Professional Competence

January 7, 2017
DATED: _________________
__________________________________
SUSAN SVENDSEN, M.S., CCC-SLP
Commissioner
Commission on Professional Competence

January 7, 2017
DATED: _________________
__________________________________
ERLINDA G. SHRENGER
Administrative Law Judge, Commissioner
Commission on Professional Competence

45
 BEFORE THE
COMMISSION ON PROFESSIONAL COMPETENCE
FOR THE JURUPA UNIFIED SCHOOL DISTRICT

In the Matter of the Dismissal of:

OAH No. 2017061010
ROBIN RIGGLE,

A Permanent Certificated Employee,

Respondent.

DECISION

On September 11, 12, and 13, 2017, a Commission on Professional Competence

(Commission) heard this matter in Jurupa Valley, California. The Commission consisted of
the following members: Kimberly J. Belvedere, Administrative Law Judge, Office of
Administrative Hearings (OAH); Pamela Bernard; and Greg Solomon.

Kerrie McNally, Attorney at Law with the law firm of Adams, Silva & McNally,
LLP, represented complainant, Tamara Elzig, Deputy Superintendent of Personnel Services,
Jurupa Unified School District (JUSD).

Carlos Perez, Attorney at Law with the law firm of Reich, Adell & Cvitan,
represented respondent, Robin Riggle, who was present throughout the hearing.

The record was held open to permit the committee to deliberate and reach a decision.
The record was closed and the matter submitted on September 29, 2017.

ISSUES

Did two Facebook comments made by Mrs. Riggle on a Facebook thread concerning
“A Day Without Immigrants” (protest event), wherein she commented, “I had 50 absences
today” and “Yes. It was a very pleasant day,” constitute immoral conduct or evident
unfitness for service?

Was Mrs. Riggle dishonest when she was questioned by complainant regarding
whether she knew about the protest event prior to posting her comments on Facebook?

1
 SUMMARY

Although Mrs. Riggle could have used better judgement before posting her comments
to a public Facebook thread that arguably contained some negative commentary about
immigrants and people who supported the protest event, the district did not show by a
preponderance of the evidence that her conduct constituted immoral conduct or evident
unfitness for service. Further, the district did not show by a preponderance of the evidence
that she was dishonest about whether she knew about the protest event prior to making her
Facebook comments. Accordingly, applicable law prohibits the district from terminating
Mrs. Riggle.

FACTUAL FINDINGS

Procedural History and Jurisdictional Matters

1. Mrs. Riggle is a permanent certificated teacher employed by the JUSD. At the

time of the incident that formed the basis for these proceedings, she was an art teacher assigned
to Rubidoux High School (RHS).

2. On February 16, 2017, Mrs. Riggle made two comments on a Facebook thread.
The district learned about the Facebook thread because many people in the community were
upset by some of the comments they read. Gale Hammons, a communications and public
relations contract employee of the district, also notified district administrators about the
comments.

3. On February 16, 2017, complainant placed Mrs. Riggle on paid administrative

leave.

4. On May 15, 2017, complainant signed the Notice of Intent to Dismiss and
Immediately Suspend Without Pay and the Statement of Charges, in her official capacity,
alleging that Mrs. Riggle is subject to termination for immoral conduct, dishonesty, and evident
unfitness for service, in violation of Education Code sections 44932, subdivisions (a)(1),
(a)(4), and (a)(6).

5. On May 16, 2017, complainant placed Mrs. Riggle on unpaid leave.

6. The charging documents, and other jurisdictional documents, were served on

Mrs. Riggle, who timely filed a Demand for Hearing denying the charges against her.

7. Mrs. Riggle filed a Motion for Immediate Reversal of Suspension (motion)

with OAH, pursuant to Education Code section 44939, alleging that the charging documents

2
did not set forth a sufficient basis for immediate suspension.1 Under Education Code section
44939, subdivision (c)(1), review of a motion filed pursuant to this section is limited to a
determination as to whether the facts as alleged in the charging documents, if true, would be
sufficient to constitute a basis for immediate suspension.

8. On July 11, 2017, the Hon. Adam L. Berg granted Mrs. Riggle’s motion. Mrs.
Riggle was taken off unpaid administrative leave and placed on paid administrative leave
pending the outcome of the hearing.

The Protest Event

9. On February 16, 2017, a protest event called “A Day Without Immigrants”

was held throughout the country. The protest event was meant for persons who were
immigrants, or who supported immigrants, to stay home in order to show what impact
immigrants have, economically, on society. It was a nationwide protest event and was not
limited to any particular profession.

10. RHS has approximately 1,600 students. Approximately 90 percent of the

students are Hispanic. According to the principal of RHS, Jose Araux, a “robocall” was
made to parents prior to the protest event urging them to have their students come to school.
Tamara Elzig, the Assistant Superintendent, also testified that a posting was placed on the
district’s website informing parents about the importance of having their students come to
school on February 16, 2017. Nonetheless, about 355 students, or 22 percent of the student
body, were absent on the day of the protest event. Dr. Araux conceded that there was no way
of knowing precisely what the reason was for each absence, but presumably, many were
attributable to the protest event.

The Facebook Thread

11. On February 16, 2017, several teachers at RHS – Geoffrey Greer, Robin
Riggle, Charles Baugh, Patricia Crawford, and Allen Umbarger, posted comments on a
Facebook thread started by Mr. Greer on his public Facebook page.2 The original post by
Mr. Greer read as follows:
1
Education Code section 44939, subdivision (b), states, that a school district may
immediately suspend a permanent employee of the school district who has been charged
“with immoral conduct, conviction of a felony or of any crime involving moral turpitude,
with incompetency due to mental disability, with willful refusal to perform regular
assignments without reasonable cause, as prescribed by reasonable rules and regulations of
the School District . . . .”
2
According to the testimony of Gale Hammons, the communications and public
relations employee that works for the district, regardless of whether a person has their
personal Facebook page set to private, if they comment on a public post, their comments can
be viewed by everyone.

3
 Well. A day without immigrants. Perhaps all the missing
workers in all the various industries out there had the intended
impact and sent the desired message. I don’t know. As for the
public school system, having my class size reduced by 50% all
day long only served to SUPPORT Trumps initiatives and prove
how much better things might be without all the overcrowding.

That’s what you get when you jump on some sort of bandwagon
cause as an excuse to be lazy and/or get drunk. Best school day
ever.

Several other individuals posted comments on Mr. Greer’s Facebook thread.

Eventually, Mrs. Riggle posted the following free-standing comment (i.e. not in reply to Mr.
Greer): “I had fifty absences today.” Mr. Greer replied, “Yup. And I bet your class went a
whole lot more smoothly as well.” Mrs. Riggle then posted the following, “Yes, it was a
very pleasant day.”

Those two comments were the only comments posted by Mrs. Riggle on the
Facebook thread.

It is unknown overall, how many people continued to comment on the Facebook

thread, or if the reproduction of the Facebook thread provided in the exhibits was a full and
complete copy of all the comments on the thread. Nonetheless, the exhibit provided
contained the comments of Mrs. Riggle.

The Aftermath

12. It did not take long for the entire Facebook thread to “go viral.” Aside from
the numerous comments people made on Facebook, an individual by the name of “Marina,”
whom Ms. Hammons identified as someone who works for MTV, tweeted the link to the
Facebook thread on her Twitter page. The Facebook thread and comments were shared by
individual Facebook users and spread about various social media platforms. Eventually, Mr.
Greer deleted the Facebook thread, as he explained, to “mitigate” any damage and apologize
for the “hurtful structure” of the post. However, because the original content of the
Facebook thread had been captured in screenshots and reproduced so many times, deleting
the posts did nothing to stop the continuing viral spread.

In the ensuing days, the story would be covered on most local news stations as well as
Univision, a Spanish language news station. Local newspapers covered the story; some of
the news articles simply reported the facts of what occurred; other articles used less-neutral
headlines and editorialized the articles to express the belief that the Facebook posts were
racist or anti-immigrant, which certainly could have added fuel to an already out-of-control

4
firestorm.3 The district received angry e-mails from students, parents, community members,
individuals who had no affiliation or personal interest in the district, and some who lived
across the country. The American Civil Liberties Union, Department of Justice4, Anti-
Defamation League, and various immigrant organizations wrote to the district regarding their
concern after learning of the comments on the Facebook thread. Some of the angry
communications were directed solely towards Mr. Greer. Others were directed at all the
teachers whose comments appeared on the Facebook thread. In many of the e-mail
communications, it was unclear if the writers were reacting to the actual posts, the
representation in the news regarding the posts, or what they had read from others regarding
their opinions of what the posts contained. Nonetheless, it was not disputed that many
people from all walks of life were upset for a variety of reasons about the comments
contained on the Facebook thread.

February 17, 2017, and the Student Walkout

13. On February 17, 2017, the district had extra personnel on the RHS campus in
case any problems arose. Two classrooms, one belonging to Mrs. Riggle and the other
belonging to Mr. Greer, had been vandalized overnight, with messages stating “fuck you”
and “fuck your opinion” spray-painted outside the front of the classrooms.

14. Janiece Bailey, an English teacher at RHS, testified that by the time she
arrived at school that day, Mr. Greer’s classroom was covered up with butcher paper. Some
students on campus were wearing the Mexican flag on their hat, and some had bandanas in
their pockets. In her first class, they discussed the Facebook thread. Students expressed their
opinions. Many wanted to know what happened to the teachers. Many expressed frustration,
anger, and feeling of betrayal. In her next class, the students were not really discussing the
Facebook thread; Ms. Bailey felt they probably had already done so in their earlier class. As
the day went on, most of the students did not want to discuss the Facebook thread.

Ms. Bailey said that around lunchtime, a large group of students started chanting very
loud, yelling, and acting very upset. She said teachers followed them to monitor the
situation. Some students threw food and water bottles. Some students moved towards the
flagpole and attempted to climb it. An announcement was made for the students to return to
class, but many did not. The group of students made their way to a gate and started to push
on it; campus security opened the gate “for their safety.” Opening the gate allowed the group
to walk off campus and into the street. Some students began jumping on a news van.

3
For example, one article from the Huffington Post was simply entitled, “Riverside
Teachers Put on Paid Leave Over Immigrant Protest Comments.” Another article from the
Washington Post, however, was entitled, “These California Teachers Mocked Students For
Skipping School On Immigrant Boycott Day.”
4
It was never made clear in testimony whether it was the California Department of
Justice or the federal Department of Justice.

5
 Ms. Bailey returned to her classroom. She had fewer students than normal. She
believed the students who were in class felt embarrassed and were upset about the “general
disrespect” the other students were showing towards school staff. The sixth period was
cancelled; students remained in their fifth period classrooms.

The following day, Ms. Bailey had her students do a writing assignment. The
purpose of the letters was to express their opinions and sentiments, write letters of apology,
or whatever the students wanted to do. Some of the letters expressed support for the teachers
whose comments appeared on the Facebook thread; others expressed anger and frustration.

Ms. Bailey said most of the anger was directed at Mr. Greer. Personally, Ms. Bailey
did not feel Mrs. Riggle’s two comments were a concern; her concern was always with the
initial post made by Mr. Greer. Since February 17, 2017, there have been no further
walkouts at RHS. Ms. Bailey feels bad for Mrs. Riggle because Mrs. Riggle is the “nicest
person she has ever known.” When she saw the Facebook thread, Ms. Bailey worried that
Mrs. Riggle’s comments could be misinterpreted; she did not find Mrs. Riggle’s comments
to be offensive or hurtful.

15. Testimony of several other witnesses corroborated the testimony of Ms. Bailey
regarding what occurred during the student walkout on February 17, 2017.

16. Leanna Apodaca is an English teacher at RHS. Ms. Apodaca said she did not
see a big difference in her classes on February 16, 2017. Her students did raise some
concerns with her in class on February 21, 2017, concerning the protest event and Facebook
thread incident. She documented the concerns in an e-mail to the principal. The concerns,
which were many, included things that both supported and opposed the protest event, as well
as various views on how the Facebook thread incident was treated (i.e. some students pointed
out that the comments could be construed as racist or hurtful, while others pointed out the
importance of not taking things out of context). Ms. Apodaca knows Mrs. Riggle and said
that she has seen no “racist tendencies” and would not consider Mrs. Riggle to be “racist.”

17. Cindy Aguilar is a translator and clerk/typist for the school district. She
testified that on February 17, 2017, many parents contacted the school about the Facebook
thread and generally expressed one of two sentiments: either they were upset about the
comments or they supported the teachers and were upset the teachers were going to be put on
leave.

18. Karime Espinoza is a student at RHS whose parents are immigrants. She
stayed home for the protest event. When she saw the Facebook thread, it made her feel “sad”
because she thought it was “disrespectful.” She felt Mr. Greer’s comment suggested that
“we are lazy and drunk.” Mrs. Riggle’s comment only upset her a “little” because “it kind of
agreed” with Mr. Greer’s post. She said when she returned to RHS on February 17, 2017,
there “was a lot of tension.” She has never had Mrs. Riggle as a teacher.

6
 19. E C is a student at RHS whose parents are immigrants. He went to
school the day of the protest event. He said he felt betrayed “mainly by Mr. Greer” because
he felt Mr. Greer’s comment meant that students who did not show up were lazy or drunk.
When asked if he felt betrayed by Mrs. Riggle, he said, “no.” He said he thought Mrs.
Riggle’s comment could be interpreted either that it was a pleasant day because there were
fewer students, or because there were less immigrants. Mr. Castillo has never had Mrs.
Riggle as a teacher.

20. M L is a former student of RHS. She has several siblings that either
are attending, or have attended, RHS. Ms. Lopez did not have Mrs. Riggle for a teacher.
Ms. Lopez felt the “posts” were “mocking of our struggle” and were degrading. She said she
knew Mrs. Riggle’s comments were “not as offensive as the rest” but still feels that fact that
Mrs. Riggle commented “shows she agrees” with Mr. Greer’s comment. She has a
continuing concern regarding what will be done with the teachers because she feels they will
not be effective if they are returned to the classroom. Ms. Lopez said that she was “one of
the persons who organized the [student] walkout” on February 17, 2017. She now works for
the Inland Coalition for Immigrant Justice, although she did not work for that organization at
the time she participated in organizing the student walkout. Ms. Lopez did not feel Mrs.
Riggle’s comments were racist, but she did feel they were “discriminatory.”

Other Evidence Presented by the District

TESTIMONY OF ROBERT SANTIAGO

21. Robert Santiago is a math teacher at RHS. Mr. Santiago was angry when he
saw the Facebook thread and felt it showed a lack of sensitivity. Specifically regarding Mrs.
Riggle’s two comments, he felt her comments “tacitly approved” of Mr. Greer’s original
comment. Mr. Santiago “experienced racism” when he was younger and said he “started to
relive” those moments when he saw the comments. Mr. Santiago said that throughout the
day during his classes, the students were angry and discussing the Facebook thread. By the
time of fifth period, the students were more interested in expressing themselves than tending
to class, so Mr. Santiago let them do so because he feared if he did not, he would have the
“same problem” in the classroom that was “occurring outside.” By the time sixth period
came around, most of the students remaining were his “high achieving seniors” who were
ready to “get back on task.”

Mr. Santiago posted a comment in the Facebook group “What’s going on in Jurupa
Valley” on February 17, 2017. He did so because he started receiving texts from former
students and saw many comments on Facebook, and felt that a “broad brush” was being used
to paint all teachers at RHS in a bad light. His comment was:

[I] cannot easily explain what happened. I know some of these

people; they are my colleagues. Their actions at work do not
seem reflected by these comments. I have witnessed them go
beyond the requirements of the job to care for students. They

7
 need to answer for themselves. Please know that Rubidoux is
filled with caring people. It is a privilege for me to work there,
and I know that many others share this feeling.

TESTIMONY OF JOSH LEWIS

22. Josh Lewis is the Director of Information Technology at the JUSD. His
primary duty is to oversee the networks. Mr. Lewis testified about the existence of the
district’s acceptable use policy for the use of technology, which is contained in the district’s
policy manual entitled, “Annual Notification to Employees.” This manual is provided to
employees at the commencement of the school year. District documents confirm that Mrs.
Riggle received a copy of the policy manual on September 1, 2016.

Mr. Lewis testified that the policy does not address employee use of social media but
does address conduct when online. He pointed out several provisions of the policy that he
felt Mrs. Riggle’s comments on the Facebook thread violated. However, the policy itself
commences with the following sentence: The Acceptable Use Policy (AUP) defines the
proper use of the district technology resources. (Emphasis added.) Thus, a teacher cannot
violate the AUP unless they are engaging in inappropriate conduct in connection with the use
of district resources. Mrs. Riggle’s comments on the Facebook thread were made after
school hours, on her personal computer, on her personal time, and as such, no district
resources were utilized.

Mr. Lewis also testified that the district hosts two events, Techfest and Summerjam,
held at the beginning and end of the school year, respectively. These events relate to the use
of information technology in the classroom. Mr. Lewis said, however, that the events are
optional.

Finally, Mr. Lewis testified that all teachers are required to teach digital citizenship to
their students. Exhibits provided showed the content of the curriculum, which generally
entails proper conduct online in a variety of situations. Mrs. Riggle did provide the digital
citizenship curriculum to her students during the 2016-2017 school year. The documents
provided that entail the digital curriculum do not show any curriculum aimed at teachers and
their personal conduct online after school hours.

TESTIMONY OF DANIEL BROOKS

23. Daniel Brooks is the Director of Personnel at JUSD. His duties include
overseeing the personnel department, hiring, recruitment, investigations, and discipline,
among other things. Prior to becoming the Director of Personnel, Mr. Brooks served in both
teaching and administrative positions.

When Mr. Brooks saw the Facebook thread, he was very disappointed to see “Mr.
Greer’s post would express sentiments like that.” Mr. Brooks felt that the post “perpetuates
anti-immigrant sentiments,” as well as negative stereotypes of immigrants being lazy and

8
drunk, and affects people’s perceptions of immigrant groups. Mr. Brooks felt the posts were
inappropriate.

Following the incident, many people were upset and angry and called the school. Mr.
Brooks testified that some people called the school in support of the teachers, as well.

In a meeting on March 17, 2017, between himself, complainant, and Mrs. Riggle, Mr.
Brooks testified that Mrs. Riggle stated she was not aware of the day without immigrants at
the time the students were missing.

TESTIMONY OF JOSE ARAUX

24. Dr. Araux has been the principal at RHS for five years. He has held other
positions in administration and as a teacher throughout his career. Dr. Araux’s testimony is
summarized below.

RHS has approximately 1,578 students. Approximately 90 percent of the students are
Hispanic, two percent are black, two percent are white, and the rest are “other.” Dr. Araux is
aware that some of the students at the school have parents who are immigrants. Dr. Araux
said the purpose of the protest event on February 16, 2017, was to show the “importance of
the immigrant community” and their contribution to this country. Many students were absent
the day of the protest event, but a majority of the students came to school.

Dr. Araux reviewed the comments made on the Facebook thread and said he could
not believe the comments were made by his teachers. He was especially disheartened when
he read Mr. Greer’s post. He was offended by Mrs. Riggle’s comments, however, because
“they were in the chain of comments.”

When Dr. Araux went to RHS on February 17, 2017, his primary goal was to ensure
the “physical, psychological, and emotional well-being” of the students. That day, there
were also many extra people on campus from the district to help provide support. Dr. Araux
read a message over the school PA system acknowledging the reaction to the Facebook
thread and letting students know that the district was committed to investigate and “take
appropriate action.” He responded to over 200 e-mail complaints from parents and people
across the country. Dr. Araux also set aside additional time to meet with parents, should they
want to do so. RHS received many calls regarding the Facebook thread. Talking points were
provided to teachers to help them deal with any situations that might arise in the classroom.
During lunchtime, a student walkout occurred.

On February 18, 2017, Dr. Araux received an e-mail from a student notifying him
about a potential second student walkout planned for February 21, 2017. The student was
very “disappointed” with the actions of the other students who walked off the campus on
February 17, 2017, and concerned about the safety of students and staff members at RHS
should the second walkout have occurred. Dr. Araux sent out an e-mail to all staff with a
modified schedule for that day in order to avert a second walkout. Dr. Araux sent a

9
notification to parents warning them of the safety concerns should a second walkout occur
and also telling them that the school day would be modified on February 21, 2017. The
message did not encourage parents to tell their students to remain in class and refrain from
participating in the second walkout. Nonetheless, the second walkout never occurred.

COMPLAINANT’S TESTIMONY

25. Complainant is the Deputy Superintendent for the JUSD. Her responsibilities
include human resources, contract negotiations, developing policies, and disciplinary
matters, among other things. Complainant has served in various teaching and administrative
positions in her career. Complainant’s testimony is summarized as follows.

The district did a “robocall” to parents regarding the February 16, 2017, protest event
urging them to have their students remain in school. The district also posted as much on
their internet site.
Complainant saw the posts by the teachers at RHS on February 16, 2017. She said
she knew it would be a firestorm, because they were “significant” and “discriminatory” in
nature and had already gone “viral.” Complainant believed that Mr. Greer’s post meant that
immigrants were lazy and drunk and this was a problem for the district because most of the
students are Hispanic. Complainant interpreted Mrs. Riggle’s two comments as
“discriminatory” and being “part of” Mr. Greer’s original post, perpetuating the same
thinking. Complainant said she believed Mrs. Riggle was making a comment about
immigrants, and by commenting, Mrs. Riggle opened the door for other teachers to respond.
On February 17, 2017, complainant went to RHS. She went to Mrs. Riggle’s second
period classroom and asked her to come with her – in front of the students. Complainant said
some students cheered and applauded. She escorted Mrs. Riggle to a room, where Mr.
Brooks was also located. Mrs. Riggle asked why she was there. At that point, complainant
gave Mrs. Riggle a letter indicating that she was being placed on paid administrative leave
due to the Facebook thread incident.
Complainant’s recollection of the student walkout on February 17, 2017, was
consistent with what other witnesses described. She estimated approximately 300 students
left class after lunch. After about an hour and a half, some came back, some did not. Prior to
walking off campus, the students were completely unruly. They attempted to take down the
American flag from the flagpole and raise the Mexican flag. The students chanted, “Fuck
you” and “Fuck Trump.” When students began to shake a gate that secures the campus, she
made the decision to open it for their safety. Students then jumped on top of a news van. As
the students marched down public streets outside the school, police tried to block
intersections. She believed that the student’s opinions on national immigration policy were
also mixed in with the outrage over the posts.
On March 21, 2017, complainant met with Mrs. Riggle. Mr. Brooks was also present.
Complainant said, when Mrs. Riggle was asked whether she knew about the protest event on
February 16, 2017, prior to making her Facebook comments, Mrs. Riggle told her that she

10
did not know. However, complainant said that e-mails on Mrs. Riggle’s district e-mail
account showed that she was aware. Specifically, complainant pointed to an e-mail where
Mrs. Riggle questioned the absenteeism in school that day and another district employee
replied, “It’s a Day Without Immigrants Boycott today.”
Multiple documents containing various policies and procedures of the district were
provided. Complainant said she believed Mrs. Riggle violated some of these policies.
Specifically, complainant believed Mrs. Riggle’s Facebook posts violated Board
Policy 4000, which describes personnel “concepts and roles.” However, this policy talks
about what the governing board must do, not teachers. This policy is not one that can be
violated by a teacher.
Complainant also believed Mrs. Riggle’s two Facebook posts violated the Code of
Ethics, contained in Board Policy 4119.21. However, the Code of Ethics speaks of teacher’s
responsibilities in the classroom – not activities engaged in during their personal time.
Moreover, the broad language complainant referred to as being violated came from the
preamble of the document, which cannot be violated.5

Complainant also believed Mrs. Riggle’s comments violated Board Policy 4119.32,
having to do with the duties and responsibilities of teachers. Again, this policy explains what
teachers must do in the classroom and in their job as educators; nothing in the policy states
what a teacher may and may not do outside the classroom with respect to social media.

Complainant also believed Mrs. Riggle’s comments violated Board Policy 5000,
having to do with concepts and roles of teachers. Again, like Board Policy 4000, this policy
sets forth responsibilities of the governing board and explains the commitment of the
governing board to students. It cannot be violated by teachers.

Complainant believed that Mrs. Riggle’s comments violated Board Policy 5145.3,
concerning harassment and discrimination. This policy applies to activities on campus as
well as off campus that create a hostile environment at the school. It is unclear, however,
how Mrs. Riggle’s comments violate this policy given that her comments merely reflected on
class size during the protest event, and did not disparage any student or contain any racially
inappropriate or discriminatory language. It is also unclear how the comment could be

5
The Code of Ethics contains a clause at the end stating that the code governs the
profession and any violations will be considered “unprofessional.” The clause goes on to say
that in order to constitute grounds for discipline, the violation must endanger students,
evidence malice, indicate serious incompetency, bad judgement, or a pattern of bad
judgement.” Interestingly, complainant stated the Code of Ethics was violated, but did not
charge Mrs. Riggle with unprofessional conduct. A reasonable inference, then, can be drawn
that the district did not believe Mrs. Riggle did anything that constituted a danger to students,
and her conduct did not involve provable malice, bad judgement, or a pattern of bad
judgement.

11
construed as being racially motivated, given that the students who participated in the protest
event were Hispanic; but those who remained were also predominantly Hispanic.

Complainant confirmed Mrs. Riggle made her comments on personal time and that
she did not use a district computer to do so.

Evidence Presented by Mrs. Riggle

CHARACTER WITNESSES

26. T L is a former student of RHS who graduated in 2011. He said Mrs.

Riggle was he teacher in 2007 and 2008, and he continues to communicate with her. He
described Mrs. Riggle as a very kind, caring, person, who went out of her way to check up on
students. In his senior year, Japan had a major earthquake. He became involved in a project
trying to raise money for disaster relief. Mrs. Riggle went out of her way to help him. He
does not believe Mrs. Riggle is a racist. She did not exhibit any racist behavior in class. She
did not exhibit any anti-immigrant behavior in class. The last time he saw her was in 2012 or
2013, when he came to visit her on campus.

27. David Reed is Mrs. Riggle’s father. He has been a minister for 50 years. He
holds a doctorate in church administration and charitable planning, along with a Bachelor of
Arts in psychology and an Associate of Arts degree in sociology. Mr. Reed said Mrs. Riggle
was raised in a family that is one of faith and diversity. For example, farm workers in
California are a very disadvantaged group. He marched in support of them over 50 years ago
– Mrs. Riggle saw that. He also marched in support of the Caesar Chavez hunger fast – Mrs.
Riggle saw that. At one point during Mrs. Riggle’s youth, she was in a church group that
went back and forth to Arizona and missions in Mexico to help the disadvantaged. She also
helped build a well in a poor city in Mexico. Mr. Reed said that the church and youth group
Mrs. Riggle participated in were very ethnic, multi-racial, and socioeconomically diverse.
According to Mr. Reed, Mrs. Riggle uses art to “reach into the lives and souls of her
students” and teach them “in a way that goes beyond the color palette.” Mr. Reed’s
testimony was credible and compelling.

28. Charles Baugh is a teacher at RHS, who also made a post on Mr. Greer’s
Facebook thread. He said he took Mrs. Riggle’s post to mean merely that she had 50
absences, and that his post – that he had 49 and his classes were also quieter – responded to
that post. Mr. Baugh did not say much about Mrs. Riggle; his testimony was more geared
towards his own comments on Facebook.

29. Diane Rose is a Special Education teacher at RHS. She has known Mrs.
Riggle for seven years. They served as co-advisors to the travel club. She said Mrs. Riggle
was both a camper and a counselor at a church camp they both attend – where Ms. Rose is
the craft director. On occasion, some of her students go into Mrs. Riggle’s classroom, so she
also goes into Mrs. Riggle’s classroom. Ms. Rose described Mrs. Riggle as the “gentlest
soul in the world” who has never exhibited any behaviors that could be considered

12
discriminatory or anti-immigrant. Ms. Rose said Mrs. Riggle finds the positive in every
single person and is an amazing woman. Ms. Rose described her as a “gift” whose reason
for being on this earth is “to let children be who they want to be.”

MRS. RIGGLE’S MOST RECENT EVALUATION FORM

30. Mrs. Riggle received her most recent evaluation on April 24, 2015. She
received an “exceeds” standards in all but two categories; in those two categories, she
received a “meets” standards. Some of the comments on her evaluation are as follows:

“Mutual respect is evidenced between Mrs. Riggle and

students.”

“She is aware of the different learning styles of her student[s]

and work[s] individually with those needing additional support.”

“Riggle circulated around the room as students gathered their

research materials and the art work they had begun. She
reminded students that they needed to complete their assignment
and use the appropriate use of color combination keeping in
mind the theme.”

“Mrs. Riggle developed . . . activities that supported student

learning.”

MRS. RIGGLE’S TESTIMONY

31. The following is a summary of Mrs. Riggle’s testimony.

Mrs. Riggle has been a teacher for approximately 10 years. She is currently assigned
to RHS. She has worked in at least one other school in the district. She also worked as a
substitute in another school district. Mrs. Riggle has a Master of Education from the
University in LaVerne, which is also where she received her teaching credential in art. She
also has a Bachelor’s Degree in Fine Arts and an Associate of Arts degree in Fashion.

Mrs. Riggle was aware of the February 16, 2017, protest event before it happened.
She said she had heard things on campus and had also seen it on the news. The morning of
February 16, 2017, she did not notice anything unusual, but as the day went on, she noticed
an unusually high rate of absenteeism.

When Mrs. Riggle returned home after school, she went on Facebook. She saw Mr.
Greer’s post and thought it was a bit insensitive. She wrote her comment because she
wanted to add something to the discussion that was positive; she explained that teachers are
taught to make observations and be reflective about what is happening in classes. Mrs.
Riggle explained that she believed her post was positive, because on a very politically

13
charged day, in “crazy political times,” it could have been very volatile in the classroom;
instead, it was a pleasant day. She said that evening she did see some comments on
Facebook calling the Facebook thread racist and referring to her as a racist, but she did not
realize at that point the extent of the response.

On February 17, 2017, she went to school and taught her first period class. In her
second period class, complainant removed her from her class. She did not recall any students
clapping. They went into an office and complainant asked for her ID badge and keys and
told her she was on paid administrative leave. Mrs. Riggle asked if it was because of the
Facebook posts and if she should have a union representative present. Complainant told her
it was not a disciplinary matter. Later, complainant gave her a letter explaining the reason
for the leave.

Mrs. Riggle said the district has never given any guidance as to proper use of social
media on a private computer and has never been made aware of any social media policy. She
has taught digital citizenship. She has never attended Summerjam or Techfest.

On March 21, 2017, Mrs. Riggle met with complainant and someone else. She said
complainant did not ask any questions. She said the purpose of the meeting was to let her
know what charges were being made against her. Mrs. Riggle recalled being asked whether
she knew about the February 16, 2017, protest event before it happened. Mrs. Riggle said
she told them she had been made aware of it on the news the night before and from hearing
conversations between students in her class.

Mrs. Riggle said she is absolutely not a racist and has no reason to hate immigrants.
She said she does not believe she did anything in the classroom to show she is a racist and
she has never said anything racist or discriminatory. Regarding her comments, she had no
intention of saying anything mean, derogatory, or racist; she only wanted to express
observations about what had happened in her classroom that day – and it was a very pleasant
productive day. She said her Facebook settings are set to the highest privacy settings and
that she did not even know members of the public could view her posts. She said never in
her wildest imagination could she have seen what happened. Mrs. Riggle said she was
deeply sorry for anything she did that contributed to the outrage and she felt bad about how
the situation was publicized.

LEGAL CONCLUSIONS

Burden and Standard of Proof

1. The standard of proof in a teacher disciplinary proceeding is a preponderance

of the evidence. (Gardner v. Commission on Professional Competence (1985) 164
Cal.App.3d 1035, 1039-1040.)

14
 2. “‘Preponderance of the evidence means evidence that has more convincing
force than that opposed to it.’ [Citations.]” (Glage v. Hawes Firearms Company (1990) 226
Cal.App.3d 314, 324-325) The sole focus of the legal definition of ‘preponderance’ in the
phrase ‘preponderance of the evidence’ is on the quality of the evidence. The quantity of the
evidence presented by each side is irrelevant.” (Ibid., italics emphasis in original.)

Applicable Law

3. A permanent employee may be dismissed for cause only after a dismissal

hearing. (Ed. Code, §§ 44932, 44934, and 44944.)

4. When a school board recommends dismissal for cause, a Commission on

Professional Competence may only vote for or against the dismissal; the Commission may
not dispose of a charge seeking dismissal by imposing probation or an alternative sanction.
(Ed. Code, § 44944, subds. (c)(1)-(3).)

5. A permanent certificated teacher may be dismissed for, among other things,

dishonesty, immoral conduct, and evident unfitness for service. (Ed. Code, § 44932, subds.
(a)(1), (a)(4), and (a)(5).)

DISHONESTY

6. Education Code section 44932, subdivision (a)(4), provides that a teacher may
be dismissed for being dishonest.

IMMORAL CONDUCT

7. There is broad discretion in determining what constitutes immoral conduct in

the context of teacher disciplinary matters. (California Teachers Association v. State of
California (1999) 20 Cal.4th 327.) Immoral conduct has been defined by the courts as
follows:

[T]hat which is hostile to the welfare of the general public and

contrary to good morals. Immorality has not been confined to
sexual matters, but includes conduct inconsistent with rectitude,
or indicative of corruption, indecency, depravity, dissoluteness;
or as wilful, flagrant, or shameless conduct showing moral
indifference to the opinions of respectable members of the
community, and as an inconsiderate attitude toward good order
and the public welfare. (Palo Verde etc. School Dist. v. Hensey
(1970) 9 Cal.App.3d 967, 972, citing Bd. of Education of San
Francisco Unified School Dist. v. Weiland, 179 Cal. App 2d
808, 811.)

Immoral conduct alone cannot serve as a basis to terminate a teacher unless the

15
conduct indicates the teacher is also unfit to teach. (Palo Verde, supra, at p. 972.)

EVIDENT UNFITNESS FOR SERVICE

8. Unfitness for service means “not fit; not adapted to a purpose, unsuitable;
incapable; incompetent; and physically or mentally unsound.” (Palo Verde, supra, at p. 972.)
As a threshold matter, the criteria outlined by the California Supreme Court in Morrison v.
State Bd. of Education (1969) 1 Cal.3d 214, are examined to ascertain whether the conduct in
question indicates unfitness for service. In reaching a conclusion that grounds exist to dismiss
a certificated employee on the basis of evident unfitness for service, not all Morrison factors
need be examined, only the pertinent ones. (Governing Board v. Haar (1994) 28
Cal.App.4th 369, 384.) In this sense, the purpose of examining the Morrison criteria serves,
initially, to establish a nexus between the proven conduct and fitness to teach.

However, even if the applicable Morrison criteria are satisfied, it must also be
determined that the offensive conduct constitutes evident unfitness for service. (Morrison,
supra, at p. 1445 [emphasis added].) “Evident unfitness for service” means clearly not fit for
teaching, ordinarily by reason of temperamental defects or inadequacies; it connotes fixed
character trait, presumably not remediable merely on receipt of notice that one’s conduct
fails to meet expectations of the school district. (Woodland Joint Unified School Dist. v.
Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1444 [emphasis
added].)

THE MORRISON FACTORS

9. In Morrison , the court held that an individual can be removed from the teaching
profession only upon a showing that his or her “retention in the profession poses a significant
danger of harm to either students, school employees, or others who might be affected by his
actions as a teacher.” (Morrison, supra, 1 Cal.3d 214,. at p. 235.) Thus, even in instances
where the charged conduct is established, it must also be established that the conduct renders
the respondent unfit to teach. (Morrison, supra, 1 Cal.3d 214, a pp. 229-230; Fontana Unified
School Dist. v. Burman (1988) 45 Cal.3d 208; Woodland, supra, 4 Cal.App.4th at pp. 1444-
1445.) The court then delineated the following criteria to determine whether a teacher’s
conduct indicated that he or she is not fit to teach: (1) the likelihood that the conduct may have
adversely affected students or fellow teachers; (2) the degree of such adversity anticipated; (3)
the proximity or remoteness in time of the conduct; (4) the type of teaching certificate held by
the teacher; (5) the extenuating or aggravating circumstances, if any, surrounding the conduct in
question; (6) the praiseworthiness or blameworthiness of the motives resulting in the conduct;
(7) the likelihood of the recurrence of the conduct in question; and (8) the extent to which
disciplinary action may inflict an adverse impact or have a chilling effect upon the
constitutional rights of the teacher involved or other teachers. (Morrison, supra, at pp. 229-
230.)

10. In Board of Education v. Jack M. (1970) 19 Cal.3d 691, the Supreme Court
detailed the process to be considered in determining fitness to teach. This opinion upheld the

16
standard established in Morrison that a discharged teacher is entitled to a fitness hearing in
which not only his conduct but also these factors are analyzed: (1) likelihood of recurrence
of the questioned conduct; (2) the extenuating or aggravating circumstances, if any; (3) the
effect of notoriety and publicity; (4) impairment of teachers’ and students’ relationships; (5)
disruption of educational process; (6) motive; (7) proximity or remoteness in time of
conduct. (Id., at f.n. 5.)

Evaluation and Conclusion

11. Mrs. Riggle’s choice to post two comments on a Facebook thread that
contained other posts with questionable commentary regarding immigrants evidenced poor
judgement, especially given the demographics of the school district in which she is
employed. However, the law does not permit dismissal of a teacher solely based on poor
judgment; the question is whether her two Facebook posts on the Facebook thread
constituted immoral conduct or evident unfitness for service.

EVIDENT UNFITNESS FOR SERVICE

12. Once the Facebook thread was discovered, it went viral. Parents, students,
teachers, immigrant groups, civil rights organizations, and community members became
upset about the overall content of the Facebook thread. The district received e-mails from a
variety of individuals expressing their anger about the Facebook posts. The incident gained
widespread media attention. Mrs. Riggle’s and Mr. Greer’s classrooms were sprayed with
graffiti. The day after the Facebook posts, her classroom was disrupted. According to Mrs.
Bailey, her classroom conditions were somewhat disrupted during the day but by the end of
the day, most of the students had addressed the issues in their other classes. Thus, things
seemed to be returning to normal.

However, school and district operations were substantially interrupted by the same
conditions above, as well as by a student protest in the form of a walk-out from regularly
scheduled classes. The walk-out was organized in part by Ms. Marina, according to her
testimony, and occurred the day after the Facebook posts. During the walkout, several
hundred students left the campus without permission. They blocked streets and almost
damaged a school gate. A majority of the students who comprised the approximately 1,600
total students at RHS, however, remained on campus and did not partake in the disruption.
Most certainly, the reaction to the Facebook thread affected the schools’ ability to provide
educational services on February 17, 2017.

At the same time, the nature of the Facebook posts must be considered. Mrs. Riggle’s
Facebook comments were made on her personal time, on her personal computer, on her
private Facebook account, after school hours. Her comments did not disparage any student.
They did not comment on any student activities. They did not comment on student race.
They did not express agreement with Mr. Greer’s comments about immigrants or with
anyone else on the Facebook thread. Her comments did not contain strong language or other
questionable material that showed an inappropriate temperament, an undesirable character

17
trait, corruption, depravity, moral indignation for any class of persons, or contain any
material that suggest Mrs. Riggle would be unfit to teach art. Her comments merely
reflected her observations of what impact the protest event had on her classroom that day.

Furthermore, Mrs. Riggle’s credible testimony established that she did not
intentionally make the comments to harm students nor did she have any insidious motive; she
merely expressed her view about her classroom conditions on the day that a very public
event took place. Mrs. Riggle had no idea that her comments would be construed in the
manner that they were; in fact, she thought she was adding something positive to the
discussion as she found Mr. Greer’s initial comment to be somewhat insensitive. Indeed,
Mrs. Riggle’s background, as recounted by her father, showed that she has been raised in a
very diverse and inclusive environment. Mrs. Riggle has also taught in the district for 10
years without issue. Her most recent personnel evaluation noted that the mutual respect
between Mrs. Riggle and the students was evident.

Simply put, while several of the factors set forth in Morrison6 and Jack M. arguably
may have been satisfied, thus establishing a nexus between the comments and the fitness to
teach, ultimately, a preponderance of the evidence did not establish that Mrs. Riggle’s two
comments on the Facebook thread were attributable to a temperamental defect, inadequacy,
or a fixed character trait not remediable merely on receipt of notice that one’s conduct fails to
meet expectations of the school district. In other words, she was not shown to be unfit, not
adapted to a purpose, unsuitable, incapable, incompetent, or physically or mentally unsound to
continue teaching. Thus, her comments do not constitute evident unfitness for service.

IMMORAL CONDUCT

13. A preponderance of the evidence also did not establish that Mrs. Riggle’s
comments constituted immoral conduct. Again, while she may have used poor judgement in
participating in a Facebook thread that contained other questionable comments, for the same
reasons discussed above, her decision to post about conditions in her classroom were not
6
Clearly there was a lot of notoriety surrounding this incident and there was an impact
on the students because of the overall Facebook thread – which Mrs. Riggle happened to be a
part of. Mrs. Riggle’s comments could be construed as adversely affecting students and
teachers to the extent that her comments were contained on a Facebook thread that contained
other questionable comments. Teachers and district personnel were also affected because they
had to modify their schedules to tend to the problems that arose following the Facebook
incident. Given the demographics of the district, Mrs. Riggle should have anticipated some
backlash about commenting on a Facebook thread that contained arguably insensitive remarks
about immigrants, or at least persons participating in the protest event. There were no
aggravating circumstances or bad motives; to the contrary, Mrs. Riggle’s credible testimony
established she thought she was adding a positive tone to the conversation. Mrs. Riggle
apologized for what happened and there is no reason to believe something of this nature will
happen again. Mrs. Riggle is an art teacher where political issues are unlikely to arise in her
class.

18
flagrant, shameless, inconsistent with public decency, or reflective of a moral indifference to
the opinions of others.

DISHONESTY

14. The Notice of Intent to Dismiss charged that, in an interview with the district
on March 21, 2017, Mrs. Riggle said she was not aware of the reason students were absent
from school prior to posting her comments on the Facebook thread. However, the evidence
did not show precisely what question was asked of Mrs. Riggle; here, the exact wording of
the question is crucial because of conflicting testimony regarding Mrs. Riggle’s response.
Complainant testified that Mrs. Riggle told her during the interview that she was unaware of
the existence of the protest event. Mrs. Riggle testified that she was asked if she knew about
the protest event itself, and she stated that she did, but she had not discussed it with her
students. Mr. Brooks, who was also in the meeting, testified that Mrs. Riggle said she was
not aware of the protest event “at the time her students were missing.” These different
interpretations of Mrs. Riggle’s response could have been attributed to several different
questions. Accordingly, a preponderance of the evidence did not establish that Mrs. Riggle
was dishonest.

Conclusion

15. As role models, teachers need to be cognizant of the nature of their job and the
impact their personal speech may have on the population they serve. Most definitely,
teachers need to use discretion and sound judgment if they decide to engage in social media
interaction. Mrs. Riggle should have considered the overall manner in which her comments
might be construed, given the other comments that existed in other portions of the Facebook
thread.

Perhaps remedial training on how to use social media would be desirable. Perhaps
the district should enact a policy, which it does not currently have, to help guide employees
on proper conduct when utilizing social media. Perhaps the classes the district currently has
pertaining to social media and computer usage could be made mandatory rather than
voluntary. There are many remedial measures that could be taken to try and prevent
employees from using poor judgement on social media platforms when not in the classroom.
Nonetheless, the Commission is not permitted to make recommendations nor to impose any
remedial measures for conduct raised in this case, which might have been appropriate.
Rather, the choice the district gave the Commission was all or nothing: dismiss Mrs. Riggle
or dismiss the charges entirely.

Given that the district did not establish the charged offenses by a preponderance of
the evidence, cause does not exist to dismiss Mrs. Riggle pursuant to Education Code
sections 44932, subdivisions (a)(1), (a)(4), or (a)(6).

19
 ORDER

The Statement of Charges against Robin Riggle is dismissed.

DATED: October 26, 2017

_ _____________________________________
GREG SOLOMON
Certificated Music Teacher and Coordinator for
Visual and Performing Arts
Moreno Valley Unified School District

DATED:  
  

_ _____________________________________
PAMELA BERNARD
Certificated Theater Arts Teacher
Beaumont Unified School District

DATED: October 27, 2017

_______________________________________
KIMBERLY J. BELVEDERE
Administrative Law Judge
Office of Administrative Hearings

20
 BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS AND A
COMMISSION ON PROFESSIONAL COMPETENCE FOR THE
LOS ANGELES UNIFIED SCHOOL DISTRICT
STATE OF CALIFORNIA

In the Matter of the Dismissal of:

OAH No. 2017010717
HECTOR SCHMIDT (EN 602067),
a Permanent Certificated Employee,

Respondent.

DECISION

This matter was heard by the Commission on Professional Competence (Commission)

in Los Angeles, California, on September 11-15 and 18, 2017. The Commission consists of
Tom Hood, Los Angeles Unified School District (retired);1 Jay San Agustin, Los Angeles
County Office of Education; and Administrative Law Judge Eric Sawyer, Office of
Administrative Hearings (OAH), State of California, who presided.

Mampre R. Pomakian, Associate General Counsel, and Michael Voigt, Assistant

General Counsel, represented complainant Los Angeles Unified School District (District).

Roshanne C. Katouzian, Esq., Trygstad, Schwab & Trygstad, represented Hector

Schmidt (respondent), who was present on each day of hearing.

The record was closed and the case submitted for decision at the conclusion of the
hearing on September 18, 2017. The Commission thereafter deliberated in executive session.

SUMMARY

The District seeks to terminate respondent’s employment based on allegations of his

ineffective teaching, improper behavior with other staff (including contacts perceived as threats
and sending numerous, bizarre “mass e-mails”), disobeying administrator directives, and an
unresolved mental illness determined by the Superior Court to render him unfit to teach.

1
Mr. Hood’s qualification to serve as a commissioner in this case, in light of his
former employment, was discussed during the Prehearing Conference (PHC) held on April 3,
2017, and decided in the PHC Order issued on April 5, 2017.
 Respondent contends he is a good teacher with many years of unblemished service for
the District, who hit “a rough patch” of mental illness around 2011, but is now committed to
getting better. Respondent denies ever intending to threaten any colleague. He contends his
techniques in the classroom (e.g., heavily relying on internet videos and having students play
games for grade points) were misunderstood by administrators and were not deficient. While
he agrees there are grounds for employment discipline, he believes termination is unnecessary.

It was established by a preponderance of the evidence that respondent’s mental illness

significantly impairs his ability to perform the duties of a teacher, renders him unfit to teach
children, and warrants termination of his employment with the District.

FACTUAL FINDINGS

Parties and Jurisdiction

1. The Board of Education (Board) is the duly elected, qualified and acting
governing board of the District, organized, existing and operating pursuant to the provisions
of the California Education Code and other laws of the State of California.

2. Respondent was, and is, a permanent certificated employee of the District.

3. On or about December 16, 2016, Marjorie Josaphat and Jose R. Cantu, in their
official capacities as the District’s Co-Lead Chief Human Resources Officers, signed a
Statement of Charges against respondent, alleging factual and legal grounds for termination
of his employment with the District. (Ex. 2.)

4. By a letter dated January 11, 2017, respondent was advised by Ms. Josephat
and Mr. Cantu that the Statement of Charges had been filed with the Board, and that, during
a closed session of a Board meeting held on January 10, 2017, the Board decided to dismiss
respondent within 30 days, unless he demanded a hearing. (Ex. 1.) On or about January 18,
2017, respondent timely requested a hearing. (Ex. 3.)

5. On or about February 8, 2017, the District filed an Accusation with OAH and
served it on respondent, including the allegations made in the Statement of Charges. (Ex. 4.)
Respondent timely filed a Notice of Defense, which contained a request for the hearing that
ensued. Respondent was timely provided with notice of the hearing before the Commission.
(Ex. 6.)

Respondent’s Background Information

6. Personal. Respondent is a 51-year-old married man with three children. He

grew up in Los Angeles and attended local colleges. In 1993, he graduated with a Bachelor
of Arts degree in health sciences with a certificate in occupational safety. In 2000,
respondent completed a credential program at California State University, Los Angeles.

2
 7. Credential. Beginning in 1997, respondent was issued emergency teaching
permits, which allowed him to teach while working on his credential. In 2000, after
completing his credential program, respondent was issued a preliminary single subject
teaching credential in health and biological sciences. His credential became clear upon
reaching tenure at the District in 2002.

8. A. Teaching Experience. Respondent was hired with the District as a

Teacher’s Assistant on November 15, 1988, but then, for reason(s) not established, resigned
from District service on September 31, 1996.

B. On July 15, 1997, respondent was rehired by the District as a secondary

biological and health science teacher at Garfield High School (Garfield). On July 1, 2002,
respondent gained permanent status with the District. Respondent continued teaching at
Garfield for several years.

C. In 2010, respondent was displaced from Garfield because the school was
reconstituted and broken into smaller magnet schools. However, respondent believes his
displacement from Garfield was related to his whistleblowing activity there and a “corrupt”
administration at the school, a topic he would frequently and copiously complain about later.

D. In 2010, respondent was placed at South East High School (SEHS) and
assigned to teach science and health classes.

9. Respondent generally received favorable evaluations while teaching at the

District through the 2010-2011 school year. No evidence was presented indicating he had
been subject to discipline prior to that time.

Preface I: the Events of 2011

10. In addition to working for the District, respondent also worked on Saturdays at
a local YMCA in membership services. At a time not established, he began experiencing
work-related problems at the YMCA.

11. On October 7, 2011, a male student stabbed and killed a female student (his
ex-girlfriend) at SEHS, which had a profound impact on students, teachers (including
respondent), and administrators at SEHS.

12. A. By mid-October 2011, respondent believed he was “under surveillance” at

the YMCA. He was upset about the murder at SEHS. He was experiencing stress related to
students who “occasionally challenged him,” as respondent believed the students he
encountered at SEHS were more aggressive than those at Garfield. (Ex. 23, p. 2.) He was
still upset about his displacement from Garfield, a concern which he tried to share with the
Los Angeles Times and the FBI. Thus, respondent began making cryptic comments to staff
at SEHS about being under surveillance, being an FBI informant, and that “everyone would
try to cover it up and soon they would know the truth.” (Ibid.)

3
 B. Respondent’s strange comments caused concern among his colleagues and
students, who advised SEHS administrators. By October 13, 2011, the administrators
directed respondent not to attend the “Back to School Night” and removed him from the
classroom at SEHS.

13. Soon thereafter, District Medical Director, Dr. Rosa Mercado, contacted
clinical psychologist Paul J. Lane concerning respondent. Dr. Mercado indicated the District
wanted respondent evaluated to determine his mental health and fitness for duty.

14. In October and November 2011, Dr. Lane met with respondent three times to
perform evaluative testing, review relevant background information including his medical
and mental health history, review records provided by the District, and formulate a final
conclusion with recommendations.

15. Dr. Lane concluded that respondent presented with obsessive compulsive,
paranoid, histrionic features, and questionable social judgment. Dr. Lane believed
respondent probably had a Personality Disorder Not Otherwise Specified (NOS).
Notwithstanding those findings, Dr. Lane determined respondent was still fit for duty as a
teacher, but that he needed to consult with a mental health practitioner for individual
psychological treatment. Dr. Lane also opined that, absent treatment, respondent’s mental
health may deteriorate. Dr. Lane communicated his findings to Dr. Mercado via telephone
and sent her a written report dated November 7, 2011.

16. Dr. Lane also recommended that respondent be reassigned to another campus
for his personal welfare. Respondent rejected Dr. Lane’s recommendation and insisted on
being returned to SEHS. Respondent received some mental health treatment at Kaiser
Permanente (Kaiser) during 2011, but the specifics were not established. However,
respondent was not prescribed any medication and he stopped his treatment that same year.

Preface II: the Events Subsequent to 2011

17. In 2012, respondent was arrested for domestic violence. It was not established
whether criminal charges were filed or, if so, whether there was a conviction or formal
disposition. However, as a result of his arrest, respondent was required to take 52 domestic
violence classes, which he later successfully completed. During this time, he and his wife
were separated for a period not established, and his children were temporarily placed in a
foster home. (Ex. 94, p. 5.)

18. In June 2014, respondent filed a complaint against the District with the
California Department of Fair Employment and Housing (DFEH). (Ex. 32.) He complained
the District discriminated against him for various reasons.

19. In early 2015, respondent was laid off from his part-time job at the YMCA.
He was told the layoff was due to a policy change requiring a greater number of work hours
by part-time employees. However, respondent drew a connection between his layoff from

4
the YMCA and his domestic violence arrest, employment issues at the District, and his
complaint to the FBI about the District. In many subsequent mass e-mails respondent would
send to District administrators, fellow teachers, and outside parties (including the media and
high-level officials in other government agencies), he commonly complained about a
conspiracy against him involving the District, FBI, YMCA, and child welfare agencies
involved in his domestic violence arrest.

Charges Related to Respondent’s Classroom and School Behaviors

20. A. (Charge 1). From August 13, 2014, through December 17, 2014,
respondent used hard-tipped darts and an electronic dartboard in his classroom to determine,
in part, students’ grades. Respondent divided students into various teams. Toward the end
of class, if respondent determined students had behaved well in class, a student from each
team would throw a dart at the dartboard. Respondent would keep track of the scores in an
Excel spreadsheet that was typically projected on the back wall of the classroom. While the
students were throwing darts, the rest of the class would usually talk among themselves and
not engage in coursework. Students in teams scoring higher than other teams would earn
more grade points; respondent would lower their grades if their team scored fewer points
than other teams. A student who did not throw darts at the dartboard received a lower grade.

B. In using the dartboard game as he did, respondent did not use appropriate
means or established standards to determine students’ grades. By so doing, respondent also
failed to adhere to District Bulletin 1353.1 (Marking Practices and Procedures in Secondary
Schools) because using the game to determine students’ grades had no bearing on individual
student achievement and impermissibly compared students’ achievements against other
students. This conduct also violated California Standards for the Teaching Profession
(CSTP) Standard 5 (Assessing Students for Learning) because respondent was not using
proper assessment data to establish learning goals and to plan, differentiate or modify
instruction.

21. (Charge 2). From August 13, 2014, through at least January 17, 2015,
respondent used a basketball and basketball hoop to determine points for students’ grades,
similar to the dartboard game involved in Charge 1. In doing so, respondent did not use
appropriate means or established standards to determine students’ grades. For the same
reasons explained above regarding Charge 1, respondent also failed to adhere to District
Bulletin 1353.1 and CSTP Standard 5 in using the basketball and hoop.

22. (Charge 3). From August 13, 2014, through December 17, 2014, respondent
required students to access materials and homework through the internet and periodically
requested them to respond to him by e-mail. Respondent testified that most of his students
had access to the internet and that those who did not could be given alternate modes of
communicating. Other than a curt written complaint from student L C. and a sentence
from Principal Jesus Nunez during his testimony, there was no other evidence provided on
this charge. Primarily, none of the conference memos presented in this case contained
warnings or directives advising respondent to discontinue this practice. Under these

5
circumstances, it was not established that respondent failed to provide his students with equal
opportunities to complete their school work by having them access the internet to complete
on-line assignments. For the same reasons, it was not established that respondent’s conduct
violated District Bulletin 1353.1 and/or CSTP Standard 5.

23. (Charge 4). On August 27, 2014, Assistant Principal Maribel Flores
conducted a classroom observation of respondent’s fourth period health class. She observed
that respondent did not use instructional time effectively and the learning activities he used
were not academically challenging, as follows:

a. From approximately 11:45 a.m. to 11:56 a.m., he showed an internet video

on strokes. He told the students to take notes. He said, “Okay guys, let's take the notes.
Remember, if you want double wins (referring to the dartboard game), everyone takes
notes.”

b. At approximately 11:59 a.m., he said, “We're going to watch the video one
more time. Then I'll collect your notes. Then you're gonna [sic] show me what you know
about it.”

c. The class watched the section on strokes again and he collected the notes,
which he wanted done in the Cornell format.

d. At approximately 12:16 p.m., he turned on an electronic dartboard for a

game. One by one he called students from each group to throw a hard-tipped dart at the
dartboard. He then typed the points into an Excel spreadsheet he displayed on the wall.

e. When the game ended, at approximately 12:26 p.m., a student asked,

“Mister. Can we play another game?” Respondent did not respond to the question. Instead,
he said, “Ok, let's review [the video] one more time.” He played the video for a third time as
students sat and watched. He did not provide direction or an assignment for students as they
watched the video. Students did not take notes or discuss the video.

24. A. (Charge 5). On or about October 8, 2014, Assistant Principal Flores

conducted a classroom observation of respondent’s first period biology class, and observed
that respondent did not create a classroom environment that supported student learning. The
classroom was not safe. There were physical hazards in respondent’s classroom that
endangered student safety. No student work was posted. Other than two commercially
produced posters, there was no graphic evidence that this was a science room. In fact,
respondent had not followed through on Assistant Principal Flores’s prior directive that he
make his classroom more attractive for student learning. She saw the electronic dartboard
mounted on one of the whiteboards that respondent and students used with hard-tipped darts,
as described above. She also saw the basketball hoop on a stand located just inside one of
the doors to the classroom. Assistant Principal Flores believed those objects were safety
hazards.

6
 B. Assistant Principal Flores had not previously given respondent clear
directives on these topics, other than that he must make his classroom more conducive to
student learning. This observation occurred very early in the school year, which did not
provide respondent enough time to decorate his classroom. Under these circumstances, it
was not established that respondent’s conduct violated the District’s Code of Ethics, Code of
Conduct with Students, or Bulletin 1353.1. However, respondent’s failure to comply with
Assistant Principal Flores’s directive to make his environment conducive to student learning
was in violation of CSTP Standards 2.2 (creating physical or virtual learning environments
that promote student learning) and 2.5 (developing, communicating, and maintaining high
standards for individual and group learning).

25. (Charge 6). On November 17, 2014, respondent sent an e-mail to his fellow
teachers, Kayla Bakos and Paul Butterfield, which had no District or instructional purpose.
Neither teacher understood the e-mail and both deleted it quickly without reading it fully.
Respondent’s conduct violated the District’s Responsible Use Policy, because using the
District’s data system in this manner was not responsible, efficient, or in support of the
District’s business and education objectives. However, given the nebulous nature of the e-
mail and that the recipients did not read all of it, it was not established that any other District
policy was violated.

26. (Charge 7). On November 18, 2014, during a professional development

meeting as part of SEHS’s professional learning community (PLC), respondent was agitated
because Ms. Bakos and Mr. Butterfield had not responded to his November 17, 2014 e-mail.
He instructed Ms. Bakos to respond to the e-mail and told her he knew she “was telling bad
things about him to students.” Respondent told Mr. Butterfield he was documenting that Mr.
Butterfield had not responded to the e-mail and that Mr. Butterfield needed to “watch out
because you are messing with my career.” Ms. Bakos was threatened by respondent’s
behavior. Mr. Butterfield, who knew and liked respondent, was upset that respondent
behaved that way toward him, but he did not feel threatened. Respondent’s conduct violated
the District’s Respectful Treatment of All Persons Resolution, and section A.2. (Create an
Environment of Trust, Respect and Non-Discrimination) of the District’s Code of Ethics.

27. (Charge 8). On October 24, 2014, respondent received a written directive
from Assistant Principal Flores to stop using the dartboard in his classroom. On December
11, 2014, Assistant Principal Flores also issued a conference memorandum containing
directives to stop using the dartboard in his classroom. In fact, respondent had received a
similar directive by the principal at Garfield before respondent was displaced from that
school. Respondent willfully refused to comply with Assistant Principal Flores’s directives.
For example, on December 15, 2014, respondent sent Principal Nunez an e-mail with the
following message, “I have to respectfully and professionally decline your directive of the
removal of the dartboard game based on the district reasons of safety.” On December 17,
2014, Peer Assistance and Review (PAR) Consulting Teacher Charlotte Sampson-Holm
reported to Principal Nunez that she observed respondent facilitating students’ use of the
dartboard in his classroom earlier that day. After receiving that report, Principal Nunez
visited respondent in his classroom and told respondent to stop using the dartboard.

7
 28. (Charge 9). On December 17, 2014, respondent acted unprofessionally toward
a District Administrator and again willfully refused to follow directives given to him by site
administration. Specifically, Principal Nunez had advised his District superiors that
respondent was refusing to comply with directives to stop using the dartboard in his
classroom. Local District Operations Administrator, Dr. James Noble, and Operations
Coordinator, Erick Juarez, decided to come to SEHS to investigate. They met with Principal
Nunez. The three of them went to respondent’s classroom during the lunch break and took
possession of the dartboard and darts while the classroom was empty. Respondent entered
the classroom as the three administrators were leaving. Dr. Noble informed respondent that
he could not use the dartboard because previously he had been directed by site administration
to stop using it. In response, respondent attempted twice to forcibly grab the dartboard from
Dr. Noble. Dr. Noble deflected respondent’s efforts and told him to stop. He then instructed
respondent to retrieve the dartboard from Principal Nunez’s office after school and reiterated
the directive to stop using the dartboard in class. Because the classroom door was open, the
incident was visible to the students present in the hallway at the time.

29. (Charge 10). On January 17, 2015, while his class was being observed by
Assistant Principal Flores, respondent told students they would play basketball in class with a
Nerf ball the following day. Prior to this, Assistant Principal Flores had directed him to
remove the basketball hoop. Respondent intended to use the basketball and hoop as a
replacement for the removed dartboard, but he knew this was not acceptable to his
administrators, given the dartboard had been forcibly removed and Assistant Principal
Flores’s directive prohibiting the basketball hoop.

30. (Charge 13).2 On or about April 22, 2015, respondent did not interact with a
student in a way that projected respect or created a supportive learning environment, when,
after he noticed that student was sitting and passively watching a video, respondent directed
that student to, “Take notes, please. I will change your teams and give you more work.”
This was not supportive because it threatened punitive action against the student.
Respondent’s conduct, in this regard, violated the District’s Respectful Treatment of All
Persons Resolution, section A.2. of the Code of Ethics, and CSTP Standard 2. While the
other events described in this charge occurred as alleged, respondent could have just as easily
been trying to garner student engagement, which would not have been problematic.

31. During the 2014-2015 school year, Assistant Principal Flores conducted a total
of four formal classroom observations of respondent teaching his various classes. She was
dissatisfied with respondent’s performance in each lesson she observed. Assistant Principal
Flores tried to provide respondent with support and guidance to help him improve his
performance when she met with him after each observation, which she confirmed with
conference summary memoranda. (Exs. 33, 36, 47 & 55.) Assistant Principal Flores’s
support consisted of detailed instruction, guidance, and reference materials, as well as
directives which were easy to follow. Respondent failed to use her suggestions, guidance or
materials, and his performance did not improve.
2
Charges 11 and 12 are discussed in the next section.

8
Charges Related to Respondent’s Mass E-Mails

32. On December 2, 2014, Principal Nunez directed respondent orally, and again
in writing on December 4, 2014, to maintain professional decorum when communicating
with colleagues; not engage in any activity that directly or indirectly makes his colleagues
feel threatened; and adhere to the District’s Code of Ethics, Responsible Use Policy, and
Respectful Treatment of All Persons Resolution. Those directives were also generally
covered during the required yearly training provided to all certificated teachers. These
directives came on the heels of respondent sending e-mails to numerous District teachers and
others which discussed respondent’s conspiracy theories involving the District, FBI, YMCA
and others, and were disjointed, rambling, and bizarre. (See, e.g., exs. 34, 35, & 38.)
Because the e-mails had so many recipients, they became known as “mass e-mails.”

33. A. (Charge 11). On or about March 2, 2015, respondent sent an e-mail to

approximately 152 recipients. The majority of those recipients were faculty and staff
members of SEHS. The e-mail contained a chain of about 16 older e-mails and included at
least eight internet links, six of which were YouTube videos. The e-mails were rambling,
incoherent, and discussed respondent’s concerns about the FBI, YMCA, and his personal
conflict with the District. The e-mail had no District or instructional purpose.

B. (Charge 12). When respondent engaged in the conduct described in

Charge 11, he willfully refused to follow the above-described administrative directives
previously given to him.

34. (Charge 14). On April 26, 2015, respondent sent an unauthorized e-mail to
approximately 158 recipients. The majority of those recipients were faculty and staff
members at SEHS. The e-mail contained approximately 13 segments and included at least
11 internet links to YouTube videos. The e-mail was rambling, incoherent, and discussed
respondent’s children, Dr. Mercado, and respondent’s experience at Garfield. There were
many other topics and segments, which were disjointed and unconnected. The e-mail had no
District or instructional purpose.

35. A. (Charge 15). On or about April 28, 2015, respondent sent an e-mail to
Principal Nunez, which included a Star Wars video titled, “Execute Order 66” and instructed
his students to watch the video and answer the following questions: (1) Who in the film clip
represents the administrators? (2) Who in the film clip represents the teachers? (3) Who in
the film clip represents the students? (4) Who in the film clip represents respondent?

B. Respondent and other teachers at SEHS knew Principal Nunez was an avid
Star Wars fan. Respondent knew Principal Nunez would understand the reference of the
video, which depicted violence by the forces of dark against the forces of good. In light of
the circumstances, respondent knew or reasonably should have known that Principal Nunez
would have taken the e-mail with the embedded video as a threat, which is how Principal
Nunez in fact interpreted the e-mail. As a result of seeing the e-mail, Principal Nunez
became worried that respondent might jeopardize his personal safety and security. During

9
the hearing, respondent explained he had innocent intentions in sending the e-mail to
Principal Nunez. However, respondent’s explanation was convoluted, fantastic, and
unbelievable.

36. (Charge 16). On April 29, 2015, respondent sent an unauthorized e-mail to
approximately 148 recipients. The majority of those recipients were faculty and staff
members of SEHS. The e-mail contained approximately four segments and included at least
one internet link to a YouTube video and the contents of the above-described e-mail sent on
April 26, 2015. Respondent referred to his labor union, prayers, divine intervention, Dr.
Mercado, his complaint to the DFEH, and his experience with the YMCA. The e-mail had
no District or instructional purpose. In fact, by respondent’s own admission, he sent the e-
mail hoping that one of the recipients would intervene on his behalf.

37. (Charge 17). On or about April 30, 2015, respondent sent an unauthorized e-
mail to approximately 148 recipients. The majority of those recipients were faculty and staff
members of SEHS. The e-mail contained approximately four segments and included at least
two internet links to a YouTube video and an ESPN video, as well as the contents of the
above-described e-mail sent on April 29, 2015. Respondent discussed his children, the FBI,
homicides, and his conflict with the District. The e-mail had no District or instructional
purpose. Like the e-mail involved in Charge 16, respondent sent this e-mail hoping others
would intervene on his behalf.

38. A. (Charge 18). Principal Nunez gave respondent the administrative

directives described in Factual Finding 32 above orally on March 12, 2015, and in writing on
March 13, 2015.

B. Respondent willfully refused to follow the administrative directives

previously given to him and described above when he sent the above-described e-mails on
April 26, 2015, April 28, 2015, April 29, 2015, and April 30, 2015.

C. In doing so, respondent also failed to adhere to the following District rules
and regulations:

(i) Code of Ethics. Respondent did not respect his colleagues’ time
and privacy. When some people asked to be removed from his e-mail list, respondent
initially refused, unless they answered his inquiry why they wanted to be removed.

(ii) Responsible Use Policy. By obtaining many e-mail addresses from

District e-mail lists and sending e-mails to District employees’ using District e-mail
addresses, respondent accessed District data systems and networks in a way that was not
respectful of employees’ time and privacy.

D. However, it was not established that respondent did anything prohibited by

the Respectful Treatment of All Persons Resolution.

10
 43. A. (Charge 20). On July 7, 2015, respondent was evaluated by a panel of
three psychiatrists pursuant to Education Code section 44942. The panel was composed of
psychiatrists Timothy Hayes, Richard Sandor, and Marta Pariewski. The panel conducted a
complete and detailed examination of respondent, which included: history of present illness,
past and current psychiatric history, family psychiatric history, past medical history, social,
educational, and occupational history, and mental status. The panel also reviewed with
respondent his past fitness for duty evaluations with Dr. Lane in 2011 and 2015, and Dr.
Lane’s recommendation after the 2011 consultation that he be transferred to another school
location.

B. On July 8, 2015, the panel issued a written report wherein it concluded

respondent was suffering from mental illness to such a degree as to render him incompetent
to perform his duties as a teacher. The report noted respondent demonstrated a complete lack
of insight into his psychiatric condition, did not believe he had a psychiatric disorder, and
thus he had no motivation to seek treatment.

C. On July 14, 2015, the District sent respondent a letter advising him that,
effective July 15, 2015, as a result of action taken by the Board, and the examination by the
panel on July 7, 2015, respondent was placed on mandatory sick leave of absence in
accordance with Education Code section 44942.

D. Respondent did not believe he suffered from a mental health disability. He

disagreed with the panel’s findings and the District’s decision to place him on mandatory
sick leave of absence.

44. A. (Charge 21). On July 20, 2015, respondent requested that the District
initiate a Declaratory Relief action in the Superior Court of the State of California, pursuant
to Education Code section 44942, for purposes of reviewing the Board’s action placing him
on mandatory sick leave of absence.

B. On July 29, 2015, the District filed a Complaint for Declaratory Relief in
the Superior Court of the State of California, County of Los Angeles.

C. On June 3, 2016, the District filed a motion for summary judgment on the
grounds that no triable issue existed in the Declaratory Relief action and that all evidence and
undisputed material facts supported a finding that respondent was unfit for duty as a teacher
at the time the Board placed him on mandatory sick leave of absence.

D. On September 28, 2016, Superior Court Judge Fredrick C. Shaller

considered and granted the District’s motion, concluding that, at the relevant times,
respondent was incompetent to perform his assigned duties and should have been placed on
mandatory sick leave of absence. The judgment was not appealed and is final.

E. Since being placed on leave in July 2015, respondent has not provided
verification from a mental health provider or expert that he is fit for duty as a teacher.

12
Cause for Termination

2. The governing board of a school district may dismiss a permanent certificated

employee if one or more of the causes enumerated in Education Code sections 44932,
subdivision (a), 44939, and 449423 are established by a preponderance of the evidence.

3. A. A certificated employee may be subject to dismissal for unprofessional

conduct pursuant to section 44932, subdivision (a)(2).

B. Unprofessional conduct in the teaching profession has been defined as that

which violates the rules or ethical code of the profession or is unbecoming a member of the
profession in good standing. (Board of Educ. of Los Angeles v. Swan (1953) 41 Cal.2d 546,
553, overruled, on another ground, by Bekiaris v. Board of Education (1972) 6 Cal.3d 575,
588, fn. 7.)

C. In this case, it was established by a preponderance of the evidence that

respondent engaged in unprofessional conduct within the meaning of section 44932,
subdivision (a)(2). As discovered during Assistant Principal Flores’s classroom observations
of respondent teaching his various classes, respondent failed to create a rigorous and positive
learning environment in his classroom that properly assessed student learning. Respondent’s
persistent use of the dartboard game, and later the basketball game, to determine students’
grades had no bearing on individual student achievement and violated District policies on
marking and comparing students’ achievements against other students. His numerous mass
e-mails showed a constant failure to follow District policies on conduct, and demonstrated
that respondent was not respectful of colleagues’ time and privacy. The tone of the Star
Wars e-mail respondent sent to Principal Nunez was threatening. Respondent also refused to
follow multiple directives from Assistant Principal Flores and Principal Nunez regarding
removal of the dartboard and basketball hoop from his classroom. Respondent continued
sending mass e-mails to colleagues after being directed not to do so by administrators.
Respondent’s interaction with Dr. Noble in trying to grab the dartboard away from him was
unprofessional and modeled poor behavior in front of students in the hallway. (Factual
Findings 20-21, 23-25, 27-29, 32-39.)

4. A. A certificated employee may be subject to dismissal for unsatisfactory

performance pursuant to section 44932, subdivision (a)(5).

B. The term “unsatisfactory performance” is not specifically defined in the

Education Code or case law. Inasmuch as there is separate cause for dismissal for
unprofessional conduct in section 44932, as discussed above, and it is not to be presumed
that the Legislature intended to enact completely duplicative statutes (In re Maes (2010) 185
Cal.App.4th 1094, 1110), unsatisfactory performance must mean something different from
unprofessional conduct. In fact, section 44938, subdivision (c), specifies that “unsatisfactory
performance” does not include any other cause for dismissal specified in section 44932.
3
Further undesignated statutory references are to the Education Code.

15
 C. While unprofessional conduct can be determined by analyzing a teacher’s
conduct relative to the broader educational community, unsatisfactory performance must be
analyzed with an eye toward the teacher’s performance as evaluated by his or her employing
school district. Section 44938 requires a charge of unsatisfactory performance to be
preceded by a written notice of unsatisfactory performance. Section 44938 refers to section
44660 et seq., which in turn establishes guidelines for how school districts should evaluate
and assess the performance of their certificated employees. Thus, cause for discipline may
be established if a certificated employee performs in a manner unsatisfactory to his
employing school district.

D. However, it has been observed that the purpose of the statute giving tenure
to teachers is to insure an efficient permanent staff of teachers whose members are not
dependent on caprice for their positions as long as they conduct themselves properly and
perform their duties efficiently and well. (Bakersfield Elementary Teachers Ass’n v.
Bakersfield City School Dist. (2006) 145 Cal.App.4th 1260, 1293, fn 20, citing 56 Cal.Jur.3d
(2003) Schools, § 411, p. 757.) Therefore, an employing school district cannot be arbitrary
or capricious in making decisions regarding whether a certificated employee has performed
in an unsatisfactory manner.

E. In this case, it was established by a preponderance of the evidence that

respondent’s performance was unsatisfactory pursuant to section 44932, subdivision (a)(5).
Assistant Principal Flores was dissatisfied with respondent’s performance in all of her
classroom observations. When she met with respondent after each observation, she tried to
help him improve his performance, by providing him with support and guidance, which,
respondent did not heed. Assistant Principal Flores provided respondent with detailed
instruction, guidance, and reference materials, as well as directives, which were easy to
follow and could have remedied aspects of respondent’s unsatisfactory performance.
Respondent failed to use her suggestions, guidance or materials, and his performance did not
improve. (Factual Findings 23-24, 30-31.)

5. A. A certificated employee may be subject to dismissal for evident unfitness

for service pursuant to section 44932, subdivision (a)(6).

B. “Evident unfitness for service” means clearly not fit, not adapted to or
unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.
(Woodland Joint Unified School Dist. v. Commission on Professional Competence (1992) 2
Cal.App.4th 1429, 1444.) “'Evident unfitness for service' connotes a fixed character trait,
presumably not remediable merely on receipt of notice that one's conduct fails to meet the
expectations of the employing school district.” (Id.)

C. It was established by a preponderance of the evidence that respondent is

evidently unfit for service as a teacher pursuant to section 44932, subdivision (a)(6).
Respondent failed to follow through after nine formal conferences with administrators that
outlined directives for him to be more effective in the classroom and more professional as a
member of his teaching community. He refused to follow clear and simple directives to stop

16
 8. A. A certificated employee may be subject to dismissal for persistent violation
of, or refusal to obey, the school laws of the state or reasonable regulations prescribed for the
government of the public schools by the State Board of Education or by the governing board
of the school district employing him, pursuant to section 44932, subdivision (a)(8).

B. Cause for dismissal here may be based on the violation of school rules or
district policies. (San Dieguito Union High School Dist. v. Commission on Professional
Competence (1985) 174 Cal.App.3d 1176, 1180-1181.) However, there must be a “showing
of intentional and continual refusal to cooperate.” (Id. at p. 1196.) The violation must be
persistent or “motivated by an attitude of continuous insubordination.” (Governing Board of
the Governing Board of the Oakdale Union School Dist. v. Seaman (1972) 28 Cal.App.3d 77,
81-82.) Isolated events or incidents involving an issue unresolved over a period of time are
generally not considered persistent. (Bourland v. Commission on Professional Competence
(1985) 174 Cal.App.3d 317.)

C. It was established by a preponderance of the evidence that respondent

persistently violated, and refused to obey, the school laws of the state and reasonable District
regulations, pursuant to section 44932, subdivision (a)(8). Respondent persistently violated
District Bulletin 1353.1 and CTSP Standard 5 by using the dartboard and basketball games to
determine student grades, even after he was given explicit directives to discontinue that
practice. Respondent persistently violated the District’s Responsible Use Policy by sending
mass e-mails with no instructional purpose to colleagues, even after he was given explicit
directives by an administrator to not do so. (Factual Findings 20-21, 25, 27-29, 32-39.)

Analysis of the Morrison Factors

9. A. In deciding whether cause for dismissal exists under the amorphous concepts
of unprofessional conduct and evident unfitness for service, it also must be established that a
teacher’s misconduct relates to his fitness to teach, within the meaning of Morrison v. State
Board of Education (1969) 1 Cal.3d 214, 227-230. The Morrison analysis does not apply to
causes for dismissal for unsatisfactory performance, willful refusal to perform regular
assignments, or persistent violation of school rules, laws or policies, because such theories, by
definition, have a direct nexus with teaching. (Id., at pp. 227-230). While it is unclear whether
the Morrison analysis applies to the cause for dismissal of mental unfitness to instruct children,
the Commission assumes it does for purposes of this case out of abundance of caution.

B. With regard to the three identified causes for dismissal that must be analyzed,
all of the factors suggested by Morrison were considered and compared to the facts established
above. Not all “Morrison factors” need be present for the Morrison test to be satisfied.
(Governing Board v. Haar (1994) 28 Cal.App.4th 369.) Moreover, the Morrison analysis need
not be conducted on each individual fact established, but rather can be applied to the
accumulated facts established collectively. (Woodland Joint Unified School Dist. v.
Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1457.)

///

18
 C. In this case, the Commission has analyzed the Morrison factors and
concludes they establish by a preponderance of the evidence that respondent’s misconduct
makes him unfit to teach, as follows:

1. The likelihood the conduct may adversely affect students or fellow teachers.
Respondent’s students suffered most. They were not learning, were deprived of District
curriculum and the opportunity to learn science, and were not allowed to develop as critical
thinkers. There was a lack of engagement in respondent’s classes, with no challenges for
students. Respondent’s frequent and off-topic mass e-mails invaded the time and privacy of his
colleagues. In fact, teachers who were once respondent’s allies lost respect for him and became
increasingly nervous about the tone of his e-mails. Many teachers at SEHS tried to avoid him.
Respondent’s conduct increased anxiety on campus. Since respondent has been removed from
school, the collaborative community at SEHS has improved.

2. The degree of such adversity. Students suffered the greater amount of

adversity, especially given most of respondent’s classes were composed of students being
introduced to senior level science. Respondent failed to give his students a good foundation to
problem-solve, or engage in creative learning, which impeded their matriculation to other
sciences. The adversity to faculty was more moderate, although respondent’s behavior was
enough to cause many teachers to complain to administrators, and one teacher, Ms. Bakos, to
obtain her own personal protection.

3. The proximity or remoteness in time of the conduct. Respondent’s

misconduct is fairly proximate, in that it occurred two to three years ago. The misconduct’s
proximity is practically greater, in that respondent still contends he does not have a mental
illness impairing his ability to function in the classroom.

4. The type of teaching certificate held by the party involved. As touched on

above, respondent’s credential put him in contact with high school students just beginning their
introduction to senior sciences. His poor teaching and behaviors undercut those students’
ability to gain a solid foothold in that level of science.

5. The existence of extenuating or aggravating circumstances, if any,

surrounding the conduct. The Commission finds neither exists.

6. The praiseworthiness or blameworthiness of the motives resulting in the

conduct. The Commission finds neither exists. The Commission concludes respondent’s
mental illness best explains the motives behind his misconduct.

7. The likelihood of recurrence of the questioned conduct. If respondent is

returned to the classroom, he will engage in misconduct exactly the same as before.

8. The extent discipline may cause adverse impact or chilling effect upon the
constitutional rights of the teacher involved or other teachers. The Commission does not see
how discipline will have such an effect upon properly exercised constitutional rights.

19
Disposition

10. A. “The Commission has broad discretion in determining what constitutes

unfitness to teach . . ., and whether dismissal or suspension is the appropriate sanction.”
(California Teachers Ass’n v. State of California (1999) 20 Cal.4th 327, 343-344.) Thus,
even where cause for dismissal has been established, a Commission still has broad discretion
to determine whether such discipline is actually warranted. (Fontana Unified School Dist. v.
Burman (1988) 45 Cal.3d 208, 222.)

B. Respondent engaged in serious misconduct, even after being given

numerous directives, guidance, and support. His misconduct includes unsatisfactory
teaching, unprofessional interactions with colleagues, and willful refusal to follow clear
directives of his supervisors. More concerning is respondent’s mental illness, which the
overwhelming and uncontroverted evidence shows renders him unfit to teach. Despite an
avalanche of evidence, respondent continues to deny he has a problem or that it impairs his
fitness to teach. Until respondent accepts those facts and takes significant and long-term
steps to address his illness, it is certain that, if returned to the classroom, he will continue to
engage in the same misconduct that was proven in this case. All students should have the
opportunity to learn. Respondent cannot give them that opportunity in his present condition.
His colleagues at school also should not be subjected to the anxiety and fear provoked by his
erratic behavior. Even respondent agrees he is still many months away from being ready to
return to the classroom. Respondent’s termination from the District is therefore warranted.
(Factual Findings 1-50; Legal Conclusions 1-9.)

///

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///

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20
 ORDER

Hector Schmidt is dismissed from employment with the Los Angeles Unified School
District.

DATED: November 5, 2017

___________________________
ERIC SAWYER
Administrative Law Judge
Office of Administrative Hearings

I concur.

November 3, 2017
DATED: _________________ ___________________________
Tom Hood, Commissioner

I concur.

November 3, 2017
DATED: _________________ ___________________________
Jay San Agustin, Commissioner

21
 BEFORE A
COMMISSION ON PROFESSIONAL COMPETENCE
FOR THE JURUPA UNIFIED SCHOOL DISTRICT

In the Matter of the Dismissal of:

ALLEN UMBARGER, OAH No. 2017061019

A Permanent Certificated Employee,

Respondent.

DECISION

On November 7, 8, and 9, 2017, a Commission on Professional Competence

(Commission) heard this matter in Jurupa Valley, California. The Commission consisted of
the following members: Adam L. Berg, Administrative Law Judge, Office of Administrative
Hearings (OAH); Scott Richards, Jr.; and Sue Newton.

Kerrie McNally, Attorney at Law with the law firm of Adams, Silva & McNally,
LLP, represented complainant, Tamara Elzig, Deputy Superintendent of Personnel Services,
Jurupa Unified School District (district).

Carlos Perez, Attorney at Law with the law firm of Reich, Adell & Cvitan,
represented respondent, Allen Umbarger, who was present throughout the hearing.

The record was closed and the matter submitted for decision on November 9, 2017.

SUMMARY

Respondent is employed by the district as a high school teacher. A preponderance of

evidence established that respondent showed full-length popular movies in class, briefly left
his class under the supervision of college tutors while he used the restroom, made two
inappropriate racially-related comments to students, nicknamed a student “Dimples,” and
posted a comment to a colleague’s Facebook post that arguably contained some negative
commentary concerning immigrants and others who supported a national protest event called
“A Day Without Immigrants.” However, the district did not establish by a preponderance of
the evidence that respondent’s conduct constituted immoral conduct or evident unfitness for
service. Accordingly, applicable law does not permit his dismissal on those grounds.

1
 FACTUAL FINDINGS

Procedural Background

1. Respondent is a certificated health teacher who was assigned to Rubidoux High

School (RHS) for the 2016-2017 school year.

2. On February 17, 2017, complainant placed respondent on paid administrative

leave. On May 1, 2017, complainant provided respondent with a Draft Notice of Intent to
Dismiss and Immediately Suspend Without Pay and the corresponding Statement of Charges.
The letter attached to the above-referenced documents provided respondent with information
concerning his right to a Skelly conference.

3. On May 9, 2017, respondent, through counsel, declined to participate in the

Skelly conference.

4. On May 11, 2017, Dave Doubravsky, the Assistant Superintendent of

Educational Services for the district, wrote a letter to respondent representing that the district
had considered a letter of support and student petition, but would still be seeking termination of
respondent’s employment. On that same date, complainant provided respondent with a letter
stating she would present the Notice of Intent to Dismiss and Suspend Without Pay and
Statement of Charges (Notice of Intent) to the District Governing Board (board) on May 15,
2017.

5. On May 15, 2017, complainant signed the Notice of Intent, alleging that
respondent was subject to termination for immoral conduct and evident unfitness for service, in
violation of Education Code sections 44932, subdivisions (a)(1) and (a)(6).1 In support of the
two charges, complainant alleged the following:

 From the 2014-2015 through 2016-2017 school years, respondent

used class time to show full-length feature films that were not
related to the curriculum or approved for use in the classroom.

 In February 2015, respondent left his class unsupervised while he

used the restroom.

1
At the conclusion of the Notice of Intent, complainant alleged that respondent’s
conduct constituted immoral conduct, dishonesty, and evident unfitness for service.
Although, dishonesty can serve as an independent basis for dismissal (Ed. Code, § 44932,
subd. (a)(4)), this section was not listed in the statutory causes for termination. Therefore,
dishonesty was not considered as an independent basis for dismissal, although the allegation
in paragraph 34, wherein complaint alleged respondent was dishonest, was considered in its
relationship to the enumerated charges of immoral conduct or evident unfitness for service.

2
  During the 2015-2016 school year, respondent used derogatory
racial slurs to converse with students during class. For example,
he used the word “nigger” in class in reference to African-
American students.

 During the 2015-2016 school year, respondent made inappropriate

comments to students regarding their race. For example, he said
words to the effect of “[student J.L.] can run fast or jump high
because he is African-American.”

 During the 2016-2017 school year, respondent told several Latino

students that they were not required to work hard because if
Donald Trump were elected President, they would be deported.

 During the 2016-2017 school year, respondent told AVID tutors

that they would be required to change their last names to avoid
deportation if Donald Trump were elected.

 During the 2016-2017 school year, respondent told his students

that Muslims would be deported before Mexicans.

 During the 2016-2017 school year, respondent referred to one of

his ninth grade, female students as “Dimples.”

 During the 2016-2017 school year, a fellow RHS teacher posted a

comment on his Facebook page that criticized students for being
absent during a National Day Without Immigrants protest.
Respondent posted a comment to the message that insinuated that
his immigrant students and supporters had poor/failing grades and
that RHS was more successful due to their absence from class.
Complainant alleged this post violated multiple district policies.

 In an interview with a district administrator on March 21, 2017,

respondent was dishonest when he asserted that on February 15,
2017, he told his students to participate in the protest event and
attend school. Students who were interviewed by district staff
said respondent told them not to attend school.

6. The same day, the board voted to approve the proposed disciplinary action. The
Notice of Intent to Dismiss and other jurisdictional documents were served on respondent,
who timely filed a demand for hearing on May 18, 2017.

3
The Day Without Immigrants Protest Event

7. On February 16, 2017, a protest event called “A Day Without Immigrants”

was held throughout the country. The protest event was meant for persons who were
immigrants, or who supported immigrants, to stay home in order to show what impact
immigrants have, economically, on society. It was a nationwide protest event and was not
limited to any particular profession.

The Facebook Thread

8. On February 16, 2017, several teachers at RHS – Geoffrey Greer, Robin

Riggle, Charles Baugh, Patricia Crawford, Rhonda Fuller, and respondent, posted comments
on a Facebook thread initiated by Mr. Greer on his public Facebook page. The original post
by Mr. Greer read as follows:

Well. A day without immigrants. Perhaps all the missing

workers in all the various industries out there had the intended
impact and sent the desired message. I don’t know. As for the
public school system, having my class size reduced by 50% all
day long only served to SUPPORT Trumps initiatives and prove
how much better things might be without all the overcrowding.

That’s what you get when you jump on some sort of bandwagon
cause as an excuse to be lazy and/or get drunk. Best school day
ever.

Ms. Riggle was the first teacher to post a comment. She wrote, “I had fifty absences
today.” Mr. Greer responded, “Yup. And I bet your class went a whole lot more smoothly
as well,” to which Ms. Riggle replied, “Yes, it was a very pleasant day.” Respondent was
next to post the following, “Unfortunately, statistically my cumulative GPA increased today.
Mostly failing students were missing.” That comment was the only comment respondent
posted on the Facebook thread.

The Facebook Thread Goes Viral

9. Aside from the numerous comments made on Facebook, an individual by the

name of “Marina,” who is a writer and activist with MTV, tweeted the link to the Facebook
thread on her Twitter page. It did not take long for the entire Facebook thread to “go viral.”
The Facebook thread and comments were shared by individual Facebook users and spread
about various social media platforms. Gayle Hammons is a communications support
specialist contractor for the district. One of her responsibilities is to monitor social media
postings for various groups in Jurupa Valley for content that could be relevant to the district.
At 5:23 p.m., which was approximately two hours after Mr. Greer posted his comment, Ms.
Hammons notified district administrators of the post. She e-mailed screenshots of the
original post and subsequent comments. The screenshots showed that the posts were made

4
after school had ended. Ms. Hammons noted that Facebook allows users to set security
settings to determine who can view content posted on an individual’s page. Mr. Greer’s
Facebook page was public, meaning Ms. Hammons and anyone else could access the content
and read his posts.

10. Eventually, Mr. Greer deleted from his Facebook account the original post and
the comments by the other teachers, as he explained, to “mitigate any further damage.” Mr.
Greer posted a public apology in place of the deleted post, apologizing for the “harsh tone”
and “hurtful structure” of the original post. Soon after, he deleted or hid his Facebook
profile. However, because the original content of the Facebook thread had been captured in
screenshots and reproduced so many times, deleting the posts did nothing to stop the
continuing viral spread.

11. In the ensuing days, the story was covered on most local news stations as well
as Univision, a Spanish language news station. Local newspapers covered the story; some of
the news articles simply reported the facts of what occurred; other articles used less-neutral
headlines and editorialized the articles to express the belief that the Facebook posts were
racist or anti-immigrant.2 Daniel Brooks, the Director of Personnel for the district, said his
office – which usually does not receive phone calls from angry parents – received a “couple
dozen” phone calls. The callers were upset and wanted the district to take action against the
teachers involved.

12. The district and RHS received over 200 e-mails from students, parents,
community members, individuals who had no affiliation or personal interest in the district,
and others who lived across the country. The American Civil Liberties Union, U.S.
Department of Justice, Anti-Defamation League, and various immigrant organizations
notified the district of their concerns after learning of the comments on the Facebook thread.
Some of the angry communications were directed solely towards Mr. Greer. Others were
directed at all the teachers whose comments appeared on the Facebook thread. In many of
the e-mail communications, it was unclear whether the writers were reacting to the actual
posts, the representation in the news regarding the posts, or what they had read from others
regarding their opinions of what the posts contained. Nonetheless, it was not disputed that
many people from all walks of life were upset for a variety of reasons about the comments
contained on the Facebook thread.

13. In response to these e-mails, the district’s superintendent and RHS principal
sent e-mail replies for each e-mail received. With a handful of exceptions, the e-mail
responses consisted of the same template, noting the writer’s concern and promising a full
investigation. District personnel and RHS staff were also inundated with phone calls in the
following days. Administrators attempted to return calls from angry parents and members of
2
For example, one article from the Huffington Post was simply entitled, “Riverside
Teachers Put on Paid Leave Over Immigrant Protest Comments.” Another article from the
Washington Post, however, was entitled, “These California Teachers Mocked Students For
Skipping School On Immigrant Boycott Day.”

5
the community. Dr. Jose Araux, RHS’s principal, met personally with eight to 10 parents,
who were angry about the posts. Dr. Araux sent an e-mail to parents inviting them to meet
with himself or Dr. Duchon, the superintendent. In sum, the public reaction to the Facebook
posts disrupted the district’s and RHS’s standard daily operations.

Testimony of Dr. Jose Araux

14. Dr. Araux is in his fifth year as principal of RHS. According to Dr. Araux,
RHS has approximately 1,575 students. Approximately 90 to 91 percent of the students are
Hispanic, two to three percent are black, two to three percent are white, and the remainder
identifies as “other.”

15. Dr. Araux said he was aware of the national A Day Without Immigrants
protest at the time, but did not think the event would result in any disruption to RHS.
National protest events in previous years did not have a big impact. Consequently, he did not
advise teachers to expect large absences and the district did not send notification to parents
regarding the protest. Dr. Araux said he did not become aware that there were a large
number of absences until the day after the event took place. Attendance records for that day
showed 357 students were absent, 286 of which were unexcused, which is approximately 18
percent of the student body.

16. Dr. Araux testified that when he saw the Facebook post and comments by his
teachers and a counselor, he thought they were “inappropriate, offensive to the immigrant
community, and racist.” As to respondent’s comment specifically, Dr. Araux said he felt bad
for the students who were absent from respondent’s classes, who would have perceived that
it was only the immigrant students who were failing.

17. On February 17, 2017, the district assigned extra personnel to the RHS campus
in case any problems arose. Two classrooms, one belonging to Ms. Riggle and the other
belonging to Mr. Greer, had been vandalized overnight, with messages stating “fuck you”
and “fuck your opinion” spray-painted outside the classrooms.

18. When Dr. Araux went to RHS on February 17, 2017, there were many people
on campus from the district to help provide support. Dr. Araux read a message over the
school public address system acknowledging the reaction to the Facebook thread and letting
students know that the district was committed to investigate and “take appropriate action.”
He responded to over 200 e-mail complaints from parents and people across the country. Dr.
Araux set aside additional time to meet with parents, should they want to do so. RHS
received many calls regarding the Facebook thread. Talking points were provided to
teachers to help them deal with any situations that might arise in the classroom.

19. A student forum was scheduled for 2:20 p.m. in the gymnasium; however, the
forum was not held because there was a student walkout following lunch. Dr. Araux
estimated 250 to 280 students left the campus. Teachers and administrators tried to get the
students to go back to their classrooms, but the participating students refused to follow

6
instructions to do so. When the protesting students approached a perimeter fence, one
student went over the fence. Other students began to push on it. Dr. Araux said he made the
decision to open the gate because he did not want anyone to get hurt. Some students returned
to the campus, but many did not. As for the majority of students who remained on campus,
Dr. Araux made the decision to keep them in their fifth period class rather than proceed as if
it were a normal day; students were eventually dismissed from fifth period.

20. On February 18, 2017, Dr. Araux received an e-mail from a student notifying
him about the possibility of a second student walkout planned for February 21, 2017. The
student was very “disappointed” with the actions of the students who walked off the campus
on February 17, 2017, and was concerned about the safety of students and staff members at
RHS should the second walkout take place. Dr. Araux sent an e-mail to all staff that
contained a modified schedule for that day to avert a second walkout. Dr. Araux e-mailed
parents and the district sent a “robo-call” notification that warned them that students would
face consequences if they walked out of school. Ultimately, the second walkout never
occurred.

21. Dr. Araux has observed respondent in the classroom, but he had never been
responsible for completing a performance evaluation. He believed that respondent’s and the
other teachers’ comments were equally as offensive as Mr. Greer’s comment because they
were part of a racially loaded conversation. Dr. Araux did not remember if any parent
complained about respondent specifically. Dr. Araux was not involved in the investigation
or decision to dismiss respondent. He did not think respondent could continue teaching at
RHS because he could not be a role model for students. He said students and parents do not
trust respondent who has “shown his true colors.” Dr. Araux said he does not trust
respondent as a teacher.

Testimony of Tamara Elzig

22. Complainant, Tamara Elzig, has served as the district’s Deputy Superintendent
for the past three years. In that position, she oversees all human resource matters. Ms. Elzig
thought respondent’s Facebook comment was “appalling” because it implied that as a result
of Hispanic students being absent, the grade point average (GPA) in his classes increased.
Ms. Elzig said the comment that mostly failing students were missing that day was not
accurate; in fact, after reviewing respondent’s grade book, which he certified as being
accurate, of 28 students who were missing from respondent’s classes, only 6 were failing.
According to the district, the GPAs in each of respondent’s four periods only increased by
.27, .28, .18, and .20 respectively.

23. Ms. Elzig said respondent’s statement and his claim in a subsequent interview
with her that he had calculated the GPA for that day demonstrated dishonesty. Ms. Elzig
believed respondent’s comment was discriminatory and perpetuated stereotypes about
immigrants.

7
 24. Ms. Elzig was at RHS and present for the student walkout the next day. The
demonstration began at lunch; students began to move toward Mr. Greer’s classroom
chanting and yelling; some students threw food and objects. It was obvious that the students
were upset. The students then congregated at the flagpole and tried to take down the
American flag and replace it with a Mexican flag. The students then moved into the parking
lot which was blocked by an iron fence. One student went over the fence, others began
shaking the gate in an attempt to open it. Ms. Elzig was the first administrator on scene, and
fearing students would be injured, she directed a custodian to open the gate. She estimated
300 students left and began marching down a four-lane road. Police were blocking
intersections, trying to anticipate where the students were going. Ms. Elzig followed the
crowd in a police car. At one point, the crowd attempted to enter a freeway on-ramp, but
deputies blocked the intersection. Eventually the crowd disbursed.

Ms. Elzig corroborated Dr. Araux’s testimony about the second potential walkout.
She said notifications were sent to parents in order to try and avoid a difficult situation.

Ms. Elzig testified that at a February 21, 2017, board meeting, there was a large
crowd and 37 public comments were received. There were members of the media present.
There were students, parents, and activist groups.

25. Ms. Elzig interviewed respondent in March 2017. She said respondent was
adamant that his Facebook comment was not problematic and he did not apologize for it. He
admitted to calling one of his female students “Dimples” and did not see a problem with it.
She asked him whether he ever referred to an African-American student as “nigger.”
Respondent laughed and said he had used the word “nigga” with a student. Finally, he said
he told students that education was important and that he had encouraged them to come to
school on A Day Without Immigrants. Ms. Elzig did not remember the exact question she
asked respondent, but he said he made a point of telling students how important education
was and they should stay in school.

26. Ms. Elzig did not believe that respondent should continue teaching for the
district. She believed his post was clearly discriminatory and that he demonstrated a pattern
of poor judgment that impacted the students and the community. She believed students have
lost trust and confidence in him as a teacher; there is not a school in the district that doesn’t
know of him. During his interview, Ms. Elzig felt respondent revealed a complete lack of
remorse and no apparent understanding of what he had done and the impact on parents and
district. She felt respondent was nonchalant, annoyed, and cocky about the whole situation.
He never apologized for his conduct.

Testimony of Josh Lewis

27. Josh Lewis is the Director of Information Technology for the district. His
primary duty is to oversee the networks and technology education. Mr. Lewis testified about
two voluntary events the district hosts, Techfest and SummerJam, held at the beginning and
end of the school year, respectively. These events relate to the use of information technology

8
the post, her opinion of respondent changed; she no longer looked up to him. In the
aftermath of the incident, she feels that RHS has become a much closer community and more
understanding of one another.

Testimony of James Wandrie

35. James Wandrie is currently a principal at another high school in the district,
but for the last three school years, he was an assistant principal at RHS. One of his
responsibilities involved observing teachers in the classroom by performing “walk-
throughs.” On February 4, 2015, Mr. Wandrie visited respondent’s third period class.
Respondent was not in the classroom and there were no other RHS staff members present,
except for the AVID college tutors. They told Mr. Wandrie that respondent had gone to the
restroom. Mr. Wandrie spoke to respondent about the incident two days later. Respondent
agreed not to leave his classroom unsupervised, and Mr. Wandrie instructed him to contact
the office in order to find someone to cover for him if he needed to use the restroom. Mr.
Wandrie did not find formal discipline was required. As was his practice, he documented the
counseling session in an e-mail to himself. He never again observed respondent away from
his classroom.

Testimony of L R

36. L R is an RHS sophomore who had respondent as a teacher last year

for sixth period. She said respondent sometimes left the classroom to make coffee in an
anteroom connected to the classroom. She said he left the door open and he was able to
observe the class while he was in that room. She said he would also leave the classroom go
to the restroom, and on such occasions, either a campus officer or AVID tutor(s) watched the
class.

37. Ms. R testified that respondent showed movies when there were substitute
teachers or on Fridays. She said she saw “16 Candles” and two football movies. Respondent
never stopped the movies to discuss them or explain how they were educationally relevant.

38. The day before the scheduled A Day Without Immigrants protest, respondent
was talking to a group of students in his sixth period class about the protest. Respondent
said, “I support you guys, go support your people.” Ms. R took this to mean that he
supported students who chose not to attend school the next day.

39. Ms. R said respondent’s Facebook post affected her more than the posts of
the other teachers because respondent was her teacher and he always gave her good advice.
She said the AVID students were supposed to have good grades and it bothered her that
respondent referenced the class GPA. Ms. R said she had a 3.6 GPA and did not attend
school the day of the protest. She did not believe respondent’s statement about a decrease in
GPA was true because she had friends who were good students who were also absent. She
was not offended by the comment personally because she had good grades. She described
respondent as a role-model. She said he made the class laugh and was always available to

11
help; she loved his class. She said respondent was a good teacher and she learned a lot in
class. Respondent never made any racist comments, and she did not believe he was racist.
She would not respect respondent as much if he returned to teaching at RHS.

Testimony of L P

40. L P is a 15-year-old sophomore at RHS. Last year she had

respondent for sixth period AVID. Respondent’s nickname for her was “Dimples.” She said
respondent sometimes showed sports movies during class. The only title she remembered
was “16 Candles.” She said some movies were shown when there were substitute teachers.

41. Ms. P was in class on A Day Without Immigrants. She said

respondent never mentioned anything about the class size or grades increasing that day.
When she saw the Facebook posts the next day, she was a little offended because she is of
Mexican descent. She said she was primarily offended by Mr. Greer’s post. She said her
opinion of respondent changed a little, but she still sees him as a role-model. She thought
respondent could return to teaching at RHS. She said he was a good teacher and she enjoyed
his class. She signed a petition that requested the district to allow respondent to return to
RHS. She did not start the petition, but she knew what she was signing.

Testimony of Mariana Lopez

42. Mariana Lopez graduated from RHS in 2012. She has several siblings who
attended or attend RHS. Her father is an immigrant. Ms. Lopez never had respondent as a
teacher, although her brother did. Ms. Lopez saw the Facebook comments. She thought
respondent’s post undermined his students’ contributions because it generalized that
Hispanic students were failing. She said the comment could not be taken out of context
because it was made on A Day Without Immigrants and part of a larger conversation that
identified Latinos as drunks or lazy.

43. She said respondent had a reputation as a funny person who was liked by
students. She said her brother was upset by respondent’s comment because he trusted
respondent. She feels that respondent cannot be a good role model and was fearful that
respondent would retaliate against her brother.

School District Policies

44. The statement of charges alleged respondent violated two board policies and
cited three additional board policies, although it did not allege respondent violated those
policies.

Complainant first contended respondent’s Facebook post violated Board Policy 4000,
which describes personnel “concepts and roles.” However, this policy outlines the governing
board and superintendent’s responsibilities, not those of a teacher. Accordingly, the policy is
not one that respondent could have violated.

12
 Complainant contended that respondent’s Facebook post violated the Code of Ethics,
contained in Board Policy 4119.21. The broad language complainant referred to as being a
basis for a violation came from the preamble of the document, which cannot be violated.
Complainant did not cite any specific violations related to the three other board policies that
were enumerated. The Code of Ethics contains a clause at the end providing that the code
governs the profession and any violations will be considered “unprofessional.” The clause
goes on to say that in order to constitute grounds for discipline, the violation must “endanger
students, evidence malice, indicate serious incompetency, bad judgement, or a pattern of bad
judgement.” Although not dispositive of whether respondent violated the policy,
complainant did not allege unprofessional conduct as a basis for dismissal. For purposes of
violating the board policy so as to constitute a grounds of discipline, complainant needed to
specifically allege how the Facebook comment constituted a danger to students, involved
provable malice, bad judgement, or a pattern of bad judgement. The statement of charges
contained no expressed allegations.

Complainant mentioned Board Policy 4119.32, having to do with the duties and
responsibilities of teachers, but did not allege a violation of that policy. Complainant
contended that because of the Facebook post, respondent is “not a proper role model for
students.” The policy contained three categories: instruction, pupil supervision, and
communication. Policy 4119.32 makes no reference to a teacher being a “proper role-
model.”

Complainant mentioned Board Policy 5000, having to do with concepts and roles of
teachers. This policy sets forth responsibilities of the governing board and explains the
commitment of the governing board to students. The policy cannot be violated by teachers.

Complainant mentioned Board Policy 5145.3, concerning harassment and

discrimination. This policy specifically applies to activities on and off campus that create a
hostile environment at the school. Complainant alleged respondent’s Facebook comment
and other “racist comments” throughout the years “represent feelings that minorities are
inferior and demonstrate that Mr. Umbarger does not provide equal opportunities to all
students.” Although respondent may have uttered certain remarks perceived to be racially
insensitive, and some may have construed respondent’s Facebook comment as being racially
insensitive, there was absolutely no evidence presented at the hearing that established that
respondent ever suggested that minorities were or are inferior or that he did not provide equal
opportunities to all students. It is unclear how the Facebook comment could be construed as
being racially motivated - the students who participated in the protest event were Hispanic,
as were most of those who attended class on the day of the protest. The Facebook post and
some of respondent’s comments may have been unprofessional and inappropriate, but to
label respondent as a racist is devoid of a factual basis and unnecessarily incendiary.

//

13
Written Statement by a V B

45. The district submitted a written statement from V B , although

the statement was not signed, nor did it contain her name.6 The statement was received as
administrative hearsay. (Gov. Code, § 11514, subd. (d)). The statement described incidents
purportedly taking place in respondent’s class that were not alleged in the statement of
charges. The statement did not supplement or explain other evidence; consequently, it was
given no weight.

Respondent’s Testimony

46. Respondent’s testimony is summarized as follows: Respondent began his

teaching career in 1998 as a substitute teacher and started teaching for the district in 2004.
At RHS, he was the AVID coordinator and developed a program to tie health curriculum
with AVID. He was involved in a number of extracurricular activities such as the senior
class advisor, was a coach for several different sports, and participated in a number of camps.

47. Respondent first heard about A Day Without Immigrants on Tuesday,

February 14, 2017. A couple of his students were talking about a rumor that students would
not be going to school that day and should plan a party. On Thursday, February 16, 2017,
respondent noticed a few students were missing during his second period and realized that
many students were out. Approximately 30 percent were absent that day. The only class he
really remembered was his sixth period, and because of the number of absences, he turned it
into a study hall. A student in his class, Ms. Plascencia, said it was a nice day because all of
the troublemakers were gone. He told Ms. Plascencia that the cumulative GPA of the
students who were in class was a 3.7; the average GPA for the class was a 2.8 or 3.0. He
calculated the GPA for his sixth period class and skimmed through the other classes. He
testified that he determined the GPA that day had increased because students who were
present were turning in assignments, and consequently, their GPAs went up, whereas the
students who were absent did not. Respondent believed there were students who needed to
be in the class that day because of their substandard grades.

Respondent left the school and was going home when he stopped for gas. He opened
his phone and saw Mr. Greer’s post on Facebook. He could tell Mr. Greer was disappointed
that students did not go to school. Respondent posted his comment to Mr. Greer’s post at the
gas station on his phone. After respondent typed his post, he added the word “unfortunately”
to the beginning in order to express his own feelings that the students who should have been
in school were not there. Respondent did not consider that the post might become public; he
felt he was engaged in a conversation amongst educators. He did not know what Mr. Greer’s
privacy settings were, did not think about who might see the comment, and did not think that
anyone would be upset by it. He had been on Facebook for approximately five or six years.
Respondent said he did not deliver the digital curriculum instruction to his students, despite a
record indicating he had.
6
Her name was obtained from complainant’s exhibit list.

14
 53. Respondent admitted he left his classroom with the AVID tutors in charge
when he had to go to the restroom. He said the AVID tutors were college students from local
universities who were paid by the district. He considered it appropriate to allow them to
supervise the students for the brief period of time he was gone. When Mr. Wandrie spoke to
him about the issue, he told Mr. Wandrie that he would not do it again.

54. Respondent never used the word “nigger” during the 2015-2016 school year as
alleged. He admitted that on one occasion, he believed during the 2010 school year, an
African-American student was on the golf team he coached. He took the student to a fast
food restaurant. There, the students said something to the effect of, “Coach, you my nigga.”
Respondent responded, “Greg, you’re my nigga, but let’s not use that word again.” From the
context, the word was being used as a form of endearment. Respondent said he considers the
allegation that he used the word “nigger” as the most serious charge. He absolutely
understands why the district would be concerned.

55. Respondent does not believe he has ever used racial slurs. He never told
students that Muslims would be the first to be deported if Donald Trump were elected. He
did not intend to make any statements that demeaned students for participating in a Day
Without Immigrants.

56. Respondent did not remember telling students they should skip school to
participate in A Day Without Immigrants. He remembered supporting students involved in
the event, but he felt leaving school was not an effective form of protest because education
was something that was important to have and nobody could ever take away. He denied that
he is racist or in any way discriminates against his Hispanic students. He loves their food,
music, and sings songs with his students in class. He noted that most of the students who
remained in class during the protest were Hispanic.

57. Respondent said the impact of the Facebook posts has been devastating. He
felt scared and helpless, concerned for his and his family’s safety. Moving forward, he
would absolutely comply with the district’s instructions. He never meant to cause harm or
for people to be upset. In hindsight, he understands why so many were upset. He never
meant to hurt any of his students. The hardest part of the process was watching his former
students testify against him. He cares about them and the school. He believes he could be an
effective teacher and is now better able to help himself and his students learn from the
incident.

Respondent said he is a kind person and loves being a teacher. He gave up a lot of his
time to RHS outside of class. When a student died while playing soccer, he helped plan the
funeral. He had a refrigerator that was full of food that was always open for students. He
said his car was the first there in the mornings and he had a reputation of being there for
students. He loved his students and took pride in what he did. It hurt him that he gave so
much time to the school and district and his dismissal was their reaction.

16
Character Witnesses and Letters

TESTIMONY OF JANIECE BAILEY

58. Janiece Bailey has been an English teacher at RHS since 2010. She first met
respondent when she was a substitute teacher. If she did not have a class, she would
sometimes sit in his classroom to observe. She believed he was a highly effective teacher
because of his rapport with students. He has a “goofy” personality that students respond to,
but they also listen to him. She had many of the same students as he did and never had any
complaints or observed anything inappropriate. Respondent was involved in many
extracurricular activities. She said respondent was well-regarded and students with whom
she has spoken want him to return. Ms. Bailey socialized with respondent outside of school.
She never observed any behavior that would be considered racist. Ms. Bailey admitted she is
friends with respondent and does not want to see him lose his job. She said even if the
allegations against respondent were true, her opinion of respondent would remain the same.

TESTIMONY OF GEORGE MONGE

59. George Monge, who has been with the district since 1992, has been a social
studies teacher and department head at RHS since 2009. He first met respondent in 2009.
Mr. Monge was the union leader at RHS. He was provided a petition that was signed, by a
rough estimate, by 350 students that stating the AVID program has not been the same since
respondent was placed on leave and respondent should be given a second chance. Mr.
Monge said he did not solicit the petition nor did he know who organized it. Following an
RHS staff meeting in April, Mr. Monge met with other teachers to discuss union issues. The
issue of the suspensions came up and the teachers voted to submit a letter of support to the
board, although this vote was not formal or counted. Mr. Monge wrote a letter, on behalf of
the teachers and staff of RHS, dated May 4, 2017, to the district’s board. Mr. Monge
believes that RHS students and staff would welcome respondent back. On cross-
examination, Mr. Monge admitted he was previously an administrator, but denied he was
demoted. He felt that even if the allegations against respondent were true, his opinion about
respondent would be the same.

TESTIMONY OF MARY TUCKER

60. Mary Tucker, who is African-American, met respondent in 2003 and knows
him and his family well. Her impression is that respondent is a loving son, father, and good
friend. Ms. Tucker is raising her grandchild, who is half Hispanic, and respondent has been
instrumental in helping her. She believes respondent is a great person and it hurts her to
think that he is being considered a racist.

TESTIMONY OF FERNANDA DE LA O

61. Fernanda De La O is a second year professor at Azusa Pacific University who

runs the speech and debate program. Respondent was her coach and class advisor, although

17
she did not have any classes with him. She has had intermittent contact with respondent
since graduating in 2012. She described him as a role-model and “fantastic all-around guy.”
She never saw him do anything offensive or inappropriate. She felt he was racially blind and
encouraged students of all backgrounds.

TESTIMONY OF J H

62. J H is an RHS senior. He described respondent as “the life of the

school.” Respondent was very involved and was the senior class advisor. He believes that
students would accept respondent if he were to return to RHS. He felt students have learned
how to forgive from the incident. He did not believe respondent treated any student
differently because of race.

LETTER BY FRANKLIN MARMOLEJO, JR.

63. Frank Marmolejo, Jr. is a counselor at RHS who has known respondent for 10
years. He echoed most of the other witness’ testimony, and stated that respondent was
highly visible on campus and involved in student activities. He described respondent’s
passion for teaching and described him as someone who would do anything for his students.

Respondent’s Performance Evaluation

64. Respondent submitted his two most recent performance evaluations from 2015
and 2013. The evaluations stated respondent met expectations in all categories, except for
“developing as a professional educator,” in which he exceeded expectations. The written
comments were uniformly positive; there were no criticisms or suggested areas of
improvement. The evaluations noted respondent enjoyed a strong rapport with his students
and stated, “There is a climate of fairness and respect between students and teacher.”

Evaluation of the Factual Allegations

MOVIES DURING CLASS

65. Respondent showed full length movies during class that were not contained in
his syllabus. Several students testified there were sports movies. Complainant did not allege
that any of the movies contained inappropriate content for high school students, such as
containing inappropriate themes or graphic material. Instead, complainant alleged the films
were not related to the curriculum and had not been approved for classroom use.

It was undisputed that the district or RHS administrators never specifically told
respondent that it was inappropriate conduct for a teacher, thus respondent was never placed
on notice that this was an issue.

The district and RHS maintain no written policies regarding the screening of movies
in class.

18
modus operandi of telling jokes and kidding around with his students resulted in him making
this comment to Mr. L . Considering the portrait drawn of respondent’s occasionally
flippant interactions with his students, Mr. L ’ testimony was more persuasive. Although
definitely reflective of poor judgement, there was no evidence that the statement was made
out of malice or with invidious intent.

69. Similarly, Mr. C ’s testimony, as corroborated by Ms. G , that

respondent made a joke about him being deported after Donald Trump won the election, was
credible. Respondent did not specifically deny saying this, only that he did not recall doing
so. Again, considering respondent’s classroom personality, his making such a comment is
entirely believable. Like his comment to Mr. L , there was no evidence that respondent
intended to demean or offend Mr. C .

70. The conversation with the AVID tutors about changing their last names was
less clear. The only evidence was from a student, who was not involved in the conversation,
and who reportedly overheard respondent telling the tutors that they needed to change their
name. However, none of the AVID tutors testified respondent did so. Respondent’s
testimony about the conversation was credible, and while it was established that respondent
joined in the conversation, complainant did not establish that he actually told the tutors they
would have to change their last names or that he said anything to them that was derogatory or
patently inappropriate.

71. Although complainant alleged that respondent told his students that Muslims
would be deported before Mexicans, no evidence was presented to support this allegation.

72. Finally, it was undisputed that respondent called Ms. P “Dimples.”

His testimony that he did this because there were two people in his class with the same name
and he had dimples was credible.

THE FACEBOOK POST

73. The underlying facts regarding respondent’s Facebook post were mostly
undisputed. There is no question that the posts, cumulatively, had a negative impact on the
district’s operations and resulted in a large public outcry locally and across the country.
District personnel received over 200 e-mails, numerous phone calls, media requests, and
were forced to devote educational time to the issue. Additionally, the posts, cumulatively,
impacted students at RHS and were the primary impetus for a large student walkout the next
day, which further disrupted the educational environment.

Complainant placed much emphasis on the fact that respondent’s Facebook post –
that statistically his cumulative GPA increased and mostly failing students were missing –
was not true, and this deception was the result of a malicious intent on respondent’s part to
degrade the students who were absent. However, the first statement, that the cumulative
GPA increased, was factually accurate. Complainant contends that in his deposition
testimony, respondent claimed to have calculated the GPA for each class and determined the

20
GPA significantly increased. Complainant did not offer this deposition testimony as
evidence, so it was unclear exactly what respondent said. Respondent testified that the GPA
increased because individuals who were present on the day of the protest turned in
assignments and individuals who were absent did not. This explanation was not particularly
compelling or credible. It is much more likely that respondent made the statement about the
GPA increasing based on an anecdotal belief that poorer performing students were absent
that day. Regardless, the Facebook post on this point was factually accurate, even if the
increase was very small.

The second point of the post stated that mostly failing students were missing. Again,
complainant emphasized that this was in fact false. Complainant is correct that out of 28 of
respondent’s students who were absent, six had an “F” and four had a “D.” However, the
comment does not necessarily show malicious intent on respondent’s part. He could have
come to an anecdotal conclusion that the students who were absent, generally, were his
underperforming students. Using the district’s calculations, the average GPA of his students
who were absent was a 2.1. Put another way, the “A” and “B” students who were absent
were not in the majority. So while the statement itself was not technically true, it was not
established that it was made with a discriminatory purpose.

This goes to the next point: complainant alleges respondent “discriminated against
students and stereotyped students as failing.” Complainant failed to establish that the post
was “discriminatory” in any sense of the word. Nor was it clear how he “stereotyped” the
missing students. Complainant repeatedly alleged the post was racist. However, the
demographics of RHS belie this assertion. Of its 1,575 students, RHS is approximately 90
percent Hispanic, which is approximately 1,418 students. There were 286 unexcused
absences on February 16, 2017. Assuming that the only students who had unexcused
absences were Hispanic (because they were at the protest), this leaves 1,132 Hispanic
students at school or with excused absences, which is approximately 71 percent of the
student body. Although the students who were absent were mostly Hispanic, so were the
students who were in school that day. This is not an insignificant point because complainant
alleges that respondent belittled and demeaned his Hispanic students who were absent, but it
ignored the fact that the vast majority of his students who were in class were also Hispanic.

Finally, complainant alleged respondent lied to Ms. Elzig during the March 2017
interview when he said he told students that they should attend school on A Day Without
Immigrants. Respondent testified that he did in fact encourage students to come to school
because education was important. Complaint’s allegation that this was a lie is based on the
testimony of Ms. Ruiz, who said she heard respondent tells students the day before, “go
support your people” in reference to a student saying that he was not going to class. There
was no other corroborating evidence regarding this statement, and given the seriousness of
the accusation that respondent lied, it would be expected that complainant would have sought
and produced some corroboration. Moreover, Ms. Elzig could not recall the exact question
that she asked of respondent during the interview, nor was it entirely clear whether what Ms.
Ruiz testified to was respondent’s exact words, or her impression of what she thought

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respondent meant. On this record, a preponderance of evidence did not establish respondent
lied to Ms. Elzig.

LEGAL CONCLUSIONS

Burden and Standard of Proof

1. The standard of proof in a teacher disciplinary proceeding is a preponderance

of the evidence. (Gardner v. Commission on Professional Competence (1985) 164
Cal.App.3d 1035, 1039-1040.) Preponderance of the evidence means evidence that has more
convincing force than that opposed to it.’ [Citations.]” (Glage v. Hawes Firearms Company
(1990) 226 Cal.App.3d 314, 324-325) The sole focus of the legal definition of
‘preponderance’ in the phrase ‘preponderance of the evidence’ is on the quality of the
evidence. The quantity of the evidence presented by each side is irrelevant.” (Ibid., italics
emphasis in original.)

Applicable Law

2. A permanent employee may be dismissed for cause only after a dismissal

hearing. (Ed. Code, §§ 44932, 44934, and 44944.)

3. When a school board recommends dismissal for cause, a Commission on

Professional Competence may only vote for or against the dismissal; the Commission may
not dispose of a charge seeking dismissal by imposing probation or an alternative sanction.
(Ed. Code, § 44944, subds. (c)(1)-(3).)

4. A permanent certificated teacher may not be dismissed except for, among

other things, immoral conduct or evident unfitness for service. (Ed. Code, § 44932, subds.
(a)(1) and (a)(6).)

Applicable Case Law

5. In Morrison v. State Board of Education (1969) 1 Cal.3d 214, 235, the Supreme
Court held that “an individual can be removed from the teaching profession only upon a
showing that his retention in the profession poses a significant danger of harm to either students,
school employees, or others who might be affected by his actions as a teacher.” The court
delineated the following criteria to determine whether a teacher’s conduct indicates that he or
she is not fit to teach: (1) the likelihood that the conduct may have adversely affected students
or fellow teachers; (2) the degree of such adversity anticipated; (3) the proximity or remoteness
in time of the conduct; (4) the type of teaching certificate held by the teacher; (5) the
extenuating or aggravating circumstances, if any, surrounding the conduct in question; (6) the
praiseworthiness or blameworthiness of the motives resulting in the conduct; (7) the likelihood
of the recurrence of the conduct in question; and (8) the extent to which disciplinary action may

22
inflict an adverse impact or have a chilling effect upon the constitutional rights of the teacher
involved or other teachers. (Id., at pp. 229-230.)

6. In Board of Education v. Jack M. (1970) 19 Cal.3d 691, the Supreme Court

detailed the process to be considered in determining fitness to teach. In addition to the
Morrison factors, the court provided additional factors that may be considered to determine
whether there is a nexus between the conduct and a teacher’s fitness to teach: (1) likelihood
of recurrence of the questioned conduct; (2) the extenuating or aggravating circumstances, if
any; (3) the effect of notoriety and publicity; (4) impairment of teachers’ and students’
relationships; (5) disruption of educational process; (6) motive; (7) proximity or remoteness
in time of conduct. (Id., at fn. 5.)

IMMORAL CONDUCT

7. There is broad discretion in determining what constitutes immoral conduct in

the context of teacher disciplinary matters. (California Teachers Association v. State of
California (1999) 20 Cal.4th 327.) Immoral conduct has been defined by the courts as
follows:

[T]hat which is hostile to the welfare of the general public and

contrary to good morals. Immorality has not been confined to
sexual matters, but includes conduct inconsistent with rectitude,
or indicative of corruption, indecency, depravity, dissoluteness;
or as wilful, flagrant, or shameless conduct showing moral
indifference to the opinions of respectable members of the
community, and as an inconsiderate attitude toward good order
and the public welfare. (Palo Verde etc. School Dist. v. Hensey
(1970) 9 Cal.App.3d 967, 972, citing Bd. of Education of San
Francisco Unified School Dist. v. Weiland, 179 Cal. App 2d
808, 811.)

Immoral conduct alone cannot serve as a basis to terminate a teacher unless the
conduct indicates the teacher is also unfit to teach. (Palo Verde, supra, at p. 972.) The
definition of immoral or unprofessional conduct must be considered in conjunction with the
unique position of public school teachers, upon whom are imposed “responsibilities and
limitations on freedom of action which do not exist in regard to other callings.” (Board of
Trustees v. Stubblefield, 16 Cal.App.3d 820, 824.)

EVIDENT UNFITNESS FOR SERVICE

8. Unfitness for service means “not fit; not adapted to a purpose, unsuitable;
incapable; incompetent; and physically or mentally unsound.” (Palo Verde, supra, at p. 972.)
As a threshold matter, the Morrison criteria are examined to ascertain whether the conduct in
question is related to the teacher’s fitness to teach. In reaching a conclusion that grounds exist
to dismiss a certificated employee on the basis of evident unfitness for service, not all

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Morrison factors need be examined, only the pertinent ones. (Governing Board v. Haar
(1994) 28 Cal.App.4th 369, 384.) In this sense, the purpose of examining the Morrison criteria
is to establish a nexus between the proven conduct and fitness to teach.

However, even if the Morrison analysis shows a nexus between the conduct and fitness
to teach, it must also be determined that the alleged conduct shows evident unfitness for service.
(Morrison, supra, at p. 1445 [emphasis added].) “Evident unfitness for service” means clearly
not fit for teaching, ordinarily by reason of temperamental defects or inadequacies; it
connotes fixed character trait, presumably not remediable merely on receipt of notice that
one’s conduct fails to meet expectations of the school district. (Woodland Joint Unified
School Dist. v. Commission on Professional Competence (1992) 2 Cal.App.4th 1429, 1444
[emphasis added].)

Evaluation and Conclusion

9. There is no question that the Facebook post by Mr. Greer, and the subsequent
comments by the four other teachers and counselor, elicited heated reaction from students,
parents, community members, and many who have no association with the district. Indeed,
much of the statement of charges is devoted to capturing the responses by individuals who
found the posts offensive. It was undisputed that the viral nature of the posts and the ensuing
disruption on campus the day after the posts went viral had a significant impact on RHS and
district operations. Although reasonable minds may differ as to the nature of respondent’s
post, reaching a decision in this matter does not mean looking at how many people felt his
comment was inappropriate versus how many people did not. Rather, the question in this
case is whether respondent’s Facebook comment on Mr. Greer’s Facebook thread on
February 16, 2017, showing movies in class, leaving the class unattended on one occasion
while he used the restroom, calling a student “Dimples,” and making two inappropriate race-
related “jokes” to student constituted immoral conduct or evident unfitness for service,
warranting his dismissal. For the reasons discussed below, a preponderance of the evidence
did not establish that respondent’s conduct, in isolation or in aggregation, constituted
immoral conduct or evident unfitness for service.

EVIDENT UNFITNESS FOR SERVICE

10. Once the Facebook thread was discovered, it went viral. Parents, students,
teachers, immigrant groups, civil rights organizations, and community members became
upset about the overall content of the Facebook thread. The incident gained widespread
media attention. Shortly after the Facebook thread went viral, the district began receiving
numerous e-mails and phone calls from a variety of individuals expressing their anger about
the Facebook thread. Two classrooms were vandalized.

On February 17, 2017, the day after the Facebook thread went viral, the district
ensured there was a large presence of administrators and teachers on the RHS campus to
alleviate any potential problems. Counselors were made available to students and staff.
Talking points were distributed to staff in order to allay any potential problems.

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Nonetheless, school district operations were interrupted by a student walkout from regularly
scheduled classes after lunch. During the walkout, several hundred RHS students left the
campus without permission. They blocked streets and tried to take the protest on to a
freeway. A majority of the students who comprised the approximately 1,575 total student
body at RHS, however, remained on campus and did not partake in the disruption. Most
certainly, the reaction to the Facebook thread affected both the school and the district’s
ability to provide educational services on February 17, 2017.

However, the impact of the conduct alone does not determine whether a teacher is
unfit to teach. Rather, what matters is whether the conduct meets the legal criteria for
evident unfitness for service. As a threshold matter, the factors mentioned in Morrison and
Jack M. must be considered to determine whether there is a nexus between the conduct and
fitness to teach.

There was a lot of notoriety surrounding this incident and there was an impact on the
students because of the overall Facebook thread in which respondent participated.
Respondent’s comment could be construed as adversely affecting students and teachers to the
extent that his comment was contained in a Facebook thread that contained other questionable
comments directed against immigrants. Teachers and district personnel were also affected
because they had to modify their schedules to tend to the problems that arose following the
reaction to the Facebook posts. Given the demographics of the district, respondent should have
anticipated some backlash about commenting on a Facebook thread that contained arguably
insensitive remarks about immigrants, or at least against persons participating in the A Day
Without Immigrants event. There were no aggravating circumstances or bad motives; to the
contrary, respondent’s credible testimony established he did not intend to say anything other
than to express his disappointment that those students who most needed to be in class were not
there. In fact, he prefaced his statement with the word “unfortunately,” which contrasts with
tone of Mr. Greer’s post. His testimony that he did not think about whether Mr. Greer’s
Facebook page was public or consider that his comments might be seen by the world was
credible.

The district emphasized the fact that respondent helped review the digital citizenship
curriculum provided to students. However, respondent posted the Facebook comment while
getting gas and did not give it much thought. He clearly did not appreciate the consequences at
the time. While he did not demonstrate a great deal of remorse, he learned from this incident,
and had he known of the repercussions that would follow, he would not have posted his
comment on the Facebook thread.

Practically all of the witnesses who testified and were familiar with respondent’s
teaching style described him similarly – he interacted with students in a light-hearted manner,
made numerous jokes, and had a gregarious personality. Although his performance evaluations
and students recognized that he maintained a good rapport with his students, an overly familiar
and jocular relationship can be problematic, as it was when he made two racially-related
references to students that were flatly inappropriate and ill-advised. In total, enough of the
criteria in Morrison and Jack M. are satisfied to establish a nexus between respondent’s fitness

25
to teach and his conduct (the posting of a Facebook comment and the comments he made to Mr.
L and Mr. C ).

However, the analysis does not stop after finding a relationship exists between the
conduct and fitness to teach. Evident unfitness for service must be demonstrated – and here,
it was not. Respondent has been in the educational field for almost 20 years. He was
extensively involved in RHS and its extracurricular activities. He has experienced no formal
discipline his entire career. His latest performance evaluations noted he promoted a “climate
of fairness and respect,” contained comments that were uniformly positive, and characterized
him as an asset to the RHS community. All of the students who testified praised him as a
teacher and commended his teaching style. Up until the time when the district’s counsel
began interviewing his students in the aftermath of the Facebook posts, there was no
evidence that any student had complained to RHS administrators or the district about any
inappropriate comments or racist and discriminatory behavior. There was no evidence that
respondent treated any group of students differently than other students at any time in his
career, or otherwise engaged in discrimination or maltreatment of students in his classroom.

The Facebook comment was made on his personal time, on his personal phone, on his
private Facebook account, after school hours. His comment did not disparage any student. It
did not comment on any student activities. It did not comment on race. It did not express
agreement with any inappropriate comments. His comment did not contain strong language
or other questionable material that showed an inappropriate temperament, an undesirable
character trait, corruption, depravity, moral indignation for any class of persons, or contain
any material that suggests respondent is unfit to teach.

While the comments respondent made to Mr. L and Mr. C were

inappropriate and unprofessional, they were not malicious or made for an invidious purpose.
Similarly, while calling a student “Dimples” did not reflect best judgment, there was no
sexual connotation or any improper motive other than some degree of cheekiness. Showing
full-length movies and leaving his class under the supervision of college tutors to use the
restroom was conduct the district disapproved of, nothing more. There was no evidence that
respondent failed to follow the district’s policies or instructions he knew about or should
reasonably have known about. Respondent is now aware that what he perceives as being
light-hearted or funny can be offensive. There is no reason to believe that he is not capable
of changing his interactions to comport with appropriate standards or that he is unable to
maintain clear professional boundaries. In other words, the district failed to establish that his
behavior is not remediable once he has been placed on notice that his conduct fails to meet
expectations of the district. (Woodland Joint Unified School Dist., supra, at p.1444.)

In summary, while several of the factors set forth in Morrison and Jack M. arguably
may have been satisfied, thus establishing a nexus between respondent’s comments and his
fitness to teach, ultimately, a preponderance of the evidence did not establish that respondent’s
actions were attributable to a temperamental defect, inadequacy, or a fixed character trait that
was not remediable merely on his receipt of notice that his conduct failed to meet the
district’s expectations. He was not shown to be unfit, not adapted to a purpose, unsuitable,

26
incapable, incompetent, or physically or mentally unsound to continue teaching. Thus, his
conduct did not constitute evident unfitness for service.

IMMORAL CONDUCT

11. A preponderance of the evidence did not establish that respondent’s conduct
constituted immoral conduct. Again, while respondent may have used poor judgement in
participating in a Facebook thread that contained other questionable comments, for the
reasons discussed above, his decision to post his single comment about his belief that the
students who were absent should have been in class because they were poorer performing,
was not flagrant, shameless, inconsistent with public decency, or reflective of a moral
indifference to the opinions of others.

12. Similarly, a preponderance of the evidence did not establish that respondent’s
comments to Mr. Lewis and Mr. Castillo, and employing a nickname for a student
constituted immoral conduct.8 Again, the two race-related comments in particular
constituted a lack of sound judgment and were unprofessional. However, as previously
noted, in consideration of an absence of malice or invidious intent, the comments were not
flagrant, shameless, inconsistent with public decency, or reflective of a moral indifference to
the opinions of others, and that is what must be proven to sustain a charge of immoral
conduct.

Conclusion

13. Given the diverse and multicultural population of any school district, and the
unique position a teacher holds, it is important for teachers to be cognizant of the impact
their personal speech outside the classroom may have on the population they serve. With
respect to social media, teachers need to use discretion and good judgment should they
decide to engage in social media interactions. The same principle applies to interactions with
students. While respondent has been praised for his teaching style and ability to develop a
rapport with his students, such interaction is not without boundaries, and it requires measured
judgment to ensure all students are afforded respect and dignity. The Commission does not
condone respondent’s conduct and trusts that respondent will consider the effect his conduct
and statements had on his students.

The choice the district gave the Commission was to dismiss respondent from his
employment or dismiss the charges entirely. There was no room to choose a suspension or
other remedial measure. Given the turmoil in the immediate aftermath of the Facebook
posts, the district’s position of electing to terminate all certificated staff involved is
understandable. However, like most firestorms, this one came in with fury and passed
quietly. The district concluded that students and administrators have lost confidence in
respondent’s ability to teach at RHS. However, RHS students may be more resilient and
8
Clearly, showing full-length films in class and leaving the class unattended for a
brief period while he used the restroom are not immoral conduct.

27
capable of reconciliation than the district gives them credit for. The academic environment
brings students and teachers together from a variety of personal, professional, and political
backgrounds. Inevitably, students will have classes with teachers who may disagree with
them personally, politically, and professionally. The classroom environment can be a
microcosm of society as a whole, and part of the educational experience is to learn how to
deal with those who express views that may be contrary to one’s own. Reconciliation can
have positive educational benefits and lead to greater empathy among all involved.

Ultimately, a preponderance of the evidence did not establish that respondent’s

conduct was either immoral or rendered him evidently unfit to serve, such that cause does not
exist to dismiss respondent from his employment with the district pursuant to Education
Code sections 44932, subdivisions (a)(1) or (a)(6).

ORDER

Allen Umbarger’s appeal is granted. Jurupa Unified School District’s request to

dismiss Allen Umbarger is denied. The Statement of Charges against Allen Umbarger is
dismissed.

DATED: December 27, 2017

___________________________
ADAM L. BERG
Administrative Law Judge
Office of Administrative Hearings

DATED: December 22, 2017

_______________________________________
SUSAN V. NEWTON
Commission Member

DATED: December 27, 2017

___________________________________
SCOTT RICHARDS, JR.
Commission Member

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