IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFlH APPELLATE DISTRICT
Court ofAppeal Case No. F065365
(Stanislaus County Superior Court Case No. 667978)
YOSEMITE FACULTY ASSOCIAnON, JON KROPP, HALEH NlAZMAND, and BRIAN GREENE,
Respondents herein / Petitioners below,
v.
YOSEMITE COMMUNITY COLLEGE DISTRICT, GOVERNING BOARD and MEMBERS OF THE GOVERNING BOARD OF THE YOSEMITE COMMUNITY COLLEGE DISTRICT,
Appellants herein / Respondents below.
Appeal from the Superior Court, Stanislaus County, Case No. 667978, The Honorable William A. Mayhew
RESPONDENTS' BRIEF
Robert J. Bezemek, SBN 58740 Myron Moskovitz, SBN 36476 Patricia Lim, SBN 209478 Attorney at Law David Conway, SBN 253903 90 Crocker Avenue Law Offices of Robert J. Bezemek, P.C. Piedmont, CA 94611 1611 Telegraph Avenue, Suite 936 Tel: 510-384-0354 Oakland, CA 94612 [email protected] Tel: 510-763-5690 Fax: 510-763-4255 [email protected]
Attorneys for RespondentslPetitioners YOSEMITE FACULTY ASSOCIATION, JON KROPP, HALEH NIAZMAND, and BRIAN GREENE IN TIffi COURT OF APPEAL OF TIffi STATE OF CALIFORNIA
FIFlH APPELLATE DISTRICT
Court of Appeal Case No. F065365
(Stanislaus COlmty Superior Court Case No. 667978)
YOSEMITE FACULTY ASSOCIAnON, JON KROPP, HALEH NIAZMAND, and BRIAN GREENE,
Respondents herein / Petitioners below,
v.
YOSEMITE COMMUNITY COLLEGE DISTRICT, GOVERNING BOARD and MEMBERS OF TIffi GOVERNING BOARD OF TIffi YOSEMITE COMMUNITY COLLEGE DISTRICT,
Appellants herein / Respondents below.
Appeal from the Superior Court, Stanislaus County, Case No. 667978, The Honorable William A. Mayhew
RESPONDENTS' BRIEF
Robert J. Bezemek, SBN 58740 Myron Moskovitz, SBN 36476 Patricia Lim, SBN 209478 Attorney at Law David Conway, SBN 253903 90 Crocker Avenue Law Offices of Robert J. Bezemek, P.C. Piedmont, CA 94611 1611 Telegraph Avenue, Suite 936 Tel: 510-384-0354 Oakland, CA 94612 [email protected] Tel: 510-763-5690 Fax: 510-763-4255 [email protected]
Attorneys for RespondentslPetitioners YOSEMITE FACULTY ASSOCIATION, JON KROPP, HALEH NIAZMAND, and BRIAN GREENE CERTIFICATE OF INTERESTED ENTITIES
(Rules of Court, rule 8.208)
Respondents know of no person or entity, other than the named parties themselves, with a financial interest in the outcome of this proceeding that the justices should consider in determining whether to disqualify themselves under canon 3E of the Code of Judicial Ethics.
Dated: December 11,2012 By:----1,IL...L..!o~~--+--F--J.~O:::V_--&--= Robert J. Bezeme ,Atto ey Law Offices of Robert J. Bezemek Counsel for Respondents YOSEMITE FACULTY ASSOCIATION, JON KROPP, HALEH NIAZMAND, and BRIAN GREENE TABLE OF CONTENTS Page No.
CERTIFICATE OF INTERESTED ENTITIES
INTRODUCTION 1
A SUMMARY OF THE LAW RE "BUMPING RIGHTS" 1
STATEMENTOFTHECASE 7
SUMMARY OF THE ARGUMENT 8
THE STANDARD OF REVIEW 13
ARGUMENT 15
I. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING RESPONDENT KROPP. . 15
A. The Trial Court's Findings 15
The Less Senior Faculty 16
Kropp's Electronics Technology Job Experience...... 16
Kropp's Hiring 17
Kropp's Initial Employment. 19
Kropp's Initial Assignment. 19
Kropp's Evaluations. . 19
Kropp's Assignments 21
The Layoff. 21
B. The Trial Court's Decision Is Supported by Substantial Evidence 22
-1 1. Appellant's Attack on the Substantive Findings Is Waived 22
2. The Decisions Rests on Substantial Evidence ..... 25
3. To Avoid the Selection Committee's Conclusions, Yosemite Relied On A Biased Committee Lacking Jurisdiction 30
C. Appellant's Untimely Exhaustion of Remedies Defense .. 31
1. Appellant Waived its Exhaustion of Remedies Defense , 32
2. Neither the FSA Denial Process Nor the Equivalency Processes Present Administrative Remedies Which Kropp Had to Exhaust 34
II. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING HALEH NIAZMAND 37
A. The Trial Court Findings Concerning Niazmand 37
B. The Trial Court's Decision Is Supported by Substantial Evidence 40
1. Appellant's Attack on the Substantive Findings Is Waived 41
2. The Decision Is Supported By Substantial Evidence 41
a. ArtMQ 41
b. Graphic Arts MQ. . 41
C. The Appellant's Challenge to the Court's Decision Fails .. 43
D. Niazmand Had No Other Remedies To Exhaust 56
-11 III. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING BRIAN GREENE. . 56
IV. CONCLUSION 61
WORD COUNT CERTIFICATION 63
-111 TABLE OF AUTHORITIES
Page No. CASES
Alexander v. Board of Trustees of the Delano Joint Union High School District (1983) 139 Cal. App. 3d 567 1,passim
Anderson v. San Mateo Community College District (1978) 87 Cal. App. 3d 441 1,44,46
Arechiga v. Dolores Press, Inc. (2011) 192 Cal. App. 4th 567 22
Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal. App. 4th 1165 32,33
Bakersfield Elementary Teachers Assn. v. Bakersfield Unified School District (2006) 145 Cal. App. 4th 1260 29,46,47
Balen v. Peralta Community College District (1974) 11 Cal. 3d 821 2, 12
Bledsoe v. Biggs Unified School District (2008) 170 Cal. App. 4th 127 12,passim
Bostean v. Los Angeles Unified School District (1998) 63 Cal. App. 4th 95 46
Branciforte Heights, LLC v. City of Santa Cruz (2005) 138 Cal. App. 4th 914 34
Brough v. Governing Board (1981) 118 Cal. App. 3d 702 58
California Teachers Association v. Butte Community College District (1996) 48 Cal. App. 4th 1293 4
-lV California Teachers Assn. v. Governing Board (2002) 98 Cal. App. 4th 369 29
Campbell v. Abbott (1978) 76 Cal. App. 3d 796 4
City o/Walnut Creek v. County o/Contra Costa (1980) 101 Cal. App. 3d 1012 32
Cousins v. Weaverville Unified School District (1994) 24 Cal. App. 4th 1846 48
County Sanitation District No.2 v. County 0/Kern (2005) 127 Cal. App. 4th 1544 34
Daniels v. Shasta-Tehama Community College Dist. (1989) 212 Cal. App. 3d 909 2,passim
Dare v. Board 0/Medical Examiners (1943) 21 Cal. 2d 790 32
Davis v. Gray (1938) 29 Cal. App. 2d 403 2, 50, 52, 55
Degener v. Governing Board (1977) 67 Cal. App. 3d 689 28, 33
Duax v. Kern Community College District (1987) 196 Cal. App. 3d 555 13, 14,53,54,55
Evans v. Thomason (1977) 72 Cal. App. 2d 978 16
Forker v. Board o/Trustees (1984) 160 Cal. App. 3d 13 44
Gallup v. Board o/Trustees (1996) 41 Cal. App. 4th 1571 14
-v Gassman v. Board of Trustees (1976) 18 Cal. 3d 137 48
Green v. Board of Dental Examiners (1996) 47 Cal. App. 4th 786 32
Green v. City of Oceanside (1987) 194 Cal. App. 3d 212 33
Greer v. Board of Education (1975) 47 Cal. App. 3d 98 4
Holbrook v. Board of Education (1951) 37 Cal. 2d 316 ...... 11
Hoyme v. Board of Education (1980) 107 Cal. App. 3d 449 29
Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal. 3d 770 15
Irvine College Academic Senate v. Board of Trustees (2005) 129 Cal. App. 4th 1482 49
Kahn v. Department of General Services (1994) 22 Cal. App. 4th 1627 30
Karbach v. Board of Education (1974) 39 Cal. App. 3d 355 58,60,61
Kavanaugh v. West Sonoma County Union School District (2003) 29 Cal. 4th 911 15,29
King v. Berkeley Unified School District (1979) 89 Cal. App. 3d 1016 60
Krausen v. Solano Co. Junior College District (1974) 42 Cal. App. 3d 394 52
-vi Linney v. Turpen (1996) 42 Cal. App. 4th 763 31
Martin v. Kentfield School District (1983) 35 Cal. 3d 294 45
Mokler v. County of Orange (2007) 157 Cal. App. 4th 121 12,33
Moreland Teachers Assn. v. Kurze (1980) 109 Cal. App. 3d 648 44
Pegues v. Civil Service Commission (1998) 67 Cal. App. 4th 95 32
Peralta Federation of Teachers v. Peralta Community College Dist. (1979) 24 Cal. 3d 369 2
Poppers v. Tamalpais Union High School District (1986) 184 Cal. App. 3d 399 48
Robles v. Employment Development Dept. (2012) 207 Cal. App. 4th 1029 15
Roddenberry v. Roddenberry (1996) 44 Cal. App. 4th 634 28
Rojo v. Kliger (1990) 52 Cal. 3d 65 35
Sanchez v. Unemployment Ins. Appeals Bd. (1984) 36 Cal. 3d 575 15
Santa Barbara Federation of Teachers v. Santa Barbara High School District (1977) 76 Cal. App. 3d 223 1
State Board of Education v. Honig (1993) 13 Cal. App. 4th 720 28
-Vll Stryker v. Antelope Valley Community College District (2002) 100 Cal. App. 4th 324 1
Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal. App. 4th 577 12,32
Toyota Motor Sales US.A., Inc. v. Superior Court (1990) 220 Cal. App. 3d 864, 872 15
Vassallo v. Lowery (1986) 178 Cal. App. 3d 1210 52
Vosburgh v. Meda (1943) 61 Cal. App. 2d 398 16
STATUTES
Code of Civil Procedure §1094.5 5,32
Education Code §5.711 2 §13447 4 §13448 60 §13651 52 §44949 48 §44955 4, 12,44,48, 50, 51 §44955(d) 50, 51, 55 §70902(a)(4) 46 §87356 3,6, 19 §87357-87359 6 §87359 3, 6,49 §87359(b) 49 §87400 6 §87604 1 §87663 19 §87740 et seq 2,passim §87740(b) 4, 7, 12, 14 §87740(c) 4, 12
-V111 §87740(c)(3) 14 §87743 1, passim §87743.3 33,34,35,36, 58 §87743.4 3,33 §87743.5 5 §87744 60 §88732 49 A.B. 1725 Stats 1988, Ch.973, Sec.28 3,6
Evidence Code 24, 28 §664 .
Government Code §11500 et seq 5 §11517 5 §11523 49
REGULATIONS
California Code of Regulations Cal. Code Regs., tit 5, §52000 53 Cal. Code Regs., tit 5, §52255 53 Cal. Code Regs., tit 5, §53407 45 Cal. Code Regs., tit 5, §5341O 6, 11, 19 Cal. Code Regs., tit 5, §53415 6, 57 Cal. Code Regs., tit 5, §53430 3,6, 19 Cal. Code Regs., tit 5, §53430(b) 26
RULES OF COURT
Rule 8.204 63 Rule 8.208 Cert. Int. Entities
OTHER AUTHORITIES
Websters Third New International Dictionary, Unabridged, Meriam- Webster 2002 38
-IX INTRODUCTION
On June 30, 2011, Jon Kropp, Haleh Niazmand, and Brian Greene, three highly qualified, experienced, tenured instructors were laid off by the
Yosemite Community College District ("District," "YCCD" or
"Yosemite"). The District violated Education Code §87743 because each had the necessary qualifications to be retained and reassigned. In a detailed
Decision, the trial court agreed.
To help the court fully understand the statutory scheme, we begin with a discussion of layoff laws, tenure and qualifications.
A SUMMARY OF THE LAW RE "BUMPING RIGHTS"
For more than 75 years, California law has provided tenured teachers with a measure ofjob security, to attract the best people into the teaching profession, to protect them from political purges and cronyism, and to help retain the most experienced instructors - all for the ultimate benefit of the students. Santa Barbara Federation of Teachers v. Santa Barbara High
School District (1977) 76 Cal. App. 3d 223, 230; Alexander v. Board of
Trustees (1983) 139 Cal.App.3d 567, 572; Anderson v. San Mateo
Community College District (1978) 87 Cal.App.3d 441,447.
The Education Code establishes a hierarchy of three categories of academic employees: permanent (tenured or "regular"), probationary (or
"contract"), and temporary. §87604; Stryker v. Antelope Valley Community
1 College District (2002) 100 Cal.AppAth 324,329.1 Temporary employees may ordinarily be dismissed at any time, at a district's discretion. But permanent employees may be terminated through layoff only for a statutorily specified cause, after being afforded required notices and a hearing, and only if there are no junior employees retained ("skipped") to render services that the senior employees are competent to render.
§§87740, 87743; Balen v. Peralta Community College District (1974) 11
Cal. 3d 821, 826.2
Beginning with the adoption of its first Teacher Tenure Law in 1935,
California has followed a "modified" seniority system, which takes into account a teacher's seniority date, and her or his competency.3 "The layoff statutes give priority to tenured employees over contract employees (see
1 All statutory references are to the Education Code, unless otherwise indicated. The Joint Appendix is cited as: _ JA _, and the Administrative Record is denoted as _A.R._
2 Temporary faculty are hired for a limited duration, and automatically dismissed after each term. Daniels v. Shasta-Tehama Community College Dist. (1989) 212 Cal.App.3d 909,914; Peralta Federation of Teachers v. Peralta Community College Dist. (1979) 24 Cal. 3d 369,380. They cannot be hired to teach classes which laid off faculty have the MQs to teach. Daniels, at p. 920-922.
3Former School Code §5.711 (Stats. I935,Ch.690,§22) provided, "[i]n making such dismissals, employees shall be dismissed in the inverse
order in which they were employed. [~ Provided, however, that no permanent employee may be dismissed under the provisions of this section while a probationary employee is retained or employed to render a service which such permanent employee is certificated and competent to render." See Davis v. Gray (1938) 29 Cal.App.2d 403,406-407.
2 §87743) and priority based on seniority." Daniels, supra., 212 Cal.App.3d at 919. It also "requires compliance with specified procedures before a tenured employee ... can be laid off because of a reduction in services." Id.
Under this law, codified in §87743, college districts instituting layoffs are prohibited from retaining junior (lesser seniority) faculty, while senior tenured faculty are competent to perform the work for which the junior faculty was "skipped."
It is this law which the District violated.
Section 87743 imposes mandatory duties on community colleges, that in the event of a layoff:
"... the services of no tenured employee may be terminated under this section while any probationary employee, or any other employee with less seniority, is retained to render a service in a faculty service area in which the records of the district maintained pursuant to 87743.4 reflect that the tenured employee possesses the minimum qualifications prescribed by the board of governors and is competent to serve under district competency criteria.
"The board shall make assignments and reassignments in a manner that employees shall be retained to render any service which their seniority and qualifications entitle them to render." §87743 emphasis added4
4 The "Minimum Qualifications" requirement, replacing "credentials" for community college faculty, was enacted by California's community college reform statute, A.B. 1725 Stats 1988, Ch.973, Sec.28). The "MQs" are prescribed by the State, not by districts, for "disciplines." §87356 These laws require negotiations with faculty unions for additional standards, such as "Faculty Service Areas" ("FSAs"), competency standards, and "equivalency" to the MQs. (§87359; Cal. Code Regs.,tit. 5,§53430) "Equivalency" refers to the "possibility of hiring faculty who do not possess the exact degrees listed [for MQs], ... where "the governing
3 These layoff laws must be "strictlyfollowecf' and ''fairly construecf' to protect the rights of tenured faculty. California Teachers Association v.
Butte Community College District (1996) 48 Cal.App.4th 1293, 1301; Greer v. Board of Education (1975) 47 Cal.App.3d 98, 105-106.
Under this statutory scheme, districts may layoff instructors for only two reasons: reduction or discontinuance of a particular kind of service
("PKS"), or decline in attendance. §87743 While districts have broad discretion to decide which services to cut,5 their discretion as to whom they select for resulting layoffs is restricted by §87743.
Prior to March 15 of each year districts must identify those faculty who may be laid off. §87740. Faculty members disputing their potential layoffmay "request a hearing to determine if there is cause for not reemploying him or her for the ensuing year." §87740(b), emphasis added.
As provided in §87740(c), the hearing is conducted in accordance with Cal.
board determines that [the applicant] possesses qualifications that are at least equivalent to the minimum qualifications ..." "Minimum Conditions for Faculty and Administrators in California Community Colleges," March 2003 ed., 3AR 600.
5 While "PKS" reductions cannot eliminate mandated services, "[p]articular services ... in excess of the minimum mandated by statute are subject to discretionary reduction under section 13447." Campbell v. Abbott (1978) 76 Cal.App.3d 796,811. (Former §13447 is the antecedent of §§87743,44955) There are few mandated community college services, explaining why service reductions are rarely challenged legally, and were not challenged here (though YFA opposed the reductions - IOAR 2231 2233).
4 Govt. Code §11500 et seq., with an Administrative Law Judge ("ALJ") presiding and issuing a proposed decision to the district's governing board, which may adopt, reject or modify it. Govt. Code §11517 Any tenured or probationary faculty employee who is laid off may then challenge the layoff in court, via administrative mandamus. §87743; Cal. Code Civ. Proc.
§1094.5. This occurred here when the "three instructors," Jon Kropp,
Haleh Niazmand, and Brian Greene were laid off by District.
Appellant may not layoff an instructor with seniority and the requisite MQs to provide services for which instructors with less seniority were retained. The trial court summarized how this works:
"[W]hether an instructor is qualified and competent to provide community college instruction in a particular academic discipline may now be established by anyone of several different pathways.' ... 'Section 87743 affords tenured community college employees subject to layoff certain protections, including the ability to bump into positions held by ... junior employees and in which the more senior employees are qualified and competent to provide instruction.' ... In order to teach in a department or program, the faculty employee must possess the Minimum Qualifications in the relevant discipline(s), an FSA and competency. Because 'all faculty members within the District have the requisite FSA to serve in any academic position within the District.' and competency is the same as an MQ, Minimum Qualifications is the critical criteria that 'guiders] the analyses.' ... When one acquires an Equivalency, this is as good as a MQ, allowing one to teach the subject. Id. ..." (4JA 999:5-15)6
6In Yosemite an FSA is "tenured" or "probationary" employment, and "competency," negotiated per §87743.5, "is defined as Possession of the minimum qualification or equivalent for that discipline " (4AR 903, Article 15.2.1.1.)
5 Sections 87357-87359 direct the Community Colleges' Board of
Governors to prescribe disciplines as to which "MQs," or Equivalency, must be possessed by faculty so as to be considered competent to teach.
Districts then "shall employ for academic positions, only persons who possess the [Minimum] qualifications prescribed by the board of governors." §87400. "In general, the appropriate focus of minimum qualifications is in helping the colleges to ensure that they will select faculty who are competent in subject matter and possess the basic academic preparation needed to work effectively at the college level." A.B. 1725,
Stats. 1988, Chap.973, Sec.4(q)(l)f An instructor may be assigned to teach courses only if s/he possesses the MQs (or equivalency) for a discipline in which the course is taught. (§§87356, 87359; Cal. Code Regs., tit. 5,§§5341O, 53430). "Once obtained, an MQ is for life." 4AR 999:16)
There are two types of "disciplines," those where a Master's Degree is typically awarded and "vocational" disciplines where a Master's is not generally expected or available. 2AR 525 The State Chancellor's Office explains, "each individual faculty member is expected to possess minimum
7 The State periodically reissues the controlling "Minimum Qualifications for Faculty and Administrators in the California Community Colleges." The standards to qualifY for MQs in ELTEC, Graphic Arts and the AAC have not changed since the instructors were hired. See "Minimum Qualifications etc.," editions 1994, 2003 and 2010, and Cal. Code Regs.,tit.5,§§5341O, 53415 2AR 554,566, 568, 582-585; 594, 626, 634, 612-615; 646, 698-700,712, 720
6 qualifications ... The regulations demonstrate that the focus of minimum qualifications for 'teaching faculty' is on the qualifications of persons to teach in a discipline, and not to teach individual courses." (3AR 354)
STATEMENT OF THE CASE
On March 9, 2011, the District decided to reduce "particular kinds of services" as permitted by §87740. The next day the District gave written notice to the instructors that the District's Chancellor recommended their service be terminated effective July 1, 2011, explaining that each was
"entitled to request a hearing under Education Code section 87740(b) ..." and that the "final decision regarding your proposed layoff will be made by the Board according to ... section 87740." (lAR 6-7,9)
On March 22, 2011, the Chancellor issued a "Statement to
Respondent" and Accusation, to each instructor. (lAR 33-212) The
Accusations alleged that the instructors lacked the MQ and seniority to bump any retained junior faculty, and that cause existed to lay them off.
(lAR 36, 96, 156) All three requested a hearing and filed a Notice of
Defense. lAR42-43, 103, 163,214-217,220-221
An ALJ conducted a hearing on April 12-13,2011. After briefing, the ALJ issued a proposed decision. 9AR 2028,2117,2164,2179,2200 At a school board meeting on May 25, 2011, where the faculty submitted further evidence, the board voted 4-0 (with 3 members absent) to layoff the three
7 instructors, and to issue a Supplemental Decision adopting the ALl's decision as its own. 1OAR 2224-2319; 1OAR 2345,2351-2352
The three instructors and their representative, the Yosemite Faculty
Association ("YFA"), filed a Petition for Writ of Administrative Mandamus in the Stanislaus County Superior Court. 1OAR 2320; lJA 1 The instructors then filed a Motion for a Writ of Mandate. lJA 46 The District Answered, and filed its Opposition. lJA 79,94 After Petitioners replied, the Court heard oral argument, and issued its Ruling, granting the Petition. lJA 156,
RT 1, 4JA 780 The court's Judgment and Statement of Decision were filed on May 16,2012. 4JA 995,1031 The clerk issued the Writ on May 17,
2012, ordering the District to reinstate the instructors to their tenured positions. 4JA 1034 The District's Appeal followed.
SUMMARY OF THE ARGUMENT
The trial court correctly found that the District violated its mandatory duties under §87743 when in 2011 it laid off Kropp, Niazmand, and
Greene, and instead retained faculty with less seniority, to perform services that the three instructors possessed the essential qualifications to perform.
Each instructor satisfied the necessary MQs, competency, and FSA to
"bump" junior faculty who the District exempted from layoff. "Senior employees are given 'bumping' rights in that they will not be terminated if there are junior employees retained who are rendering services which the
8 senior employee is certificated and competent to render." Alexander, supra,
139 Cal.App.3d at 571. The trial court's extensive factual findings, supported by substantial evidence, establish that these instructors should not have been laid off as they were competent and qualified to perform the services of less senior employees whom the District retained.
In its desire to selectively layoff these senior faculty by skipping
"junior" faculty, Appellant misstates or disregards the essential facts, and ignores or even rewrites the law. It claims now that it laid off these highly qualified faculty for the benefit of the students and taxpayers. There is no such exception to the mandatory bumping rules enacted in §87743 to protect teachers.
Appellant's motives, whether they be altruistic or guided by a desire to save money by retaining junior faculty with lower salaries, are irrelevant to determining whether it complied with §87743. Similarly, whether
Appellant had good or bad reasons to eliminate or reduce services is irrelevant.
Appellant deprecates the instructors' qualifications, contrary to the substantial evidence. Mr. Kropp was laid off due to elimination of
Industrial Technology ("INTEC"), but the District retained two less senior faculty whom he was qualified to bump in Electronics Technology
("ELTEC"). Although the District claims the Judgment orders him "hired"
9 into a "position" "new" to him, the court actually found that Kropp should have been retained - not hired into a new position. Kropp has possessed the
ELTEC MQ since he was hired 12 years ago, by a District selection committee of highly experienced educators; and he had been assigned to and taught ELTEC classes for a dozen years. The District evaluated
Kropp's ELTEC teaching before he was given tenure, his personnel file confirms his ELTEC qualifications, and he has taught an amount of ELTEC comparable to that taught by the skipped DeAngelis.
Haleh Niazmand, a District Art professor since 2005, was laid off due to a reduction in Art. The District skipped two junior faculty, one a newly hired probationary teacher, to teach computer graphics courses, which emphasize strong art skills. Niazmand should have been reassigned to teach these courses, because she qualified through either her MQs in Art or Graphic Arts. Appellant rejected her claim, contending she needed an
MQ or job experience in the "discipline" of computer graphics, a
"discipline" which it claimed to have "created," but which does not exist.
Both the ALJ and trial court found that only the State is authorized to create disciplines, and that computer graphics is a program not a discipline. The
District's Brief concedes that faculty with MQs in either Art or Graphic
Arts are authorized to teach computer graphics courses. Niazmand has both. Yet it asserts it possesses "absolute discretion" to refuse to reassign
10 her, because she allegedly lacks experience in "computer graphics," even though only the MQ determines her qualifications to bump.8 The court correctly held she was entitled to be reassigned.
Because both Kropp and Niazmand possessed the requisite MQs for the disciplines ofELTEC, and Art or Graphic Arts, respectively, neither would be bumping into services "new to them.,,9
Brian Greene possessed the MQ to bump skipped probationary
"junior" Craig Johnston. Appellant maintains Greene cannot be reinstated because the "position ... no longer exists." Not exactly. The assignment still exists, because the District, after the layoff hearing, realizing that
§87743 mandated Greene's retention, sought a way to avoid its duty by a clever contrivance. It eliminated on paper the "position" of Academic
8Appellant still asserts the discredited argument that to teach computer graphics, Niazmand had to be able to immediately teach every computer graphics course. This is not required in Yosemite, where the MQ alone dictates whether one is qualified for reassignment. The Chancellor's Office 2003 Legal Opinion confirmed that "the focus of minimum qualifications for 'teaching faculty' is on the qualifications of persons to teach in a discipline, not to teach individual courses."3AR 354 The District agrees. 7AR1642:22-24. Appellant may negotiate with YFA for higher standards via "FSAs" or "competency 'criteria," or ask the State Senate to adopt tougher MQs, but in Yosemite the MQ governs for reassignment. §87743;4AR 903 ,Article 15.2; 7AR 1779:6-781 :11,1791 :7-14.
9While Appellant often refers to a "position" to describe an employee's work, the more accurate term is "assignment," as appears in §87743. Cal. Code Regs., tit. 5,§53410, also refers to faculty possessing the necessary degree in the discipline or in a discipline "reasonably related" to one's assignment. A position is essentially a "collection" of assignments. Holbrookv. Board of Education (1951) 37 Cal.2d 316,329.
11 Achievement Center Coordinator, held by Johnston, while retaining
Johnston to provide the same services, in the same Center. The trial court decision, consistent with §87743 and precedent, ordered Greene reinstated.
Appellant asserts an exhaustion of remedies defense, and a policy defense that the school board has absolute discretion over whom it lays off, and how their qualifications are determined. These defenses were not presented to the ALJ or trial court, and should be considered waived.
Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 133-137; Tahoe
Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577,
594. Even were these defenses considered, they lack merit. The sole administrative remedy the instructors were required to pursue was the layoff hearing contemplated by §87740(b)(c), which they fully exhausted.
Appellant's repeated assertion, in varying iterations, that the
"statutory framework is for educators, not the courts" (AOB 36) is inconsistent with the Legislatively-decreed judicial role of reviewing compliance with §87743 (or its K-12 corollary, §44955). Balen, supra., 11
Ca1.3d at 826. For decades courts have determined whether districts have fulfilled their "absolute duty" to examine and compare the qualifications of senior teachers to retained juniors, or whether laid off faculty possess the qualifications to perform services of retained junior faculty. Bledsoe v.
Biggs Unified School District (2008) 170 Cal.App.4th 127, 130-143
12 ("Bledsoe"); Alexander, supra., 139 Cal. App.3d at 571
Rather than ignoring the "comprehensive statutes and regulations," as Appellant claims, the Decision effectuates them, consistent with settled precedent. Appellant's scattershot assault on the trial court's decision disregards the controlling substantial evidence test, raises issues not presented in the administrative process or the trial court, and is lacking in merit.
THE STANDARD OF REVIEW
At AOB 14, Appellant briefly declaims that this Court's standard of review in this case is de novo, because it involves "the application of the statutory and regulatory scheme regarding community college instructors
..." However, the law's approach to appellate review in administrative mandate cases is a bit more refined. "The nature of the hearing in the trial court and the standard that court used in reviewing the administrative decision determines [the appellate] court's standard of review." Duax v.
Kern Community College District (1987) 196 Cal.App.3d 555,561.
First, the standard of review for the trial court should not be confused with the standard of review for the appellate court. Where the issue involves an employee's fundamental and vested right (as it does here, dealing with the continuation of tenured employment), "the trial court sits to conduct a de novo review and must independently judge the sufficiency of
13 the evidence." Duax, supra., 196 Ca1.App.3d at 561-562; Alexander, supra., 139 Ca1.App.3d at 572; Gallup v. Board o/Trustees (1996) 41
Ca1.App.4th 1571, 1581-1582. Further, §87740 decrees that academic employees issued March 15 notices of possible layoff are entitled to an administrative hearing to determine if there is "cause for not reemploying" the employee, and that "none of the findings, recommendations, or determinations contained in the [ALJ' s] proposed decision shall be binding
... on any court in future litigation." (§ 87740(b), (c)(3» The trial court exercised its independent judgment in examining the Record. Alexander, supra., 139 Ca1.App.3d at 572, lJA 1.
Second, as this Court has held, "[r]eview on appeal is not as probing." This court does "not sit to conduct a de novo review; although ... confronted with the identical record examined by the superior court, [this court] is limited to a search for substantial evidence." Duax, supra., 196
Ca1.App.3d at 562. Hence, "[t]he trial court's judgment must be upheld on appeal if supported by substantial evidence. All conflicts are resolved in favor of the prevailing party, who is entitled to the benefit of every reasonable inference to support the judgment. [citations]." Ibid. Accord,
Bledsoe, supra., 170 Ca1.App.4th at 134; Alexander, supra., 139 Ca1.App.3d at 572; Gallup, supra., 41 Ca1.App.4th at 1581-1582.
Third, where the facts are undisputed but are subject to conflicting
14 inferences, the trial court's detennination regarding those inferences, if supported by substantial evidence, is binding on the appellate court.
Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Ca1.3d 770,
774,fn.2.
Fourth, where the facts are undisputed, the appeals court may reverse where the facts "clearly" require a conclusion different from the trial court's conclusion. Sanchez v. Unemployment Ins. Appeals Bd. (1984) 36 Ca1.3d
575, 585; Kavanaugh v. West Sonoma County Union School District (2003)
29 Ca1.4th 911, 196. However, where there is any real conflict in the evidence, or conflicting inferences may be drawn, "the detennination of the trial court will be accepted on appeal even though a contrary detennination would likewise be upheld." Toyota Motor Sales USA., Inc. v. Superior
Court (1990) 220 Cal.App.3d 864, 872. And of course the appellate court reviews issues of law de novo. Robles v. Employment Development Dept.
(2012) 207 Cal.AppAth 1029, 1034.
ARGUMENT
Respondents believe that clarity will be served best by discussing
each instructor separately, beginning by summarizing the facts found by th~ trial court as to each, and then addressing Appellant's arguments.
I. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING RESPONDENT KROPP.
A. The Trial Court's Findings
15 After reviewing the entire record and considering conflicting evidence, the trial court made findings on all the ultimate facts that were at issue regarding Kropp. Vosburgh v. Meda (1943) 61 Ca1.App.2d 398,400.
These findings are "liberally construed in favor of the judgment." Evans v.
Thomason (1977) 72 Ca1.App.2d 978, 982, fnA. The essential facts supporting the judgment as to Kropp appear in the Decision. 4JA 999-1014.
"The reason for Mr. Kropp's layoffwas the District's decision to eliminate the Industrial Technology program ("INTEC") in which he taught. Because Mr. Kropp possessed the Minimum Qualifications ("MQs") to teach in the related discipline and program in Electronics Technology (known as "ELTEC"), he should have been reassigned under Section 87743, rather than be laid off, because the District had retained junior instructors DeAngelis and Howen to teach in ELTEC." 4JA 999.
The evidence shows, and the court found, these facts:
The Less Senior Faculty. Kropp was hired August 11, 2000
(seniority #143). The District retained two less senior faculty in the ELTEC
Department, DeAngelis (hired 8/1/05, #338), and Howen (hired
8/10/2001,#173) 3AR 737-738, 741. 10
Kropp's Electronics Technolo2Y Job Experience. Kropp had extensive experience in the field of electronics before applying to work at the District. After serving four years in the U.S. Navy as an Aerographers
Mate 2nd Class, Kropp attended MJC, then received a B.S. degree in
Industrial Technology and Manufacturing Management from CSU Chico in
10 The lower the number, the more seniority one has.
16 1986.
Kropp worked as a full-time, seasonal Customer Service
Representative in Modesto for ESM International, and for FMC-EPO, for about 5 years, providing "round the clock customer service for repair and maintenance of electronic sorting machines." 5AR 1175, 1177. During
1987-1989 he was a Research Engineer for Foster Farms in Livingston, participating in projects for the "design, fabrication and field testing of a prototype marigold harvester," experimenting with drying processes, and consulting in the establishment of a Tomato Seed Separation Process. Id.
During 1989-1990 he was a Foster Farms Packaging Dept. Supervisor, managing 10 foremen and 450 union employees, in all phases of "cutting and packaging performance ..." Id. 11 His work experience, and his B.S. degree, qualified him for the ELTEC MQ when he was hired. 4JA 1002:7
19.
Kropp's Hirio2. In 2000 Mr. Kropp applied for a position advertised as an Instructor of Industrial Technology, which required a bachelor's degree and 2 years of professional experience directly related to the assignment. 5AR 1180 The District sought someone "who could teach both ... electronic technology and industrial technology." 7AR 1822-1823,
II In 2000, the District's Human Resources Department obtained signed verifications from Kropp's former employers or their successors, confirming his work experience. 4JA 1004:8-14-1005:5
17 3AR 844. This was because the INTEC and ELTEC programs were (and remain) functionally integrated, essentially 'joined at the hip," and their classes overlapped. 7AR 1821,1822:7,1897. FormerELTEC leader
LeRoy Holmes testified that ELTEC was really a part of INTEC; the 2011
MJC catalog still refers to ELTEC as 'Industrial Technology Electronics within the "Industrial Technology Industry" program. 5AR 1328, 1OAR
2310; 4JA 1003:1-6.)
Kropp was interviewed by a District hiring committee with two
ELTEC faculty, Brian Lomax and Holmes, and the Dean of Technical
Education, Dr. Mark Bender. 12 4JA 1002:21-25 The Committee carefully reviewed Kropp's work experience in Electronics Technology, quizzing him "heavily" about his qualifications to teach ELTEC and INTEC.
Holmes testified at the administrative hearing that he understood Kropp's troubleshooting and technician work history were relevant electronics experience. 7AR 1834, 1829:1-9. Holmes and Lomax were familiar with the work an ESM employee, such as Kropp, did and concluded his ESM
12 Lomax and Holmes were the "primary technical" teachers, creating and teaching most of the ELTEC classes. 7AR 1828-29,1833 1834. Holmes, a District instructor for 31 years, was Chair ofMJC's Engineering, Math and Physical Science Division. He taught both INTEC and ELTEC, designing ELTECIINTEC 223, which Kropp taught for 11 years. 7AR 1820,1821, 5AR 1223-1326. He and Lomax were responsible for dual-listing INTEC and ELTEC courses. 7AR 1821:24-1822:6. Although Holmes was an ELTEC teacher, he taught mostly INTEC in his last years. 7AR 1823.
18 experience was directly relevant to teaching ELTEC.
The committee "was satisfied that Kropp had the required 2 years of eligible experience for ELTEC and INTEC." lOAR 2284-85. 13 Holmes testified that Kropp met the MQ for ELTEC when he was hired. 7AR
1823:14 Lomax and Bender agreed. 3 AR 845-846; 7AR 1834-1835; 10
AR 2284-2289. Dean Bender wrote in 2011 that Kropp "had sufficient occupational experience to teach ELTEC." 1OAR 2287. The committee concluded that Mr. Kropp satisfied the MQ for both ELTEC and INTEC.
Kropp's Initial Employment. Kropp "came out on top," and was hired. lOAR 2284-2289,7AR 1823,1824, 3AR 844-846; 4JA 1003:7
1004:7.
Kropp's Initial Assienment. After being hired, Kropp was immediately assigned to teach ELTEC 212. 5AR 1222; 4JA 1004:8-14.
This class was not "cross-listed" with INTEC, so Kropp could not have been assigned to it unless he had an ELTEC MQ. (§87356; Cal. Code
Regs.,tit.5,§§5341O, 53430y4
Kropp's Evaluations. As required by §87663, Yosemite evaluated
13 In 2000 an ELTEC MQ was, and remains, any Bachelors' degree and 2 years ofprofessional experience in the discipline. 2AR 546,459, 582, 584, 3AR 698,700; 4JA 1001:27-1002:1.
14MJC Academic Senate president Michael Adams explained that, in order to teach a subject, you must have the minimum qualifications or the equivalent, so if you have already taught a class in a discipline, "then you've got it." 3AR 835
19 Kropp while he was a probationary teacher. These evaluations refer to him as working in ELTEC. His 2000-2001 "self-evaluation" states: "My primary assignment is to teach Industrial Technology and Electronics
Technology." This evaluation discussed his "priority" to "ensure the safety of the students in the electrical lab ..." 5AR 1198, 1210, -,r1,3. Kropp mentioned developing lab activities together with ELTEC instructors
Vaughan and Holmes, "planning and directing the installation of electrical
... infrastructure" in new lab facilities, and his involvement in the
"procurement" materials for the ELTEC and INTEC area. 5AR 1198-1199,
,1213, 1216;4JA1006:20-1007:8.
Dean Bender's 2001 evaluation refers to Kropp's "Current
Assignment: Industrial/Electronics Technology." 5AR 1196-1197. ELTEC instructor Tim Vaughan's 2001 evaluation assesses Kropp's ELTEC teaching in the ELTEC 223 Industrial Electrical Components class (which
Vaughan also taught), and a class he taught on electric motors entitled
Electric Motors and Motor Controls (ELTECIINTEC 266). 5AR l204;4JA
1010:3-11. Kropp's second year probationary evaluation mirrors his first.
5AR 1215. He received tenure in 2002. His 2002-2003 self evaluation again confirms his contemporaneous understanding that "My primary assignment is to teach Industrial Technology and Electronics Technology."
5AR 12l6;JA 1010:18-21.
20 Kropp's Assienments. Lomax testified that most teachers do not teach the full range of courses in a department. 7AR 1836:17-22,1838-1839
This was so with Kropp, Howen, and De Angelis. 4JA 1010:22-1011:3 For the next 9 years, the District assigned Kropp to teach both INTEC and
ELTEC classes every semester; about 45 INTECIELTEC 223 and 226 classes (55% of his assignments), and about 16 INTEC classes which are electives for ELTEC-major students. 5AR 1219-1326
ELTEC instructor Howen received 44% of his workload in
INTECIELTEC classes: 15 INTECIELTEC 208 classes, 12
INTECIELTEC 221. DeAngelis taught about 82% of his workload in
INTECIELTEC: 40 INTECIE~TEC classes, 4 INTEC-only classes, and 5
ELTEC-only classes. 4JA 991 :fn19
The Layoff. When the possibility of layoffs arose in February 2011,
Kropp believed he already met the ELTEC MQ; along with Bender, Lomax and Holmes, Kropp informed the District by March 11, that he had been hired to teach INTEC and ELTEC. 8AR1901:1-2; 3AR 844-846 The HR
Director avoided considering this, and Kropp was advised to seek an
ELTEC equivalency. 8AR 1900:20-1901 :24, 5AR 1339 Kropp objected, writing on March 4, 2011: "I do not believe that it is necessary for me to retroactively appeal for equivalency ... for qualifications which were established by my selection committee when I was hired 11 years ago."
21 5AR 1336-1337. He applied as a precaution, and was denied by a three- person "pre-screening" committee which included skipped instructors
DeAngelis and Howen. 2AR 373
At hearing, Kropp, Lomax and Holmes testified that Kropp qualified for the ELTEC MQ when he was hired. 7AR 1822-23, 1834-1835; 4JA
1006:5-13; 4JA 1003:1-1004:4 No District administrator testified as to why Yosemite disregarded the infonnation that Kropp satisfied the ELTEC
MQ, or why it had skipped junior ELTEC faculty.
At the school board meeting to consider the ALJ Decision, Kropp presented more evidence of his ELTEC MQ, to no avail. 1OAR 2229
2230,2284-2313
B. The Trial Court's Decision Is Supported by Substantial Evidence
1. Appellant's Attack on the Substantive Findings Is Waived
In challenging the substantive grounds for the Decision, Appellant is obliged to completely and fairly summarize all of the material evidence
Arechiga v. Dolores Press, Inc. (2011) 192 Cal.AppAth 567, 571-572.
Appellant fails. Its argument rests on an incomplete and misleading recitation of the facts, ignoring weighty evidence favorable to Respondents.
The evidence is not discussed cohesively, appearing almost randomly throughout Appellant's brief. In this way Appellant wrongly tries to shift
22 the burden of presenting the material evidence to Respondents.
Appellant's Brief also misrepresents the evidence. Teaching ELTEC was not "new" to Kropp (AOB 1,2) - he taught ELTEC classes every semester since being hired. 4JA 991:24-28;5AR 1124-1329. It is incorrect to say
Kropp was "never found qualified to teach ELTEC" "by any educators"
(AOB 2-3, 40) - the 2000 educators' screening committee, found him qualified for the ELTEC MQ. 4JA 1006:5-13;4JA 1000:18-19;7AR 1822
23, 1834-1835;5AR 1336-1340. It is untrue that Kropp lacked "experience in electronics technology" (AOB 28), or that his experience was not verified
- the 2000 committee examined and verified his electronics experience as being sufficient, as did the administration. (4JA 1002:21-1008:23)
While Appellant argues that verifications of Kropp's electronics work experience in 2000 were for "salary purposes only" (AOB 43), the committee provided credible evidence that they reviewed Kropp's electronics work history, confirming it was directly relevant to teaching
ELTEC. Appellant ignores the Court's findings that Kropp's 11 years of teaching ELTEC classes independently qualified him for an ELTEC MQ; that ELTEC and INTEC are not comparable to other "cross-listed" disciplit;les because they are "joined at the hip"; and that many ELTEC classes are also INTEC classes. 4JA 991:24-28; 4JA 1014:10-12,1003:1-6
Kropp was not the "sole instructor" in INTEC (AOB 5) - retained
23 juniors DeAngelis and Howen also taught INTEC classes. 4JA 991 :24-28
It is immaterial that Kropp's degree was in "Industrial Technology," or "not
electronics" (AOB 10), because any Bachelor's degree fulfilled the ELTEC
MQ, since ELTEC is a "vocational" discipline. 2AR 582, 584 The
"primary legal basis" for the court's ruling was not an Evidence Code §664
presumption, but was instead evidence from Kropp, the 2000 selection
committee, his assignments, and his evaluations. 7AR 1822-23, 1834,
1835;5AR 1336-1340;9AR 1996-1999;5AR1205-1216
It is false to assert that Kropp "self-selected" his job title, and that
besides self-evaluations, "all other contemporaneous documentation
described [his] position as an instructor of industrial technology." (AOB 42)
The 2001 evaluations from ELTEC colleague Vaughan and Dean Bender'
discuss Kropp's teaching ELTEC. 5AR 1196-1197, 1204; 4JA 1007:8-11 )
It is inaccurate to claim Kropp's self-evaluations referred to his ELTEC
professorship only by title (AOB 42); they contain specific references to
ELTEC, including "My primary assignment is to teach Industrial
Technology and Electronics Technology." 5AR 1198;4JA 1007:2 Nor was
the 2011 "equivalency committee" "duly selected" (AOB 3) - it had no jurisdiction and a disqualifying conflict of interest. 4JA 1012:14-24 The
District could not rely on it to supercede the duly-made determination of the
2000 District screening committee, and Kropp's ELTEC assignments and
24 evaluations.
Further, it misstates the evidence to claim "Kropp taught no
[ELTEC] courses, except for one in one semester ..., and another ... cross- listed with ... INTEC." AOB 41 The District assigned Kropp 45 cross-listed
INTECIELTEC 223 and 226 classes and one ELTEC-only. By comparison,
DeAngelis was assigned 40 INTECIELTEC and 5 ELTEC-only classes.
4JA 991:fn.l9
Given Appellant's disregard of its duty to completely and fairly summarize all material findings, this court should treat the substantial evidence issues as waived and presume the record contains evidence to sustain every finding of fact. Archiga, supra., 192 Cal.App.4th at p. 572.
2. The Decisions Rests on Substantial Evidence
The evidence supports the judgment. Kropp was hired, evaluated, and assigned based on the original, informed conclusion of expert educators, that he qualified for the ELTEC MQ. The functional integration of INTEC and ELTEC further supports the judgment.
Appellant's challenge to the sufficiency of the evidence fails on the merits - it reargues the facts in a one-sided way, or indulges in speculation and conjecture. IS For instance, Appellant claims that Kropp assignment to
IS Appellant offered conflicting evidence concerning Kropp's hiring, the selection committee review, Kropp's assignments, his evaluations, whether he had a single-course equivalency, and the evaluation of his qualifications.
25 teach ELTEC 212 in 2000 resulted from an "illegal" "single-course equivalency," asserting that "it was a practice to allow 'single-course equivalencies' ... That changed with a 2003 legal opinion ... That Kropp never taught another ELTEC-only class after this opinion demonstrates that he was not considered to have the qualifications ..." (AOB 47-48) There is no Record evidence of any "practice" in Yosemite for single-course
"equivalencies," nor that Kropp received one. The sole authority cited, the
2003 legal opinion, was addressed to the State Academic Senate, and declared simply that "the focus of minimum qualifications for 'teaching faculty' is on the qualifications of persons to teach in a discipline, not to teach individual classes." 2AR 354 Thus, "a district is not authorized to establish a single course equivalency as a substitute for the minimum qualifications in a discipline." 2AR 355 Nothing in the Record proves that
Yosemite created a "single course equivalency" for Kropp in ELTEC 212.
In attempting to establish that the 2000 verifications of Kropp's jobs by the selection committee and Human Resources were only for "salary placement" (AOB 27,37-38,43), Appellant relies on a Spring 2006 handbook dealing with the processes for acquiring an "equivalency," that cautions against the using HR offices to "establish equivalencies;" and Cal.
Code Regs.,tit 5,§53430(b), addressing equivalency determination processes. 3A.R. 803, 818 Neither undermines the assessment performed
26 by Kropp's hiring committee.
Appellant argues that there is no "reasonable inference" that the
2000 selection committee determined Kropp was qualified for ELTEC.
(AOB 44) Actually, rather than "infer", the committee flat-out determined this, and the court found credible the committee's evidence. 4JA 1006:14
1008:816
Appellant argues the 2000 selection committee, chaired by the Dean, went "rogue," acting "ultra vires" (AOB 47), that it was "misnamed" a
"hiring committee" in the Decision, and that it only selected "candidates to be interviewed," (AOB 44) Actually, Holmes referred to it as the "hiring" committee (7AR 1821 :3-6), and Holmes, Lomax and Kropp all affirmed that the committee interviewed Kropp and he "came out on top." 7AR
16 Holmes testified that Yosemite sought someone "who could teach both ... electronic technology and industrial technology..." that Kropp's work history included relevant electronics experience, that the committee was satisfied he had the required experience for ELTEC and INTEC, and "that Mr. Kropp met the MQ for ELTEC when he was hired." Lomax testified the committee wanted someone with an electronics background who could teach electronics; he confirmed to YCCD on March 13, 2011 that Kropp "exceeded the minimum qualifications to teach Electronics Technology and Industrial Technology," that Kropp's experience was "substantiated by YCCD Human Resources before the position was finalized," that Kropp was hired for both INTEC and ELTEC, and that the committee considered Kropp's specific electronics experience and was "confident" he was qualified to teach both INTEC and ELTEC courses. 3AR 846 Dean Bender concurred that "the committee determined that Jon Kropp was qualified to teach in both ELTEC and INTEC," met the MQs, and "had sufficient occupational experience to teach ELTEC." 1OAR 2287;4JA 1003:19-1004:4
27 1828,1834:25, lAR 297,299.
Appellant argues that "presumptively" the 2000 committee did not find Kropp qualified for an ELTEC MQ, as no contemporaneous documents were introduced confirming this. AOB 44. As Appellant bears the burden of disproving the committee's testimony, it bears the burden of producing contradictory evidence supporting its position. Its assertion that this court should presume Kropp was not qualified due to the absence of contemporaneous documents attempts to reverse the burden of proof, and is not substantial evidence. Roddenberry v. Roddenberry (1996) 44 Cal.App.
4th 634,654-655.
Appellant avers that the court's "primary legal basis" for ruling for
Kropp is its presumption (Evidence Code §664) that the 2000 committee correctly did its job. AOB 11, regarding 4JA 1005:6-25. Not exactly - the court's primary basis for deciding that Kropp was found by educators to have qualified for the ELTEC MQ is 10 detailedfindings, crediting evidence about the committee assessment of Kropp. 4JA 1002
1005:5,1006:5-19 The presumption was only collateral. Nor was the presumption an unprecedented use of §664. Degener v. Governing Board
(1977) 67 Cal.App.3d 689, 697 (presuming district did not reduce service below statutory minimum); State Board of Education v. Honig (1993) 13
Cal.App.4th 720, 749) (presumption official complied with requirements
28 for review of educational program's guidelines)
Appellant makes too much of Kropp's sensible, "precautionary" application for an ELTEC equivalency, when Yosemite refused to recognize his lifetime ELTEC MQ. 2AR 366 The Court found Kropp did not need an "equivalence," as he already possessed the ELTEC MQ. 4JA
1000:4-1005:5
The court found Appellant was estopped to dispute, 11 years later,
Kropp's 2000 ELTEC MQ. Appellant argues estoppel is inapplicable because there is "no penalty" for failing to maintain a seniority list or having a dedicated "form" recording the MQs acquired, dismissing the absence of a complete seniority list as a "paperwork problem." More like a denial of due process. cf Bledsoe, supra, 170 Cal.App.4th at 139 (due process satisfied by seniority list showing faculty's credentials). This Court is aware that "paperwork" problems associated with statutory protections of teachers may restrict their termination. Bakersfield Elementary Teachers
Assn. v. Bakersfield City School District (2006) 145 Cal.AppAth 1260,
1301-1302; California Teachers Assn. v. Governing Board (2002) 98
Cal.AppAth 369,385; Kavanaugh, supra., 29 Ca1.4th at 917-918; Hoyme v.
Board o/Education (1980) 107 Cal.App.3d 449,452-453 Appellant conveniently ignores that Respondents needed to introduce evidence from
Kropp's 2000 selection committee, and about Appellant's practices of
29 treating an Art or Graphic Arts MQ as allowing computer graphics teaching, because of Appellant's "paperwork" error. Nonetheless, the estoppel ruling was collateral, the court independently considering the evidence that Kropp was found to have an ELTEC MQ in 2000.
Lastly, when Yosemite's board considered adopting the ALJ's decision, the instructors presented limited additional evidence. 1OAR 2224
2319 Appellant asserts these materials were "particularly harmful" (AOB
59), focusing on declarations from Lomax, Holmes and Bender reiterating or expanding slightly on Kropp's hiring. The court considered this evidence as corroborative, ruling it would have reached the same decision without it.
4JA997:4 Substantial record evidence was relied upon to support the findings without the supplemental materials. 4JA997:2-4,1001:3-1005:5
The Decision rests on a solid foundation, evidence which is reasonable and credible, of "ponderable legal significance." Kahn v.
Department of General Services (1994) 22 Cal.App.4th 1627, 1633 17
3. To Avoid the Selection Committee's Conclusions, Yosemite Relied On A Biased Committee Lacking Jurisdiction
Moreover, the equivalency "process" was invalid due to a conflict of interest: two-thirds of the 2011 "equivalency committee" stood to lose their
17 Kropp was entitled to be retained for another, independent reason: his 11 years of teaching ELTEC classes provided the requisite professional experience for the MQ (professional experience includes teaching). The Court agreed with this, 4JA 1014:10-12.
30 relative seniority ranking ijKropp satisfied the ELTEC MQ. 4JA 1012:21-24.
With an ELlEC "equivalency," Kropp would have leap-frogged over Howen and DeAngelis, becoming the second-most senior ELlEC teacher. An ELlEC layoffin 2011 or subsequent years would have put Howen's and DeAngelis' jobs in jeopardy before Kropp's. Given their self-interest in not acknowledging
Kropp in ELlEC, neither Howen nor DeANeglis was a "reasonably impartial and noninvolved reviewer." Linney v. Turpen (1996) 42 Cal.App.4th 763, 771 lAR 3-4,2AR 373, 4JA 100I
C. Appellant's Untimely Exhaustion of Remedies Defense
In §§87740 et seq., the Legislature provided one administrative remedy for tenured faculty facing layoff in the community colleges, a layoff hearing. Kropp exhausted this administrative remedy by demanding and participating in the administrative hearing. Nonetheless, Appellant now argues that he cannot seek judicial redress for his layoff because he failed to exhaust other "administrative" remedies.
Appellant waived this defense when it was not presented to the ALJ or trial court. Moreover, there is no grievance or other administrative remedy available to challenge a district's failure to recognize an MQ, as happened here. Appellant avers Kropp should have pursued "grievance" remedies for denial of an FSA or "equivalency," but his case turns on his possession of an MQ. The only remedy provided to dispute a District's
31 failure to recognize an MQ is the hearing provided by §87740.
1. Appellant Waived Any Exhaustion of Remedies Defense
The law expects a party to make a full presentation of issues at administrative hearings to preserve their integrity, to "endow them with a dignity beyond that of a mere shadow play." Tahoe Vista Concerned
Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 594; Pegues v. Civil
Service Commission (1998) 67 Cal.App.4th 95, 104. "It was never contemplated that a party to an administrative hearing should withhold any defense then available to him or make only a perfunctory or 'skeleton' showing in the [§ 1094.5] hearing ..." Green v. Board of Dental Examiners
(1996) 47 Cal.App.4th 786, 792; Dare v. Board of Medical Examiners
(1943) 21 Cal.2d 790, 799. Under this rule, issues involving statutory interpretation and construction must be raised in the administrative hearing, or are waived. City of Walnut Creek v. County of Contra Costa (1980) 101
Cal.App.3d 1012, 1021. Because this defense was not raised before, it has been waived.
Appellant claims this is a jurisdictional issue, not subject to waiver, and argues it raised exhaustion in the trial court. Neither is true. Courts have recognized that "[t]he doctrine of administrative exhaustion was developed through the case law," is not an "inflexible dogma," and is not jurisdictional in the sense a statute of limitations is jurisdictional. Azusa
32 Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52
Cal.Appo4th 1165, 1215; Green v. City o/Oceanside (1987) 194 Cal.App. 3d
212,222-223 A failure to exhaust does not deprive a court of subject matter jurisdiction, and more importantly, the defense is subject to waiver.
Mokler v. County o/Orange (2007) 157 Cal.Appo4th 121, 133-137; Azusa
Land Reclamation Co., supra., 52 Cal.Appo4th at 1215-1216; Degener, supra., 67 Cal.App.3d 689 at 699 (issue of competence for layoffwas untimely raised for the first time on appeal).
Appellant never asserted during the administrative proceedings that
Kropp had a "grievance" remedy regarding Appellant's failure to recognize his MQ. (District's briefs, 9AR 2139-2146,2185-2192) Nor did it plead exhaustion of remedies as an affirmative defense in the trial court, nor raise it in its Opposition to the Motion for Writ. lJA 79,124
Appellant claims otherwise, relying on perfunctory remarks it made at oral argument about FSAs or equivalency, after the case had been briefed and the court had issued a tentative decision. First:
"... Education Code 8774304 provides exclusive remedy for a faculty member who has a dispute regarding whether they are qualified in a/acuity service area. That's the grievance process by which petitioners chose not to take advantage of." (RT 6:7-11, emphasis addedY s
IS District counsel referred to §8774304 providing "a specific remedy for that," referring to the denial 0/equivalency, and then to a "grievance" in the context of equivalency. (RT 8: 10-26, RT 20:23-26) Presumably she meant 87743.3; §8774304 concerns FSAs.
33 The final reference appears in its post-ruling Objections to the
Proposed Decision: "If Mr. Kropp wanted to challenge either the make-up or the decision of the equivalency committee, he was required to file a grievance. (Cal. Education Code §87743.3) He did not." 4JA 852, emphasis added.
These statements are inapposite because there is no administrative procedure, except for the §87740 hearing, to challenge a district'sfailure to recognize an MQ. Because the District failed to raise this exhaustion defense until appeal, it has been waived.
2. Neither the FSA Denial Nor the Equivalency Processes Present Administrative Remedies Which Kropp Had to Exhaust
Appellant unlawfully refused to recognize the ELTEC MQ which
Kropp had since 2000. The court agreed. 4JA 1002:20-1004:14 Appellant now argues the trial court should be reversed because Kropp did not file a grievance over denial of an FSA and because his request for an ELTEC
"equivalency" was rejected by an "equivalency" committee with two junior
ELTEC faculty appointed in 2011.
The exhaustion doctrine does not apply in the absence of an available administrative remedy. Daniels, supra., 212 Cal.App.3d at 927;
County Sanitation District No.2 v. County of Kern (2005) 127 Cal.App.4th
1544, 1617; Branciforte Heights, LLC v. City of Santa Cruz (2005) 138
34 Ca1.App. 4th 914, 923; Rojo v. Kliger (1990) 52 Ca1.3d 65, 86.
Appellant's exhaustion defense contlates two distinct concepts,
FSAs and equivalency, with MQs. Neither FSAs nor equivalency is at issue because Kropp was never denied an FSA, and as the trial judge found, he did not need an "equivalency," since he already had the ELTEC MQ.
Kropp was not denied an FSA because, as the evidence confinns and the court found, "all faculty members within the District have the requisite
FSA to serve in any academic position within the District", and competency is the same as an MQ. Thus, "the MQs are the critical criteria that "guide[s] the analyses.'" 4JA 999:5-15 FSAs are irrelevant, as is the FSA remedial process.
Appellant's argument that Kropp failed to file a grievance results from it confusing FSAs with MQs. Section 87743.3 makes the difference apparent because there is a separate remedy for improper denial of an FSA:
"After initial employment, a faculty member may apply to the district to add faculty service areas for which the faculty member qualifies ... Any dispute arising from an allegation that a/acuIty member has been improperly denied a faculty service area shall be classified and procedurally addressed as a grievance."19 (emphasis added)
The plain wording of §87743.3 reveals that it does not provide an
19 Existence of a remedy for faculty to dispute denial of a "new" FSA application only matters in districts where there are multiple FSAs, unlike Yosemite.
35 administrative remedy for a district's failure to recognize an MQ.
Remarkably, Appellant argues that section 87743.3 has a different meaning, by substituting "[Minimum Qualifications]" for "FSAs" in the statute's text, misstating its meaning. Appellant's Briefrewrites the statute:
"The Education Code provides that, "after initial employment, a faculty member may apply ... Any dispute arising from an allegation that a faculty member has been improperly denied [minimum qualifications] shall be classified and procedurally addressed as a grievance.'" AOB 15, emphasis added.
Appellant deliberately replaced the words "faculty service areas" in
§87743.3 with "[minimum qualifications]", in a clever attempt to support its argument that the "Code provides a specific remedy for an instructor who believes they were improperly denied minimum qualifications: it requires them to proceed via the grievance process." AOB 15. This changes the meaning of §87743.3, which applies only to FSAs.2°
Even had a District policy required teachers to challenge failure to recognize an MQ through the "equivalency process," there is actually no available administrative or grievance remedy for the denial of an
"equivalency."21 Appellant acknowledged this at the Administrative level:
20Appellant neglects to mention that final decisions on grievances are made by the school board. 2AR 360 If Kropp could have grieved, it would have been futile, since Appellant rejected his ELTEC MQ by adopting the ALI's recommended decision.
21Appellant falsely claims at AOB 30, that a "pre-screening" equivalency committee's rejection of an equivalency application may be appealed and reviewed by the "permanent" Academic Senate Equivalency
36 "There is no appealfrom the denial of an equivalency application by the discipline-based equivalency pre-screening committee. (7AR 1657:21-1658: 1-4) If the Academic Senate Equivalency Committee denies an equivalency application which had been approved by the discipline-based equivalency pre-screening committee, the faculty member does have an opportunity to reapply provided the areas of concern have been addressed. (7AR 1658:9-24) (Appellant Briefto ALJ, 9AR 2132: 10-14, emphasis added)
Appellant's argument that employees denied equivalency should file grievances is as meritless as its claim that they should "grieve" the refusal to recognize MQs. As in County of Kern, supra., the coincidental availability of a different process to file grievances over FSA denials does not operate to bar this lawsuit.
II. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING HALEH NIAZMAND.
A. The Trial Court Findings Concerning Niazmand
The court, after considering conflicting evidence, made findings on all the ultimate facts. It found that the District's decision to layoff
Niazmand was an abuse of discretion, as the decision was not supported by the findings, and the findings were not supported by the evidence or the weight of the evidence; that the District had skipped two junior employees
(Sinclair and probationary teacher Christensen) to teach computer graphics courses; and that Niazmand possessed the MQs to teach those courses. The court concluded the District violated §87743, and ordered her reinstated to a
Committee. As the policy plainly states, only equivalency approvals are subject to full committee review. 2AR 359
37 tenured position?2 4JA 1018: 14-24.
Niazmandeamed both Bachelor's and Master's Degrees of Fine
Arts. She taught art at the University of Arizona for three years, and at
Kirkwood Community College for two, then worked in graphic arts, part- time for 4.5 years (YCCD equated to 2.17 full-time years) for True Identity
Design Studio, where she was responsible for "creative counseling, project presentation, ... and computer generated images for various clients. ,>2)
Copies of District verifications of her experience were placed in her personnel file. 4JA 1019:19-1020:11
Niazmand was hired by the District beginning August 1, 2005 as an
Art instructor (seniority #220).3 AR 843. She qualified for the MQ in Art based on her Master's degree, and MQ in Graphic Arts, based on her degrees and graphic art work experience. 3AR 615,506-514,839-840; 4JA
1018:9-13,10 19:8-17
The District issued Niazmand a layoff notice, having reduced Art
22 Appellant was not ordered to give Niazmand any particular assignment, nor to reinstate Art services. It may assign her to any assignment within the scope of her qualifications. The computer graphics program employed many temporary faculty. 7AR 1738:3 The District must first assign reinstated faculty to assignments held by temporary employees. Daniels, supra. 212 Cal.App.3d at 920-922.
23Although Graphic Arts means "painting and drawing," "engraving, etching, lithography, photography, ...", Appellant says it is "related but separate" from Art. AOB 31; Websters Third New International Dictionary, Unabridged, Meriam-Webster 2002.
38 instruction. 1AR 3-4,9. Before, at and after the administrative hearing,
Niazmand asserted that she had the necessary MQs to be reassigned to teach computer graphics. 7AR 1577,1795,1808-1809;8AR 1905-1906,2045,
2110-2111,2174-2175;7AR 1021 :6-11
The District retained probationary faculty employee Kathryn
Christensen (#279, hired 8/112010) and less senior tenured instructor Brian
Sinclair (#233, hired 8/112005), to teach computer graphic courses.
Christensen's MFA and MQ are, like Niazmand, in Art. 1 AR 242.
Niazmand was senior to both, and "because she possessed the MQs for computer graphics, she should not have been laid off." 4JA 1018:14-24;
2AR 741,743.
The District called no witnesses to explain its "comparison" of
Niazmand with the two skipped faculty, or why it laid offNiazmand rather than reassign her. 4JA 1020: 19-23 Instead it offered evidence from a computer graphics instructor (Hagen) and the 2005 computer graphics job announcement, that the MQs to teach computer graphics were any
Bachelor's degree and two years of computer media graphics experience. 7
AR 1718:9-16; 2AR 379 The court found this not credible. 4JA1022:5
1024:28.
Because computer graphics is not a discipline there is no MQ called
"computer graphics." 1OAR 2214-2215;4AR 1018:25-1019:1;2AR 271
39 352, 380-456.14 MQs in either Art or Graphic Arts authorizes faculty to teach computer graphics courses. 4AR 1019:1-18 The District Brief concedes the correctness of the court's finding that, "the District's practice has been to assign faculty with MQs in either Art or Graphic Arts, to teach computer graphics" courses. AOB 38,4JA 1018:1425 Therefore, computer graphics courses are within the disciplines of Art and Graphic Arts.
Niazmand's Art MQ entitled her to be reassigned to teach computer graphics.
In addition, the MQ in Graphic Arts requires any Bachelor's or
Master's, and two years of relevant experience in graphic arts. 2AR 536
The court determined that Niazmand satisfied this as well. 4JA 1019: 19
1020: 11 Because the District retained Alan Layne, a printing instructor, to teach computer graphics based on his qualifying for an MQ in Graphic Arts, the court found that the District was obligated to treat Niazmand the same, and reassign her to teach computer graphics. 7JA 1018:25-1025:4
B. The Trial Court's Decision Is Supported by Substantial Evidence
24 The District seniority list inaccurately lists Sinclair's "discipline" as "computer graphics." 3 AR 741
25 Tenured art instructor Rob Stevenson testified YCCD has assigned him, and Art instructor Terry Hartman, to teach computer graphic courses based on their Art MQs. 7AR 1841:14-42 Neither received equivalencies in Graphic Arts; and the discipline listed for them in the seniority list is Art. 3AR 731 (#5),738 (# 176) The District also rescinded the layoff of Alan Layne, who taught printing technology, who proved he qualified for the Graphic Arts MQ. 4JA 1021: 12-1022:4, 1022: 17-25.
40 1. Appellant's Attack on the Substantive Findings Is Waived
For the reasons argued as to Kropp above, the District waived any challenge to the findings on Niazmand's case by not fairly and completely summarizing the material facts.
2. The Decision Is Supported By Substantial Evidence
The Court's findings are supported by reasonable, credible evidence of ponderable significance. Substantial evidence establishes that Niazmand qualified for two MQs when she was hired, either of which allows her to bump into computer graphics.
a. Art MQ. Niazmand qualified for the Art MQ .when she was hired to teach art with her Master's in Fine Arts. 3AR 601. This entitles her to teach any course in the Art discipline, because MQs focus on
"qualifications ... to teach in a discipline, not to teach individual courses" within the discipline. 2AR 354; 8AR 1924;7AR 1643:16-25.
b. Graphic Arts MQ. This MQ requires any BA and two years of experience directly related to one's assignment. Niazmand spent more than two years as a graphic designer, and the evidence proved that experience in graphic design is directly related to assignment in graphic arts, including computer graphics. Alan Layne, who had been noticed for layoff, was retained after proving that he had graphics experience which qualified him
41 for a Graphic Arts MQ. 9AR 2213-2216 (Computer graphics instructor
Brian Sinclair's occupational experience was also in graphic design. 3AR
770) The court agreed Niazmand satisfied the Graphic Arts MQ. 4JA
1022:5-9
The District concedes in its Brief that it " does not contest the court's factual finding that 'the District's practice has been to assign faculty with
MQs in either Art or Graphic Arts, to teach computer graphics. '" AOB 38;
4JA 1019:5-12,1021:14-1022:4.26 Therefore, computer graphics courses are within the disciplines of Art and Graphic Arts. That should be the end of
Appellant's appeal, as Niazmand's MQs each entitle her to bump into computer graphics classes, where the District retained junior computer graphics instructors Sinclair and Christensen.
Nonetheless, the District raises a host of perplexing, convoluted and inconsistent defenses, starting with its insistence that Niazmand needs more than MQs to bump into computer graphics -- it claims she also needs computer graphics work experience.27 Neither the facts nor law support
26 The Court relied on evidence that Art instructors Rob Stevenson and Terry Hartman were assigned to teach computer graphics courses based on their Art MQs. 4JA 1021:19-1022:4.
27 These confusing defenses result from the District's initial missteps - incorrectly claiming that computer graphics was a discipline, arguing that Niazmand needed a non-existent MQ "in computer graphics." District counsel insisted "the District is allowed to and does often come up with disciplines ... That is our position... [Computer graphics] may be a hybrid ... It's not computer science. It's certainly not printing ... [it] is ... an
42 these defenses.
C. The Appellant's Challenge to the Court's Decision Fails
Appellant argues that Niazmand needed prior work experience in computer graphics to bump the two skipped, junior computer graphics instructors. AOB 38. However, as discussed above, in YCCD the only requirement for bumping is possession of the requisite MQ. There is no negotiated FSA or competency standard which requires experience in the
"field" of the courses taught. There is no negotiated FSA or competency standard which requires experience in the "field" of the courses taught - a teacher with an Auto Mechanics MQ does not need experience tuning high perfonnance engines to bump a junior Auto Mechanic instructor teaching classes in tuning high-perfonnance vehicles. Nor does an English instructor need experience teaching Shakespeare to bump junior instructors teaching
Shakespeare classes. With her Art MQ, Niazmand qualifies to teach every course within the Art discipline, and YCCD currently agrees that computer graphics courses are within this discipline. Furthennore, this District defense applies only to her alternative path, whether she qualified for the
Graphic Arts MQ.
offshoot of computer science and of art. It's more than art and it's more than computer science." 7AR 1747:6-7,1748:23-1749:5; and, "minimum qualifications" "are established by the District and these are reflected in the job description ..." 7AR 1743:15-24. (By "job description," counsel referred to the "job announcement" used for hiring. 7AR 1717:5-1734:9)
43 Appellant claims that educators, not the court, must decide whether
Niazmand had the "necessary" two years of experience "directly related to the faculty member's teaching assignment," for the Graphic Arts MQ (AOB
25-26), and condemns judicial review as an "unwarranted intrusion into educational affairs." The courts, however, have long recognized their duty to examine the relative qualifications ofjunior or senior faculty, to assure compliance with §87743 (and §44955). Alexander, supra., 139 Cal.App.3d at 575-577; Bledsoe, supra., 170 Cal.AppAth at 130-143; Moreland
Teachers Assn. v. Kurze (1980) 109 Cal.App.3d 648,655; Forker v. Board o/Trustees (1984) 160 Cal. App. 3d 13, 19.28
Substantial evidence establishes that graphic arts experience qualified Niazmand for the Graphic Arts MQ. Junior computer graphics instructor Sinclair was hired to teach computer graphics with prior experience in Graphic Design, just like Niazmand, not computer graphics.
3AR 770, 7AR 1737:16 Joel Hagen had an Anthropology B.A. and no computer graphics experience when he was hired to teach computer graphics. 3 AR 776, 77929 The court concluded that the weight of the evidence established Niazmand's qualifications to teach computer graphics
28 This duty also exists when there is no administrative remedy. Anderson, supra., 87 Cal.App.3d at 448.
29 Hagen's was experienced in martial arts, producing and selling sculpture and painting, as a partner in software company, and as a fisherman on an Icelandic trawler. 3AR 779
44 were equal or greater than Hagen's or Sinclair's when they were hired.30
Appellant argues that "what may have happened" with other faculty is "not relevant." AOB 38. Not true. Inconsistently, it admits it "has a responsibility to its faculty ... that qualifications are determined by standards ... applicable to all." AOB 3 The Code requires "that competency qualifications must be evenly applied." Martin v. Kentfield School District
(1983) 35 Cal.3d 294,300. Evidence that faculty are assigned to computer graphics with Art MQs did not "balloon" the case (AOB 39) into irrelevancies.
Appellant repeatedly avers that it is the "District's responsibility to determine [FSAs] [and] to define disciplines." AOB 38,25,36,38 Not true.
FSAs are bargained with YFA, and disciplines are determined by the
3 State. !
Appellant confuses hiring with reassignment, mischaracterizing the court's decision as ordering "Kropp and Niazmand be hired into positions
30 The District's disregards the fact that several required and elective computer graphics courses are actually Art courses: Art 120,124,160,170, 181,182,123. Art 102 is a prerequisite. 2AR 446,403.
3! Recall that there is one negotiated FSA in Yosemite (tenured teaching), and that the State-created Discipline Lists are issued periodically by the State Board of Governors, per Cal. Code Regs., tit. 5,§53407. §53407 unequivocally declares that the State Board of Governors "defines disciplines." The ALI ruled, and the District accepted (by adopting the proposed decision of the ALI), that the State, not the District, creates disciplines. 9AR 2214.
45 new to them." AOB 2, 3, 9, 10 Actually, the court ordered them reinstated, as they should have been retained, reassigned, and continued in service, not laid off. (4JA 1028: 17-24) This is a reassignment case, not a
"hiring case.'>32
While districts have considerable discretion to hire the "most qualified," when it comes to reassigning tenuredfaculty to avoid layoff,
§87743 reflects the Legislature's balancing ofjob security and academic excellence. For retention/reassignment purposes, incumbent faculty need not be "the most qualified" -- an inherently subjective judgment. Instead,
§87743 requires districts to re-assign faculty to services provided by less senior faculty, "not inconsistent with the Minimum Qualifications," to avoid layoff. §70902(a)(4) Such simple criteria "minimize the risk of arbitrary or prejudiced decisions or decisions based on inaccurate or incomplete facts or misunderstandings." Anderson, supra., 87 Cal.App.3d at 447.
Appellant argues there is "no legal warrant" to "trump" the statutory framework and tell a college that ifNiazmand can teach "a" she can teach
"b." Actually, §87743 requires that if she has the MQ to "bump," the
District must reassign her accordingly. The statutes entrust the judiciary with responsibility to assure districts observe the mandates of §87743.
32 California law consistently holds that wrongfully dismissed teachers are entitled to reinstatement. Bakersfield, supra., 145 Cal.AppAth at 1270; Bostean v. Los Angeles Unified School District (1998), 63 Cal.App. 4th 95,118.
46 Appellant claims absolute discretion to judge Niazmand's (and
Kropp's) qualifications, and determine whether cause exists for layoff. It avers that the courts lack authority to rule on bumping rights under §87743, complains that the court "rejected the findings of ... educators charged by the law with determining qualifications", that the "trial courts should judge rights, but they should not supplant educators," that such decisions are
"reserved" to the discretion of the District/educators (whom it references interchangeably), and that the court "usurped" the role of the school board/ educators. AOB 3, 13,28, 31, 36.
This sweeping defense hinges on the District's newly expressed interpretation of the layofflaws, and was not raised with the ALI, or the trial court. Because this delay undermines the integrity of the administrative proceedings, Appellant waived this defense.
If considered, this defense should be rejected. The Legislature's intent in adopting §§87740, 87743, and their antecedents, was to provide some measure ofjob security for tenured teachers, through due process, by restricting a district's discretion in layoffs. These statutes are part of a tenure scheme designed to limit, not enlarge, the power of districts to terminate faculty. Bakersfield, supra., 145 Cal.App.4th at 1280. The Code
"requires compliance with specified procedures before a tenured or contract employee can be laid offbecause of a reduction in services. The layoff
47 gives priority to tenured employees ..." Daniels, supra., 212 Cal.App.3d at
919.
The Supreme Court recognizes the great "respect for seniority rights" occasioned by layoffs, and the importance of the "numerous protections" afforded teachers under the layoff statutes. Gassman v. Governing Board, supra., 18 Cal.3d at 144-146 (district chose wrong statutory scheme for layoff). Moreover, the courts are alert to the "statutory purpose of preserving the seniority rights of terminated employees," to prevent actions which "circumvent" layoff statutes. Poppers v. Tamalpais Union High
School District (1986) 184 Cal.App.3d 399, 405. "The manifest purpose of the Legislature is that discontinuance of a position must result in the termination of the most junior qualified employee ..." Id. at 406.
In Cousins v. Weaverville Unified School District (1994) 24 Cal.
AppAth 1846, 1853 the court disallowed a layoff, describing §44955 as a
"narrowly prescribed statute authorizing the termination of probationary employees at the end of a school year for economic reasons ...", and rejecting the District's assertion of broad, "absolute authority" to dismiss probationary teachers (albeit on different grounds than urged here), as being inconsistent with the requirements of §44949, and the due process rights of
§44955.Id. at 1854.
No district can claim "absolute discretion" to deny the statutory
48 rights of laid off faculty. The MQs are created by the State, and delineated in State-adopted manuals. If a district disregards the mandate of §87743, the matter is subject to hearing and mandamus relief. Gov. Code §11523
Appellant offers no legal authority supporting its blanket challenge to judicial authority. The cited statutory and regulatory requirements (AOB
28), concern equivalency for "faculty ... who do not meet the applicable minimum qualifications specified [by] the board of governors." §87359
The requirement that "processes ... criteria and standards" employed by a governing board in "reaching its determinations," shall be "developed and agreed upon jointly" with the academic senate. (§87359(b» refers to a college's equivalency policy, adopted through "collegial consultation" between a governing board and a college's academic senate, not to individual layoff decisions. Irvine College Academic Senate v. Board of
Trustees (2005) 129 Cal.App.4th 1482,1491. These provisions do not involve the mandatory reassignment of tenured faculty. Appellant has no discretion, let alone "absolute discretion," to disregard proofthat a laid off senior has the qualifications to bump a skipped junior. Alexander, supra.,
139 Cal.App.3d 567, 57233
Appellant relies on three cases to support its absolute discretion
33 Unnoticed by Appellant is that courts regularly determine instructor competence in cases involving cause for disciplinary dismissal under §88732, et seq.
49 argument, each distinguishable. Foremost is Bledsoe, supra., 170
Cal.AppAth 127, cited for the "proposition" that there is "no legal warrant" for a court, rather than the "academic process," to determine qualifications, and on the theory that affording teachers an administrative hearing excuses its pre-hearing failure to compare retained junior faculty to laid off senior faculty. (AOB 32) Bledsoe has no such holding - with it's careful, microscopic examination of the relative qualifications of laid off and skipped teachers, it supports the instructors.
In Bledsoe a senior, credentialed teacher was skipped in favor of retaining two juniors teaching in a special "community day school" for troubled teenagers. The senior argued that the district failed its "absolute duty" under Davis v. Gray to compare his qualifications to the retained juniors before layoff, and that he was competent to perform the services for which they were skipped, as allegedly proven at hearing. The trial court's ruling against Bledsoe was upheld on appeal, based on substantial evidence and statutory interpretation. Id. at 142-143.
The appeals court reviewed the evidence, concluding Bledsoe and another teacher were competent to perform the services of the retained juniors, and would have prevailed under §44955, had the Code not been amended to add §44955(d) for K-12 schools, to create a special exemption only when a district "demonstrates specific need for personnel to teach a
50 specific course of study, that a junior certificated employee has special training and experience necessary to teach that course, and the senior certificated employee does not possess such necessary special training and experience." Id. at p. 135, 137-139. There is no such exceptionfor the community colleges.
The appeals court agreed the district's violation of its "absolute duty" to compare the senior and junior teachers was error, but found it non prejudicial because the district's Superintendent presented detailed evidence at hearing attesting to all the facts, where he was subject to examination and challenge, in support of this comparison. The trial court there, as here, carefully examined the evidence on the teachers' relative qualifications, ruling that the retained teachers were more qualified, as §44955(d) allows.
Id. at 131-133. Then the appeals court affirmed the trial court, finding that while Bledsoe qualified to teach at the community day school "so as to trigger section 44955," the district proved that the exception of §44955(d) trumped. Id. at 136.
Bledsoe confirms the duty of an ALI, and then the trial court, to independently examine the evidence to determine if the senior has the competence to perform the work for which the juniors are skipped (as well, in the public schools, to examine any statutorily permitted exceptions), and
51 whether cause exists for layoff.34 In contrast to Bledsoe, the Appellant called no witnesses to attest to why YCCD skipped less senior Christensen and Sinclair over Niazmand, or the less senior DeAngelis and Howen over
Kropp,35 nor retain Johnston instead of Greene.
Equally unavailing is Vassallo v. Lowrey (1986) 178 Cal.App.3d
1210, which Appellant mistakenly claims "counsels that section 87743 does not justify trumping the District's decisions and standard procedures regarding teacher qualifications." AOB 35 Vassallo does not hold this.
Nor did Vassallo "[respect] the district's discretion and process regarding matters of teacher competence." AOB 34. In Vassalo, a junior teacher, embroiled in a dispute over her layoff and seniority date, claimed she could bump a senior teacher, and that the college had a duty to assist her in obtaining the "limited services credential" needed to do this, under the
34Appellant argues that the Davis court did not compare the qualifications of the senior and junior teachers, but decided the case based on the district's failure to perform that comparison, indicating in dicta that it's own assessment would have been inappropriate. This is an inconsequential difference - Davis was decided in 1938, before former §13651 was amended in 1945 to prohibit layoff of tenured employees without cause, which led to judicial review of teacher qualifications. (See Stats 1945,Ch.204, Section 1)
35"The hearing procedure presupposes some sort of plan on the part of the District as to which employees are to be retained. Only when such a plan is presented does the concept of bumping rights have any meaning." Daniels, supra., 212 Cal. App.3d at 926, relying on Davis v. Gray, supra., 29 Cal.App.2d at 408; and Krausen v. Solano Co. Junior College District (1974) 42 Cal.App.3d at 402.
52 credentialing system abolished in 1989.
The college denied having this duty, arguing her request for the limited credential was "untimely," and that it had discretion to set competence standards under two regulations (Cal. Code Regs.,tit. 5,
§§52000,52255, both now repealed). The court agreed with the first defense, declaring ''we do not review the District's alternate justification ... based on [it's] academic standards." Id. at 1217. (Former §52255 gave colleges a "measure of discretion" regarding their standards for "limited" credentials.ld. at 1215)
Duax, supra., 196 Cal.App.3d 555, is also distinguishable. While acknowledging that Duax "interpreted 'competency' under a different statute," Appellant asserts that the "same reasoning [as Duax] and thus result ought to apply ..." here. It claims the District ''was within its rights and powers to create a process to determine qualifications or equivalency," claiming Duax permits the District absolute discretion, "beyond the proper scope ofjudicial action, to determine instructors' qualifications." AOB 35
3636 These arguments are unavailing. Duax was decided under the credentialing system repealed in 1989, where districts were required to retain senior teachers who were "certificated and competent," and had the discretion to both unilaterally establish and interpret competency standards.
36 The dispute in Duax arose when most of the laws governing community colleges also governed K-12 schools.
53 The first issue presented in Duax did not involve whether instructors met certain qualifications; rather, it was whether the qualifications standard
Kern College established to determine competency of psychology instructors was "reasonable," when it required one year of teaching psychology in the prior 10 years. The appellate court found that under the
(repealed) credentialing system, a district's board had to decide whether the senior psychologist was competent to teach psychology classes, under standards it established, provided they "relate[d] to the skills and qualifications of the teachers." Id. at 567.37 The appeals court concluded that substantial evidence supported the trial court's conclusion that the competency standard was reasonable. Since 1989, additional competency beyond an MQ must be negotiated between districts and faculty unions.
Which classes Niazmand's "MQs authorized her to teach was disputed, and was resolved in Niazmand's favor, and the District now concedes the correctness of the trial court's findings as to the MQs for computer graphics.
In Duax, an issue regarding instructor Kieke-Eastridge was whether she was credentialed to teach any courses being continued. Id. at 569. This issue was considered and decided by the ALJ, and the trial court, which
37 A second laid off teacher argued unsuccessfully that his late-filed credential should have been "counted," and a third teacher completely lacked the required credential.
54 concluded she did not have the credentials for any continuing services. The appeal court recognized that the issue on appeal was simple: "Is there substantial evidence that Kieke-Eastridge was not credentialed to teach any course that was being continued?" The court held there was. Here, as in this part of Duax, the questions of whether Niazmand had the Graphic Arts and Art MQs, and whether they allowed her to teach computer graphics classes, was properly considered and decided by the ALJ, and the trial court.
Respondent's view of its authority would render §87743 virtually meaningless. Had the Legislature sought to immunize academic layoff decisions from judicial review it would not have enacted §87743; had it decided to allow special exceptions to §87743, it would have adopted something like §44955(d). It did neither.
Appellant claims the court's "sole" authority for ruling for
Niazmand is Davis v. Gray. AOB 32. Wrong. The court cited Alexander, supra., 139 Cal.App.3d 567 and Kentfield, supra., 35 Ca1.3d 294 (re unifonn standards), and §87743. 4JA 1021:28,1024:1-5,1018:8,1024:24.
Davis provides ample authority for Appellants absolute duty to compare skipped and retained teachers; numerous cases affinn this. 38
38 See, e.g. Alexander, supra., 139 Cal.App.3d at 576, Daniels, supra., 212 Cal.App.3d at 926, Bledsoe, supra., 170 Cal.App.4th at 137-139 and others cited to the trial court at lJA 161 :20-162:4.
55 D. Niazmand Had No Other Remedies To Exhaust
As with Kropp, Appellant failed to raise an applicable exhaustion of remedies defense earlier, hence it is waived; further, there is no substantive merit to this defense. The court rejected District arguments that Niazmand was required to apply for an "equivalency" in Graphic Arts - she already satisfied the MQ. 4JA 1023:14-1024:2. Appellant's claim she "never sought to establish [MQs] in computer graphics through the equivalency process and she never filed a grievance" fails - there is no "computer graphics" MQ or "equivalency." 4JA 1019:19-28
III. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING BRIAN GREENE.
The court concluded that the District violated §87743 when it did not retain and reassign tenured librarian Brian Greene to the tutoring services in the Academic Achievement Center ("AAC"). 4JA 1025:4-7,1028:11-14
At the root of this decision are these simple facts: Greene proved at the administrative hearing that he could "bump" probationary instructor
Johnston, who was skipped to serve in the AAC, where he provided student tutoring. After the hearing, the District gave Johnston a new job title, but still retained him to perform the same AAC services Greene was competent to perform.
The factual evidence is thoroughly discussed in the ALJ's proposed decision, and the court's. 9AR 2209-2210; 4JA 1026:18-1028:24.
56 Appellant has not disputed these facts, but challenges the Court's legal conclusions. The AAC provides tutoring in 20 subjects, and the unique MQ is "[t]he minimum qualifications to teach any master's level discipline in which learning assistance or tutoring is provided at the college ..." 6AR
1485-1488; Cal.CodeRegs,tit.5,§53415.
Greene testified he qualified for this position, and that the incumbent was being skipped to provide the tutoring. 8AR 1907:18-1911:1, 1912:24
1913:4, 1914:24-1915:21. The ALJ concluded, "the District cannot rely upon the Board of Trustees recent decision to discontinue AAC services as a basis to avoid the bumping-reassignment rights of respondents," and that if it did discontinue the services, it should consider whether it would be appropriate to rescind a layoff notice of the next most senior respondent."
9AR 2210,~24025. Following the ALJ hearing, on April 13 the Board voted to eliminate the AAC Coordinator position. lOAR 2357,2371. On
May 25, it reaffirmed the layoff of Greene. lOAR 2351-2354.
The court found that "the AACC was eliminated to prevent retention of ... Greene" (4JA 1027:21-25), a finding supported by substantial evidence. The trial court ruled "that the sole reason for Greene's layoff, given prior to March 15, was elimination of Greene's librarian position."
lJA6, 35 ~2] "Mr. Greene enjoyed the right to bump into the AACC position ... The post-March 15 "elimination" of the AACC cannot justify
57 the layoffMr. Greene.... Brough v. Governing Board (1981) 118 Cal. App.
3d 702, 718." 4JA1027:23-27 The court added, "the District did not decide to eliminate the ... [AACC] until after the date for giving layoff notices (March 15,2011) had expired. This is a violation of Education
Code section 87743.3," citing Karbach v. Board o/Education (1974) 39
Cal.App.3d 355,362-363. 4JA 1028:11-14
"Elimination" of the AACC position was a sham, since the services continued, with the same instructor, in the same Center, with Johnston now categorized as an "English teacher." The District's action is something of a
"bait and switch," with Greene challenging his layoff at the hearing by identifying a retained service he qualifies to perform, and then the District, after the administrative hearing ended, trying to circumvent §87743 by
"eliminating" the AACC position on paper, while continuing the same work with the same junior probationary instructor. In attempting to avoid retaining the Greene through this subterfuge, and denying his reassignment rights under §87743, Appellant turned the layoff hearing into the "shadow play" it was not supposed to be.
A district has no power to terminate teachers for reasons not specified in the Board's original notice. Karbach, supra., 39 Cal.App.3d at
362. Karbach explained that, "if the requirement of notice of recommendation is to have its intended effect, the subsequent proceedings
58 must be limited to termination for a reason stated therein [the original notice]." ld.
While Greene's original layoff notice specified it resulted from elimination of one library position, no one from the District testified at hearing that the AACCposition was "unavailable" for Greene to bump. To the contrary, the only Record evidence is that the services Johnston was retained to provide, would continue.
Then, after the hearing ended, the District's reason for denying
Greene his bumping rights and skipping Johnston changed, hinging on its action designating Johnston an English Professor, even though his new title did not change the fact that Johnston was still retained to provide the AACC tutoring. Thus, Greene was actually laid off for a reason not specified in the March notice, or the Accusation, or litigated at hearing. 4JA 1027:11-17
The District appeals on the theory that the court ordered it to re establish the AACC, or "precluded it from eliminating this vacant position
'after March 15.'" Not true. The Court held only that Greene proved at the layoffhearing that he had a right to be reassigned under §87743. The
District remains free to discontinue the AACC, but it must, upon reinstatement, assign Greene to any assignment within the scope of his
MQs, since his layoffwas unlawful. It is not required to "resurrect" the
59 eliminated AACC job for him.39
Appellant argues that faculty cannot expect "early notice" of layoffs
(Le. by March 15) and then "limit that notice" by "unknown events," such as "resignations, retirements, and deaths ...", citing, supra. 67 Cal.App.3d at 700. (AOB 22) This was not an unexpected resignation or death, or
"unknown" event - it was a deliberate attempt by Appellant, after Greene proved his bumping rights, to continue the same services with the same junior employee, to avoid Greene's reassignment rights under §87743, by now cataloguing this work as being performed by an English instructor, even though Greene remains qualified to perform it.
It makes no difference that the post-hearing, April 13 designation purported to eliminate Johnston's previous "position," for this action did not eliminate the tutoring services. Nor does it matter, as Appellant argues, that this was not a switch from an "ADA reduction" to a "PKS reduction," as occurred at the layoffhearing in Karbach. What occurred here was no less a subterfuge than that in Karbach, with an ineffectual rationale (the title change for Johnston) employed in a clever attempt to prevent Greene's exercise of bumping rights. This is not a situation where after the March 15
39 Appellant's reliance on King v. Berkeley Unified School District (1979) 89 Cal. App. 3d 1016, is misplaced. King, arising after a legal layoff, involved preferential rehire rights under former §13448 (equivalent to current §87744. It did not involve a layoff like Greene's, where his retention and reassignment rights were violated, where the evidence was the service would continue, and where Greene had the MQ to perform it.
60 layoff notice, but prior to the administrative hearing, the District announced it planned to eliminate the AACC "position." Instead, as of the close of the hearing, the Board had identified 13 services it was reducing, but the
AACC was not among them. IAR 3
Karbach demands that a district defend its noticed rationale for layoff. In seeking to evade the requirements of the law, the District violated
§87743.
IV. CONCLUSION
In enacting §87743 the Legislature sought to protect the institution of tenure, which benefits faculty and students. In light of Yosemite ignoring its "absolute duty," keeping no seniority list with everyone's MQs, calling no witness to justify skipping junior faculty, treating computer graphics as a discipline, ignoring the original selection committee for a biased equivalency committee, contriving to eliminate the AACC on paper, it is no wonder it wants absolute discretion. But Appellant is not entitled to a special exemption from §87743. The trial court decision is supported by substantial evidence and the law. We respectfully request that this Court
61 affirm the Judgment.
Respectfully submitted,
Dated: December 12, 2012 LAW OFFICES OF ROBERT J. BEZEMEK, PC
By: i4Jf<;f~ Robert J. Bezemek Attorneys for Respondents Yosemite Faculty Association, et ai.
62 WORD COUNT CERTIFICATION
Pursuant to rule 8.204, subd. (c)(3) of the California Rules of Court,
I hereby certify that this brief contains 13,988 words, including footnotes, excluding the signature block. In making this certification, I have relied on the word count of the computer program, Corel Word Perfect Office X5, used to prepare the brief.
Dated December 12,2012 By: \I ""' L/:H .... '! l JL l ::> Robert J. BezemVk, Au Law Offices of Robert J. Bezemek Counsel for Respondents/Petitioners
63 PROOF OF SERVICE C.C.P.§1011,1013a
I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 1611
Telegraph Avenue, Suite 936, Oakland, California 94612. On December
12.2012, I served the following document(s) described as:
RESPONDENTS' BRIEF re: YOSEMITE FACULTY ASSOCIATION, et at, PetitionerslRespondents, YOSEMITE COMMUNITY COLLEGE DISTRICT, et at, Respondents/Appellants, IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIFTH APPELLATE DISTRICT, Court of Appeal Case No. F065365 on the following interested parties in this action:
Clerk of the Clerk of the Court California Court of Appeal Stanislaus County Superior Court Fifth Appellate District for delivery to 2424 Ventura St. The Honorable William A. Fresno, CA 93721 Mayhew (Original and 4 copies of 801 10th Street, 4th Floor Respondents' Briefvia Federal Modesto, CA 95353 Express) (1 copy via Us. mail) Counsel for Yosemite Community Counsel for Yosemite Community. College District: College District: Kellie M. Murphy, Esq. Don Willenburg, Esq. Johnson Schachter & Lewis, A. Gordon & Rees, LLP P.L.C. 275 Battery Street, Suite 2000 2180 Harvard St., Suite 560 San Francisco, CA 94111 Sacramento, CA 95815-3326 (1 copy via Us. mail) (1 copy via Us. mail) by placing such document(s) listed above in a sealed envelope(s), addressed as written above, with postage thereon fully prepaid, in the United States mail at Oakland, California, and/or in sealed envelope(s) in a Federal
Express Drop Box for overnight delivery by Federal Express. I am readily familiar with the firm's practice of collection and processing of correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service and/or with Federal Express on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.
VIA E-FILING: One copy e-filed with the California Supreme Court o in a single computer file in text-searchable Portable Document Format (PDF), which exactly duplicates the appearance of the paper copy, including the order and pagination of all of the briefs components.
I declare under penalty of perjury under the laws of the state of
California that the foregoing is true and correct.
Executed on December 12, 2012, at Oakland, California. fJJM~.~uJ Elle J. Holmgren
- 2