Filed 7/30/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
VINCENT DeYOUNG, 2d Civil No. B248502
(Super. Ct. No. 56-2012-00412966-
Plaintiff and Appellant, CU-WM-VTA)
(Ventura County)
v.
COMMISSION ON PROFESSIONAL
COMPETENCE OF THE HUENEME
ELEMENTARY SCHOOL DISTRICT,
Defendant and Respondent;
HUENEME ELEMENTARY SCHOOL
DISTRICT,
Real Party in Interest and Respondent.
Vincent DeYoung was a tenured teacher with the Hueneme Elementary
School District (District). The District's governing board voted to dismiss him based on
charges he had physically and abusively disciplined his students. The vote occurred after
a District representative orally presented the charges to the board in a confidential
proceeding. Although written charges subsequently were prepared and provided to
DeYoung, the Education Code required that the board, prior to initiating dismissal,
consider either verified written charges prepared by the District or written charges
formulated by the board itself. (Ed. Code, § 44934.)1 DeYoung contends the board's
1 All statutory references are to the Education Code unless otherwise stated.
failure to consider or formulate written charges before initiating his dismissal nullified all
further proceedings. (Ibid.) Because this procedural error was neither substantive nor
prejudicial, we conclude DeYoung’s dismissal was proper. (§ 44944, subd. (c)(2).)
The Commission on Professional Competence of the Hueneme Elementary
School District (Commission) upheld DeYoung’s dismissal on the merits. It rejected his
assertion the governing board’s procedural error in initiating dismissal deprived it of
jurisdiction to review the board’s decision. Nonsubstantive procedural errors committed
by a school district or governing board do not preclude dismissing a teacher “unless the
errors are prejudicial errors.” (§ 44944, subd. (c)(2).)
The trial court denied DeYoung's petition for writ of mandate. It found, as
did the Commission, that the governing board's failure to consider or formulate written
charges before initiating DeYoung's dismissal was a nonsubstantive procedural error that
was not prejudicial. We affirm.
FACTS AND PROCEDURAL BACKGROUND
DeYoung is a permanent, certificated (tenured) teacher who began working
for the District in 1990. His assignment for the 2009/2010 school year was a
combination class of second and third graders who were English learners; their first
language was Spanish. On March 25, 2010, DeYoung became angry and frustrated with
students who were talking and laughing during a classroom movie. He grabbed some of
the students, told them to "shut up," called them "stupid," struck one student in the foot
with a chair, hit three students on top of the head with a yardstick or metal desk leg, and
threw a pencil or pen at two or three students. His conduct frightened the students and, in
some instances, caused physical pain.
The next day, after receiving complaints from parents, the school principal,
Heidi Haines, discussed the incident with DeYoung and his union representative.
DeYoung admitted raising his voice and using the word "stupid." He claimed he "re-
directed" a child to a different chair, but denied hitting any of the students or throwing
chairs. Haines discussed the matter with him again the following week and in April
2
2010. During that time frame, DeYoung told a colleague he was being accused of hitting
his students.
In late April 2010, the assistant superintendent, Deborah DeSmeth, met
with DeYoung to discuss the incident. He denied throwing anything, hitting any students
or calling them names. District representatives orally informed the governing board of
the complaints against DeYoung. On May 4, 2010, the District sent a letter to DeYoung
detailing the charges against him and advising he was being placed on administrative
leave. In September 2010, the District held a Skelly2 meeting to allow DeYoung and his
counsel to respond to the District's proposed action to dismiss him. At that meeting
DeYoung acknowledged that the students' misbehavior and laughter frustrated him and
caused him to use poor judgment. He also admitted using the word "stupid" and
throwing a pencil at a student.
During a closed meeting in October 2010, the District's governing board
voted to dismiss DeYoung based on charges and information orally presented by
DeSmeth. Thereafter, the District sent a letter advising DeYoung of the board's decision
and outlining the specific charges. In December 2010, the District served an amended
written accusation proposing to dismiss DeYoung on grounds of evident unfitness for
service (§ 44932, subd. (a)(5)), refusal to obey school laws (id. at subd. (a)(7)) and
immoral conduct (§§ 44932, subd. (a)(1), 44939). DeYoung requested a hearing before
the Commission and actively participated in all phases of the administrative process.
DeYoung moved to dismiss the administrative proceeding, citing the
governing board's violation of section 44934 when it failed to consider or formulate
written charges before initiating his dismissal. At the start of the four-day evidentiary
hearing, the Commission's chairperson asked DeYoung's counsel if he had "any case law
to support any situation where there's ever been a decision to dismiss the case because of
this type of oversight?" He responded: "There's no preceden[t] on 44934 that I'm aware
of." The chairperson denied the motion to dismiss. In a unanimous decision, the
2 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194.
3
Commission upheld DeYoung's dismissal based on his evident unfitness for service,
violation of school rules and immoral conduct. Among other things, it determined
DeYoung's testimony was not credible and that "[h]e appeared to be adapting his
testimony to explain the children's accounts of his conduct without acknowledging the
full extent of his inappropriate actions."
DeYoung petitioned for a writ of mandate. He claimed the Commission
lacked jurisdiction over the proceeding because the District's governing board "was not
acting on written charges presented to it when it authorized the District to terminate [his]
employment," as required by section 44934. He did not contest the merits of the
Commission's decision. The trial court rejected DeYoung's strict interpretation of section
44934, choosing to apply "a less strict construction . . . viewed in conjunction with the
allover circumstances which are present." In denying the petition, the court found "the
failure to prepare written [charges] as the very first step in the process was error, but it
was non-substantive and non-prejudicial." DeYoung appeals.
DISCUSSION
Standard of Review
"'[T]he construction of statutes and the ascertainment of legislative intent
are purely questions of law. This court is not limited by the interpretation of the statute
made by the trial court . . . .' [Citation.]" (Bravo Vending v. City of Rancho Mirage
(1993) 16 Cal.App.4th 383, 391-392.)
"In reviewing a commission's decision, the superior court 'shall exercise its
independent judgment on the evidence.' [Citation.] Where a superior court is required to
make such an independent judgment upon the record of an administrative proceeding, the
scope of review on appeal is limited. An appellate court must sustain the superior court's
findings if substantial evidence supports them. [Citations.] In reviewing the evidence, an
appellate court must resolve all conflicts in favor of the party prevailing in the superior
court and must give that party the benefit of every reasonable inference in support of the
judgment. When more than one inference can be reasonably deduced from the facts, the
4
appellate court cannot substitute its deductions for those of the superior court.
[Citation.]" (Pasadena Unified Sch. Dist. v. Commission on Professional Competence
(1977) 20 Cal.3d 309, 314; see San Diego Unified School Dist. v. Commission on
Professional Competence (2011) 194 Cal.App.4th 1454, 1461-1462.)
Statutory Framework
"A permanent employee, such as a certificated tenured teacher, has a vested
right to [his] position and may not be deprived of it without due process of law.
[Citation.]" (Raven v. Oakland Unified School Dist. (1989) 213 Cal.App.3d 1347, 1357.)
The Education Code prescribes the "procedures" to be followed when a school district
wishes to dismiss, suspend or otherwise discipline a tenured teacher. (Wilmot v.
Commission on Professional Competence (1998) 64 Cal.App.4th 1130, 1132 (Wilmot);
Paramount Unified School Dist. v. Teachers Assn. of Paramount (1994) 26 Cal.App.4th
1371, 1378; see § 44660 et seq.) Section 44932 lists the causes for dismissal. (Boliou v.
Stockton Unified School Dist. (2012) 207 Cal.App.4th 170, 176 (Boliou).) Section 44934
permits the school district's governing board to give notice of intent to dismiss a tenured
teacher upon consideration of either the district's filing of verified written charges or the
board's formulation of written charges. Here, the District did not file verified written
charges; nor did the board formulate written charges before voting to dismiss. 3
Once a governing board votes to dismiss under section 44934, the teacher
must be given notice by a written accusation. (Gov. Code, §§ 11503, subd. (a), 11507;
see Boliou, supra, 207 Cal.App.4th at p. 176.) The teacher may request a hearing before
3 Although section 44934 governs both dismissal and suspension, we limit our
discussion to dismissal. The statute states, in relevant part: "Upon the filing of written
charges, duly signed and verified by the person filing them, with the governing board of
the school district, or upon a written statement of charges formulated by the governing
board, charging that there exists cause, as specified in Section 44932 or 44933, for the
dismissal . . . of a permanent employee of the district, the governing board may, upon
majority vote, except as provided in this article if it deems the action necessary, give
notice to the permanent employee of its intention to dismiss . . . him or her at the
expiration of 30 days from the date of service of the notice, unless the employee demands
a hearing as provided in this article."
5
a Commission on Professional Competence.4 (§ 44944.) If a hearing is requested, the
board must either rescind its action or schedule a hearing. (§ 44943.) If a hearing is held,
the Commission must issue one of three dispositions: "(A) That the employee should be
dismissed. [¶] (B) That the employee should be suspended for a specific period of time
without pay. [¶] (C) That the employee should not be dismissed or suspended."
(§ 44944, subd. (c)(1).) Section 44944, subdivision (c)(2), states: "The decision of the
Commission . . . that the employee should not be dismissed . . . shall not be based on
nonsubstantive procedural errors committed by the school district or governing board
unless the errors are prejudicial errors." (Italics added.)
Construction of Sections 44934 and 44944, Subdivision (c)(2)
The District contends the procedural requirements for initiating dismissal
under section 44934 are subject to application of section 44944, subdivision (c)(2).
Relying upon the statute's "plain meaning," DeYoung asserts the requirements in section
44934 are mandatory and, as a result, the District's and governing board's failure to
strictly comply with the requirements nullified the board’s decision to dismiss him,
depriving the Commission of jurisdiction to proceed.
"Our fundamental task in interpreting a statute is to determine the
Legislature's intent so as to effectuate the law's purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. We do not examine that language
in isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the enactment. If
the language is clear, courts must generally follow its plain meaning unless a literal
interpretation would result in absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable interpretation, courts may consider
other aids, such as the statute's purpose, legislative history, and public policy.
4 The Commission is "a three-member administrative tribunal consisting of one
credentialed teacher chosen by the school district, a second credentialed teacher chosen
by the teacher facing dismissal or suspension, and an administrative law judge of the
Office of Administrative Hearings who is both the chairperson and a voting member of
the commission." (Boliou, supra, 207 Cal.App.4th at p. 176; see § 44944, subd. (b).)
6
[Citations.]" (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34
Cal.4th 733, 737; San Leandro Teachers Assn. v. Governing Bd. of San Leandro Unified
School Dist. (2009) 46 Cal.4th 822, 831.)
Here, it is undisputed section 44934 required the District's governing board
to consider or formulate written charges before initiating DeYoung's dismissal. The
statute provides that "[u]pon the filing of [verified] written charges" by the school district
or "upon a written statement of charges formulated by the governing board," the board
may give notice of its intent to dismiss a tenured teacher. (§ 44934.) This appeal would
have been unnecessary had the District and its governing board complied with this
straightforward requirement. Section 44934 does not, however, specify a remedy for
noncompliance. Generally, "[w]hen a statute does not provide any consequence for
noncompliance, the language should be considered directory [permissive] rather than
mandatory." (In re C.T. (2002) 100 Cal.App.4th 101, 111; Coastside Fishing Club v.
California Fish and Game Commission (2013) 215 Cal.App.4th 397, 425.)
DeYoung cites no cases construing section 44934's procedural requirements
as mandatory. He contends Pennel v. Pond Union School Dist. (1973) 29 Cal.App.3d
832, 839, and Governing Board v. Felt (1976) 55 Cal.App.3d 156, 163 (Felt), establish
that the procedural requirements for dismissal are to be strictly construed. In Pennel, the
governing board terminated a probationary teacher without complying with any of the
then-existing statutory requirements for dismissing a probationary teacher during the
school year, including providing written notice of the charges and an opportunity to be
heard. (Pennel, at pp. 838-839.) The Court of Appeal concluded the board's summary
dismissal of the teacher, with none of the required procedural safeguards, was a "nullity."
(Id. at p. 839.) That situation is not present here.
Felt strictly construed a provision in section 13413 (now section 44944)
requiring the Commission to commence a hearing on dismissal no later than 60 days after
one is requested. It held that if the hearing is not commenced within that period, the
Commission loses jurisdiction to proceed unless the delay is excused. The court
explained "[t]he definition of 'shall' as mandatory in the pertinent provision of the
7
Education Code itself requires that absent some indication that the statutory definition
was not intended, it must be applied." (Felt, supra, 55 Cal.App.3d at p. 163.)
Felt is distinguishable in that it involved a mandatory deadline for
commencing a hearing; and even then, the court noted the delay could be "excused."
(Felt, supra, 55 Cal.App.3d at p. 163; see Wilmot, supra, 64 Cal.App.4th at pp. 1147-
1148.) Regardless, Felt's precedential value is undermined by the Legislature's addition
of what is now subdivision (c)(2) to that same statutory provision (now section 44944) as
"an urgency measure effective July 28, 1983." (Governing Board v. Commission on
Professional Competence (1985) 171 Cal.App.3d 324, 334.) That amendment clarified
that the Commission "shall not" vote to retain a teacher based on a procedural error
committed by the school district or governing board, unless the error is substantive or
prejudicial. (Ibid.) Felt was decided before the amendment and unlike that case, there is
an "indication" the Legislature did not intend a strict construction of the procedures for
initiating dismissal. (Felt, at p. 163; see Alatriste v. Cesar's Exterior Designs, Inc. (2010)
183 Cal.App.4th 656, 670 ["The Legislature is presumed to be aware of existing laws and
judicial decisions interpreting those laws when it enacts legislation"].)
DeYoung cites no cases or other authority suggesting section 44944,
subdivision (c)(2), is inapplicable to procedural errors involving section 44934. We can
summarily dispense with his analogies to the procedural safeguards afforded defendants
in criminal cases. Those rules are inapposite because "'employment of public school
teachers is extensively regulated by the . . . Education Code.'" (Paramount Unified
School Dist. v. Teachers Assn. of Paramount, supra, 26 Cal.App.4th at p. 1378.)
We also are not persuaded by DeYoung's analogies to cases addressing the
notice requirements in section 44938. That section applies when a tenured teacher is
charged with "unprofessional conduct." Among other things, it requires the school
district's governing board to give the teacher at least 45 days' written notice before acting
upon that charge. The notice requirement is remedial in that it "furnish[es] the employee
an opportunity to correct his or her faults and overcome the grounds for the charge."
8
(§ 44938, subd. (a).)5 In light of its remedial purpose, courts have held that providing
written notice under that section "is a jurisdictional prerequisite to proceeding with any
charges mentioned in that provision." (Crowl v. Commission on Professional
Competence (1990) 225 Cal.App.3d 334, 348 (Crowl); Tarquin v. Commission on
Professional Competence (1978) 84 Cal.App.3d 251, 257-259 (Tarquin); Woodland Joint
Unified School Dist. v. Commission on Professional Competence (1992) 2 Cal.App.4th
1429, 1446 (Woodland) ["Where a school district seeking the dismissal of a permanent
certificated employee on charges of unprofessional conduct fails to comply with the
notice provision of section 44938, subdivision (a), it lacks jurisdiction to proceed, and
any action subsequently taken against the employee is invalid"].)
DeYoung was not charged with unprofessional conduct and does not claim
he was entitled to notice under section 44938. (See Tarquin, supra, 84 Cal.App.3d at p.
260; Woodland, supra, 2 Cal.App.4th at p. 1447, italics added, fn. omitted ["[N]otice
under section 44938 is required only where 'unprofessional conduct' is ultimately
charged"].) Moreover, not all of section 44938's procedural requirements are
jurisdictional. Crowl held the 45-day notice requirement is jurisdictional, but determined
the school district could proceed with the disciplinary process even though its written
notice did not inform the teacher he could overcome the charges by correcting his
conduct. (Crowl, supra, 225 Cal.App.3d at pp. 348-349.) It concluded "[t]he question
whether he had done so was an evidentiary consideration for the Commission and the
trial court." (Id. at p. 349.)
In Governing Board v. Commission on Professional Competence, supra,
171 Cal.App.3d at page 328, the Commission dismissed charges of unprofessional
5 Section 44938, subdivision (a), states in full: "The governing board of any
school district shall not act upon any charges of unprofessional conduct unless at least 45
calendar days prior to the date of the filing, the board or its authorized representative has
given the employee against whom the charge is filed, written notice of the unprofessional
conduct, specifying the nature thereof with such specific instances of behavior and with
such particularity as to furnish the employee an opportunity to correct his or her faults
and overcome the grounds for the charge. The written notice shall include the evaluation
made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable
to the employee."
9
conduct because the school district's written notice did not include the performance
evaluation required by section 44938. Finding the district had substantially complied
with section 44938, the Court of Appeal reversed the trial court's denial of the district's
petition for writ of mandate. (Id. at p. 333.) It determined the teacher had been given
more than adequate notice of her deficient performance and that the omission of the
evaluation was not prejudicial. (Ibid.) It reasoned that "allow[ing] hypertechnical
procedural oversights to thwart the orderly process delineated by the statutory scheme
would be to exalt form over substance and would result in an abuse of the judicial
process." (Ibid.)
Of particular relevance, the Court of Appeal highlighted the then-recent
amendment to section 44944 (now subd. (c)(2)) prohibiting the Commission from voting
to retain an employee based on a nonsubstantive, nonprejudicial procedural error.
(Governing Board v. Commission on Professional Competence, supra, 171 Cal.App.3d at
p. 334.) It observed: "The newly enacted Legislation does not deprive [the teacher] of a
defense on the merits; it is strictly procedural. The effect of the statute is to eliminate
precisely the situation encountered in this case." (Ibid., second italics added.)
DeYoung argues that because he had a vested right to his position, the
governing board's failure to consider or formulate written charges before initiating
dismissal violated his "substantive" due process rights. He provides no authority for this
contention. Under section 44944, subdivision (c)(2), the question of whether a school
district's or governing board's procedural error is "nonsubstantive" or "prejudicial" is an
evidentiary consideration for the Commission and the trial court. (See Crowl, supra, 225
Cal.App.3d at p. 349.) Strictly construing section 44934's procedural requirements as
mandatory or jurisdictional would render section 44944, subdivision (c)(2) meaningless,
because the Commission would lack jurisdiction to ever decide whether a procedural
error substantively or prejudicially affected the dismissal process. (See Hassan v. Mercy
American River Hosp. (2003) 31 Cal.4th 709, 715-716 [principles of statutory
construction "preclude judicial construction that renders part of the statute 'meaningless
or inoperative'"].)
10
Section 44934 must "'. . . be construed with reference to the whole system
of law of which it is a part so that all may be harmonized and have effect.' [Citation.]"
(Select Base Materials, Inc. v. Board of Equalization (1959) 51 Cal.2d 640, 645;
Coalition of Concerned Communities, Inc. v. City of Los Angeles, supra, 34 Cal.4th at p.
737.) We conclude the statute may be harmoniously read with section 44944,
subdivision (c)(2), to prohibit the Commission from voting not to dismiss a teacher based
on the school district's or governing board's failure to comply with a procedural
requirement in section 44934, unless it finds the failure was substantive or prejudicial.
This interpretation is consistent with the general tenet that “[t]he lack of strict compliance
with a statute, in the absence of prejudice, does not render the subsequent proceedings
void. [Citation.]" (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 880; Coastside
Fishing Club v. California Fish and Game Commission, supra, 215 Cal.App.4th at p.
425.) It also leads to a more reasonable result as it assures form is not elevated over
substance. (Governing Board v. Commission on Professional Competence, supra, 171
Cal.App.3d at p. 333; see Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 ["[I]f a
statute is amenable to two alternative interpretations, the one that leads to the more
reasonable result will be followed"].)
Evidentiary Findings
Based on its review of the evidence, the trial court concluded the governing
board's failure to consider or formulate written charges before initiating DeYoung's
dismissal was a nonsubstantive, nonprejudicial procedural error. It determined the error
was nonsubstantive because "the charges brought against [DeYoung] were clear from the
start, and never changed." It found "no demonstrable prejudice to [DeYoung]" as he
knew the nature of the charges at all times, was represented by competent counsel,
participated in the discovery process and was afforded a full evidentiary hearing to which
he raised no due process objections. The court also found the District "did ultimately
draft written charges which were consistent with the oral presentation which was initially
made to the Board." Substantial evidence supports these findings.
11
The charges arose from a single incident in March 2010 involving
DeYoung's entire class. Students claimed DeYoung grabbed them, told them to "shut
up," called them "stupid," struck them with objects or threw pens/pencils at them.
District representatives discussed the students' accusations with DeYoung the day after
the incident and on three other occasions before sending him a letter on May 4, 2010,
detailing the charges and placing him on administrative leave. At the May board
meeting, DeSmeth orally advised the governing board of the charges and of DeYoung's
status. The District recommended his dismissal, but the matter was deferred because
section 44936 prohibited the board from giving notice of intent to dismiss between May
15 and September 15.
In September 2010, DeYoung and his counsel participated in a Skelly
meeting with District representatives to discuss and respond to the charges. In October,
DeSmeth orally presented the charges to the governing board, reiterating the allegations
discussed during the May meeting. The record discloses little information about these
oral presentations since they occurred in closed sessions with the District's counsel, and
the District has asserted the attorney-client privilege regarding those discussions.
DeYoung infers from this lack of information that the board was not adequately informed
of the actual events or facts and, consequently, was unable to make a meaningful decision
regarding his dismissal.
In exercising its independent judgment on the evidence, the trial court
deduced from the "allover circumstances" that the charges orally presented to the
governing board by DeSmeth in May and October 2010 were consistent with the charges
presented to DeYoung by DeSmeth and other District representatives in the four meetings
between March and April, in the May 4th letter, in the September Skelly meeting, and
ultimately in the written accusation. The record reasonably supports this inference.
There were no other allegations of misconduct involving DeYoung and nothing in the
record suggests DeSmeth gave the board an inconsistent or inaccurate account of the
incident on which the charges were based. Even if we assume that more than one
inference can reasonably be deduced from the facts, we are bound by the trial court's
12
deduction. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874; Pasadena Unified
Sch. Dist. v. Commission on Professional Competence, supra, 20 Cal.3d at p. 314.)
In sum, DeYoung's informal notification of charges, eventual receipt of
written charges, representation by counsel, involvement in the discovery process and
participation in a four-day evidentiary hearing confirm he was provided notice and a full
opportunity to oppose the charges. He has not shown the governing board's reliance on
an oral presentation of charges in initiating his dismissal undermined his preparation or
otherwise prejudiced his defense. The trial court did not err by denying his mandate
petition.6
DISPOSITION
The judgment is affirmed. The District shall recover its costs on appeal.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
6 Because we uphold the trial court's decision, we need not address the District's
assertion that equitable considerations justified denial of the petition.
13
Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Trygstad, Schwab & Trygstad, Daniel J. Kolodziej, Lawrence B. Trygstad,
Richard J. Schwab for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Garcia, Hernandez, Sawhney & Bermudez, Chaka C. Okadigbo for Real
Party in Interest and Respondent.
14