Colley v. William S. Hart Union High School CA2/2

Filed 7/30/21 Colley v. William S. Hart Union High School CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

EDWARD COLLEY et al., B292902

Plaintiffs and Respondents, (Los Angeles County
v. Super. Ct. No.
BS157804)
WILLIAM S. HART UNION HIGH SCHOOL
DISTRICT,

Defendant and Appellant.

WILLIAM S. HART UNION HIGH SCHOOL B300921, B303892
DISTRICT,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.
BS173394)
v.

COMMISION ON PROFESSIONAL
COMPETENCE,

Defendant;

EDWARD COLLEY,

Real Party in Interest and Respondent.
 APPEALS from orders of the Superior Court of Los Angeles
County, James C. Chalfant, Judge. Affirmed and remanded with
directions.
Adams Silva & McNally, Kerrie E. McNally, Laurie E.
Kamerrer; Littler Mendelson and Barrett K. Green for Appellant
William S. Hart Union High School District.
Egality Law and Tamra M. Smith for Respondents Edward
Colley and Frederick Malcomb.

__________________________

Respondents Edward Colley (Colley) and Frederick
Malcomb, Jr. (Malcomb) were teachers working for appellant
William S. Hart Union High School District (District) when they
were terminated by District as probationary employees.1 Colley
and Malcomb filed a joint petition for a writ of mandate (Code
Civ. Proc., § 1085) in which they sought reinstatement as
permanent employees as well as back wages and benefits and
attorney fees. On September 27, 2016, the court granted the
petition, ordered District to set aside its termination of Colley
and Malcomb, and directed District to conduct a hearing
regarding back pay and benefits. District complied in part by
reinstating Colley and Malcomb. The proceedings under this
mandate petition, which continued in the superior court until

1 Technically, the District invoked Education Code section
44929.21, subdivision (b) in notifying Colley and Malcomb of their
“non-election” as probationary teachers for the coming school
year. This provision applies to probationary teachers in their
second year of teaching.

2
August 6, 2018, will be referred to as the “1085 mandate”
proceedings.
On November 17, 2016, District initiated termination
proceedings against Colley and Malcomb under Education Code
section 449322 (grounds for dismissal of permanent employees).
Malcomb, having received an offer for a higher paying job,
resigned his position before the administrative hearing on these
termination proceedings.
District’s case against Colley was heard by the Commission
on Professional Competence (CPC) and resulted in a decision in
Colley’s favor. The CPC concluded that Colley’s conduct did “not
rise to the level of intentional misconduct” and was “not related
to his fitness to teach.” The CPC found that District had not
established that there was cause for Colley’s dismissal. The CPC
concluded that Colley was to be retained as a permanent certified
employee of District.
On April 23, 2018, District filed a petition for a writ of
administrative mandate (Code Civ. Proc., § 1094.5) seeking to set
aside the CPC’s decision. These proceedings will be referred to as
the “1094.5 mandate.”
On August 6, 2018, the court entered a final judgment in
the 1085 mandate proceedings. In addition to setting aside
District’s termination of Colley and Malcomb as probationary
employees and directing their reinstatement as permanent
certified employees, the court awarded Colley back pay in the
amount of $114,427.88 and Malcomb back pay in the amount of
$84,382. The court awarded both men prejudgment interest, sick

2 Undesignated statutory references are to the Education
Code.

3
leave, and other employer contributions not material to this
appeal. The court awarded counsel for Colley and Malcomb
attorney fees of $271,483.50. District appealed.
On August 8, 2019, the court denied District’s petition in
the 1094.5 mandate proceeding, and a final judgment thereon
was entered on September 4, 2019. District appealed.
We have consolidated the appeals for briefing, oral
argument, and decision.
We conclude that Colley and Malcomb were permanent and
not probationary employees and therefore affirm the superior
court’s order granting the petition for the 1085 writ of mandate.
We also conclude that substantial evidence supports the superior
court’s finding that District failed to establish the grounds upon
which it terminated Colley. Accordingly, we affirm the order
denying the petition for the 1094.5 writ of mandate. We remand
the 1094.5 mandate proceedings to the superior court with
directions to implement the decision of the Commission on
Professional Competence.
FACTS
I. Colley and Malcomb
Colley, a retired captain in the United States Air Force,
was hired by District in September 1995 as a Reserve Officer
Training Corps (ROTC) instructor. He holds a Designated
Subjects Special Subjects Credential in Reserve Officer Training
issued by the California Commission on Teacher Credentialing
(CTC). He also holds an Administrative Services Credential
issued by the CTC which authorizes him to work as a school
administrator. Colley was certified by the United States Air
Force to teach United States Air Force Junior ROTC courses
(JROTC).

4
 Colley’s first year of teaching was 1995–1996. He was
reemployed by District in 1996–1997 and every year thereafter
until June 2015.
Malcomb is a retired master sergeant in the United States
Air Force. He holds a Designated Subjects Special Subjects
Credential in Reserve Officer Training, as well as a Pupil
Personnel Services Credential that authorizes him to work as a
school counselor. Malcomb was certified by the United States Air
Force to teach United States Air Force JROTC courses. He was
hired by District in August 2004 for the year 2004–2005 and was
reemployed by District every year thereafter until the end of the
2014–2015 school year.
Colley served as the senior aerospace science instructor and
as commanding officer of JROTC Unit CA-782 at Valencia High
School. Colley and Malcomb divided their responsibilities, with
Colley handling accounting, finances, and fundraising. Malcomb
was primarily responsible for Air Force equipment, other
property, logistics, curriculum, and community events. To meet
Air Force requirements, Colley appointed Malcomb as the
primary Information Technology Equipment Custodian (ITEC)
responsible for ordering and conducting inventory of computer
and other electronic equipment. Malcomb was also appointed to
be the Military Property Custodian (MPC). Malcomb was
responsible for IT matters generally.
II. Colley and Malcomb fail to comply with Air
Force Automated Data Processing Equipment
(ADPE) documentation
The ADPE process required an annual inventory of
electronic equipment, as well as an equipment custodian and a
MPC letter on file.

5
 On March 7, 2014, Air Force Headquarters sent e-mails to
all JROTC units informing them that all units had to comply
with ADPE accountability requirements by April 10, 2014.
Compliance required four documents, one of which was an
inventory listing signed by the commanding officer and the ITEC
person. The other three documents were the letter appointing
the ITEC and ITEC training certificates for the Primary ITEC
and Alternate ITEC.
In January 2014, Malcomb had sent Air Force
Headquarters the MPC appointment letter. According to
Malcomb, he had also sent headquarters the inventory list in
January but there appears to be no trace of this in the record.
Colley and Malcomb both thought that the foregoing complied
with the March 7, 2014 directive regarding ADPE accountability
requirements.
On April 7 and 11, 2014, in two separate communications,
Air Force Headquarters notified Colley’s Unit CA-782, as well as
other JROTC units, that they were not compliant. Colley and
Malcomb took no action because they believed they had complied
with the March 7, 2014 directive.
On April 22, 2014, the JROTC director at Air Force
Headquarters, Wayne Barron, notified Valencia High School with
copies to Colley and Malcomb that both men had been put on
probation by the Air Force for failing to comply with the ADPE
directive.
The ITEC appointment letter and the inventory were
submitted by Malcomb by April 29, 2014. Colley’s and Malcomb’s
probation was then terminated.
In anticipation of the next ADPE directive, Malcomb
prepared an inventory in January 2015. On March 14, 2015, the

6
JROTC director at Air Force Headquarters sent out a reminder
that the ADPE documentation was due by April 10, 2015.
On April 17, 2015, JROTC headquarters sent an e-mail to
Unit CA-782 and the principal at Valencia High School, as well
as other JROTC units, that the ADPE documentation had to be
completed by April 24, 2015, or the unit would be put on
probation. The notice went on to warn that “Decertification
consideration will be given to those who fail to complete” this
task by April 24, 2015.
On Friday, April 24, 2015, Director Barren of JROTC
headquarters e-mailed Colley and Malcomb, noting that their
unit had not yet complied and asked them to call him. Colley
called but could not reach Barron. Colley e-mailed Malcomb, who
was out of town, asking what the issue was. When Malcomb
returned on Monday, April 27, 2015, he e-mailed Barron that he
would make sure that the work would be completed by Tuesday.
Malcomb sent to headquarters the inventory and the ITEC
appointment letter on April 28, 2015. Not realizing on April 28,
2015, that the ITEC training certificates were also due, Malcomb
sent these to headquarters only on May 7, 2015.
On May 18, 2015, the director of JROTC at headquarters
removed Colley’s and Malcomb’s certifications as Air Force
JROTC (AFJROTC) instructors. The memoranda effecting this
removal noted in identical language that Colley and Malcomb
had been put on probation in 2014 for failure to comply with
ADPE procedures and had again failed to comply in 2015. “Your
inability to comply with AFJROTC requirements even after
direct Headquarters involvement and reminders more than
warrant decertification and are clear indicators of unsatisfactory
performance.”

7
 III. Colley and Malcomb file an administrative
appeal and then unsuccessfully pursue an action
in United States District Court
Colley and Malcomb appealed the decertification decision to
the competent Air Force authority. Their appeals were rejected
on the ground that they had failed to comply with AFJROTC
directives regarding the ADPE process for two years in a row.
Colley and Malcomb filed an action in the United States
District Court in which they sought an injunction barring the Air
Force from revoking their certificates to teach JROTC courses.
The action was subject to the federal Administrative Procedures
Act, which requires a reviewing court to set aside a final agency
action that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” (5 U.S.C. § 706(2)(A).)
The district court concluded that substantial evidence supported
the decertification decisions, that the Air Force had the authority
to decertify Colley and Malcomb, and that the Air Force’s decision
was not arbitrary, capricious, or otherwise contrary to law. The
circuit court of appeals affirmed the district court’s reasoning and
judgment.
DISCUSSION
I. COLLEY AND MALCOMB WERE PERMANENT
EMPLOYEES WHEN THEY WERE TERMINATED
IN 2015
(The 1085 mandate proceedings)
District contends that Colley and Malcomb were
probationary employees when they were terminated on June 18,

8
2015. As probationary employees, they could be terminated
without any showing of cause at the end of the school year.3
District’s principal rationale for the argument that Colley
and Malcomb were probationers is that they were supposedly
hired under section 44909 which, according to District, made
them probationary employees. As we explain below, section
44909 has no application to the facts of this case. We first show,
however, that the record contradicts District’s claim that the two
men were probationary employees.
1. The record contradicts District’s claim that Colley and
Malcomb were probationary employees
The letters terminating Colley and Malcomb both base the
terminations on section 44292.21, subdivision (b).4 Both letters

3 “In general, permanent employees may not be dismissed
unless one or more statutorily enumerated grounds are shown.
(§ 44932.) Probationary employees may not be dismissed during
the school year except for cause or unsatisfactory performance
(§ 44948.3), but, on timely notice, ‘may be nonreelected without
any showing of cause, without any statement of reasons, and
without any right of appeal or administrative redress.’ ”
(Kavanaugh v. West Sonoma County Union High School Dist.
(2003) 29 Cal.4th 911, 917.) As appears in our following
discussion, “nonreelected” is a term of art based on section
44929.21, subdivision (b) and means that the probationer is not
asked to return to teach in the next school year.
4 “Every employee of a school district of any type or class
having an average daily attendance of 250 or more who, after
having been employed by the district for two complete
consecutive school years in a position or positions requiring
certification qualifications, is reelected for the next succeeding
school year to a position requiring certification qualifications
shall, at the commencement of the succeeding school year be

9
state that “[u]nder Education Code section 44292.21(b), this
notice is to inform you that at its regular meeting on June 17,
2015, the Board of Trustees of the William S. Hart Union High
School District took action to release you from your probationary
employment as a certificated employee with the District.”
There are two sets of facts which negate the District’s
contention that Colley and Malcomb were probationary
employees for the 20 and 11 years respectively that they worked
for District.
The record shows that after having served two years as
probationary employees, District treated Colley and Malcomb as
tenured or permanent employees. This appears not only from the
uncontradicted declarations under penalty of perjury by both
men but also from teacher evaluation forms and teacher listings
generated by District. This certainly comports with the plain
language of section 44929.21, subdivision (b), which provides that
after two years of teaching as a probationer, the teacher becomes
a permanent employee. In fact, the general rule is that after two
years a probationary employee attains permanent status.

classified as and become a permanent employee of the district.
[¶] The governing board shall notify the employee, on or before
March 15 of the employee’s second complete consecutive school
year of employment by the district in a position or positions
requiring certification qualifications, of the decision to reelect or
not reelect the employee for the next succeeding school year to
the position. In the event that the governing board does not give
notice pursuant to this section on or before March 15, the
employee shall be deemed reelected for the next succeeding
school year.” (§ 44929.21, subd. (b).)

10
(California Teachers Assn. v. Vallejo City Unified School Dist.
(2007) 149 Cal.App.4th 135, 150.)
In a footnote, District contends that an “erroneous notation
on a District document stating an employee was tenured” does
not confer such a status when this would be contrary to the
Education Code. “We do not have to consider issues discussed
only in a footnote.” (Evans v. Centerstone Development Co. (2005)
134 Cal.App.4th 151, 160.) In any event, dealing with Colley and
Malcomb as tenured teachers for 18 and 9 years respectively is
much more than an “erroneous notation.” District was under an
affirmative duty imposed by section 449165 to classify Colley and
Malcomb in July of each year, which District did, year after year,
as Colley and Malcomb attested. As our Supreme Court
explained, informing teachers of their classification is an
important safeguard for teachers with which governing boards
must comply. (Kavanaugh v. West Sonoma County Union High
School Dist., supra, 29 Cal.4th at p. 921.) District’s
acknowledgment, year after year, that Colley and Malcomb were
tenured binds District.
In sum, there is nothing in the record that contradicts that
Colley and Malcomb were permanent, tenured teachers for 18
and 9 years respectively.
The second fact that contradicts District’s position is that
the termination letters of June 18, 2015, were in direct

5 “The classification shall be made at the time of
employment and thereafter in the month of July of each school
year. At the time of initial employment during each academic
year, each new certificated employee of the school district shall
receive a written statement indicating his employment status
and the salary that he is to be paid.” (§ 44916.)

11
contradiction to the provision of section 44929.21, subdivision (b)
that the governing board must notify the employee on or before
March 15 of the employee’s second complete consecutive school
year of employment of the decision not to reelect the employee.
(See ante, fn. 4, for the text of section 44929.21, subd. (b).) Not
only was 2015 not the second complete consecutive year of
employment for either man, the notice was given well after
March 15. The consequence of that was, according to the statute,
that the employee was deemed reelected for the next succeeding
school year. (§ 44929.21, subd. (b).)
It is obvious that section 44929.21, subdivision (b) simply
did not fit the situation that the District and Colley and Malcomb
faced in 2015. That situation was that Colley and Malcomb were
both permanent, tenured teachers and District wanted to
terminate both men in June 2015. One way to accomplish that
was to attempt to classify them as probationary employees.
2. Section 44909
Perhaps the District now concedes that its reliance on
section 44929.21 was misplaced as it shifted its contention to
arguing that Colley and Malcomb were probationary employees
under section 44909.
Section 44909 authorizes school districts to employ
teachers who are under contract with public or private agencies
or who teach “categorically funded projects.” Categoric funding
means that funds are supplied by outside agencies for a specific
purpose.6 An example of this is the federal gifted and talented

6“Category” is meant to refer to a specific group of persons
who are assisted by a specific government program. (Zalac v.
Governing Bd. of Ferndale Unified School Dist. (2002) 98
Cal.App.4th 838, 844–845.)

12
education (GATE) program. (Sullivan v. Calistoga Joint Union
School Dist. (1991) 228 Cal.App.3d 1313, 1315 (Sullivan).)
Because funding in such programs is not controlled by the school
district and may therefore be curtailed, leaving the district with
tenured teachers on its hands for whom there are no positions,
section 44909 allows school districts to hire teachers for programs
such as GATE without putting the teachers on track to tenure.
(See Zalac v. Governing Bd. of Ferndale Unified School Dist.,
supra, 98 Cal.App.4th at p. 845.) Persons hired under the
authority of section 44909 “may be employed for periods which
are less than a full school year and may be terminated at the
expiration of the contract or specially funded project without
regard to other requirements of this code respecting the
termination of probationary or permanent employees other than
Section 44918.” (§ 44909.)
There is one very important limitation on section 44909
hiring, however. That is that the person hired must have agreed
in writing to the terms of the section 44909 hire: “The terms and
conditions under which such persons are employed shall be
mutually agreed upon by the employee and the governing board
and such agreement shall be reduced to writing.” (§ 44909.) The
reason for this limitation is of course obvious. A person employed
under section 44909 does not have the rights upon termination of
a probationary or permanent employee.
There is another reason why section 44909 does not apply
to this case. District assumes that a person teaching in a
categorically funded program is a probationary employee. That is
not necessarily the case. As we discuss in part 4, post, Stockton
Teachers Assn. CTA/NEA v. Stockton Unified School Dist. (2012)
204 Cal.App.4th 446, 459 (Stockton), held that a person teaching

13
in a categorically funded program that has been terminated was
a temporary, not a probationary employee. (Id. at p. 465.)
3. The requirements of a written agreement
“By its terms, section 44909 requires that in order to
classify a certificated employee as a categorically funded
employee the terms and conditions of employment under which
such persons are employed must be mutually agreed upon by the
employee and the school district’s governing board, and such
agreement must be reduced to writing.” (Sullivan, supra, 238
Cal.App.3d at p. 1318.) Sullivan holds that this provision is to be
taken literally.
Donnie Sullivan was hired for the school year 1985–1986
for the school improvement (SIP) and the GATE programs. She
was rehired for the same programs for the year 1986–1987. For
the year 1987–1988, the Elementary and Secondary Education
Act of 1965 (1965 Act) program was added to her teaching load.
She was rehired for the 1965 Act and the SIP and GATE
programs for the year 1988–1989. (Sullivan, supra, 238
Cal.App.3d at p. 1315.)
In the teacher assignment sheet for the year 1988–1989,
Sullivan was mistakenly listed as “tenured.” (Sullivan, supra,
238 Cal.App.3d at p. 1316.) When her supervisor, John Burke,
discovered the error, he wrote Sullivan in early 1989 that she had
been hired for a categorically funded position and since there
were questions about funding her position, she would be
terminated as of the 1988–1989 year. Sullivan responded by
claiming to be a permanent employee and stating that she had
not been given proper notice or a hearing regarding her
termination. Burke replied that Sullivan had always been a
categorically funded teacher. When the teacher assignment sheet

14
came out in April 1989, she was listed as categorically funded.
Sullivan replied by substituting “tenure” for categorically funded
and writing Burke that she was a tenured or permanent
employee. As it turned out, the school district did receive funding
for Sullivan’s position for the 1989–1990 school year. There was
one more round between the school district and Sullivan during
which both sides maintained their opposing positions. In March
1990, Burke notified Sullivan that since there were questions
about funding her position, her services were being terminated at
the end of the 1989–1990 school year. (Id. at pp. 1316–1317.)
According to Burke, Sullivan taught only under the SIP,
GATE, and 1965 Act programs, all of which were categorically
funded or specially funded programs. Sullivan maintained that
she never executed an agreement under which she agreed to
serve as a categorically funded teacher. (Sullivan, supra, 238
Cal.App.3d at p. 1317.) The school district’s counsel conceded at
oral argument on appeal that there was no writing specifically
stating that Sullivan was a categorically funded employee. (Id. at
p. 1318.)
The trial court agreed with the school district and ruled
that Sullivan was a categorically funded employee pursuant to
section 44909 who had been at various times erroneously
classified as a probationary or permanent employee. (Sullivan,
supra, 238 Cal.App.3d at p. 1317.)
The Court of Appeal disagreed. It rejected the argument
that the assignment sheets listing Sullivan as a categorically
funded employee complied with section 44909’s requirement of a
writing embodying the agreement to serve as a categorically
funded employee. The assignment sheets did not “satisfy the
clear requirement of section 44909.” (Sullivan, supra, 238

15
Cal.App.3d at p. 1319.) The reviewing court held that the school
district had failed to comply with section 44909. (Sullivan, at
p. 1319.)
In addition to requiring an actual written agreement to
serve as a section 44909 employee, Sullivan also confirms that it
is perfectly possible to maintain categorically funded programs
without a teacher who has agreed in writing to serve as the
teacher of these programs. That is, it is possible to have a
categorically funded program without a teacher who has agreed
to the terms of section 44909. The net effect of such a situation is
to leave the school district with the problem of a teacher it may
wish to but cannot summarily terminate.
Sullivan also precludes the argument that the agreement
to serve as a section 44909 teacher can be implied from the fact of
service as such a teacher. That appears to have been the trial
court’s view but it was not the view of the Court of Appeal.
Because there was no written agreement by Colley and
Malcomb to the terms that satisfy section 44909, that section has
no application to this case.
4. District’s contentions are without merit
District contends that Colley and Malcomb “point to no
authority to support their insistence that their employment
contract should have explicitly stated that they would not receive
tenured status in addition to identifying their probationary
status.” District is mistaken. Colley and Malcomb cited
pertinent authority, including section 44909, in their extended
argument that the provision requiring an express written
agreement to the terms of section 44909 hiring was not followed
in this case, i.e., that there is no written agreement to the terms

16
of section 44909 in either Colley’s or Malcomb’s employment
contract.
District is also mistaken in contending that at the “time of
their initial employment, the District notified [Colley and
Malcomb] of their probationary status and identified that they
would be employed until they were released as a probationary
employee.” Neither Colley’s nor Malcomb’s contract contains any
such provision. While under their contracts one of the reasons
given for termination is “[t]ermination of probationary
employment due to nonelection under Education Code
44929.21,”7 there is no provision that they would be employed
“until they were released as a probationary employee.” Their
contracts conform to the usual practice and to what actually
happened in this case. That is, they were initially on probation
for two years and, having been asked to return (“reelected”) for a
third year, they became permanent tenured employees.
District appears to take the position that since the
AFJROTC program was categorically funded, Colley and
Malcomb must have been hired under the auspices of section
44909. Colley and Malcomb admit that the AFJROTC program
was in part funded by categorical funds. However, they point out
that section 44909 does not automatically apply to all persons
who teach in a categorically funded program. To begin with,
section 44909 states that a school district “may” employ persons
under the terms and conditions of section 44909. This comports
with the concept that section 44909 exists to give school districts
flexibility in hiring, not to impose a hiring regime on the district

7Colley’s contract referred to section 44882, which was
repealed and replaced, as in Malcomb’s contract, with section
44929.21.

17
that it may not wish to follow. In addition, the unambiguous
requirement of a written agreement to the terms of section 44909
inevitably means that there will be some potential hires who will
not want to agree to the terms of section 44909, which means
that if they are hired, they will not be subject to section 44909.
Thus, section 44909 does not inevitably apply to Colley and
Malcomb simply because they taught in a program financed in
part by categorical funds.
District also contends that Colley and Malcomb claim that
they were “probationary 0” employees8 and therefore, as
temporary employees, should have been given notice that they
were on “non-tenure” track positions. Colley and Malcomb never
advanced the claim that they were “probationary 0” employees.
Colley and Malcomb have always maintained that they were
permanent tenured employees when they were terminated in
2015. It would have been nonsense for Colley and Malcomb to
claim that they were “probationary 0” employees.
Another misleading and erroneous claim set forth by
District is that section 44909 hires are probationary employees.
District cites Stockton, supra, 204 Cal.App.4th at page 459 in
support. The reason that District makes this claim is to buttress
the improbable idea that Colley and Malcomb were probationary
employees for 20 and 11 years respectively.
Stockton addressed the question whether a number of
employees of the school district were temporary or probationary
employees. The evidence was inconclusive about the programs

8“Probationary 0” employees are probationers whose time
served does not count toward permanent status and who cannot
acquire tenure. These are usually persons who are hired before
they are fully credentialed.

18
for which these employees had been hired. (Stockton, supra, 204
Cal.App.4th at pp. 464–465.) The school district claimed that the
employees were temporary. In order to prove that the employees
were temporary under section 44909, the school district had to
essentially prove that the employees had worked under contract
with public or private agencies or on categorically funded projects
and that the contract or project had expired.9 If these conditions
had not been met, the employees had to be treated as
probationary.
It appears that Stockton held the exact opposite of what
District claims it held. If the employment fit the pattern of a
public contract or a categorically funded project that had been
terminated, i.e., if it conformed to the purposes of section 44909,
the employee was temporary. If not, the employee had
probationary status. In any event, as previously stated, Stockton
has no application to this case given the absence of any
agreement by Colley and Malcomb to the terms that conform to
section 44909.
District suggests that we should apply section 44912, which
exempts from tenure teachers of military drill in the California

9 “To prove that its employees were temporary under
section 44909, District was required (1) to show that the
employees were hired to perform services conducted under
contract with public or private agencies or categorically funded
projects which are not required by federal or state statutes; (2) to
identify the particular contract or project for which services were
performed; (3) to show that the particular contract or project
expired; and (4) to show that the employee was hired for the term
of the contract or project. Because District failed to prove some
or all of these facts, the employees must be treated as
probationary.” (Stockton, supra, 204 Cal.App.4th at p. 465.)

19
Cadet Corps (California National Guard). This we decline to do
since Colley and Malcomb taught United States AFJROTC to
which the Legislature has not extended section 44912.
We conclude that Colley and Malcomb were not
probationary employees when District terminated them without a
hearing on June 18, 2015. Accordingly, as permanent employees,
they were entitled to a hearing under section 44944.
II. COLLEY AND MALCOMB WERE
ENTITLED TO BACK PAY
(The 1085 mandate proceedings)
Section 44830, subdivision (a) provides in relevant part
that “a school district shall employ for positions requiring
certification qualifications, only persons who possess the
qualifications for those positions prescribed by law.” District
contends that once the Air Force revoked Colley’s and Malcomb’s
certification to teach AFJROTC, the two men were no longer
qualified for the JROTC positions and they could therefore no
longer be employed by District. According to District, it was
therefore not liable for back pay.
There are two flaws to this argument.
First, the “certification” referred to by section 44830 is
plainly the certification regime under California’s Education
Code. (See Education Code, title 2, part 25, chapters 2 [Teacher
Credentialing] and 3 [Certificated Employees].) California has no
authority over credentialing by the United States Air Force and
obviously cannot regulate it. As noted below, both Colley and
Malcomb retained California certifications that entitled them to
work for District.
Second, in addition to the Designated Subjects Special
Subjects Credential in Reserve Officer Training issued by the

20
CTC held by both men, Colley holds the Administrative Services
Credential issued by the CTC, which authorizes him to work as a
school administrator, and Malcomb holds a Pupil Personnel
Services Credential that authorizes him to work as a school
counselor. In fact, District employed Colley as a substitute
teacher after he was reinstated in September 2016. Thus, it is
not true that Colley and Malcomb could no longer be employed by
District after the Air Force revoked the Air Force credentials.
District also claims that a back pay award is barred by
section 4505510 because after the Air Force revoked their
certificates, they could no longer “perform the duties of their
assignment.” This argument fails for the same reason as
District’s foregoing contention since both men held other valid
certifications under which they could be employed by District.
District contends that Colley and Malcomb failed to
mitigate their damages in that they did not obtain alternative
employment after they were terminated in June 2015. District’s
principal claim is that neither man undertook to work as
substitute teachers after their termination.
It is settled that the alternative employment must be
comparable or substantially similar to that of which the employee
has been deprived. (Candari v. Los Angeles Unified School Dist.
(2011) 193 Cal.App.4th 402, 409.) District conceded that
“substitute teaching positions are different from regular teaching
positions. Significantly, the rate of pay is less.” Colley and
Malcomb add that the pay is less than a third from the

10 “Except as otherwise provided in this code, no warrant
shall be drawn in favor of any teacher, unless the officer whose
duty it is to draw the warrant is satisfied that the teacher has
faithfully performed all the duties prescribed.” (§ 45055.)

21
employment with District that was terminated, there is no health
insurance, and no job security. This is not comparable
employment.
Further, we note Colley’s contention that District refused to
give him a letter of recommendation when he requested one in
his search for an administrative position. District can hardly
complain about Colley’s failure to obtain an administrative
position when it affirmatively hindered him in that effort.
Colley and Malcomb were entitled to attorney fees under
section 44944, subdivision (f)(2) since the judgment of the CPC
was that they should not have been dismissed.
III. DISTRICT FAILED TO ESTABLISH THAT
IT HAD GROUNDS TO TERMINATE COLLEY
(The 1094.5 mandate proceedings)
District gave two grounds for its termination of Colley.
They were “[e]vident unfitness for service” and “[p]ersistent
violation of or refusal to obey the school laws of the state or
reasonable regulations prescribed for the government of the
public schools by the state board or by the governing board of the
school district employing him or her,” which are set forth,
respectively, in section 44932 (grounds for dismissal of
permanent employees), subdivision (a)(6) and (8). District gave
the identical grounds for its dismissal of Malcomb but, as noted,
Malcomb resigned before the hearing on his termination.
1. Procedural Background
The CPC concluded that Colley’s actions with respect to the
Air Force’s ADPE documentation requirements did not constitute
intentional disregard of Air Force orders and directives. The
CPC noted that at various times Colley’s actions were not
reasonable “and may have even been negligent. But considering

22
the evidence in its entirety, it is concluded that [Colley’s] actions
or inaction did not rise to the level of intentional misconduct.”
The CPC noted that evident unfitness for service is
established by conduct demonstrating that the teacher is clearly
not fit or suitable for teaching, ordinarily by reason of
temperamental defects, citing Woodland Joint Unified School
Dist. v. Commission on Professional Competence (1992)
2 Cal.App.4th 1429 (Woodland). The CPC concluded, based on
the criteria of Morrison v. State Board of Education (1969) 1
Cal.3d 214 (Morrison) that Colley’s conduct was not related to his
fitness to teach. The CPC concluded that Colley had not violated
any laws or regulations. The CPC ordered that Colley was to be
retained as a permanent certified employee of District.
On a 2-to-1 vote, the CPC concluded that District had not
established grounds for Colley’s dismissal.
The superior court noted that it was required to exercise its
independent judgment and, in doing so, was required to afford
strong presumption of correctness to the CPC’s findings, citing
Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)
The court noted Woodland’s definition of “evident unfitness
for service.” Under that definition, evident unfitness for service
means “clearly not fit, not adapted to or unsuitable for teaching,
ordinarily by reason of temperamental defects or inadequacies.”
Unlike “unprofessional conduct,” “evident unfitness for service”
connotes a fixed character trait, presumably not remediable
merely on receipt of notice that one’s conduct fails to meet the
expectations of the employing school district. (Woodland, supra,
2 Cal.App.4th at p. 1444.)
The court noted that Woodland requires a fixed character
trait that cannot be remedied. The court went on to find: “The

23
District’s argument that the court can find evident unfitness for
duty because Colley no longer possesses the appropriate
certification is completely inconsistent with the requirement of a
fixed character trait.”
The court considered District’s argument that Colley had
displayed an arrogant and dismissive attitude. After noting that
an attitude is not a character trait, the court examined in detail
the evidence that showed that Colley had been cooperative
throughout 2014 and 2015 even though, in the end, he had been
negligent in March and April 2015 in responding to Air Force
Headquarters.
In addressing Colley’s fitness to teach, the court noted the
factors enumerated in Morrison that bear on this issue.11 The
court addressed each of these factors and found that none of them
indicated that Colley was unfit to teach.
The court concluded that Colley had not violated any state
law or District regulation.

11 “In determining whether the teacher’s conduct thus
indicates unfitness to teach the board may consider such matters
as the likelihood that the conduct may have adversely affected
students or fellow teachers, the degree of such adversity
anticipated, the proximity or remoteness in time of the conduct,
the type of teaching certificate held by the party involved, the
extenuating or aggravating circumstances, if any, surrounding
the conduct, the praiseworthiness or blameworthiness of the
motives resulting in the conduct, the likelihood of the recurrence
of the questioned conduct, and the extent to which disciplinary
action may inflict an adverse impact or chilling effect upon the
constitutional rights of the teacher involved or other teachers.”
(Morrison, supra, 1 Cal.3d at p. 229.)

24
 2. The scope of review on appeal
After the superior court makes an independent judgment
upon the record of the administrative proceeding before the CPC,
the scope of review on appeal is limited. (San Diego Unified
School Dist. v. Commission on Professional Competence (2013)
214 Cal.App.4th 1120, 1141.) The reviewing court must sustain
the trial court’s findings if they are supported by substantial
evidence. (Ibid.) In reviewing the evidence, the appellate court
resolves all conflicts in favor of the party prevailing at the trial
court level and must give that party the benefit of every
reasonable inference in support of the judgment. (Id. at pp.
1141–1142.) When more than one inference can be reasonably
deduced from the facts, the appellate court cannot substitute its
deductions for those of the superior court. (Id. at p. 1142.) The
trial court’s conclusions of law are reviewed de novo. (Jenron
Corp. v. Department of Social Services (1997) 54 Cal.App.4th
1429, 1434.)
There were two areas of factual inquiry that were
contested. One was District’s claim that Colley’s “attitude” was
arrogant and dismissive. The other was whether the Morrison
factors indicate that Colley was unfit to teach. We find in both
instances that the superior court’s rulings were supported by
substantial evidence and explain our conclusion in the following
sections. First, however, we put to rest District's
misinterpretation of Woodland.
3. District misconstrues Woodland
District contends that Colley’s lack of an Air Force
certification to teach JROTC should be considered as an
“additional” showing of his “evident unfitness for service” under
section 44932, subdivision (a)(6). That is, District wishes to add

25
to Woodland that one is unfit for service as a teacher if one lacks
a certification issued by a United States governmental
department.
We need not reiterate Woodland’s extended analysis of the
meaning of “evident unfitness for service.” (Woodland, supra, 2
Cal.App.4th at pp. 1441–1444.) Suffice it to say that the court
addressed the meaning of the words “evident” and “unfit” and the
difference between “unprofessional conduct,” which is also
grounds for termination (§ 44932, subd. (a)(2)), and “evident
unfitness for service.” The court concluded that the Morrison
factors should be used to determine whether the cited conduct
indicates unfitness for service and, if that has been established,
the next question is whether the unfitness is “evident,” “i.e.,
whether the offensive conduct is caused by a defect in
temperament.” (Woodland, at p. 1445.)
District’s contention that the lack of a United States
government certification means a person lacking this is evidently
unfit for service finds no support in Woodland. Woodland itself
refutes District’s contention when it holds that “ ‘evident
unfitness for service’ requires that unfitness for service be
attributable to a defect in temperament—a requirement not
necessary for a finding of ‘unprofessional conduct.’ ” (Woodland,
supra, 2 Cal.App.4th at p. 1445.) Woodland made a defect in
character or temperament absolutely central to the concept of
evident unfitness for service.
District should have taken heed of the distinction
Woodland made between unprofessional conduct and evident
unfitness for service. Unprofessional conduct is a lesser included
form of proscribed behavior within evident unfitness for service.
“Thus, conduct constituting ‘evident unfitness for service’ will

26
often constitute ‘unprofessional conduct.’ But the converse is not
true.” (Woodland, supra, 2 Cal.App.4th at p. 1445.) In this case,
Colley’s and Malcomb’s contracts provided that failure to
maintain the Air Force certification was to be deemed
unprofessional conduct. Arguably, failing to complete ADPE
documentation in a timely manner is unprofessional. Be that as
it may, we express no opinion on this subject save to note that
District chose not to pursue an avenue that the employment
contracts themselves laid down.
We reject District’s contention to expand Woodland because
it flatly contradicts Woodland itself.
4. The superior court’s finding that Colley was not arrogant
and dismissive is supported by substantial evidence
The court addressed District’s argument that Colley was
unfit for service because he demonstrated an arrogant and
dismissive attitude in failing to comply with Air Force directives.
The court first noted that an arrogant and dismissive
attitude is not a character trait but an attitude that can be
readily changed. Thus, under Woodland, which held that
unfitness for service connotes a fixed character trait, an arrogant
and dismissive attitude does not amount to a claim of unfitness
for service.
The court then addressed the events of 2014 and 2015 and
found that Colley had not been arrogant and dismissive. The
court noted that Colley generally relied on Malcomb when it came
to the care and documentation of equipment. Thus, the first time
that Colley became aware of failing to have complied with ADPE
documentation requirements was when he and Malcomb were
put on probation in April 2014 by the Air Force.

27
 Colley immediately met with the high school’s principal
and assured him that the unit would resolve the problem. Colley
also spoke with Malcomb and told him “to get it done.” Colley
then assisted Malcomb in complying with the documentation
requirement. This was successful and Colley’s and Malcomb’s
probation was rescinded.
We note here that these facts show that in 2014 Colley was
compliant and cooperative with the Air Force and was neither
arrogant nor dismissive.
The year 2015 began with Malcomb thinking that he had
done what was required when it came to ADPE documentation.
When Colley and Malcomb were told that they were not
compliant, they mistakenly thought the contrary. The court
opined that this amounted to negligence on Colley’s part. When
again confronted with their lack of compliance, Colley told
Malcomb to do the necessary, which he did, and the
documentation was completed with Colley’s help. It was only
then that the Air Force revoked Colley’s and Malcomb’s
certifications. Again, Colley had been cooperative and compliant
in 2015 and not arrogant.
The court’s finding that Colley had not been arrogant and
dismissive is supported by substantial evidence.
5. The superior court’s finding that Colley satisfied the
Morrison factors is supported by substantial evidence
The court examined the Morrison factors and found that
under those factors Colley was fit for service. (See ante, fn. 11,
for the Morrison factors.) In each instance, the court based its
conclusion on facts of record.
District contends that substantial evidence does not
support a finding in favor of Colley on the Morrison factors. In

28
making this argument, District stands the substantial evidence
standard on its head by ignoring evidence that supports the
judgment and citing to evidence that contradicts the evidence
that supports the judgment.12
Adverse effect on students and teachers
The court agreed with the CPC that the failure to submit
the ADPE documentation in a timely manner did not adversely
affect students or fellow teachers. Although there was a
temporary freeze on obtaining new equipment, that was resolved
when the documentation was completed. As noted, District
ignores this finding (which supports the conclusion that the
Morrison factors favor Colley) and contends that the revocation of
Colley’s Air Force certificate adversely affected the students.
Since it was the Air Force that revoked the certificate, a decision
that Colley energetically contested, this negative factor cannot be
ascribed to Colley.
Remoteness in time
The court found that the conduct in question was not
remote in time.
Type of credential
The court found that in addition to the ROTC credential,
Colley was also credentialed in administration.
District again seizes on the negative aspect of Colley’s
credential in administration, contending that the District did not

12 In reviewing the evidence, the appellate court resolves
all conflicts in favor of the party prevailing at the trial court level
and must give that party the benefit of every reasonable
inference in support of the judgment. (San Diego Unified School
Dist. v. Commission on Professional Competence, supra, 214
Cal.App.4th at pp. 1141–1142.)

29
hire him for that purpose. The positive aspect of this factor is
that Colley was employable in a field other than JROTC.
Aggravating and mitigating circumstances
While the court found that Colley had acted unreasonably
(in relying extensively on Malcomb) and negligently, the court
found Colley did not do anything willfully wrong and attempted
to comply with Air Force directives. The Air Force directives
were communicated by e-mail and not by established methods of
instructions in a manual. These were extenuating factors.
Once again ignoring the substantial evidence standard,
District asks us to draw unfavorable inferences from the fact that
Colley was put on probation in 2014, that he initially ignored Air
Force directives in 2015, and that he was decertified. District
ignores the favorable inferences drawn by the trial court from the
facts that Colley attempted to comply with Air Force directives,
that he affirmatively assisted Malcomb in complying with Air
Force directives, and that he did nothing willfully wrong.
Likelihood of recurrence
In light of the severity of the decertification, the court
agreed with the CPC that the likelihood of recurrence was low.
District again focuses on the negative that Colley at one
point was put on probation from which District draws the
unfavorable inference that Colley is likely to repeat his
misconduct.
Blameworthiness or praiseworthiness
Colley did try to ascertain whether Malcomb had complied
with the directives, and he worked with Malcomb both in 2014
and 2015 to complete the documentation. “Colley acted
imprudently, but his motivation always was to comply with Air
Force requirements. This is a praiseworthy motive.”

30
 The Morrison factors add up to the conclusion that Colley
was not unfit for service.
6. The court correctly ruled that Colley had not violated any
school laws or District regulations
District contends that this case is analogous to Governing
Bd. of Ripon Unified School Dist. v. Commission on Professional
Competence (2009) 177 Cal.App.4th 1379 (Ripon). However, in
stating that the Court of Appeal in Ripon “upheld the teacher’s
termination under Section 44932(a)(8) based on noncompliance
with the contractual commitment of the teacher,” District
misrepresents both the facts and the law laid down in Ripon.
In Ripon, the school district developed a plan that required
all of its certified teachers to sign a written commitment agreeing
to obtain a certification to teach English to children who do not
speak that language. (Ripon, supra, 177 Cal.App.4th at p. 1383.)
Theresa Messick, a certified music teacher, refused to sign the
written commitment to receive training for this English language
program, and she never took the training. (Ripon, at pp. 1383–
1384.) The school district commenced termination proceedings
against Messick. She challenged the school district’s right to
require her to obtain the certification. The Court of Appeal
rejected her challenge and held that the school district had the
authority to require Messick to obtain the training for the
English language program. (Id. at pp. 1389–1390.)
Contrary to District’s representations, there was no
“contractual commitment” in Ripon; in fact, Messick refused to
enter into such a commitment. In addition, the only pertinent
point decided in Ripon was the school district’s authority to
require the English teaching certification from its teachers;
Messick had not been terminated as the hearing to that end had

31
not taken place. Thus, it was definitely not decided by Ripon that
Messick was validly terminated under section 44932, subdivision
(a)(8) (violation of laws and regulations).
The superior court concluded that Colley had not violated
any laws or regulations. We agree with that conclusion.
District’s argument that Colley’s failure to conform to Air Force
directives regarding ADPE documentation is without merit.
United States Air Force directives do not qualify under section
44932, subdivision (a)(8).13 We also agree with the court’s
observation that a breach of the employment contract is not a
violation of laws or regulations covered in section 44932,
subdivision (a)(8).
7. Conclusion
District has failed to show that it had grounds to terminate
Colley.

13 “Persistent violation of or refusal to obey the school laws
of the state or reasonable regulations prescribed for the
government of the public schools by the state board or by the
governing board of the school district employing him or her.”
(§ 44932, subd. (a)(8).

32
 DISPOSITION
The order granting the petition for a writ of mandate under
Code of Civil Procedure section 1085 and the order denying the
petition for a writ of mandate under Code of Civil Procedure
section 1094.5 are affirmed.
The Code of Civil Procedure section 1094.5 mandate
proceeding (William S. Hart Union High School District v.
Commission on Professional Competence (Super. Ct. L.A. County,
2019, No. BS173394) is remanded to the superior court with
directions to implement the decision of the Commission on
Professional Competence. Colley and Malcomb are to recover
their costs on appeal.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

CHAVEZ, J.

HOFFSTADT, J.

33