Case Number: BS166713 Hearing Date: July 24, 2018 Dept: 85

Dioka Okorie v. Commission on Professional Competence, et al., BS 166713

Tentative decision on petition for writ of mandate: denied

Petitioner Dioka Okorie (“Okorie”) seeks a writ of mandate directing Respondent Commission on Professional Competence (“Commission”) to set aside its decision upholding the termination of Okorie. Real Party-In-Interest Los Angeles Unified School District (“LAUSD” or “District”) opposes.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Okorie commenced this proceeding on December 28, 2016. The operative pleading is the First Amended Petition (“FAP”) filed on March 15, 2017. The verified FAP alleges in pertinent part as follows.

District employed Okorie as an elementary school teacher in August 2003. District assigned Okorie to Westport Heights Elementary School.

On December 18, 2015, District commenced termination proceedings against Okorie by issuing a statement of charges against him. District sought to terminate Okorie on five grounds: (1) unprofessional conduct, (2) immoral conduct, (3) dishonesty, (4) evident unfitness for service, and (5) persistent violation of state laws or regulations for the governance of schools. District alleged that Okorie (1) molested a fifth-grade student in his classroom on three occasions in 2006 and 2007; (2) pulled down the pants of elementary school students in the schoolyard; (3) refused to surrender computer equipment which the District had lent to him and had demanded return thereof; and (4) disobeyed District policies in various other ways.

On January 13, 2016, the District gave Okorie written notice of its intent to terminate with a copy of the statement of charges. Okorie timely requested a hearing. Following this request, the District issued an accusation. Okorie denied the accusation’s allegations and asserted two affirmative defenses.

On June 22 through 24 and August 18 and 19, 2016, the matter was heard by the Commission. Following the hearings, the Commission concluded that cause existed for termination of Okorie’s employment as a District teacher. On November 23, 2016, the District issued an order terminating Okorie as a certificated District employee.

Okorie contends that the Commission’s findings and conclusions are invalid. They are unsupported by evidence adduced at the hearing, and they either ignore or minimize the significance of evidence that should exonerate Okorie. Clear evidence at the hearing showed that Okorie was a good and effective teacher whom parents and children were not concerned about.

2. Course of Proceedings

On June 8, 2018, the court denied Okorie’s ex parte application for an order permitting the filing of opening and opposition briefs in excess of 15 pages. The court ordered Okorie to refile an opening brief that conformed to this page-limit requirement.

B. Standard of Review

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). Courts exercise independent judgment on the evidence in cases involving dismissal proceedings initiated pursuant to Education Code section 44934. Evid. Code §44945.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Cmrs., (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

However, “[i]n exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 515.

An agency is presumed to have regularly performed its official duties (Ev. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Alford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

C. Governing Law

Education Code[1] sections 44932(a) and 44939(b) provide that a permanent employee shall not be dismissed except for certain causes, including (1) unprofessional conduct (§44932(a)(1), (2) immoral conduct (§44932(a)(1)), (3) dishonesty (§44932(a)(4)), (4) evidence unfitness for service (§44932(a)(6)), and (5) persistent violation of or refusal to obey the state’s school laws 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 (§44932(a)(8)).

1. Immoral Conduct

A teacher can be dismissed for “immoral conduct.” §44932(a)(1). The courts have developed a broad and well-understood definition of “immoral conduct” in teacher dismissal cases: “[…] that which is hostile to the welfare of the general public and contrary to good morals. Immorality has not been confined to sexual matters, but included conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and public welfare.” Palo Verde Unified School Dist. v. Hensey, (“Hensey”) (1970) 9 Cal.App.3d 967, 971-72 (quoting Board of Education of San Francisco Unified School Dist. v. Weiland, (“Weiland”) (1960) 179 Cal.App.2d 808). Based on this definition, a teacher’s falsification of attendance records to add names of three students to secure continued employment was deemed immoral conduct and dishonesty. Weiland, supra, 179 Cal.App.2d at 808. Similarly, a teacher’s removal of school property (a public address system speaker) from the classroom wall was deemed immoral. Hensey, supra, 9 Cal.App.3d at 967.

2. Dishonesty

“Dishonest conduct may range from the smallest fib to the most flagrant lie. Not every impropriety will constitute immoral or unprofessional conduct, and not every falsehood will constitute ‘dishonesty’ as a ground for discipline.” Fontana Unified School Dist. v. Burman, (1988) 45 Cal.3d 208, 220 fn.12. Dishonesty typically connotes a disposition to deceive. Midway School Dist. of Kern County v. Griffeath, (1946) 29 Cal.2d 13, 18.

3. Evident Unfitness for Service

“‘[E]vident unfitness for service’ in section 44932, subdivision (a)(5), properly means ‘clearly not fit, not adapted to or unsuitable for teaching, ordinarily by reason of temperamental defects or inadequacies.’” Woodland, supra, 2 Cal.App.4th at 1444. This cause for dismissal connotes a “fixed character trait, presumably not remediable merely on receipt of notice that one’s conduct fails to meet the expectations of the employing school district.” Id. For a school district to meet this charge, it must demonstrate satisfaction of the Morrison factors (see post), and take the additional step of showing that the unfitness is “evident,” meaning that the offensive conduct is caused by a defect in temperament. Id. at 1445.

4. Persistent Violation

This cause for dismissal requires a “showing of intentional and continual refusal to cooperate.” San Dieguito Union High School Dist. v. Commission on Professional Competence, (1985) 174 Cal.App.3d 1176, 1196. The term “persistent” in this context can be defined as “refusing to relent; continuing, especially in the face of opposition … stubborn; persevering … constantly repeated.” Governing Board of the Oakdale Union School Dist. v. Seaman, (1972) 28 Cal.App.3d 77, 82.

5. Willful Refusal

Section 44939(b) authorizes suspension and dismissal of school district employees for “willful refusal to perform regular assignments without reasonable cause, as prescribed by reasonable rules and regulations of the employee school district.” Pasadena Unified Sch. Dist. v. Commission On Professional Competence, (1977) 20 Cal.3d 309, 313 fn.5.

6. Unfit to Teach

A finding of misconduct is not alone enough to dismiss. Instead, that misconduct must render the teacher unfit to teach. San Dieguito Union High School District v. Commission on Professional Competence, (“San Dieguito I”) (1982) 135 Cal.App.3d 278, 363. The conclusion of unfitness must be based upon an objective standard such as that articulated in Morrison v. State Board of Education (“Morrison”), (1969) 1 Cal.3d 214, 220. See San Dieguito I, supra, 135 Cal.App.3d at 288.

In Morrison, the California Supreme Court articulated factors to consider in whether a credentialed employee’s misconduct renders him unfit for service as a teacher. Those factors are: (a) likelihood that the conduct at issue may have adversely affected students/fellow teachers; (b) degree of such adversity anticipated; (c) proximity or remoteness in time of the conduct; (d) type of teaching certificate held by the party involved; (e) extenuating or aggravating circumstances, if any, surrounding the conduct; (f) likelihood of recurrence of the questioned conduct; (g) praiseworthiness or blameworthiness of motives resulting in the conduct; (h) extent to which disciplinary action may inflict an adverse impact or chilling effect upon constitutional rights of the teacher involved or other teachers. Id. at 229-30. Not every Morrison factor mist be considered; a trier of fact may consider all of the factors that are relevant to the respective case. Ibid.; West Valley-Mission College v. Concepcion, (1993) 16 Cal.App.4th 1766.

In a permanent teacher dismissal, the District must establish (1) that the individual charge is sustained by a preponderance of the evidence, (2) that if the charge is sustained, it related to a specific cause as set forth under section 44932, and (3) after determining which charges and causes have been proved, whether it renders the teacher “unfit to teach” so as to merit dismissal. California Teachers’ Assn. v. State of California, (1999) 20 Cal.4th 327; Morrison, supra, 1 Cal. 3d. 214.

D. Statement of Facts[2]

1. Background

Before he began teaching, Okorie worked as an engineer in NASA’s technology transfer center in Los Angeles. AR 1945. One day, he visited the Inglewood Unified School District (“IUSD”) where his sister worked. Id. When he walked into a classroom there, he felt that he had found his calling. Id. He applied to IUSD and started working there as a substitute. Id. Two weeks later, he resigned from NASA and began pursuing teaching full-time. Id.

In 1999, Okorie obtained a permanent teaching position at IUSD’s Highland Elementary School (“Highland”). AR 1946. He did not have any disciplinary actions while working at IUSD. AR 1947.

In 2003, after he completed his teaching credential and obtained a master’s in teaching, Okorie left IUSD. AR 1946. Highland’s principal and assistant principal both wrote letters of recommendation for Okorie. AR 831-32.

In August 2003, Okorie was hired by LAUSD as an elementary school teacher at Westport Heights Elementary School (“Westport”). AR 670, 1946.

2. Prior Disciplinary History

On May 17, 2004, a District representative met with Okorie concerning a student’s allegations that he grabbed and choked the student. AR 643. The representative advised Okorie not to reprimand another teacher’s student directly and not to handle students in a physical manner when reprimanding them. Id.

On June 1, 2004, a District representative met with Okorie regarding a student’s concerns that Okorie had sprayed air freshener around the student when it was assumed that he passed gas, and that he had called the student Mr. Fartman and Galileo in front of his peers. AR 644. LAUSD advised Okorie not to embarrass students in such situations and not to call students demeaning names. AR 645.

In November 2009, Okorie met with Highland’s principal concerning his homework policy, perceived inflexibility, and the manner in which he speaks to and treats students. AR 646. The inter-office correspondence “offered assistance and guidance.” Id.

In June 2010, Okorie met with Highland’s principal concerning, inter alia, “[t]elling inappropriate stories to students in order to make a point” and “[h]ugging a student after yelling at her.” AR 652. Okorie denied committing either act. AR 653. The principal advised Okorie, inter alia, to keep doors open when students are in the room during non-instructional time and never remain in the classroom with one student. Id.

3. Disclosure

D.B. was a senior at St. Bernard High School (“St. Bernard”) in Playa Del Rey during the 2013-2014 school year. AR 1598, 1602. In March 2014, D.B. went on a school-sponsored senior retreat. AR 1602. The retreat’s purpose was to encourage seniors to reflect on their life experiences, particularly from a religious perspective. AR 1602-03. Approximately 65 students and five to six faculty members attended the retreat. AR 1603.

One evening, the retreat entailed a discussion group with students and faculty present. AR 1604. The discussion focused on how students might struggle with their faith in the future. Id. Various faculty members shared their own stories and then students were provided with an opportunity to present personal stories. AR 1605. Prior to this happening, faculty members disclosed that they were mandated reporters that were required by law to take appropriate action if a student disclosed that someone hurt them. Id. The faculty members stated that they could not simply keep such disclosures secret. AR 1627.

After several students stated their experiences, D.B. disclosed that he had been molested when he was younger “by someone his family knew”. AR 1607. He said that this person was no longer in his life and was no longer a problem. Id. He said that he was angry at God for letting it happen, but it was in the past, he had moved on, and his faith was strong. AR 1608. He also said that he had never shared this information with anyone before. AR 1608. He did not disclose a name. AR 1607.

After the retreat ended, Mary Eileen Young (“Young”), a St. Bernard’s teacher, filed a suspected child abuse report concerning D.B.’s disclosure. AR 1609-10. Young informed D.B. that a report had been filed and that he would need to inform his parents about the incidents. AR 1610-11.

4. Investigation

a. LAPD Interview

On April 3, 2014, two Los Angeles Police Department (“LAPD”) officers arrived at St. Bernard to interview D.B. AR 705. They interviewed D.B. in a very small office with Young present. AR 1613. Officer Marine Gevogyan (“Gevogyan”) took the lead in the interview. AR 1171.

D.B. disclosed three incidents with Okorie from March 2006 to February 2007. AR 705. D.B. was approximately ten years old at the time. AR 706. D.B. stated that none of the incidents involved skin-to-skin touching or physical injuries. AR 706.

The first incident occurred in March 2006 when D.B. was in fourth grade. It lasted approximately ten minutes. The incident began when D.B. received a referral note from Westport’s main office. The note stated that Okorie wanted to speak with him regarding his class for the following school year. D.B. went to the classroom and sat down at the edge of a table. Okorie came over and stood approximately one foot in front of him. Okorie told D.B.: “Calm down, relax.” Okorie then kissed the left side of D.B.’s neck three times. With his right hand, he also fondled D.B.’s genital area over D.B.’s clothing. He then grabbed D.B.’s right hand and placed the hand on his genital area over his clothing. D.B. began to cry. Okorie stated in response: “Don’t say anything.” D.B. then walked out of the classroom. AR 705.

The second incident occurred in November 2006 when D.B. was enrolled in fifth grade in Okorie’s class. This incident lasted approximately four to five minutes. The incident started when D.B. told Okorie that he did not complete his homework. As a result, he was not allowed to go to recess. D.B. was sitting at his desk when Okorie asked: “Why didn’t you complete your homework?” D.B. did not reply and got up to leave. Okorie, however, stood in the doorway and was holding the door knob with his right hand to block D.B.’s path. With his left hand, Okorie gave D.B. a hug. He then slid his hand down and squeezed D.B.’s buttocks over his clothing. D.B. yelled “Stop” and stepped out of the room when Okorie opened the door. AR 706.

The third incident occurred in February 2007. It lasted approximately five minutes. During one lunch period, D.B. forgot his prepaid lunch card and returned to his classroom with a friend to retrieve it. As he entered the classroom, D.B. observed Okorie sitting at his desk eating lunch. After the door shut closed behind D.B., Okorie walked up to the door, locked it, and held the door knob with his right hand to block D.B. from leaving. Okorie then squeezed D.B.’s buttocks with his left hand and, letting go of the door knob, used his right hand to grab D.B.’s genitals over his clothing. AR 706.

b. Attempted Interview of Okorie

On April 4, 2014, Okorie was placed on administrative leave pending the outcome of the LAPD investigation. AR 713.

On April 22, 2014, LAPD contacted Okorie, and he refused to provide a statement. AR 709. On May 30, 2014, the District Attorney rejected the case due to insufficient evidence. AR 713.

On August 20, 2014, Detective John Metcalf (“Metcalf”) of the Student Safety Investigation Team (“SSIT”) attempted to interview Okorie. AR 671. Okorie was given a “Spielbauer Admonition” three times. On the advice of his attorney, Okorie refused to answer Metcalf’s questions and asserted his Fifth Amendment rights. AR 671.

5. iPad and Laptop

On March 28, 2011, District issued Okorie a laptop after he signed a form stating: “Laptops are property of LAUSD and must be returned.” AR 713, 715. On August 5, 2013, District issued Okorie an iPad after he signed an “Inventory Control Form — Loan Authorization Receipt/Return” acknowledging receipt of a Westport-issued iPad. AR 713, 716. The form states: “The division reserves the right to request the equipment/property prior to the return date.” AR 716.

Sometime during his investigation, Detective Metcalf contacted Cynthia Jackson (“Jackson”), an Education Service Center West (“ESC-West”) Operations Coordinator, and instructed her to seize any District computers, laptops, or iPads assigned to Okorie. AR 822, 1659-60. Jackson informed Metcalf that there were computers in the classroom, but District did not have Okorie’s District-issued laptop and iPad. AR 1660.

On April 21, 2014, Jackson asked Okorie to return the District-issued laptop computer. AR 822. He answered that “it was somewhere”, but he had not used it in a while and was unsure of its location. Id. Two days later, Jackson spoke with Okorie on the telephone and asked about the laptop and I-Pad. Id. He answered that he attended a District-sponsored training to get the I-Pad, and he did not have to return it. Id. That same day, Jackson emailed Okorie and asked him to return the District property. AR 823. He answered by reiterating his contention that “it was somewhere, but he was unsure of the location because he had not used it in a while. Id., Ex. A.

On May 6, 2014, Jackson issued and personally delivered to Okorie a written directive ordering him to return the items. AR 823, Ex. C. Okorie said he would respond in writing, but failed to do so. AR 823.

On May 18, 2014, Jackson asked for assistance from the District’s Police Department in recovering the items. Id. On August 26, 2014 and October 9, 2014, Detective Aaron Gray (“Gray”) obtained search warrants to recover the items. AR 721-24. On October 16, 2014, Gray executed the search warrant and obtained the items from Okorie’s back bedroom. AR 726, 1213.

6. The Charges

On March 9, 2015, the District issued to Okorie a Notice of Unsatisfactory Act and Notice of Suspension. AR 482, 694-96.

On December 18, 2015, the District’s Chief Human Resources Officer Justo H. Avila (“Avila”) filed a Statement of Charges against Okorie with District’s Board of Education (“Board”) on the grounds of (1) immoral conduct, (2) dishonesty, (3) evident unfitness for service, (4) persistent violation of or refusal to the school laws of the state, and (5) willful refusal to perform regular assignments without reasonable cause. AR 480-83. The charges in the statement included the three molestation incidents and the computer equipment recovery issue. AR 481-82.

On January 13, 2016, Avila notified Okorie that written charges had been filed with the Board requesting his dismissal. AR 479. Avila stated that the Board would dismiss Okorie unless he demanded a hearing. AR 479.

On February 1, 2016, Okorie submitted to the Board a Request for Hearing. AR 523.

On March 8, 2016, Avila filed an Accusation against Okorie with the Office of Administrative Hearings (“OAH”). AR 543-46. The Accusation alleges the same grounds and charges as those in the Statement of Charges. See AR 480-83.

On March 16, 2016, Avila filed an Amended Accusation against Okorie. AR 591-95. On April 4, 2016, Okorie filed a Notice of Defense to the Amended Accusation, denying the allegations. AR 634-35.

7. The Hearing

On June 22 through 24 and August 18 and 19, 2016, a hearing was held before OAH and the Commission. AR 833.

a. D.B.

During his senior year at St. Bernard, D.B. went on a retreat for two days and three nights. AR 929. During the retreat, all of the students and teachers gathered together and disclosed things about themselves that they would not normally disclose to others. AR 930. At the outset, a teacher said that the teachers were required by law to report certain types of disclosures, such as abuse or molestation. AR 931.

D.B. was neither the first or last person to speak at the gathering. AR 931-32. Before he spoke, he was internally battling whether to disclose that he had been molested. AR 932. Upon deciding to speak, he disclosed to the group that he was molested by one of his teachers in elementary school. AR 934. He did not mention Okorie’s name or describe the molestation. Id. The response from the group was very quiet. AR 934.

D.B. testified about the three incidents. AR 941-56. Each incident lasted about 30 to 35 seconds. AR 952.

The first incident occurred in April 2006. AR 952. D.B. was eight years old, going on nine, and in the fourth grade. AR 941, 944. He received a summons from Westport’s main office indicating that he should report to a particular classroom. AR 941. He did not know the classroom was Okorie’s. AR 941. He had met Okorie before but did not know him. AR 941.

D.B. knocked on the classroom door and Okorie answered. AR 942. Upon his entry, D.B. and Okorie had a conversation about what next year would be like. AR 942. D.B. found this odd because he had never had a conversation with a teacher about what the next year would be like. Id. The conversation lasted a couple of minutes and then the mood changed. Id. While D.B. was standing and with the door closed and locked, Okorie kissed him three times on the left side of his neck and grabbed D.B.’s genital area and butt with his hand. AR 942-43. Okorie had a bulge in his pants. AR 944. D.B. also had an erection. AR 945. He yelled: “Stop” and went out the door. AR 945. D.B. felt confused and shocked because he knew Okorie wasn’t supposed to act that way. AR 945. He also did not think he should have an erection because he was attracted to girls. AR 945. He thought about telling his parents, but he was afraid that his family would retaliate and that this would lead to further problems. AR 946.

The second incident occurred in November 2006 when D.B. was in Okorie’s fifth grade class, after D.B. failed to complete his homework and Okorie ordered him to stay behind during recess. AR 950-51. According to D.B., no student ever had to stay behind for recess for failure to complete homework, so this punishment was odd. Id. D.B. was nervous upon realizing that he would be alone with Okorie. AR 951. After his classmates left the classroom, D.B. attempted to leave the classroom despite Okorie’s order, but Okorie stopped him in front of the door. AR 951-52. Okorie held onto the door knob with his right hand and embraced D.B. with his left arm. AR 952. He then began kissing D.B. Id. There was no touching of genitals or butt. AR 952.

Afterwards, Okorie let D.B. go, and D.B. went to recess. AR 953. D.B. was angry. Id. He knew that Okorie’s actions were wrong and he was coming to terms with what Okorie was doing to him. Id. He still chose not to report Okorie because of the legal trouble that he felt might arise if his family got involved. Id.

The third incident occurred in March 2015. AR 954. Westport had a prepaid lunch card system by which one would pay for lunch at the lunch cart. Id. The lunch cart would come to each classroom before lunch and hand out the cards to the students. Id. D.B. went to lunch but forgot his card on his desk in Okorie’s classroom. Id. D.B. went back to the classroom with his friend Dominique. Id. As D.B. entered the classroom, he told Dominique to wait outside. AR 955.

After D.B. retrieved his card and was on his way out of the classroom, Okorie closed the door and held the door knob. Id. He then started fondling D.B.’s genitals and butt area and began kissing him. Id. This made D.B. angry and teary-eyed. Id. D.B. fought back. Id. D.B. did not scream for Dominique’s help because of embarrassment. Id. Okorie responded: “Don’t tell anyone” and “keep this between us.” Id. After exiting the room, Dominique did not figure out that something was wrong because D.B. is an actor and good at hiding his emotions. AR 1007.

When he got to middle school, D.B. went back to Okorie’s classroom. AR 956. D.B. did so to prove to Okorie that his actions did not have lasting effects on him and “to laugh in his face.” Id.

D.B. characterized Okorie as a good teacher, but not insofar as he embarrasses students and is aggressive towards them. AR 1013.

b. Cheryl Smith-B

Cheryl Smith-B (“Smith”) is D.B.’s mother. AR 1026. D.B. has never been a difficult child and is generally outgoing, kind, considerate, respectful, and obedient. AR 1023. She does not know D.B. to concoct stories. AR 1026.

Smith noticed some demeanor changes in D.B. while he was in Okorie’s class. AR 1029. D.B. was a little more moody and would stay in his room more often than normal. Id. At the time, Smith ascribed this behavior to him going through a phase. Id.

After his senior retreat, D.B. told Smith about something happening between himself and Okorie. AR 1030. When D.B.’s grandmother picked him up from school, he told her about what happened at the retreat. AR 1030. When Smith when she got home from work, D.B. informed her about the molestation by his elementary teacher. AR 1030-31. AR 1030-31. D.B.’s leg was shaking and he was teary-eyed as he related the story. AR 1033. Smith called her husband (D.B.’s father) and notified him. AR 1035.

D.B. informed Smith that he did not tell her sooner because he was afraid that she and his father might do something to Okorie that would land them in jail. AR 1034. Smith opined that D.B.’s fears were valid. Id.

On cross-examination, Smith stated that her sister, who teaches at IUSD, told her that Okorie had been removed from the classroom at IUSD. AR 1062. There had been a rumor that Okorie had put his hands on a child. AR 1062. Her sister did not know whether this contract was sexual in nature. Id.

c. Vanessa Smith

Vanessa Smith (“V. Smith”) is a teacher at IUSD, Smith’s sister, and D.B.’s aunt. AR 1066, 1080. Okorie was placed on administrative leave for placing his hands on a student when he worked at Highland. AR 1090-91. She did not know what the nature of this physical contact with the student was because Highland’s principal did not specify. AR 1091.

V. Smith had a chance encounter with Okorie at Kaiser five months before the hearing. AR 1078. Okorie pleaded with her to talk to Smith because he wanted his job back. Id.

d. Gevogyan

Gevogyan was one of the LAPD officers who responded to St. Bernard after a child abuse report. AR 1157, 1168-69. He had interviewed approximately ten minors prior to interviewing D.B. AR 1160. He had no reason to doubt D.B.’s statements. AR 1176. He characterized D.B.’s statements as consistent. Id. He opined that D.B.’s story never changed. Id.

D.B. declined a second interview when a LAPD detective was assigned to the case. AR 1183. The detective also contacted Okorie, who refused to provide a statement. Id.

e. Gray

Gray is a LAUSD detective. AR 1195-96. Jackson contacted him to recover District-issued equipment. AR 1200-01. Whenever a District employee is accused of sexual molestation, District practice is to seize any electronic devices that the employee may have been assigned in order to forensically examine these devices for evidence supporting the molestation allegations. AR 1202.

Gray participated in the execution of the search warrant at Okorie’s residence. AR 1209. After the premises were secured, Okorie was presented with the search warrant. AR 1213. Gray asked Okorie if he had the District-issued equipment. AR 1213. Okorie indicated yes, and he led Gray to his back bedroom where Gray recovered the equipment. Id. Gray did not know the results of the forensic examination of the equipment. AR 1250.

f. Jill Corral

Jill Corral (“Corral”) is a retired LAUSD teacher. AR 1287-88. Okorie was known as a strict disciplinarian, and she would send kids to him for discipline. AR 1298. She never observed Okorie embarrass or make fun of students in his class. AR 1303. She did hear from children that he did so. AR 1303.

There were children who could not handle his class emotionally, and he could make their life pretty tough. AR 1303. Okorie made students who did not complete homework stay in during recess and lunch. AR 1303-04. Okorie would stay in the classroom with them every day and would even ask Corral to watch the students when he needed to use the restroom. AR 1304. “Some kids never saw daylight all year.” AR 1304. They did not do their homework and he was in there with them. AR 1304.

She never had a student complain to her that Okorie did anything inappropriate happening in the restroom. AR 1339.

g. Jacqueline Hughes

Jacqueline Hughes (“Hughes”) was principal of Westport during part of the 2013-2014 school year. AR 1347. When the matter arose and LAUSD removed Okorie, she held a meeting with the parents of Okorie’s fifth grade class. AR 1534. No parents voiced support for his removal during the meeting. Id. One parent privately voiced support for his removal after the meeting. AR 1535. After Okorie’s removal, parents demonstrated outside Westport’s campus in opposition to his removal. AR 1536-37. The general mood among Westport staff was frustration and disappointment because they wanted Okorie to return. AR 1537-38.

h. Susan Allen

Susan Allen (“Allen”) worked for LAUSD from 1982 to approximately 2008 when she retired. AR 1558-59. She was interim principal of Westport for the first two to three months of the 2013-2014 school year because Hughes was on maternity leave. AR 1560-61.

Prior to working at Westport, she was the principal of Wright Middle School (“Wright”). AR 1594. Some students went to Wright after graduating from Westport. See id. Okorie had a reputation of being a strong teacher and a good disciplinarian and possessing a strong program at the school. AR 1594. She heard Okorie’s former students state that they liked Okorie and cared about him. AR 1595.

i. Young

Young worked at St. Bernard from 2012 to 2014 as an English teacher. AR 1598. She was D.B.’s English teacher during the 2013-2014 school year. AR 1600. Young characterized D.B. as a very conscientious, thoughtful, and gentle student and as one of the best all-around students in her class. AR 1600-01. She did not know D.B. to lie. AR 1601.

D.B. disclosed during the retreat that he was molested by “someone his family knew.” AR 1607. She filed the suspected child abuse report. AR 1609.

j. Metcalf

Metcalf is a District Student Safety Investigation Team (“SSIT”) investigator. AR 1653. He was assigned to investigate Okorie. AR 1658. D.B. declined to speak with Metcalf. Id.

Metcalf explained that it was important to quickly receive the computer equipment because in many cases they store items in violation of the District’s acceptable use policy, including pornographic material and email evidence. AR 1662-63. When Metcalf retrieved the equipment, he turned it over to the forensics team. AR 1685. The forensics team found no violation of the District’s acceptable use policy. AR 1686.

k. Janice Davis[3]

Janice Davis (“Davis”) is a retired LAUSD administrator of operations. AR 1788. She was assigned as the Skelly officer presiding over Okorie’s matter. AR 1796. Davis found that no evidence to support computer equipment charges against Okorie because the forensic tests on the computers found nothing in violation of District policy. AR 1822. She still recommended that he be dismissed because it took six months to get the computers and Okorie lied when he said he did not know where they were. AR 1823.

Davis did not find any molestation allegations prior to this instance in her review of Okorie’s personnel file. AR 1855.

l. Ali Galedary

Ali Galedary (“Galedary”) is a retired District Operations Coordinator. AR 1691-92. At Jackson’s request, he witnessed a meeting between Okorie and Jackson concerning return of the District-issued equipment. AR 1703. In response to Jackson’s request for return of the equipment, Okorie responded that he did not know where the items were. Id.

Jackson retired in June 2014. AR 1712. Galedary took over Jackson’s duties when he returned from vacation in August 2014. AR 1714, 1717. When he met with Okorie in August, he let Okorie know that he was now his supervisor, but did not follow up on the computer issue. AR 1717. He was under the impression that SSIT had assumed responsibility of this task. AR 1717. When he first spoke with Metcalf in October 2014, the computers had been retrieved by the warrant. AR 1715.

m. Dorothy Armstrong[4]

Dorothy Armstrong (“Armstrong”) is a Westport teacher. AR 1875. She has known Okorie since 2002. AR 1876. She described him as a close friend and good colleague. Id. She described him as “exceptional” teacher, one of the most effective teachers in California. Id. Okorie was ae Westport teacher whom students would most often come back to visit. Id. Okorie held students to a high standard and thereby helped them become good students and see their own potential. Id.

Okorie was a Westport “administrative designee.” AR 1882. This meant that he would handle problems that occurred on campus. Id. He was very effective in this role. Id.

Armstrong never saw Okorie treat students inappropriately. AR 1878. Ordering a student to stay in the classroom during lunch to complete homework is a common practice at Westport. AR 1895.

Westport implements a cafeteria card system where every student possesses a lunch card bearing his or her name. AR 1880. These cards keep track of a students with reduced or free lunch, making sure everyone is paying the correct amount. AR 1881. Westport stores these cards alphabetically in a rack outside the cafeteria by grade level. When classes go to lunch, the teachers direct children to get their cards from the rack and line up in the cafeteria line. Id. This has been the school’s practice since 2003. Id.

n. Carol Tripodo

Carol Tripodo (“Tripodo”) has been a Westport teacher since 1998. AR 1900. Okorie had the reputation as a firm teacher capable of rehabilitating difficult students. AR 1903. At fifth grade graduation, the girl students cried because they were going to miss “Dr. O.” AR 1903.

Okorie was “stern but not abusive.” AR 1905. Tripodo would sometimes send students to Okorie for discipline. AR 1921. She saw improvement from them thereafter. Id. They never complained to her about any sort of inappropriate behavior. Id. He did not have the reputation of treating students inappropriately. AR 1904. The teaching staff felt a great loss at Okorie’s removal. AR 1906.

The cafeteria cards were stored on a rack. AR 1906. Students reached for their own cards at the cafeteria. Id.

o. Marsha Martinez

Marsha Martinez (“Martinez”) is a parent of four former Westport students, two of whom were in Okorie’s classroom. AR 1924-25. Okorie was an excellent teacher. AR 1926. He would always help her children by staying afterschool to help them with their homework or talking to them about their behavior. Id. After graduating, her sons returned to Westport to visit Okorie. AR 1927. She believes that Okorie would never do anything to harm her children. AR 1935.

p. William Smart

William Smart (“Smart”) is a pastor and president of the Southern Christian Leadership Conference of Southern California. AR 2068-69. His son was a student in Okorie’s fifth-grade class. AR 2070. Smart would visit Okorie’s class two to three times a week. AR 2071. Okorie was a “tough teacher” and students developed a strong amount of respect and love for him because they could tell that he is concerned about their future. Id.

Okorie had a good, solid reputation in the community — a teacher very interested in his students’ success. AR 2073. Smart presented Okorie an Award for Excellence as an educator. AR 2074. Smart did so because he observed Okorie’s effectiveness and love for students. Id.

q. Okorie

Okorie has five children of his own, and four are in school. AR 1956. He has very high expectations for his students. AR 1957. He tried to lead by example and rarely missed a day of work. AR 1957. He would put in the extra time if students were absent a lot or had incomplete homework. AR 1958.

Many former students came back to Westport to visit him. AR 1959. They would usually come back to give him updates on middle school or if they needed help with their school work. AR 1960. D.B. came back to visit Okorie multiple times when he was in middle school and even wrote Okorie letters. AR 1958-59.

Okorie denied the charges against him. AR 1955. He never kissed D.B., never fondled his genitals, never hugged and squeezed D.B.’s buttocks. AR 1955. He never touched any child in an indecent manner. AR 1956.

In April 2014, Jackson asked Okorie about his computer equipment. AR 1967. She asked him about, inter alia, his District-issued iPad and laptop. AR 1968. He responded that he was not sure about the items’ locations but that he had them. Id. Okorie acknowledged receiving a written directive from Jackson concerning the items. Id. When he received it, he was dealing with other matters, such as his wife who had just given birth. AR 1968-69. Consequently, he was unable to look for the items. Id.

In May 2014, Okorie went on maternity leave. AR 1967. In August 2014, he returned from maternity leave. AR 1971. When he returned, he met with Galedary. AR 1971-72. Okorie offered to return the equipment at that time. AR 1972.

Okorie refused to speak to the police and “pled the Fifth” because he did not know what the charges were about. AR 1997-98. He also refused to speak to the LAUSD investigation team because they would not tell him what the charges were about. AR 1198.

He did have a conversation at Kaiser with D.B.’s aunt, but it had nothing to do with asking D.B. not to testify. AR 1997.

8. The Commission’s Decision

a. The Charged Misconduct

The Commission evaluated the four charges of misconduct levied against Okorie: (1) Okorie molested a fifth-grade student in the classroom on three occasions in 2006 and 2007; (2) Okorie pulled down the pants of elementary school students in the schoolyard; (3) Okorie refused to surrender District computer equipment despite demand for its return; and (4) Okorie disobeyed District policies in various other ways. AR 834. The Commission found that the first and third charges were substantiated (AR 860, 865) and that the second and fourth charges were unsubstantiated. AR 859, 865.

b. Credibility Determination

In finding the first and third charges substantiated, the Commission made credibility findings. AR 862-63. The Commission noted that D.B.’s testimony was credible and detailed. AR 862. D.B. described the traumatic circumstances as one would expect a child in middle school to observe and then reflect on over several years. Id. His emotional reactions to these traumatic circumstances were appropriate. Id. D.B. described how Okorie’s immoral conduct in the first incident took him by surprise, he testified that he simply complied when Okorie required him to remain in class to complete a homework assignment in the second incident,[5] and he testified that he planned to forestall a third incident by bringing a classmate with him, but Okorie defeated the plan by closing the door on the companion and leaving D.B. alone for the assault. AR 862.

The Commission acknowledged that Armstrong and Tripodo contradicted D.B.’s account for the third incident by explaining that the lunch cards would be located outside the cafeteria and not in the classroom. AR 863. This contradiction casts some doubt on D.B.’s account, but not in a significant way. AR 863. D.B. may not have remembered all the details, but his testimony about the molestation was quite believable. AR 863.

In contrast, the Commission found certain parts of Okorie’s testimony to be untrustworthy. AR 863. Okorie’s blanket denial of the three incidents of molestation was not credible, especially compared with D.B.’s detailed descriptions, which were consistent over several retellings and from which D.B. obtained no benefit. Id. Okorie’s assertion that he did not know the whereabouts of the computer equipment was untruthful because it was easily found at his home when a search warrant was executed. Id. Okorie’s testimony that he offered to return the computer equipment, but was refused by Operations Coordinator Galedary, was not credible. There was no reason for Galedary to refuse equipment that he knew District had long sought and would retrieve by any lawful means necessary, including a warrant. Id. The Commission noted that Okorie’s false testimony about the computers may be taken to disbelieve other aspects of his testimony, citing CACI 107. AR 863.

c. Evaluation of the Statutory Causes for Dismissal

The Commission then examined the five statutory causes for dismissal: (1) immoral conduct (§44932(a)(1)), (2) dishonesty (§44932(a)(4)), (3) evidence unfitness for service (§44932(a)(6)), (4) persistent violation of or refusal to obey the state’s school laws 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 (§44932(a)(8)); and (5) willful refusal to perform regular assignments without reasonable cause (§44939(b)). AR 860-65.

The Commission found that cause existed for Okorie’s dismissal on all five statutory bases. AR 860. The Commission premised the first and third causes exclusively on the finding that Okorie touched D.B. inappropriately on three separate occasions. AR 860, 863. The Commission noted that molestation is plainly immoral conduct and that such misconduct indicates evident unfitness for service in an elementary school teaching position. Id. The Commission premised the second and fifth causes exclusively on its findings regarding the District-issued computer equipment. AR 864-65. Okorie was dishonest in claiming not to know where the District-issued computer equipment was and failed to perform a regular assignment without regular cause by not returning the equipment when directed. Id. His dishonesty was aggravated by the fact that he knew he was suspected of sexual abuse of a minor and his possession of the computer equipment for so long raises the suspicion that he was despoiling evidence. Id. Finally, the Commission premised the fourth cause on a combination of the molestation and computer equipment findings, noting that both involved refusal to obey obligations imposed by school laws and reasonable regulations. AR 864.

d. Evaluation of the Morrison Evaluation

The Commission then evaluated Okorie’s unfitness to teach under the Morrison factors.[6] AR 860-62. As to the first factor, the Commission found that Okorie’s misconduct adversely affected D.B. who felt confusion and alienation as a consequence of the misconduct. Id. Okorie’s misconduct also raised the danger that he could act in a similar way towards other students and thereby traumatize them. Id.

As to the second factor, the Commission acknowledged that the conduct was not recent which serves as a mitigating factor. Id.

As to the third factor, the Commission observed that Okorie’s multiple subject teaching credential allowed him to interact daily with elementary school-age children, a population especially vulnerable to sexual misconduct. Id. Okorie’s credential therefore was directly linked to the misconduct. Id. The Commission found that this factor weighed strongly in favor of dismissal. Id.

As to the fourth factor, the Commission noted that aggravating factors included that (1) Okorie planned the first incident and manipulated the school’s administrative procedures to enable his conduct and (2) Okorie demonstrated a pattern of misconduct by committing the misconduct on three separate occasions. AR 860-61.

As to the fifth factor, the Commission found Okorie’s conduct to be wholly blameworthy. AR 861. The Commission observed that Okorie repeatedly and egregiously transgressed the morals of the general community as well as the District’s Code of Conduct with Students and Code of Ethics. Id.

As to the sixth factor, the Commission found that recurrence of the misconduct was likely as he engaged in the conduct more than once over the course of several months. Id.

As to the seventh factor, the Commission found that it to be irrelevant as Okorie was not exercising a constitutional right in committing the misconduct. AR 862.

Finally, as to the eighth factor, the Commission found that the misconduct did not generate publicity or notoriety and had no bearing on the discussion. Id.

Ultimately, the Commission concluded that the Morrison factors demonstrated Okorie’s unfitness to teach. AR 860. The Commission ordered that Okorie be terminated as a certificated District employee. AR 865.

E. Analysis

Petitioner Okorie argues that (a) the hearing violated his due process rights, (b) the factual findings are not supported by the weight of the evidence, and (c) the Morrison factors do not support his termination.

1. Due Process

Petitioner Okorie makes two arguments that the hearing violated due process: (a) the admission into evidence of his assertion of his Fifth Amendment privilege at interview, and (b) the ALJ’s exclusion of him from the hearing when D.B. testified.

a. Fifth Amendment

Okorie argues that the ALJ impermissibly admitted evidence of Okorie’s exercise of his right to silence. Pet. Op. Br. at 10. First, Okorie relies on the testimony of LAPD Officer Gevogyan, who testified that Okorie “refused to speak with the [LAPD] detective [assigned to the criminal investigation].” Geyogyan testified that this information was contained in his report and he never actually spoke with the detective himself. AR 1177.[7] On cross-examination, Okorie’s counsel explicitly asked Gevogyan whether Okorie had a right to exercise his Fifth Amendment privilege. AR 1190. Geyogyan acknowledged that he did. AR 1190.

Second, Okorie relies on District SSIT Investigator Metcalf’s testimony that he attempted to interview Okorie in the presence of his attorney. AR 1673. The attorney indicated that Okorie would not answer questions and would exercise his Fifth Amendment rights. AR 1673. Metcalf explained that the Fifth Amendment is not available in an administrative proceeding, and that he gave Okorie three Spielbauer admonition[8] to no avail. AR 1674.

Third, Okorie cites his own testimony at the hearing that he exercised his Fifth Amendment right in refusing to speak to LAPD, and subsequently refused to speak to the LAUSD investigation team. AR 1997-98.

Okorie is wrong about the scope of the Fifth Amendment, which protects a defendant from self-incrimination in a criminal case. The Fifth Amendment to the United States Constitution provides: “No person … shall be compelled in any criminal case to be a witness against himself.” This constitutional guarantee privileges a person not to answer official questions in any proceeding, civil or criminal, where he or she reasonably believes the answers might incriminate him or her in a criminal case. Spielbauer, supra, 45 Cal.4th at 714. The Fifth Amendment does not prevent a public employer from disciplining an employee who refuses to answer job-related questions where there is no prospect that the answers may be used in a criminal case. Id., at 718, 725.

Okorie cites to United States v. Whitehead, (“Whitehead”) (9th Cir. 2000) 200 F.3d 634, 637-38 for the proposition that a prosecuting agency’s comment on a person’s exercise of this right violates the Fifth Amendment. Pet. Op. Br. at 10. Whitehead was a criminal case involving the defendant’s post-arrest, pre-Miranda exercise of his right to remain silent and the prosecutor’s comment on the silence in closing argument. 200 F.3d at 639. This comment infringed on Whitehead’s privilege against self-incrimination. Id.

Whitehead is distinguishable because it was a criminal case. Under Spielbauer, the Fifth Amendment does not forbid a fact finder in a public employee administrative proceeding from drawing an adverse inference against a party who relies on the Fifth Amendment to refuse to answer questions where those answers cannot be used in a criminal case. When the Spielbauer admonition was given, Metcalf was informing Okorie of just such a limitation. The fact that Okorie’s lawyer was unaware of Spielbauer or its effect is of no moment. See AR 1674.

Moreover, as District points out (Opp. at 9), Whitehead evaluated whether the prosecutor’s comment on Whitehead’s silence was prejudicial, ultimately concluding that the overwhelming evidence of Whitehead’s guilt was determinative and the error therefore did not affect substantial rights. 200 F.3d at 639. In this case, neither District’s prosecutor, the ALJ, nor the Commission even commented on Okorie’s assertion of the Fifth Amendment. Assuming arguendo that the admission of Okorie’s refusal to submit to an interview infringed on Okorie’s constitutional privilege, he suffered no prejudice.

Okorie points to Evidence Code section 913 (“section 913”). Reply at 2. Section 913(a) prohibits a presiding officer or counsel from commenting on or drawing an adverse inference from a party’s exercise of the privilege not to testify in a civil or criminal proceeding. People v. Holloway, (2004) 33 Cal.4th 96, 130 (section 913 applies to civil and criminal cases alike). Section 913(b) requires the court, upon the request of a party potentially adversely affected by such an inference, to instruct the jury not to draw any adverse inferences. The California Law Revision Commission notes state: “Section 913 prohibits any comment on the exercise of a privilege and provides that the trier of fact may not draw any inference therefrom…. It should be noted that Section 913 deals only with comment upon, and the drawing of inferences from, the exercise of a privilege. Section 913 does not purport to deal with the inferences that may be drawn from, or the comment that may be made upon the evidence in the case.” Okorie asserts that the ALJ failed to give an instruction to the Commission under section 913(b). Reply at 2.

Section 913(a) has no bearing on this case. Under Spielbauer, Okorie had no privilege to refuse to speak to Metcalf because his statements could not be used in any criminal prosecution. Moreover, section 913(a) is inapplicable because Okorie did not refuse to testify in the administrative hearing; he did testify. Okorie’s attorney also did not make any request for a limiting instruction under section 913(b).[9]

b. Exclusion of Okorie from the Hearing

Okorie argues that the ALJ’s decision to exclude him during D.B.’s testimony was prejudicial and denied him the right to a fair hearing. Pet. Op. Br. at 11.

The constitutional right to confrontation is confined to criminal proceedings. This right includes the right to physical confrontation — i.e., face-to-face meetings between the defendant and child witness in a criminal child molestation prosecution. In civil proceedings, a party has a due process right under the Fifth and Fourteenth Amendments to cross-examine and confront witnesses. In re Mary S., (“Mary S.”) (1986) 186 Cal.App.3d 414, 419.

The Administrative Procedures Act does not guarantee an absolute right to personal presence. Arnett v. Office of Admin. Hearings, (1996) 49 Cal.App.4th 332, 340, fn.4. Instead, it guarantees rights such as the ability to cross-examine opposing witnesses and rebut the evidence against him or her. Govt. Code §11513.

In Mary S., the appellate court concluded that there is no justification for extending the face-to-face component of the constitutional confrontation right to dependency hearings where the child’s welfare is paramount. When there is a showing that the minor’s fear could impede the court’s full receipt of relevant evidence, a parent’s due process right to confrontation is adequately protected by his counsel’s confrontation of the child. Mary S., supra, 186 Cal.App.3d at 419-20.

Okorie’s argument is unpersuasive for two reasons. First, as the District observes (Opp. at 10), Okorie waived his right to object to his exclusion from the hearing during D.B.’s testimony by failing to do so at the hearing. AR 888; see, e.g., Hand v. Board of Examiners, (1977) 66 Cal.App.3d 605, 613; Griswold v. Department of Alcoholic Beverage Control, (1956) 141 Cal.App.2d 807, 811. Second, Okorie’s exclusion from the hearing did not violate due process. His right to confront and cross-examine D.B. was adequately served by his counsel’s presence at D.B.’s examination, Okorie’s ability to watch and listen the proceeding from a closed-circuit television, and his counsel’s intermittent conferences with Okorie during the testimony. AR 888-89.

2. Weight of the Evidence

Okorie asserts that the factual findings are not supported by the weight of the evidence adduced at the hearing. Pet. Op. Br. at 12.

a. Computer Equipment Charge

Okorie asserts that he was not dishonest in his statement to Jackson that he did not know the whereabouts of the District-issued computer equipment because he genuinely did not know where things were placed after being unceremoniously removed from his classroom. Pet. Op. Br. at 12. Okorie argues that there is no evidence in the record to the contrary. Id. Okorie notes that subsequently left for maternity leave to take care of his wife and bond with his new child, and he returned in August 2014. After that, Okorie blames Galedary, the District Operations Coordinator who replaced Jackson, for not following up with him because Galedary assumed that SSIT was handling the computer situation and did not ask Okorie about the equipment. Pet. Op. Br. at 13.

The pertinent facts are as follows. District issued Okorie a laptop and I-Pad after he signed forms acknowledging that the equipment was LAUSD property. AR 715-16. As part of his investigation, SSIT Investigator Metcalf asked Operations Coordinator Jackson to retrieve the equipment. AR 822, 1659-60. On April 21, 2014, with Galedary as a witness, Jackson asked Okorie to return the District-issued laptop computer. AR 822, 1703. Okorie answered that the equipment “was somewhere”, but he had not used it in a while and was unsure of its location. Id. Two days later, Jackson spoke with Okorie on the telephone and asked about both the laptop and I-Pad. Id. Okorie answered that he attended a District-sponsored training to get the I-Pad, and he did not have to return it. Id. That same day, Jackson emailed Okorie and asked him to return the District property. AR 823. Okorie answered by reiterating his contention that “it was somewhere”, but he was unsure of the location because he had not used it in a while. Id., Ex. A.

On May 6, 2014, Jackson issued and personally delivered to Okorie a written directive ordering him to return the items. AR 823, Ex. C. Okorie said he would respond in writing, but never did so. AR 823. On May 18, 2014, Jackson asked for assistance from District’s Police Department in recovering the items. Detective Gray obtained search warrants to recover the items. AR 721-24.

Jackson retired in June 2014, and Galedary took over Jackson’s duties when he returned from vacation in August 2014. AR 1712, 1714, 1717. At that time, he met with Okorie and let Okorie know that he was now his supervisor. AR 1717. Galedary did not follow up on the computer issue because he was under the impression that SSIT (Metcalf) had assumed responsibility of this task. AR 1717.

On October 16, 2014, Gray executed the search warrants at Okorie’s home for the laptop and I-Pad, respectively. He asked Okorie where the equipment was, and Okorie led him to it in his back bedroom. AR 726, 1213.

These facts and basic logic do not bear out Okorie’s contention. District removed Okorie from the classroom on April 4, 2014. AR 713. District needed the equipment for its molestation investigation, a fact which should have been obvious to Okorie. Okorie deflected repeated requests in April and early May 2014 for return of the equipment, stating that he did was unsure where it was. His deflection included a written directive to return the equipment, to which Okorie said he would respond but never did. Ultimately, the equipment was obtained from Okorie’s home by search warrant, and Okorie knew exactly where it was. Okorie’s argument that he really did not know where the equipment was when he answered the question in April and May is unsupportable. The Commission reasonably concluded that Okorie’s answers were deceptive, dishonest, and possibly given for the purpose of deleting evidence from his electronic devices. AR 863-64.

Okorie also contends that he offered to give the equipment to Galedary in August 2014, but Galedary demurred on the belief that SSIT (Metcalf) was handling the equipment recovery. Pet. Op. Br. at 13. According to Okorie’s testimony, he met with Galedary when he returned from maternity leave. AR 1971-72. They talked about the equipment, which Okorie offered to return. AR 1972.

The Commission found, and the court agrees, that Okorie’s testimony is false. AR 863. Galedary was involved in the request to recover the equipment from the beginning and would have known its significance to the investigation. He testified that he took over Jackson’s duties in August 2014, and he did not follow up on the computer equipment issue because it was being handled by SSIT. AR 1717. He also presumably knew that Gray had obtained search warrants. There is no logical reason why Galedary would refuse an August 2014 offer from Okorie to return the equipment. The conclusion must be that it simply did not happen.

The charge of dishonesty is supported by the weight of the evidence.

b. Molestation Charge

(i) Okorie’s Position

Okorie argues that the Commission wrongly decided the credibility issues. he argues that D.B.’s uncorroborated testimony should be deemed incredible. Pet. Op. Br. at 12. To validate this argument, Okorie points to several contradictions in D.B.’s testimony. Id.

For the third incident, Okorie notes that Westport teachers Armstrong and Tripodo testified that student lunch cards have been stored on a rack outside the cafeteria since 2003. AR 1881, 1906. Yet, D.B. testified that cafeteria staff would hand out the cards to students in classrooms prior to lunch, and he returned to Okorie’s classroom because he left his card there. AR 954. Okorie posits that D.B.’s testimony is nonsensical because it would mean that cafeteria staff would walk around to classrooms during instructional time. Based on this discrepancy, Okorie concludes that the third incident never happened. Pet. Op. Br. at 13-14.

For the second incident, D.B. testified that Okorie ordered him to stay in the classroom during recess for not completing homework. AR 950. D.B. testified that this order was odd because “[n]o other student has ever had to stay behind for recess even though they didn’t complete their homework.” Id. This testimony was contradicted by Corral, who said that Okorie would often order students to stay in at recess and lunch if they did not complete their homework. AR 1303-04. She said: “Some kids never saw daylight all year.” AR 1304. Pet. Op. Br. at 14.

For the first incident, Okorie reasons that if D.B. was summoned to Okorie’s classroom, then class was presumably in session and other students should have been in the classroom. Pet. Op. Br. at 14.

(ii) Problems with the D.B. Version

There are contradictions in D.B.’s version of the second and third incidents. As the Commission noted (AR 863), it is unlikely that D.B. is correct about either Westport’s cafeteria card practices and his conclusion that Okorie never required other students to stay behind for recess to complete their homework.[10]

Additionally, D.B.’s testimony differs from his interview with LAPD in some respects. The LAPD’s report states that the first incident lasted approximately ten minutes, the second incident lasted four to five minutes, and the third incident lasted five minutes. AR 705-06. Yet, D.B. testified that each incident lasted about 30 to 35 seconds. AR 952. D.B. told LAPD officers that in the first incident Okorie grabbed his hand and placed it over his (Okorie’s) genital area. AR 705. Yet, D.B. testified only that Okorie fondled D.B.’s genital area and butt in the first incident; there was no testimony about D.B. doing the same. See AR 944. D.B. told the LAPD officers that Okorie hugged and squeezed his buttocks during the second incident. AR 706. Yet, D.B. testified that Okorie kissed and fondled him in the second incident, but there was no touching of the butt or genital area. AR 952. D.B. testified that Okorie kissed him and fondled his genitals and butt during the third incident, but he did not tell the LAPD officers that Okorie kissed him. AR 706, 955.

Are these contradictions material? As the Commission found, D.B. was most likely mistaken in his recollection about the lunch card system and the reason why he returned to the classroom. But the reason why D.B. returned is inconsequential; the material point is that D.B. did return to the classroom and was alone with Okorie. D.B.’s testimony that no other student had stayed behind during recess to complete homework is not important either. He was wrong about that, but Okorie does not dispute that D.B. was held in class for that purpose. As such, it simply provided the basis for which D.B. was alone with Okorie. Whether other students had been alone with Okorie during lunchtime is not significant.

D.B.’s testimony also must be given some latitude because he was recounting events from ten years earlier. The memory failure from time delay also can partly explain the discrepancies between D.B.’s April 3, 2014 LAPD interview and his 2016 testimony. On both occasions, D.B. consistently stated that Okorie molested him on three occasions, and his recount of those events was relatively consistent; that he did not precisely state the specific acts of molestation consistently can be forgiven.

Although not raised by Okorie, D.B.’s version of molestation contains other flaws. The third incident is the most troublesome. By then, D.B. knew what Okorie was doing was wrong. Yet, he went back to the classroom — ostensibly to retrieve his lunch card — and took his friend Dominique with him. This makes sense. D.B. testified that he was foiled in this protection plan because Okorie shut Dominique out of the room. The obvious question is why would Okorie run the risk of fondling D.B. when his friend is standing right outside the classroom? Surely Okorie could have molested D.B. on another less precarious occasion.

D.B. also testified that he prevented Dominique from finding out something was wrong because he is “a good actor”. AR 1007. If that is true, then perhaps he was acting at the retreat, with his relatives, to the investigator, and in his testimony.[11]

Apart from D.B.’s inconsistencies, Okorie’s background supports his position. He was considered a fine teacher with a great, albeit firm, reputation whom students often came back to visit. He had no history of sexual abuse and no other student in D.B.’s class came forward to corroborate D.B.’s version of events.

Consequently, Okorie could have cast considerable doubt on D.B.’s version of events if his own version were credible. The problem is that it was not. Okorie’s testimony that he did not know where his laptop and I-Pad were in April/May 2014, and that he offered to return them in an August 2014 conversation with Galedary, simply was false. The Commission relied on CACI 107 to conclude that since Okorie was lying about the equipment, he may also be lying about the molestation. See AR 863. This conclusion is fair and undermines Okorie’s position.

Additionally, Okorie’s version consists of mere bare denials that he ever kissed D.B., fondled his genitals, hugged and squeezed D.B.’s buttocks, or touched any child in an indecent manner. AR 1955-56. Okorie did not testify whether he knew who D.B. was before he was in fifth grade, and whether he called D.B. to his classroom while he was still in fourth grade in advance of being assigned to Okorie’s class. He did not testify to his purported practice of holding children in over recess to do their homework, and whether he ever required D.B. to do so. He did not testify about the cafeteria cards, and that it would be impossible for D.B. to come back for his card. He did not testify to, or provide explanations for, any incidents that could be misinterpreted by D.B. He did not testify to his relationship with D.B. or any possible motivation for D.B. to falsely accuse him, such as a personality conflict, bad grade, or other issue.

In sum, this case presents a true “he said, he said” situation. D.B. revealed the molestation in a school retreat at which seniors were encouraged to reflect on their life experiences, particularly from a religious perspective. AR 1602-03. He did so, and relatively consistently told the same version of events thereafter. No motive for D.B. to reveal this molestation was given, and he obtained no benefit from it. As the Commission concluded, D.B. provided credible detail of the events, and his reactions were such as one would expect from a middle school child to observe and testify to later. AR 862. In comparison, Okorie’s bare denial was not credible. AR 863. D.B.’s version of molestation must be credited, and Okorie is guilty of the molestation charges.[12]

3. Morrison Factors

Okorie argues that the Morrison factors do not support termination of his employment. According to Okorie, the first factor is inapplicable because the incidents never occurred and the extenuating circumstances are the passage of time since the alleged incidents and the absence of repeat occurrences. Pet. Op. Br. at 14-15.

This argument may be disposed of swiftly. Okorie is guilty of both molestation and dishonesty with respect to the computer equipment. This harmed D.B., Okorie’s fellow teachers, the school, and LAUSD. As the Commission acknowledged, the misconduct was not recent which is a mitigation.

The Commission correctly observed that Okorie’s multiple subject teaching credential allowed him to interact daily with elementary school-age children, a population especially vulnerable to sexual misconduct. Okorie’s credential therefore was directly linked to the misconduct, and this factor weighed strongly in favor of dismissal. The facts that Okorie planned the first incident and demonstrated a pattern of misconduct were aggravating factors. Okorie’s misconduct was blameworthy, and recurrence of the misconduct was likely because of its repeated nature.

The Morrison factors demonstrate Okorie’s unfitness to teach. AR 860. The Commission correctly ordered that Okorie be terminated as a certificated District employee. AR 865.

F. Conclusion

The Petition for writ of mandate is denied. District’s counsel is ordered to prepare a proposed judgment, serve it on Petitioner’s counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for August 23, 2018 at 9:30 a.m.

[1] All further statutory references are to the Education Code unless otherwise stated.

[2] Okorie attaches two declarations and an exhibit to his opening brief. A hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency. Toyota of Visalia v. New Motor Vehicle Bd., (1987) 188 Cal.App.3d 872, 881. To have this extra-record evidence considered, Okorie was required to file a motion to augment under CCP section 1094.5(e). In addition, the content of Okorie’s declarations do not meet the test for consideration of extra-record evidence. The District’s objections to this evidence are sustained.

[3] There is no witness identification page in the Joint Appendix.

[4] There is no witness identification page in the Joint Appendix.

[5] The Commission was simply wrong in stating that D.B. was “aware that [Okorie] regularly kept students from non-instructional activities like recess when they failed to complete assignments like homework.” AR 841, 862. Other witnesses testified that this was Okorie’s common practice, but D.B. testified that no student ever had to stay behind for recess for failure to complete homework, so this punishment was odd. AR 950-51.

[6] Those factors include: (1) the likelihood that the conduct may have adversely affected students, fellow teachers, or the educational community, and the degree of such adversity anticipated; (2) the proximity or remoteness in time of the conduct; (3) the type of credential held or applied for by the person involved; (4) the extenuating or aggravating circumstances surrounding the conduct; (5) the praiseworthiness or blameworthiness of the motives resulting in the conduct; (6) the likelihood of the recurrence of the questioned conduct; (7) the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the person involved, or other certified persons; (8) the publicity or notoriety given to the conduct. 5 CCR §80302.

[7] Okorie cites the ALJ’s admission of the LAPD investigative report (Ex. 55), which includes an investigator’s statement that Okorie “refused to provide a statement.” AR 709. Pet. Op. Br. at 10.

[8] Under Spielbauer v. County of Santa Clara, (“Spielbauer”) (2009) 45 Cal.4th 704, 714, answers given in an administrative investigation cannot be used in a criminal proceeding.

[9] Okorie is correct that there is a difference between waiving a Fifth Amendment privilege by testifying at a hearing and an adverse comment upon an earlier decision to assert that right. Reply at 1. But Okorie improperly asserted that right in his interview with Metcalf.

[10] Okorie’s argument about the first incident does not present a contradiction. There is no evidence that Okorie was holding class when D.B. received a summons.

[11] Finally, D.B. contends that he sustained an erection in the first incident, but at the time he was only eight years old, going on nine. AR 941, 944. Even in an where children mature emotionally earlier than in the past, expert testimony on whether an eight-year old boy can have a sexual erection might have been useful.

[12] Okorie also asserts that the testimony of Young, D.B., and Smith was inconsistent and does not “add up”, but he provides no specifics in support of this contention. Pet. Op. Br. at 14. Okorie argues that his disciplinary records repudiate Smith’s testimony that Okorie was pulled out of IUSD for placing a hand on a student. Id. Assuming arguendo that Okorie had no disciplinary record at IUSD (AR 1947), Smith was merely relaying what V. Smith told her, and V. Smith’s mistaken recollection that Okorie was disciplined at IUSD for placing a hand on a student is not probative of the issues. AR 1090-91.