Filed 1/8/09; pub. order 2/5/09 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

COLLEEN KOLTER,

Plaintiff and Appellant,

v.

COMMISSION ON PROFESSIONAL COMPETENCE OF THE LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant and Respondent;

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Real Party in Interest and Respondent.

No. B206134

(Super. Ct. No. BS107557)

APPEAL from a judgment of the Superior Court of Los Angeles. Dzintra Janavs and James C. Chalfant, Judges. Affirmed.

Trygstad, Schwab & Trygstad, Lawrence B. Trygstad and Shanon D. Trygstad for Plaintiff and Appellant.

Priscilla S. Winslow and Alice O’Brien for California Teachers Association as Amicus Curiae on behalf of Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Miller Brown & Dannis and Enrique M. Vassallo for Real Party in Interest and Respondent.

May the governing board of a school district convene in a closed session to initiate the process to dismiss a permanent certificated teacher without complying with the Ralph M. Brown Act (Gov. Code, § 54950 et seq. (the Brown Act)), which requires 24-hour written notice to the employee of the right to have the matter heard in an open session? Yes.

FACTUAL AND PROCEDURAL BACKGROUND

The governing board of the Los Angeles Unified School District (District) met in a closed session on May 2, 2006 and initiated the process to dismiss permanent certificated elementary school teacher Colleen Kolter. (Educ. Code, § 44934.) Kolter did not receive any pre-meeting notice of the session or of the charges against her. After the closed session, the District notified Kolter by mail of the intent to dismiss and her right to a public hearing. (Educ. Code, § 44941.)

Kolter, represented by counsel, exercised her statutory right to a hearing before the Commission on Professional Competence (Commission). (Educ. Code, § 44944.) Before any evidence was presented to that body, Kolter moved to dismiss the proceedings, arguing the governing board’s closed session violated her rights under the Brown Act. She also sought dismissal based on the District’s earlier failure, once her attorney advised she was under treatment for bipolar disorder, to provide a reasonable accommodation for the disability. Specifically, she faulted the District for not invoking Education Code section 44942, subdivision (f) and placing her on involuntary medical leave. Both motions to dismiss were denied, and the Commission proceeded to take evidence over a nine-day period. The three-member Commission unanimously agreed Kolter should be dismissed. (Educ. Code, § 44944, subd. (c)(1).)

Kolter then filed this action for administrative mandamus, disability discrimination, failure to place her on mandatory sick leave, and failure to offer a reasonable accommodation for her disabilities. (Code Civ. Proc., § 1094.5, Gov. Code, § 12900.) The cause of action for administrative mandamus was tried to the court on the administrative record and arguments of counsel. Kolter’s petition for writ relief was denied. The court adopted and filed the tentative decision as its statement of decision. Thereafter, Kolter voluntarily dismissed the causes of action based on the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), and judgment denying the peremptory writ of mandamus was entered.

DISCUSSION

The Brown Act generally requires that “[a]ll meetings of the legislative body of a local agency shall be open and public . . . .” (Gov. Code, § 54953.) It applies to school districts. (Gov. Code, §§ 54951, 54952; Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 95 (Fischer).) Per the Brown Act itself, the only exceptions are found in its own provisions or in “any provision of the Education Code pertaining to school districts . . . .” (Gov. Code, § 54962.) Government Code section 54957 describes the “personnel exception” to the open meeting requirement. (Fischer, supra, at pp. 95-96.) That exception provides in part:

Nothing contained in this chapter shall be construed to prevent the legislative body of a local agency from holding closed sessions . . . during a regular or special meeting to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session. [] As a condition to holding a closed session on specific complaints or charges brought against an employee by another person or employee, the employee shall be given written notice of his or her right to have the complaints or charges heard in an open session rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session. If notice is not given, any disciplinary or other action taken by the legislative body against the employee based on the specific complaints or charges in the closed session shall be null and void.

Kolter contends the governing board’s consideration of the charges against her triggered the “As a condition” clause to the exception, thus requiring 24-hour notice by the District’s governing board and an opportunity to request an open session. Because the governing board acted in a closed session, she asserts the dismissal is void. (Gov. Code, § 54957, subd. (b)(2).) The District disagrees, citing Bollinger v. San Diego Civil Service Com. (1999) 71 Cal.App.4th 568 (Bollinger) and Fischer, supra, 70 Cal.App.4th 87.)

Although the closed civil service commission session in Bollinger occurred after the employee was afforded a public evidentiary hearing, much of the Court of Appeal’s analysis of Government Code section 54957 is applicable here. There, a public employee was demoted for misconduct. He appealed and exercised his right to a noticed public evidentiary hearing. The hearing officer issued a written report after the evidentiary hearing, recommending that the demotion be affirmed. The report, however, was not provided to the employee. Nor was the employee given written notice that the civil service commission would meet in a closed session to consider whether to ratify the demotion. After the commission acted in the closed session, the employee received a copy of the hearing officer’s report. The employee contended the Brown Act prohibited the commission from considering his demotion in a closed session. The Court of Appeal disagreed.

The Bollinger court first noted that in section 54957 the Legislature used the verb “hear” in connection with “complaints or charges,” but the verb “consider” in connection with “dismissal of a public employee.” (71 Cal.App.4th at p. 574.) The Court of Appeal concluded the word choice was significant because the dictionary defines “to consider” as “to ‘deliberate upon,’ [while] [t]o ‘hear’ is to ‘listen to in an official . . . capacity[.]’ [Citation.] A ‘hearing’ is ‘[a] proceeding of relative formality . . . , generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and evidence presented.’ [Citation.]” (Ibid., see also Fischer, supra, 70 Cal.App.4th at pp. 96-97.)

The legislative history of Government Code section 54957 provided further support for Bollinger’s conclusion that a closed session was permissible under these circumstances. The original drafts of the Assembly and Senate bills (Stats. 1993, ch. 1136, § 12 (Assem. Bill No. 1426 (1993-1994 Reg. Sess.)); Stats. 1993, ch. 1137, § 12 (Sen. Bill No. 36 (1993-1994 Reg. Sess.)) included the following language: “As a condition to holding a closed session on the complaints or charges to consider disciplinary action or to consider dismissal, the employee shall be given written notice of his or her right to have a public hearing rather than a closed session, which notice shall be delivered to the employee personally or by mail at least 24 hours before the time for holding the session.” (Sen. Bill No. 36 (1993-1994 Reg. Sess.) § 17; Assem. Bill No. 1426 (1993-1994 Reg. Sess.) § 17, italics added; Bollinger, supra, 71 Cal.App.4th at p. 574.)

The language italicized above was removed from both bills before Government Code section 54957 was enacted. (Assem. Amend. to Sen. Bill No. 36, § 12 (1993-1994 Reg. Sess.) Aug. 19, 1993; Sen. Amend. to Assem. Bill No. 1426, § 12 (1993-1994 Reg. Sess.) Sept. 8, 1993.) As enacted, therefore, section 54957 does not entitle an employee “to 24-hour written notice when the closed session is for the sole purpose of considering, or deliberating, whether complaints or charges brought against the employee justify dismissal or disciplinary action. ‘The rejection of a specific provision contained in an act as originally introduced is “most persuasive” that the act should not be interpreted to include what was left out.” [Citations.] Accordingly, we conclude a public agency may deliberate in closed session on complaints or charges brought against an employee without providing the statutory notice.” (Bollinger, supra, 71 Cal.App.4th at pp. 574-575; see also Fischer, supra, 70 Cal.App.4th at pp. 95-102 [involving “election” proceedings for probationary teachers].) We agree.

In this matter, the governing board did not conduct an evidentiary hearing on the verified statement of charges against Kolter; rather, it considered whether those charges justified the initiation of dismissal proceedings under Education Code section 44944. Kolter exercised her statutory right under the Education Code and was accorded a noticed public evidentiary hearing. The personnel exception to the Brown Act applied to the governing board’s action, and 24-hour written notice was not required.

In an amicus brief, the California Teachers Association (CTA) offers a different perspective on the closed session before the governing board. While conceding the Education Code assures permanent certificated teachers a full evidentiary hearing before they are actually dismissed, CTA maintains that Skelly v. State Personnel Board (1975) 15 Cal.3d 194 requires they also “have an absolute right to address the governing board before it makes a decision to terminate.” This argument misstates the holding in Skelly, where the Supreme Court determined that “due process does not require the state to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action. However . . . due process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective.” (Id. at p. 215.) The Legislature enacted Education Code section 44934 the year after the Skelly decision and provided precisely that due process safeguard.

CTA also notes the Commission is not authorized to impose probation or a sanction other than dismissal. (Educ. Code, § 44944, subd. (c).) Quoting Cleveland Bd. of Educ. v. Loudermill (1985) 470 U.S. 532, 543, CTA characterizes this statutory restriction as the loss of a “‘meaningful opportunity to invoke the discretion of the decisionmaker’ . . . to argue that termination is not the most appropriate or necessary sanction.” Not so. Although the Commission hearing evidence in a dismissal proceeding does not have the statutory authority to impose discipline other than dismissal, it does have the discretion to refuse to dismiss, even if it finds that cause for discipline exists. (Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 217, 222.)

Finally, CTA contends a permanent certificated teacher’s “liberty interest in an opportunity to clear her name” demands that the governing board provide her with notice before it initiates dismissal proceedings. The argument is circular and, as the District notes, would add a second evidentiary hearing to the process. The result is neither desired nor required by law.

DISPOSITION

Judgment affirmed. Parties to bear their own costs on appeal.

DUNNING, J.*

We concur:

MALLANO, P.J.

ROTHSCHILD, J.
Filed 2/5/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

COLLEEN KOLTER,

Plaintiff and Appellant,

v.

COMMISSION ON PROFESSIONAL COMPETENCE OF THE LOS ANGELES UNIFIED SCHOOL DISTRICT,

Defendant and Respondent;

LOS ANGELES UNIFIED SCHOOL DISTRICT,

Real Party in Interest and Respondent.

No. B206134

(Los Angeles County

Super. Ct. No. BS107557)

CERTIFICATION AND ORDER

FOR PUBLICATION

The opinion in the above-entitled matter filed January 8, 2009 was not certified for publication in the Official Reports. For good cause it now appears the opinion should be published in the Official Reports, and it is so ordered.

_______________________________________________________________________

MALLANO, P. J. ROTHSCHILD, J. DUNNING, J.*