Edward Behrens vs Santa Barbara Unified School District
Case No: 18CV02536
Hearing Date: Wed May 01, 2019 9:30

Nature of Proceedings: Writ of Mandate; 2 Motions to File Under Seal

TENTATIVE RULING: For the reasons articulated below, the petition is denied.

To the extent the two applications to file matters under seal are still before the Court, they are granted.

Procedural Background: Petitioner Edward Behrens (Behrens) served as principal of San Marcos High School (SMHS) between July 1, 2011, and June 30, 2018, at which time he was removed as principal by the Santa Barbara Unified School District (District), and reassigned as a classroom teacher. In response to his removal as principal, Behrens on May 21, 2018, filed a verified petition for writ of mandate (Code Civ. Proc., § 1085) or alternative writ of mandate (Code Civ. Proc., § 1087), seeking reinstatement to his position as principal of SMHS and any back pay or benefits that were lost as a result of his removal, as well as attorneys’ fees. He also alleged causes of action for violation of his constitutional due process rights, in violation of 42 U.S.C., § 1983, and unlawful retaliation in violation of Labor Code § 1102.5(c), for which he seeks compensatory and punitive damages.

Behrens has filed a motion for entry of judgment on his petition for writ of mandate. The causes of action seeking damages are not before the Court at this time. Additionally, Behrens has filed two motions for leave to have portions of his personnel file documents filed under seal. The matters at issue are currently filed conditionally under seal, and redacted versions have been placed in the open court file.

Factual Background: [[ REDACTED TO PROTECT CONFIDENTIAL INFORMATION]]

ANALYSIS: Petition for writ of mandate For the reasons articulated below, the motion for entry of judgment on the petition for writ of mandate is denied. The Court cannot find that the District has a ministerial duty to reinstate petitioner Behrens as principal of SMHS, nor can it find that the District abused its discretion in in removing him from that position and reassigning him to a classroom teaching position.

Standard for Determining Writ of Mandate

To obtain relief under Code of Civil Procedure section 1985, the petitioner must show there is no other plain, speedy, and adequate remedy; the respondent has a clear, present, and ministerial duty to act in a particular way; and the petitioner has a clear, present and beneficial right to performance of that duty. (Hayes v. Temecula Valley Unified School District (2018) 21 Cal.App.5th 735, 746.) A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment. (James v. State of California (2014) 229 Cal.App.4th 130, 136.)

An agency has discretion when the law allows it to choose between alternative policies or courses of action. Its discretionary decisions are reviewed for “abuse of discretion,” which imposes a test of the reasonableness of the agency action. (Cook v. Reid (1919) 39 Cal.App.4 53, 457.) When a statute delegates discretionary authority to an agency, courts review whether the agency’s choice is legally permissible as a question of law, including whether the agency followed all legally required procedures. If the choice is legally permissible, courts then determine whether the agency’s discretionary choice is an abuse of discretion. (See 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271.)

Behrens Did Not Have a Property Interest in Employment as Principal, and Consequently Has No Entitlement to Reinstatement

As established in Skelly v. State Personnel Board (1975) 15 Cal.3d 194, the California Act endows state employees who attain permanent status with a property interest, and such employees may not be dismissed or subjected to other disciplinary measures unless facts exist constituting “cause” for such discipline. In the absence of sufficient cause, a permanent employee subject to the California Act has a statutory right to continued employment free of these punitive measures. The statutory right constitutes a legitimate claim of entitlement to a government benefit, and the state must comply with procedural due process requirements before it may deprive its permanent employee of this property interest by punitive action. (Skelly v. State Personnel Board, supra, 15 Cal.3d at pp. 207-208.)

The California Act, which underlies the decision in Skelly, however, is inapplicable to teachers and administrators employed by local school districts. While the State of California encourages local responsibility for control of public education through local school districts (Educ. Code, § 14000), education and the operation of public schools are matters of statewide rather than local or municipal concern. (Hall v. City of Taft (1956) 47 Cal.2d 177, 179.) Local school districts are deemed to be agencies of the state for the administration of the school system. (Id., at p. 181.) As a result, a school district is not a distinct and independent body politic, and is not free and independent of legislative control. (Allen v. Board of Trustees (1910) 147 Cal.720, 725-726.)

The Legislature’s power over the public school system is exclusive, plenary, absolute, entire, and comprehensive, subject only to constitutional constraints. (California Teachers Association v. Hayes (1992) 5 Cal.App.4th 1513, 1524.) The Legislature cannot delegate ultimate responsibility over education to other public or private entities, and regulation of the education system by the Legislature is controlling over any inconsistent local attempts at regulation or administration of the schools. (Id.) No one may obtain rights vested against state control by virtue of local provisions, ordinances, or regulations. (Whisman v. San Francisco Unified School District (1978) 86 Cal.App.3d 782, 789.)

The Education Code contains a comprehensive statutory scheme governing the employment rights of public school teachers and administrators. (Hayes v. Temecula Valley Unified School District (2018) 21 Cal.App.5th 735, 746.) Under this scheme, school principals are permanent employees only as to a teaching position, and can be reassigned from a position as an administrator to one as a classroom teacher. (Thompson v. Modesto City High School District (1977) 19 Cal.3d 620, 624.) They have no statutory or constitutional rights to their administrative position, and can be removed from the position at will. (Barthuli v. Board of Trustees (1977) 19 Cal.3d 717, 721-722; Quirk v. Board of Education (1988) 199 Cal.App.3d 729, 634-735.) A principal’s “expectation of continued employment” in his or her administrative position is not a constitutionally protected property or liberty interest. (Hayes, supra, 21 Cal.App.5th at p. 746, citing Grant v. Adams (1977) 69 Cal.App.3d 126, 136.) A principal serves at the pleasure of the appointing body, and the governing board has the ultimate authority to determine whether to renew a principal’s contract. (McFall v. Madera Unified School District (1990) 222 Cal.App.3d 1228, 1235.)

Pursuant to Education Code section 44896:

Whenever a person employed in an administrative or supervisory position requiring certification qualifications is transferred to a teaching position, the governing board of the school district shall give such employee, when requested by him, a written statement of the reasons for such transfer. If the reasons include incompetency, an evaluation of the person pursuant to Article 11 (commencing with Section 44660) of Chapter 3 of this part shall have been completed not more than 60 days prior to the giving of the notice of the transfer.

Nothing in the statutes limits the authority of the appointing power to remove an administrator for any reason satisfactory to that appointing power, and nothing in the statutes entitles a removed administrator to anything other than being provided with a statement of the reasons for his or her reassignment to a different status. (Anaclerio v. Skinner (1976) 64 Cal.App.3d 194, 197.) Unless incompetency is a basis for a reassignment, a Board is free to transfer an administrator without cause or evaluation, for any reason satisfactory to the appointing authority, including personality conflicts or differences in views on leadership. (Quirk v. Board of Education (1988) 199 Cal.App.3d 729, 735.) Indeed, even when a school district believes that a principal has committed misconduct, there is nothing wrong with it deciding to reassign the principal to a teaching assignment on a “without cause” basis, rather than proceeding under the statutes related to misconduct (see, e.g., Educ. Code, § 44934), since a school district has the discretion to determine when and whether to seek disciplinary action, and the form of any necessary response to perceived work performance issues. (Hayes v. Temecula Valley Unified Scholl District, supra, 21 Cal.App.5th at p. 755.) The procedure for removing a principal is simple; it does not require a finding of cause and may be based upon no more than a personality conflict, and does not entitle the affected administrator to a hearing. (Id.)

As explained in Hentschke v. Sink:

“The reason for this is that administrators such as principals bear to his or her superiors a relationship of the most intimate nature, requiring complete trust by the top administrators in the judgment and cooperative nature of the subordinate. The loss of that trust is not a matter susceptible of proof such as is involved in the cases where a classroom teacher is dismissed or demoted for objective acts of misconduct. To introduce into the administrative structure the elements of discharge for “cause” and of formal hearing would be to make effective school administration impossible.” (Hentschke v. Sink (1973)34 Cal.App.3d 19, 23.)

Certainly, a principal’s removal and reassignment is subject to certain mandatory notice requirements. Education Code section 44951 provides, in relevant part:

Unless a certificated employee holding a position requiring an administrative or supervisory credential is sent written notice deposited in the United States registered mail with postage prepaid and addressed to his or her last known address by March 15 that he or she may be released from his or her position for the following school year, or unless the signature of the employee is obtained by March 15 on the written notice that he or she may be released from his or her position for the following year, he or she shall be continued in the position.

If the notice required by Section 44951 is not timely or properly given, a school district is no longer free to change the administrative employee’s assignment at is pleasure. (Hoyme v. Board of Education of the ABC Unified School District (1980) 107 Cal.App.3d 449, 454.)The purpose of the notice is to afford the employee time to seek other employment as an administrator, if he or she desires to do so. (Barton v. Governing Board of the Middletown Unified School District of Lake County (1976) 60 Cal.App.3d 476, 479-480.)

Behrens does not dispute that the notice required by Section 44951 was timely and properly given. His counsel asked for and was provided the written statement of the reasons for such transfer provided for in Section 44896. As noted above, the “reasons” that justify a school district in transferring a principal to a teaching position include “any reason satisfactory to the appointing authority, including personality conflicts or differences in views on leadership styles” (Quirk v. Board of Education, supra, 199 Cal.App.3d at p. 735), that the district has “lost confidence” in the individual’s abilities to serve as principal (Hayes v. Temecula Valley Unified School District, supra, 21 Cal.App.5th 735), or in the principal’s judgment (Hentschke v. Sink, supra, 34 Cal.App.3d 19.)

Here, Matsuoka’s statement of reasons stated that, after giving the matter considerable thought over a period of months, and obtaining input of other senior district officials, he had concluded that “a change of leadership at San Marcos High School would be in the best interests of the school and the District. Fresh leadership brings a different set of eyes to the ongoing challenges in public education and commonly results in new initiatives and approaches in promoting the advancement and educational opportunities of all students. My recommendation that you be released as principal isn’t based on any single or chain of events but rather stems from an examination of many factors pertaining to your leadership over a substantial period.” Under the standards set forth in the cases cited above, the statement is in full compliance with the Section 44896 requirement.

Consequently, under the preemptive provisions of the Education Code, Behrens had no property interest in his position as principal at SMHS, the District complied with all of the statutory requirements for implementing his transfer to a teaching position, and he is not entitled to reinstatement as principal.

The District’s Administrative Regulation and Board Policy Did Not Create a Property Interest in Behrens’ Continued Employment as Principal, and do Not Entitle Him to Reinstatement, Contrary to the Argument First Raised in His Reply Papers.

While Behrens clearly had no property interest in the position as principal and no entitlement to reinstatement to that position under the preemptive provisions of the Education Code, he argues in his reply papers that a property interest and right to reinstatement was created by the District’s Administrative Regulation 4313.2, and Board Policy 4313.2.

Santa Barbara Unified School District Administrative Regulation 4313.2 provides, in relevant parts:

Management and Confidential Personnel

DEMOTION/REASSIGNMENT

Certificated Administrative Employees

Permanent certificated management staff are not entitled to seniority rights in their administrative positions. However, such staff shall earn and/or retain any seniority earned in service as a classroom teacher or site administrator pursuant to Education Code 44893, 44894, or 44956.5.

End of Year Release/Reassignment of Certificated Administrators

By March 15, an employee shall be notified in person that he/she may be released or reassigned from his/her position for the following school year. If the notice is presented to the employee in person, the district shall obtain his/her signature acknowledging receipt of the notice on the district’s copy of the written notice. (Education Code 44951)

If the March 15 notice indicates that release or reassignment is only a possibility, the Governing Board shall take additional action to release/reassign the employee before the new school year and shall send the employee a second notice by June 30 indicating that he/she has been released or reassigned.

If the employee is to be released or reassigned to a teaching position, the Board shall give the employee, upon his/her request, a written statement of the reasons for the release/reassignment. If the reasons include incompetence as an administrator or supervisor, the district shall have completed an evaluation of the employee within the 60-day period immediately preceding the notice date. (Education Code 44896)

Due Process

The district shall comply with the following guidelines when taking action to demote a certificated administrator who is not subject to a collective bargaining agreement made between the exclusive representative for certificated employees and the school district. When taking action to demote a certificated administrator not employed pursuant to a multi-year contract, the school district shall provide the employee with all of the following:

1. Timely notice of the proposed action, pursuant to Education Code 44951, and a statement of the specific reasons for the action.

2. Timely access to any materials on which the proposed action is based.

3. The right to respond either orally or in writing to the proposed action.

4. The right to appeal, only on procedural issues such as the timeline requirements in Section 44951, to the Board of the school district. The Board and the certificated administrator shall not have counsel present during the hearing on the appeal.

5. The date on which the proposal action becomes final.

Santa Barbara Unified School District Board Policy 4313.2 provides, in relevant part:

The Governing Board may authorize the demotion or reassignment of any administrative, supervisory, or confidential employee upon the recommendation of the Superintendent or designee and when such action is determined to be in the best interest of the district.

The Superintendent or designee shall ensure that the district complies with all applicable statutory deadlines and due process procedures when an employee is to be demoted or reassigned.

Behrens contends that because the Administrative Regulation and Board Policy provided him with due process protections not provided for under the Education Code, that they created a property interest in his position as principal and, since he contends those protections were not complied with, he is therefore entitled to reinstatement as principal of SMHS. Specifically, Behrens contends that while he was provided with a statement of “reasons” for his transfer, he was not provided with a statement of the specific reasons for that action, as required by the Due Process provisions in AR 4313.2. He further contends that because he was not provided with the Memo prepared by District counsel, which summarized portions of his personnel file and was provided to the Board members 5 days prior to the meeting at which his transfer was to be acted upon, he was not provided timely access to the materials upon which the proposed action was based, also in violation of AR 4313.2.

Simply because a governing body provides a particular procedure for the removal of a benefit does not create a property interest in that benefit (Sanchez v. City of Santa Ana (9th Cir. 1990) 915 F.2d 424, 428), particularly where, as here, state law has already preempted the creation of any such property interest. Public employment in California is, in general, regulated by statute, the rights of a public employee are statutory, and no employee has a vested contractual right to continue in employment beyond the time or contrary to the terms and conditions fixed by law. (Miller v. State of California (1977) 18 Cal.3d 808, 813.) As noted above, the Education Code contains a comprehensive statutory scheme governing the employment rights of public school teachers and administrators and, as a result, a principal’s “expectation of continued employment” in his or her administrative position is not a constitutionally protected property or liberty interest. (Hayes v. Temecula Valley Unified School District (2018) 21 Cal.App.5th 735, 746.) Neither an express nor an implied contract can restrict the reasons for, or the manner of termination of, public employment provided by California statutes. (Bernstein v. Lopez (9th Cir. 2003) 321 F.3d 903, 906.) No vested right in an administrator’s position can be acquired pursuant to such ordinances, regulations, or administrative procedures, since any rights so acquired are subject to state law. (Whisman v. San Francisco Unified School District (1986) 86 Cal.App.3d 782, 789.)

As a result, nothing in the District’s Administrative Regulations or Board Policies has created, or even could create, a property interest in the position as principal, so as to create any entitlement to reinstatement should the procedures set forth have been violated. As a result, the petition for writ of mandate, through which Behrens seeks only reinstatement as principal of SMHS and back-pay and benefits to which he would have been entitled had he not been reassigned, must necessarily be denied.

Behrens cites McFall v. Madera Unified School District (1990) 222 Cal.App.3d 1228, for the proposition that the words of a local regulation are decisive, and may not be ignored. However, nothing in McFall, generally, or in its discussion of a local regulation (that it declined to apply), purports to counter the principal that a property right in a school administrator’s position cannot be established by a local regulation.

As noted above, the court in Whisman v. San Francisco Unified School District, supra, found that a local ordinance that created tenure for high school principals did not create vested rights or property interests in those positions, because doing so would conflict with the state law provisions of the Education Code that establish that no permanent status can be acquired in any administrative position. The Court found the ordinance to clearly be in conflict with, and preempted by, the Education Code. (Whisman, supra, 86 Cal.App.3d 782, 790.) Because the principals’ claims to due process rights were based upon the ordinance, and because the ordinance creates no vested rights, the Court found they were not entitled to the due process rights they claimed, nor were they entitled to reinstatement to the positions from which they had been transferred. (Id. at p. 791.)

Similarly, in LaBelle v. San Francisco Unified School District (1983) 140 Cal.App.3d 292, the court found a city charter provision entitling a school principal to the right to renewal of her 4-year contract unless there were performance issues could not realistically be viewed as anything other than a form of tenure, which was preempted by the Education Code provisions that tenure may only be acquired in the position of classroom teacher.

In his response to the District’s sur-reply, Behrens again argues that his property right arises from the terms of AR 4313.2, contending that his property right does not conflict with the Education Code, and therefore is not preempted by it. He attempts to distinguish LaBelle and Whisman by asserting that the local ordinance at issue in those cases made certain supervisor positions permanent, and made others terminable only for particular cause, which directly contradicted state statutes that denied school supervisors a right to permanent status. He contends that AR 4313.2 creates no such conflict, because he does not contend it gives him tenure as principal or that he can only be demoted for cause, and does not present any argument that contradicts any portion of the Education Code.

Under Barthuli, supra, it is precisely because the Education Code precludes the acquisition of tenure in a position as an administrator that there is no property right in the position. (See Barthuli, supra, 19 Cal.3d at p. 722-723.) In acknowledging that AR 4313.2 neither provides tenure nor provides that a principal can only be removed for cause, Behrens has acknowledged that it could not have created in him a property right in the position as principal at SMHS. Nor could it do so no matter what it provided, since the lack of a property right in a position as principal is a matter of statewide concern and preemption and, as a result, no property right can be created by enactment of a local ordinance or regulation, whether it does so directly (through providing tenure for such positions) or indirectly (by setting forth additional procedural protections that could only be constitutionally required if a protected property interest exists). One cannot accomplish by implication that which is prohibited if done expressly.

In any event, Behrens was provided with a statement of the specific reasons for his removal as principal. Although he believes that the District possessed other specific “secret reasons” for his removal, Matsuoka’s statement of reasons explaining that “a change of leadership at San Marcos High School would be in the best interests of the school and the District” is a legally sufficient, and sufficiently specific, reason for his removal as principal. Even if there were other reasons not expressed in the statement, however, the Education Code provided the District with full discretion to proceed pursuant to a “without cause” reassignment by simply providing the March 15 notice, and in its statement of reasons indicating only that the best interests of the school and District would be served by the reassignment. As noted above, even when a school district believes that a principal has committed misconduct, there is nothing wrong with it deciding to reassign the principal to a teaching assignment “without cause,” rather than proceeding under the statutes related to misconduct (see, e.g., Educ. Code, § 44934), since a school district has the discretion to determine when and whether to seek disciplinary action, and the form of any necessary response to perceived work performance issues. (See Hayes v. Temecula Valley Unified Scholl District, supra, 21 Cal.App.5th at p. 755.)

Matsuoka provided Behrens with the reasons why he was recommending the reassignment, and in response to counsel’s request for the materials having a bearing on the recommendation, stated that the reassignment was based upon his own exercise of professional judgment in viewing Behrens’ performance as principal, noting that he had also reviewed Behrens’ personnel file, including performance evaluations, which Behrens had already received. This complied with the requirements of AR 4313.2 and BP 4313.2. Indeed, strictly speaking, neither AR 4313.2 nor BP 4313.2 provided Behrens with the right or ability to appear before the Board at all, except with respect to a right to appeal, strictly limited to procedural issues. [AR 4313.2, Due Process Guideline No. 4.] In providing Behrens the ability to present his case to the Board, the District was already providing Behrens with more process than that which was allowed for even by AR 4313.2 and BP 4313.2, and certainly more process than that required under the Education Code, under which no hearing is required for a “without cause” reassignment. In any event, to the extent that any technical violations of either AR 4313.2 or BP 4313.2 may have occurred, the inability of these provisions to create a property interest in the principal position necessarily eliminates any right to reinstatement based thereon. The petition seeking reinstatement must therefore be denied.

The Provisions of Education Code Section 44031 Do Not Require Nullification of the Board’s Decision

Behrens argues further that the Board’s decision to remove him as principal of SMHS and reassign him to a teaching position must be nullified because of its violation of Education Code section 44031.

Section 44031 provides, in relevant part:

(b)(1) Information of a derogatory nature shall not be entered into an employee’s personnel records unless and until the employee is given notice and an opportunity to review and comment on that information. The employee shall have the right to enter, and have attached to any derogatory statement, his or her own comments. This review shall take place during normal business hours and the employee shall be released from duties for this purpose without salary reduction.

Behrens contends that because the Memo drafted by District’s counsel was not placed in his personnel file, and because he was not notified about it and provided an opportunity to comment about it, the Board was prohibited from basing its decision upon the Memo, citing Miller v. Chico Unified School District Board of Education (1979) 24 Cal.3d 703.

In Miller, a junior high school principal was reassigned to a teaching position. After the school board adopted formal evaluation procedures for administrators, the principal was evaluated annually. For several years the evaluations generally approved of plaintiff’s performance, but articulated suggestions for improvement. The Board then adopted a timetable for evaluating leadership functions at the school, placing a copy in plaintiff’s personnel file, along with a memorandum from an associate superintendent describing recent leadership concerns and areas that need improvement. During the first half of the applicable school year, plaintiff conferred frequently with his supervisors. In February, he was notified of his reassignment to a teaching position. The notice included a statement of reasons, and an attachment that documented the reasons. Included in the documents were a series of 20 confidential memoranda that the associate superintendent had prepared from his personal notes of various meetings, contacts, and occurrences involving the principal, including consultations conducted for the purpose of making a recommendation to the Board concerning plaintiff’s continued employment for the following school year. He used the memoranda to recommend plaintiff’s reassignment. The memoranda were not placed in plaintiff’s personnel file, but were provided to the Board when for its consideration when plaintiff’s transfer was considered. The Court found that the memoranda contained information directly or implicitly derogatory of plaintiff, and that the failure to place them in plaintiff’s personnel file, or to provide plaintiff with notice and an opportunity to review and comment upon them, violated Section 44031. The Court remanded the issue to the trial court for a determination whether the board’s action was prejudicial, without which plaintiff would have no right to reinstatement. In doing so, it directed that the correct inquiry in determining prejudice must focus not merely on whether the memoranda were considered, but on whether but for the memoranda, the board would not have reassigned the administrator. (See Miller v. Chico Unified School District Board of Education, supra, 24 Cal.3d at p. 715.)

As established by Miller, supra, unless the Court can find that “but for” the Board’s consideration of the Memo, it would not have reassigned Behrens to a teaching position, any violation of Section 44031(b)(1)—if indeed one existed—was not prejudicial, and does not entitle him to reinstatement. Under the circumstances present in this case, the Court cannot make any such finding.

The Memo contained no information that was not already in Behrens’ personnel file, nor indeed could it have, since it was not prepared by anyone personally familiar with Behrens’ actions as principal, and was instead prepared by counsel and consisted of a summary of the more recent documents in the personnel file. Behrens contends that the Memo cherry-picked the negative information in his personnel file, and whitewashed the positive information, but the Board also had ample evidence of Behrens’ many positive actions and contributions before it when it considered the reassignment. The information before the Board included Behrens’ March 12, 2018 written response to Matsuoka’s reassignment notice, as well as a table discussing his progress on the 2015 improvement plan, his 2015-2016 evaluation, and his response to the February 7, 2018 letter of reprimand. Behrens further spoke to the Board in its open session, at which he once again highlighted his accomplishments at and contributions to SMHS, including the many new programs which he had established or supported. The Board also had the benefit of the positive and supportive comments for Behrens made by approximately 50 people at the open session meeting, and the open session meeting was attended by a substantial additional number of people who were there to show their support for Behrens. Similarly, the Board had before it other information which might be characterized as negative, in the form of the actual Letters of Reprimand issued to Behrens during his time as principal, as well as the actual performance evaluations, which articulated both positive and negative information about his employment as principal of SMHS. The fact of the matter, however, is that the reassignment was not a “for cause” assignment, and was based upon Matsuoka’s belief that new leadership would be in the best interests of the school and the district.

Given all of the information that was before the District at the time it decided to follow Matsuoka’s recommendation and to reassign Behrens to a teaching position, and particularly including the reasons underlying the recommendation and the fact that the reassignment was not a “for cause” reassignment, the Court cannot find that “but for” the Memo, the Board would not have reassigned Behrens. As a result, even if the failure to allow Behrens to respond to the Memo constituted a violation of Section 55031(b)(1)—something this Court need not and does not determine—the District’s conduct in failing to comply with the provisions was not prejudicial, and Behrens is not entitled to reinstatement on that basis.

5. The District’s Actions Did Not Violate the Brown Act.

In his reply papers, Behrens also contends for the first time that the District’s actions violated the Brown Act (See reply @ p. 10, lines 13-26.), and argues that the violation rendered the Board’s decision null and void. Specifically, Behrens references Government Code section 54957(b), which provides:

(b)(1) Subject to paragraph (2), this chapter shall not 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.

(2) 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.

The purposes of this personnel exception to the Brown Act open meeting requirement are (1) to protect employees from public embarrassment, and (2) to permit free and candid discussions of personnel matters by a local governmental body. (Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87, 96.)

Behrens argues that the attorney-drafted memorandum which was provided to the Board prior to its closed session meeting evolved into a “charge or complaint” because it mischaracterized the personnel file and took statements out of context. He concludes that Section 54957(b)(2) therefore rendered the Board’s decision null and void, because he was deprived of the opportunity to respond to it. He cites Bell v. Vista Unified School District (2000) 82 Cal.App.4th 672, 683, in support of his argument.

Even had the Brown Act been timely alleged via amendment as a basis for the petition, the Court finds that no violation occurred. The provisions of Section 54957(b)(1) related to an employee’s request for a public session have been interpreted to relate solely to the circumstances where the local agency intends to consider specific charges or complaints brought against an employee by another person or employee. (See Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876, 880-882.) The right to written notice, the right to demand an open session, and the rendering null and void of actions taken in violation of those rights, relates solely to when the agency will be considering or addressing such “specific complaints or charges brought against an employee by another person or employee.” (See also Fischer v. Los Angeles Unified School District, supra, 70 Cal.App.4th at pp. 96-98.)

Here, Behrens’ transfer to a teaching assignment was recommended by Matsuoka, and approved by the Board, as a “no cause” transfer, based upon Matsuoka’s determination that it would be in the best interests of the school and District, would bring a different set of eyes to ongoing challenges, and would result in new initiatives and approaches in promoting the advancement and educational opportunities of all students. It was expressly not based on any single event or chain of events, but from an examination of many factors pertaining to his leadership over a substantial period of time. It was expressly not based upon any “complaints or charges” against Behrens, much less the “specific complaints or charges brought against an employee by another person or employee,” within the meaning of Section 54957(b)(2), such that the right to demand that the Board’s discussion and determination be held in open session could possibly have been triggered. As a result, the Board was entitled under the Brown Act to consider Matsuoka’s recommendation that Behrens be transferred from his position as principal of SMHS to a teaching position, in closed session. (Gov. Code, § 54957(b)(1).) Further, it is clear that negative information in a personnel file may be used in closed session as a basis for determining whether to retain or rehire an employee, without triggering the right to notice or to demand an open session, and does not constitute or involve a complaint or charge against the employee. (Furtado v. Sierra Community College, supra, 68 Cal.App.4th at pp. 882-883.)

Bell v. Vista Unified School District, supra, relied upon by Behrens, does not impact this determination in any way. Bell involved a football coach who was removed from his position, without prior notice, by a school district board of trustees acting in closed session. The coach had been found by the California Interscholastic Federation (CIF) to have violated a CIF rule, which resulted in the CIF declaring a player ineligible, and placing the school’s entire athletic program on a year’s probation. The CIF Commissioner also suggested that the district consider disciplinary action against the involved employees. The district’s board of trustees took up the matter in a special closed session, to consider what action to take in response to the CIF probation, including any related “public employee discipline/dismissal/release.” The coach was not given 24 hours’ notice of the session, and did not attend. In the closed session, the Board voted to remove him from his position as coach, although he was not removed from his tenured teaching position.

In finding a Brown Act violation, the court found that the CIF Commissioner’s letter constituted a “charge or complaint” against the coach brought “by another person,” requiring 24-hour notice to him under Section 54957. Further, because the superintendent and assistant superintendent brought the issue involving the coach’s violation of the CIF rule before the Board as a basis for disciplining the coach, it then also became a “complaint or charge” brought “by other employees,” within the meaning of Section 54957. Both entitled the coach to 24 hour notice and gave him the right to request that the matter be dealt with in open session, so that he could defend himself and attempt to clear his name, and the Board’s failure to comply with the statute required that its disciplinary action be nullified.

None of the items summarized by the Board’s counsel can legitimately be viewed as “specific charges or complaints brought against an employee by another person or employee,” within the meaning of Section 54957(b)(2). Consequently, the Brown Act does not provide any legal basis for nullifying the Board’s decision to transfer Behrens to a teaching position. To interpret Section 54957 otherwise would undermine the Education Code’s broad authorization for a District to remove an administrator for any reason satisfactory to it, solely by providing timely notice of the reassignment and a statement of reasons, if requested.

Applications to file under seal At the time he filed his motion for judgment, Behrens filed certain of the exhibits (Nos. 7-9 and 11-12) conditionally under seal, filed a redacted version in the public court file, and filed an application to allow those exhibits to be filed under seal. In opposing the motion for judgment, the District filed its full opposition and exhibits conditionally under seal, filed a redacted version in the public court file, and filed a notice advising Behrens that unless he filed a timely motion to seal the documents, they would become a part of the open court file. Behrens timely filed a motion to seal those documents.

In both cases, the documents and portions of documents sought to be filed under seal were portions of Behrens’ personnel file, subject to confidentiality under Government Code section 6254(c) and Board Policies of the Santa Barbara Unified School District, which create an overriding interest that outweighs any right of public access to the records. The overriding interest supports the sealing of the information, in order to preserve petitioner’s right of privacy and confidentiality in that information. If sealing of the information is not permitted, there is a substantial probability that the overriding interest would be prejudiced, and that petitioner’s rights to confidentiality and privacy would be eliminated, and would potentially waive any such rights in the future. The information redacted from the public record was narrowly tailored, and there is no less restrictive means to achieve the overriding interest, in that any public disclosure would prejudice their confidentiality and private nature.

It is therefore appropriate that the applications to permit the information to be filed under seal be granted.

After the hearing on the petition was continued by the Court from April 24, to May 1, the courtroom clerk expressed confusion on whether the parties wished the applications to also be continued, or whether they considered them moot. In the absence of any express request to take the applications off calendar, and given the lack of any obvious reason why the applications would have been mooted, the Court considers the applications to still be before it.

As a result, the Court will grant the applications. The Court notes that the file reflects a proposed order regarding the initial motion to seal filed by petitioner, submitted on March 5, 2019, and initially set for hearing on March 27, 2019. The Court will execute that order. The Court has not located a proposed order for the second motion to seal filed by petitioner, and requests that petition present one to the Court for execution.