Certificated Employee is Entitled to Attorney Fees in Dismissal Process if Accusation is Withdrawn Following Initial Decision to Proceed to Hearing

In another blow to California school employers, a Court of Appeal has ruled that in a certificated dismissal or suspension proceeding, the employee is entitled to an award of expenses and attorney’s fees if the district withdraws its accusation against the employee after deciding to proceed to hearing, but before the hearing starts. The ruling clarifies that where an accusation is withdrawn it necessarily follows that the Commission on Professional Competence rule that the employee “should not be dismissed or suspended” within the meaning of Education Code section 44944(c)(1). Such a ruling entitles the employee to all expenses incurred defending against the accusation, including attorney’s fees.

In Boliou v. Stockton Unified School District the Governing Board of the Stockton Unified School District initiated dismissal proceedings against David Boliou, a classroom teacher who allegedly used duct tape to cover a talkative student’s mouth. In response to the charges filed against him, Boliou demanded a hearing pursuant to Education Code section 44943. Rather than drop the charges, the Governing Board decided to proceed and set a hearing before a Commission on Professional Competence as provided in Education Code section 44944. Following a number of unfavorable pre-hearing rulings, the Governing Board voted to dismiss the accusation one week before the hearing. The Commission on Professional Competence allowed the dismissal, but Boliou objected on the grounds that he was entitled to a ruling that he should not be dismissed (thus entitling him to expenses and attorney’s fees under Education Code section 44944(e)(2)). The Commission on Professional Competence declined to do so, stating instead that the accusation simply be dismissed.

Boliou then petitioned for two separate writs of mandate in superior court: one against the Commission on Professional Competence to compel it to rule that he should not be dismissed, and the other against the Governing Board for his expenses and attorney’s fees in defending against the accusation. The superior court granted both petitions, and the Governing Board appealed the decision.

In upholding the decision, the Court of Appeal analyzed the statutory procedure for certificated dismissal proceedings provided in the Education Code. When a governing board notifies an employee of its intent to suspend or dismiss, the employee may demand a hearing before a Commission on Professional Competence. Once a demand for hearing is made, the governing board is given two choices: either rescind the accusation or schedule a hearing. (Educ. Code § 44943.) The Court of Appeal held that if a governing board schedules a hearing, it cannot unilaterally prevent the hearing from moving forward. Rather, only the Commission on Professional Competence may do so. Moreover, once the hearing is commenced the Commission on Professional Competence must rule in one of three ways: (1) that the employee should be dismissed, (2) that the employee should be suspended without pay, or (3) that the employee should not be dismissed or suspended. (Educ. Code § 44944(c)(1).) In Boliou the Court held that, because the governing board sought to dismiss the accusation, the Commission on Professional Competence had to have made a ruling that Boliou should not be dismissed. As a result, Boliou was entitled to reasonable attorney’s fees and costs pursuant to Education Code section 44944(e)(2).

The Court of Appeal’s ruling presents challenges to a governing board’s ability to prosecute or settle dismissal charges against certificated employees. For one, governing boards are without the ability to “pull the plug” on dismissal or suspension charges should it receive unfavorable pre-hearing rulings. For example, if the Commission on Professional Competence limits or completely bars evidence supporting the charges from being introduced at hearing, the governing board is without the ability to rescind dismissal charges without becoming responsible for expenses and attorney’s fees. These awards tend to be excessive, especially in hotly-contested proceedings (in Boliou the court awarded the employee $114,465.00 in attorney’s fees and $9,976.41 in expenses). Additionally, in some cases at least, settlement negotiations following a governing board’s decision to move forward with a dismissal or suspension may be impacted, in that prevailing employees are now clearly entitled to attorney’s fees and expenses once that decision is made.

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