Court Upholds Demotion of College Administrator: No Entitlement to 24-Hour Brown Act Notice
In mid-December, the California Court of Appeal in San Diego upheld the demotion of a community college employee from an administrative position to a faculty assignment, and determined the community college district’s governing board did not violate the Brown Act in the process of the demotion. The decision was certified for publication on January 14, 2019. (Ricasa v. Office of Administrative Hearings, Case No. D071088.)
Arlie Ricasa was an academic administrator in the Southwestern Community College District. She also served as an elected member of the governing board of Sweetwater Union High School District. In her role as a Sweetwater board member, Ricasa was required to refrain from conflicts of interest, complete an annual Statement of Economic Interest (Form 700), and vote on various contracts. In 2012, Ricasa was charged with bribery and corruption in connection with gifts she received from a construction company, whose contract she voted to approve, that were not reported on her Form 700. The gifts included dinners hosted by the vendor and a scholarship given to her daughter. Other members of the Sweetwater board were also charged, and the resulting scandal was widely reported in the press.
In 2013 Ricasa pleaded guilty to a misdemeanor violation of the Political Reform Act (Government Code § 89503), which prohibits public officials from receiving gifts from a single source in excess of $420 (in 2019 that limit is $500). Shortly after the guilty plea, Southwestern notified Ricasa it was recommending termination of her academic administrator agreement and her demotion to a faculty position. After Ricasa and her attorney attended a Skelly meeting, the district’s president and superintendent decided to proceed with the recommendation.
The district’s board considered the demotion at a May 7, 2014 meeting under the closed session agenda item “Public Employee Discipline/Dismissal/Release.” Two days later, she received the Board’s decision approving her immediate demotion to a faculty position, and informing her of the right to object and request a hearing. She requested a hearing, which was conducted by an Administrative Law Judge from the Office of Administrative Hearings. The ALJ upheld the demotion, concluding Ricasa (1) engaged in immoral conduct, (2) was evidently unfit for service as an academic administrator, and (3) was convicted of a crime of moral turpitude.
Ricasa filed a petition for writ of mandamus against Southwestern alleging (1) she was entitled under the Brown Act to written notice of the May 2014 meeting at least 24 hours in advance; and (2) the board failed to report its action at the meeting as required by the Brown Act. She alleged that because Southwestern did not acknowledge its alleged violations, it was likely the violations would continue, and she sought an injunction to preclude future violations.
After the ALJ’s decision was issued, Ricasa filed a second petition for writ of mandate under Code of Civil Procedure section 1094.5, seeking to set aside the decision because, among other arguments, the evidence did not support the ALJ’s findings. The trial court consolidated the petitions and upheld the ALJ’s decision finding substantial evidence supported the demotion. The trial court determined Southwestern was obligated to give Ricasa 24-hour notice of the May 2014 meeting, but found the claim was barred because Ricasa did not timely submit a cease-and-desist letter regarding a past violation of the Brown Act.
The trial court granted Ricasa’s petition to enjoin future violations of the Brown Act, preventing Southwestern from holding closed session meetings on “specific complaints or charges” against an employee without providing the 24-hour Brown Act notice. Both parties appealed.
Court of Appeal Decision
Southwestern contended that the Education Code provides a mechanism for a community college to discipline an employee by giving the employee notice of charges and the right to dispute the charges in a full evidentiary hearing before a neutral ALJ, so that the employee is not entitled to 24-hour notice of the meeting. Southwestern also argued that a “future violation” of the Brown Act occurs only when a long-standing continued practice exists, rather than a one-time event based on specific circumstances such as the decision to discipline Ricasa. Ricasa contended her Brown Act claim was not time-barred as to past actions, and continued to assert that the demotion should be reversed because no evidence established her unfitness to serve as an academic administrator.
The Court of Appeal reviewed the Education Code’s comprehensive statutory scheme for discipline of a community college employee, and the applicable provisions of the Brown Act, including the personnel exception at Government Code section 54957, which permits the governing board to address certain personnel matters in closed session. The court determined Southwestern’s actions complied with both the Education Code and the Brown Act.
The court concluded Southwestern followed the provisions of the Education Code regarding notice to the employee, a recommendation to the board, imposition of an immediate penalty, and an evidentiary hearing. Turning to the personnel exception in the Brown Act, the court addressed whether, in this case, the board “considered the … discipline or dismissal of a public employee” or “heard complaints or charges brought against the employee by another person.” Like courts in previous cases, the court distinguished between these two processes and concluded the 24-hour notice applies only when the board hears complaints or charges, and not when the board merely considers employee discipline. (See Fischer v. Los Angeles Unified School District (1999) 70 Cal.App.4th 87; Kolter v. Commission on Professional Competence (2009) 170 Cal.App.4th 1346.)
The court noted the board did not receive evidence or testimony from witnesses or hear from any third party about claims against Ricasa at the May 2014 meeting. Rather, the board received the recommendation of the president and deliberated whether to proceed. The court concluded the board did not conduct a “hearing” but instead “debated” whether Ricasa’s guilty plea was a sufficient basis for discipline. Because the board did not consider a complaint or charge, the court concluded the 24-hour requirement did not apply. And because Southwestern did not violate the Brown Act, and there was no evidence it had ever done so, the court reversed the writ enjoining “future” Brown Act violations.
Rejecting Ricasa’s arguments that the evidence did not support the ALJ’s findings, the Court of Appeal — like the lower court — upheld the demotion decision. Contrary to Ricasa’s claim that no connection existed between her conduct as a board member and her ability to carry out her job as an academic administrator, the evidence supported the finding that she engaged in immoral conduct. Further, that conduct did have a connection to her employment with Southwestern and a negative impact on both Sweetwater and Southwestern, thus harming the public service. If the evidence supports a finding of misconduct, the court must uphold the specific penalty applied (here, demotion) unless it finds a manifest abuse of discretion. Finding no abuse of discretion, the court upheld the penalty of demotion based on immoral conduct.
Impact for School and Community College Districts
This case was unusual, involving an administrative employee who is convicted of misconduct as a member of another agency’s governing board. Nonetheless, the court’s conclusions can serve as reminders of some critical legal obligations.
The court broke no new ground when ruling that an employee is not entitled to 24-hour Brown Act notice when a board considers, initiates, or accepts a recommendation for discipline. It agreed with other courts of appeal in distinguishing consideration of discipline (which does not require the notice) from hearing charges (which does require the notice). This decision confirmed that when a board hears and deliberates on a recommendation of demotion for cause of an academic administrator, without the presentation of witness testimony or other evidence, the notice is not required. In questionable cases, the notice is simple to issue and ensures Brown Act compliance.
Additionally, the court reiterated that immoral conduct, even outside the context of the public employment, can be cause for discipline when it has a “rational connection” to the employment. In this case the connection consisted of the close relationship between the high school district and the community college district, news stories linking the two agencies and identifying the board member as a community college administrator, her admitted duty to act as a role model for students, and the resulting negative impact on the institution.
The court found it significant that Southwestern fully complied with the exacting requirements of the Education Code when it implemented the demotion. The outcome could have been different if the district had not followed these provisions. Public education employers pursuing employee discipline are subject to the procedural requirements Education Code and protocols found in collective bargaining agreements and local policies and regulations. They must be diligent in following these provisions to avoid legal challenges.
Questions about this decision or any of these issues can be directed to one of our Education Law attorneys.