District May Not Unilaterally Rescind Charges Against Teacher After Dismissal Hearing is Set, Without Facing Order to Pay Attorney’s Fees & Costs

June 2012

In Boliou v. Stockton Unified School District (June 25, 2012, C068266) __Cal.App.4th__, the Court of Appeal held that once a school district scheduled a termination hearing against a tenured teacher, it could not avoid paying attorney’s fees and costs to the teacher by unilaterally rescinding the dismissal charges.  Instead, the panel’s dismissal of the case with prejudice following the district’s rescission of the charges was held to constitute a determination that the teacher should not be dismissed.  As such, the teacher was entitled to attorney’s fees and costs even though no evidentiary hearing on the merits was held.

When a school district wishes to terminate a tenured teacher, it must follow the procedures set forth in the Education Code.  After dismissal charges are issued, if the teacher demands a hearing, the governing board must take one of two actions: either rescind the charges, or schedule a hearing.  (Ed. Code, § 44943.)  If scheduled, the hearing is conducted by the three-member Commission on Professional Competence (“CPC”).  (Ed. Code, §44944.) 

The CPC’s role is dictated by statute.  The panel must prepare a written decision containing findings of fact, determinations of issues, and a disposition that shall be, solely, one of the following: (A) the employee should be dismissed, (B) the employee should be suspended for a specific period of time without pay or (C) the employee should not be dismissed or suspended.  (Ed. Code, § 44944.) 

In Boliou, the school district sought to dismiss a high school teacher for physically mistreating a student.  The teacher requested a hearing and it was scheduled by the district.  Thereafter, the district and the teacher engaged in months of discovery and court litigation on the scope of the charges, all prior to the scheduled hearing before the CPC.  Finally, following service of an amended notice of hearing, the school district rescinded the remaining charges and filed a motion with the CPC to dismiss the case.  The CPC granted the school district’s motion to dismiss, with prejudice, but denied awarding attorney’s fees and costs to the teacher on the theory that it was not authorized to issue a decision as the matter had been dismissed “prior to commencement of trial.” 

The Court of Appeal upheld the trial court’s order granting the teacher’s request for attorney’s fees and costs.  The Court of Appeal held that the law requires a “disposition” of the matter once a hearing has been scheduled by a school district.  The court found no law requiring a hearing to be held on the merits.  “Regardless of whether the hearing proceeds with or without taking evidence on the merits of the charges, the statutory scheme makes clear what the commission is required to do.”  (Boliou (June 25, 2012, C068266) __Cal.App.4th__ [ at p. 13].)  In this case, the Court found that because the governing board sought to dismiss the charges, and the CPC dismissed them with prejudice, the panel erred in refusing to set forth a determination in the teacher’s favor.  The Court held that there had in fact been a ‘determination’ by the CPC that “the employee should not be dismissed or suspended” and as such that the governing board was required to pay the teacher’s reasonable attorney’s fees and costs.

When preparing to terminate permanent certificated employees, school districts should now be aware that after scheduling a hearing, they may not be able to dismiss the charges unilaterally even where no hearing on the merits of the charges has been held, without exposing the school district to liability for the teacher’s attorney’s fees and costs.     

If you have any questions regarding teacher dismissals or any other legal matter, please call one of our six offices.

F3 NewsFlash prepared by Doug Freifeld and Becky Feil.

Doug is the Office Managing Partner in the F3 Oakland office.

Becky is an associate in the F3 Sacramento office.

This F3 NewsFlash is a summary only and not legal advice.  We recommend that you consult with legal counsel to determine how this legal development may apply to your specific facts and circumstances.  Information on a free NewsFlash subscription can be found at www.fagenfriedman.com.

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© 2012 Fagen Friedman & Fulfrost, LLP

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