Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS122231 James C. Chalfant, Judge.
Michael P. Calof for Plaintiff and Appellant.
Office of the General Counsel of the Los Angeles Unified School District and Robert M. Cuen, Assistant General Counsel, for Defendant and Respondent.
WILLHITE, J.
INTRODUCTION
Petitioner Holmgeir Brynjolfsson, a mechanic employed by the Los Angeles Unified School District (the District), appeals from the denial of his petition for a writ of administrative mandamus to overturn the decision by the District’s Personnel Commission (the Commission) to place him on unpaid status from the period of September 28, 2004 through September 26, 2005, based on the finding that he had been derelict in his duties. The Commission had previously determined that petitioner should not be paid for this one-year period, but in a prior opinion, we directed it to vacate its decision for failure to state factual findings. Upon remand, the Commission reviewed the administrative record and adopted the factual findings that had been made by an administrative hearing officer, and then reaffirmed its decision that petitioner should not be paid from September 28, 2004 to September 26, 2005. Petitioner contends that the Commission could not lawfully adopt the hearing officer’s findings, and thus contends the Commission has once again failed to satisfy the requirement that its decision be supported by factual findings. He further contends that Commission exceeded its authority by placing him on unpaid status for more than 30 days, and claims that the District violated the Brown Act on several occasions by failing to give him 24-hours’ notice of its intent to take disciplinary action against him. We reject his contentions and affirm the judgment denying the petition for the writ of mandamus.
FACTUAL AND PROCEDURAL BACKGROUND
The District’s Disciplinary Action Against Petitioner
This court previously considered the appeal from an earlier writ petition concerning the Commission’s initial decision to place petitioner on unpaid status from the period of September 28, 2004 through September 26, 2005. (Los Angeles Unified School District Personnel Commission v. Holmgeir Brynjolfsson (Sept. 19, 2008, B204231) [nonpub. opn.] (Brynjolfsson I).) We set forth the background facts in that 2008 decision, which we quote in relevant part here:
“Petitioner, employed as a mechanic by the Los Angeles Unified School District (the District) for 25 years, installed the wrong size brake chamber on the left rear wheel of a school bus.... After investigation, the District concluded that the incident was caused by petitioner’s inattention to, or dereliction of, his duty as a mechanic, and dismissed him from employment effective October 27, 2004.
“Petitioner appealed the notice of discipline, and an administrative hearing was held before a Commission hearing officer....
“In his findings and recommendation that was forwarded to the Commission, the hearing officer found that petitioner had engaged in the cited misconduct (inattention to or dereliction of duty). The hearing officer rejected petitioner’s testimony that he had questioned whether he had been given the correct part and had been assured that he had. The hearing officer also concluded that even if petitioner’s version were true, he was still guilty of misconduct, because he was responsible, as the mechanic, to ensure that the correct brake was installed. Therefore, the hearing officer recommended that petitioner’s dismissal be upheld.
“At a meeting on March 22, 2006, the Commission considered petitioner’s appeal....
“[T]he Commission issued a written decision, which it amended on April 12, 2006. The amended decision stated in relevant part that the District’s ‘action... suspending and dismissing [petitioner] from his position as a permanent Automotive Mechanic Bus/Truck is to be rescinded, therefore: [¶] 1. Mr. Brynjolfsson’s suspension and dismissal from service should be removed from his personnel file, and [¶] 2. All rights and benefits, including backpay, be restored as of September 27, 2005, minus any earnings received subsequent to that date, and [¶] 3. From the period of September 28, 2004 through September 26, 2005, Mr. Brynjolfsson should be in unpaid status with no benefits, and [¶] 4. This will be a last and final warning and any other misconduct of this nature could result in disciplinary action up to and including dismissal from District service, therefore [¶] IT IS RESOLVED that the findings of fact and the Proposed Decision of the Hearing Officer are not adopted by the Personnel Commission as its decision in the case.’” (Ibid.)
Brynjolfsson’s Original Writ Petition
“Petitioner filed a petition for writ of administrative mandate seeking to compel the Commission to award him full back pay and benefits (the Commission withheld one year’s benefits and pay from September 28, 2004 through September 26, 2005), and to delete the final warning. Petitioner argued that these aspects of the Commission’s decision were without legal or factual justification, because the Commission had rejected the findings made by the hearing officer. [¶]... [¶]
“At the hearing, the trial court concluded that the Commission had abused its discretion by not awarding petitioner full back pay and by including a last and final warning. The court noted that in its final decision, the Commission rescinded petitioner’s suspension and dismissal, and did not adopt the findings of fact made by the hearing officer. The court also noted that the final decision contained no findings to support the discipline imposed.... [T]he court granted the writ, ordering the Commission to delete the final warning from petitioner’s record and to award him all back pay and benefits from September 28, 2004 through September 26, 2005.” (Ibid.)
The Commission appealed, and this court reversed the judgment granting the writ. We found that the record was ambiguous as to what, if any, findings the Commission made to support its decision. However, we agreed with the Commission that the trial court should not have substituted its judgment for the Commission’s with respect to the appropriate discipline, but rather should have remanded the matter to the Commission to permit it to clarify its findings. (Ibid.) We thus remanded the matter to the trial court with instructions to issue a writ of mandate directing the Commission to vacate its decision of April 12, 2006, and to make whatever findings it deemed appropriate based on the administrative record prior to issuing a new decision. (Ibid.)
The Commission’s Reconsideration of Petitioner’s Case
On January 8, 2009, the trial court issued the writ as this Court directed, and the Commission revisited the matter of petitioner’s discipline in a meeting held on May 20, 2009. In a decision dated May 20, 2009, the Commission stated that it had reviewed the administrative record and had decided to adopt the hearing officer’s findings of fact while rejecting his conclusion that the appropriate discipline was to terminate petitioner. The Commission reaffirmed its April 2006 finding and order that (1) petitioner’s suspension and dismissal from service be removed from his personnel file; (2) all rights and benefits be restored as of September 27, 2005; (3) petitioner should be in unpaid status with no benefits from the period of September 28, 2004 through September 26, 2005; and (4) “[t]his will be a last and final warning and any other misconduct of this nature could result in disciplinary action up to and including dismissal from District service.” On June 17, 2009, the Commission notified petitioner of its decision.
The Instant Writ Petition
Petitioner filed the instant petition for a writ of mandamus to compel the District and the Commission to (1) set aside the Commission’s decision of May 20, 2009; (2) pay petitioner his salary and benefits for the period from September 28, 2004 to September 26, 2005; (3) reimburse him for his family’s medical expenses during that period; (4) restore to him his 200 hours of vacation accumulated prior to his dismissal; and (5) remove any “final warning” from his personnel file. Petitioner argued that the Commission had failed to comply with the earlier writ ordering it to make findings based upon the administrative record and issue a new decision. Specifically, he argued that the Commission could not lawfully adopt the factual findings of the hearing officer, because in its initial decision the Commission had expressly stated that it declined to adopt those findings.
Although the writ petition further pointed out that “formal written notice of the Commission’s action was not provided to Petitioner until June 17, 2009 and received June 20, 2009, ” petitioner did not allege any violation of the Ralph M. Brown Act (Gov. Code, § 54950 et seq. (the Brown Act).) However, in his brief in support of his petition for a writ, petitioner argued that on three occasions – October 2004, May 2006, and June 2009 – the District had violated the Brown Act by failing to give him 24 hours’ notice that it was considering imposing discipline on petitioner following a closed session. (Gov. Code, § 54957, subd. (b)(2).)
In 2007, petitioner filed a separate lawsuit against the District, alleging numerous causes of action, including a claim that the District had violated the Brown Act. Specifically, petitioner complained that prior to the District making its initial decision to dismiss him from employment in October 2004, he did not receive notice and an opportunity to be heard as required by Government Code section 54957, subdivision (b)(2). (Holmgeir Brynjolfsson v. Los Angeles Unified School District (March 10, 2011, B217480) [nonpub. opn.] (Brynjolfsson II).) The trial court sustained the District’s demurrer on this claim without leave to amend, and Brynjolfsson appealed the decision. Our colleagues in Division Three recently held that the trial court properly sustained the demurrer to petitioner’s Brown Act claim, because the notice provisions of Government Code section 54957 did not apply to the disciplinary proceeding. (Ibid., citing Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 96-97, 100.)
The trial court denied the application for a writ, finding that the Commission was free to adopt the hearing officer’s findings of fact, and that by doing do, it had satisfied its obligation to make factual findings. The court also found that the Commission had authority under the Education Code to reinstate petitioner without providing backpay and benefits for a one-year period, and concluded that petitioner had forfeited his Brown Act claims and failed to present evidence to support them. It entered judgment on May 3, 2010, and this appeal followed.
DISCUSSION
Petitioner suggests that the trial court erred in denying his petition for a writ seeking to set aside the Commission’s May 20, 2009 decision because (1) the Commission failed to make proper factual findings before reissuing its decision, (2) the Commission exceeded its authority in withholding a year’s worth of backpay, and (3) the District failed on several occasions to comply with the Brown Act, which failures nullified the disciplinary measures taken against petitioner. We reject his arguments.
I. The Commission Complied with its Obligation to Make Factual Findings Before Issuing its Decision
To support its decision to place petitioner on unpaid status for a one-year period, the Commission was required to “set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order.” (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515 (Topanga); see Brynjolfsson I, supra (Sept. 19, 2008, B204231); Jean v. Civil Service Commission (1977) 71 Cal.App.3d 101, 111-112 [San Francisco Civil Service Commission must make findings of fact to support termination of employee].) The Commission had an obligation to “render findings sufficient both to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the [Commission]’s action.” (Topanga, supra, 11 Cal.3d at p. 514.)
In its initial April 12, 2006 decision reinstating petitioner, but placing him on unpaid status for a one-year period, the Commission resolved “that the findings of fact and the Proposed Decision of the Hearing Officer are not adopted” by the Commission, yet the Commission failed to state any independent findings of its own. Because that decision failed to include any factual findings to bridge the gap between the evidence presented during the administrative review and the ultimate decision by the Commission, the Commission was ordered to vacate its decision and to make findings prior to issuing a new decision. (Brynjolfsson I, supra (Sept. 19, 2008, B204231).)
After remand, the Commission issued a May 20, 2009 decision stating that after its review of the administrative record, it had decided to adopt the hearing officer’s factual findings, which were attached to the decision. Petitioner contends that the Commission could not lawfully adopt those findings, because, according to petitioner, those findings technically ceased to exist when the Commission resolved in its first decision in April 2006 not to adopt them. Because the Commission allegedly adopted non-existent findings, petitioner urges us to conclude that the Commission failed to make any findings, in contravention of the Topanga standard and the court order directing the Commission to make factual findings before issuing a new decision.
Petitioner’s argument thus boils down to a quite narrow question of law: Given that the Commission had resolved not to adopt the hearing officer’s factual findings in its initial April 2006 decision, but that the initial decision was then ordered to be vacated, could the Commission lawfully adopt those same factual findings in its new decision? “‘On questions of law arising in mandate proceedings, we exercise independent judgment.’” (Valencia v. County of Sonoma (2007) 158 Cal.App.4th 644, 648; see Department of Corrections v. Office of Admin. Hearings (1997) 53 Cal.App.4th 780, 784.) Applying this independent judgment, we conclude that the Commission lawfully could adopt those factual findings despite previously having decided not to adopt them. Petitioner fails to provide any authority for the notion that we should act as if the hearing officer’s factual findings ceased to exist as of April 2006, when the Commission decided not to adopt them. Contrary to petitioner’s characterizations throughout his brief, in its April 2006 decision the Commission did not “reject” the hearing officer’s findings as incorrect or unsupported, but simply indicated that it did not adopt them. Nor did the Commission’s initial decision include any findings contrary to the hearing officer’s which might undermine its later adoption of the hearing officer’s findings. In sum, we agree with the trial court that the Commission, in its May 20, 2009 decision, properly adopted the factual findings of the hearing officer after reviewing the administrative record.
Petitioner does not challenge whether the findings made by the hearing officer are supported by the evidence. (Civ. Proc. Code, § 1094.5, subd. (b).) He also does not appear to challenge whether the Commission’s decision was supported by the particular factual findings made by the hearing officer and adopted by the Commission. (Ibid.) In any event, we have no trouble concluding that the factual findings that petitioner was grossly negligence and derelict in his duties at work adequately support the decision of the Commission to place petitioner on unpaid status for a one-year period before his reinstatement, during which time he was not working for the District.
Although petitioner states he “has grave doubts” as to whether the Commission actually reviewed the entire administrative record of the earlier proceedings before re-issuing its decision in 2009, he provides no evidence to call into question the propriety of the trial court’s factual finding that the Commission had done so. We also find that petitioner has forfeited his argument that the Commission failed to comply with Topanga, supra, by not citing to specific portions of the administrative record in its May 20, 2009 decision (see Topanga, supra, 11 Cal.3d at p. 515); petitioner asserted this argument for the first time in his reply brief on appeal.
II. The Commission Did Not Exceed Its Authority
Petitioner argues in passing that the Commission exceeded its authority by placing him on unpaid status for a one-year period. He relies on Education Code section 45304, which provides that “[f]or reasonable causes, an employee may be suspended without pay for not more than 30 days... or may be demoted or dismissed.” (Ed. Code, § 45304, subd. (a).) He interprets this provision to prohibit the Commission from placing him on unpaid status for longer than 30 days. Petitioner ignores that he was dismissed from employment in October 2004, not suspended, and that section 45304 does not address the Commission’s authority to reinstate a previously-dismissed employee without compensating the employee for the period of time that he was not working between his dismissal and his reinstatement. We have already held that, pursuant to Education Code section 45307, the Commission was fully entitled to reinstate petitioner with less than full backpay and benefits (Brynjolfsson I, supra (Sept. 19, 2008, B204231).) Petitioner’s argument that the Commission exceeded its authority is therefore not meritorious.
III. Petitioner Has Failed To Properly Put at Issue Alleged Brown Act Violations
Petitioner asserts on appeal that the District violated the Brown Act on three occasions – in October 2004, May 2006, and June 2009 – by failing to give him 24-hours’ notice that the District intended to meet to consider the disciplinary action to be taken against him. The Brown Act “requires local legislative bodies, including boards of education, to conduct open and public sessions. The Brown Act contains a ‘personnel exception’ that allows local legislative bodies to hold closed sessions to act on matters such as the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee. The Brown Act also requires 24-hour written notice to the public employee of the right to have an open session when the local Legislature hears specific complaints or charges brought against the employee by another person or employee.” (Fischer v. Los Angeles Unified School Dist., supra, 70 Cal.App.4th at p. 91; see Kolter v. Commission on Professional Competence of the Los Angeles Unified School Dist. (2009) 170 Cal.App.4th 1346, 1350-1352; Ed. Code, § 54957, subd. (b)(2).)
Petitioner’s Brown Act claims with respect to the 2004 and 2006 timeframes are foreclosed because they could have been raised in the original 2006 writ proceeding but were not. (Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 975.) In addition, his Brown Act claim with respect to the 2004 decision by the District to dismiss him has already been adjudicated in a separate lawsuit he brought against the District, and our colleagues in Division Three recently affirmed the lower court’s decision to sustain the District’s demurrer as to that claim. (Brynjolfsson II, supra (March 10, 2011, B217480).) The doctrine of res judicata bars us from reconsidering it.
As for his contention with respect to an alleged Brown Act violation in June 2009, he appears to be asserting that the District violated the Brown Act by only giving him notice on June 17, 2009 that on May 20, 2009 the Commission had reaffirmed its previous disciplinary decision. The trial court found, and we agree, that petitioner failed to allege a Brown Act violation in his writ petition, and further failed to present any evidence to enable the trial court to consider his claim. His vague arguments below in his brief in support of his petition did not suffice to raise a justiciable claim. Similarly, his briefs on appeal suffer from a lack of citations to the record to support his contentions regarding an alleged Brown Act violation in 2009. Petitioner has failed to properly put at issue the question of whether the District violated the Brown Act by its actions in May or June 2009.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: EPSTEIN, P. J., SUZUKAWA, J.