Opinion
B204231
9-19-2008
LOS ANGELES UNIFIED SCHOOL DISTRICT PERSONNEL COMMISSION, Plaintiff and Appellant, v. HOLMGEIR BRYNJOLFSSON, Defendant and Respondent.
Jess Womack and Kathleen E. Collins for Plaintiff and Appellant. Michael P. Calof for Defendant and Respondent.
Not to be Published
The Los Angeles Unified School District Personnel Commission (the Commission) appeals from the judgment granting the petition for writ of administrative mandate filed by petitioner Holmgeir Brynjolfsson. We reverse, and remand to the trial court with directions to issue a writ of mandate directing the Commission to vacate its decision of April 12, 2006, and to make whatever findings it deems appropriate based on the administrative record prior to issuing a new decision.
BACKGROUND
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. As a result, the bus failed an inspection by the California Highway Patrol before being returned to service. After investigation, the District concluded that the incident was caused by petitioners 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. At the hearing, petitioner testified that he had presented the repair order for the bus in question to the parts storekeeper, and had been given the brake chamber. He noticed that the brake chamber was a different color, shape and size than others on the bus, but was assured by the parts storekeeper that it was the correct part. Petitioner also produced evidence that the Districts computerized parts system reflected that the brake chamber had been requested in the past for repairs to the same model bus on which he was working, and that the District had no policy regarding how orders for parts were to be filled. In his testimony, the parts storekeeper denied having assured petitioner that the brake chamber was the correct part, and other witnesses testified that when confronted with having installed the wrong brake, petitioner admitted that he should have noticed the size difference.
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 petitioners 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 petitioners 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 petitioners dismissal be upheld.
At a meeting on March 22, 2006, the Commission considered petitioners appeal. According to a transcript of the proceedings, one commissioner (Paller) stated: "Im going to step out of the role of chair and make a motion with respect to [petitioner]. . . . Let me first . . . make the motion, [and] then perhaps I can explain how I got to where I got." The commissioner then moved that petitioner be restored to his prior position effective September 27, 2005, with all rights and benefits as of that date, and that "he be given a last and final warning that any further instances of the same or similar [misconduct] could result in further disciplinary action, including his termination." The motion was seconded, and the moving commissioner declared, "so ordered."
In his first amended writ petition, petitioner asserted that the transcribed proceeding occurred at a meeting on April 27, 2006. In its opposition, the Commission stated that the proceeding occurred on March 22, 2006. At the hearing on the mandate petition, the trial court referred to the transcribed proceeding as having occurred on March 22, 2006, in conjunction with the Commissions initial decision. We adopt the trial courts conclusion.
The commissioner then stated: "Let me explain a little bit why, how we came to this, and Im saying this for the benefit of, I guess, Ms. Beets, Mr. Calof, [petitioners attorney], [and petitioner]. . . . [F]or me, this has been one of the most difficult decisions that Ive faced in a long time. . . . Ive [pored] through the transcripts . . . listened to the tapes and Id come to a number of conclusions. . . . First, I have [a] serious problem[] with the claim that no one else within the department including the parts department has any responsibility to make sure that a mechanic is furnished with the proper parts. I have a problem with that. It doesnt strike me that the testimony actually supports that and certainly the job descriptions dont and other issues of that nature. I think everybody in the department has a responsibility to make sure things are done right. Now [whether] they are given the tools to do that is another issue[.] [T]here appeared to be some problems with the procedures in place for getting parts. On the other hand, you know its the same problem I had before and that is it appears that there was some progressive discipline here even though the suspension and the termination were very close in time in terms of their handling to one and other. But I dont believe that the tapes that I listened to give me any reason to disturb the credibility findings of the hearing officer in this case and I could not conclude that the grievant was in fact forthright in his testimony. Im not prepared perhaps to go farther than that but there were some real inconsistencies that very much disturbed me. In other words, I have a problem rewarding the District for what appears to be some problems in actually . . . . I guess you can say supervising the mechanics and supervising the parts department, yet at the same time I dont feel that Mr. Brynjolfsson has acquitted himself well in this instance and in previous instances thats the reason that I made the motion that I made. What comes out of this? I dont know. . . . [S]omething should be done and its not my department to even make the recommendations to try to straighten things out in that department so that incidents like this are not left solely for the mechanic to correct. Everyone in that parts department should have some responsibility to make sure that the right parts are being put on busses including the people who issue the parts. Its all I have."
The same day, March 22, 2006, the Commission issued a written decision, which it amended on April 12, 2006. The amended decision stated in relevant part that the Districts "action . . . suspending and dismissing [petitioner] from his position as a permanent Automotive Mechanic Bus/Truck is to be rescinded, therefore: [¶] 1. Mr. Brynjolfssons 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."
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 years benefits and pay from September 28, 2004 through September 26, 2005), and to delete the final warning. Petitioner argued that these aspects of the Commissions decision were without legal or factual justification, because the Commission had rejected the findings made by the hearing officer.
In its opposition to the petition, the Commission argued that under Education Code section 45307 the Commission had the authority to modify the hearing officers decision so as to impose less stringent discipline, including a partial withholding of back pay and benefits. The Commission also argued that the transcript of the March 22, 2006 hearing contained adequate factual findings to support the Commissions decision.
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 petitioners 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, and that the comments made by a single member of the Commission at the March 22 hearing were insufficient to constitute findings by the Commission itself. The court concluded that "it is inconsistent to . . . rescind the Districts suspension and [dismissal] and to not adopt the findings of fact and proposed decision . . . and then . . . say . . . even though he is supposed to be rehired — we are still going to charge him." Therefore, the court granted the writ, ordering the Commission to delete the final warning from petitioners record and to award him all back pay and benefits from September 28, 2004 through September 26, 2005.
DISCUSSION
The Commission argues that the transcript of the March 22, 2006 hearing contains sufficient findings to support the Commissions action, and that in any event the proper remedy for inadequate findings was not for the trial court to substitute its judgment as to the appropriate discipline, but to remand the matter for the Commission to make appropriate findings based on the administrative record. We conclude that the March 22 transcript is ambiguous as to what, if any, findings the Commission made to support its April 12, 2006 amended decision. We agree with the Commission, however, that the proper remedy is a remand to permit the Commission to clarify its findings.
There is no doubt that the Commission had the authority to reject some or all of the hearing officers findings, and to impose less stringent discipline. Education Code section 45307 provides in relevant part: "If the commission sustains the employee, it may order paid all or part of his full compensation from the time of suspension, demotion, or dismissal, and it shall order his reinstatement upon such terms and conditions as it may determine appropriate. The commission may modify the disciplinary action, but may not make the action more stringent than that approved by the board."
The statute provides in full: "If the commission sustains the employee, it may order paid all or part of his full compensation from the time of suspension, demotion, or dismissal, and it shall order his reinstatement upon such terms and conditions as it may determine appropriate. The commission may modify the disciplinary action, but may not make the action more stringent than that approved by the board. In addition, the commission may direct such other action as it may find necessary to effect a just settlement of the appeal, including, but not limited to, compensation for all or part of the legitimate expenses incurred in pursuit of the appeal, seniority credit for off-duty time pending reinstatement, transfer or change of location of the employee, and expunction from the employees personnel record of disciplinary actions, cause, and charges which were not sustained by the commission. Upon receipt of the commissions written decision the board shall forthwith comply with the provisions thereof. When the board has fully complied with the commissions decision it shall so notify the commission in writing."
Thus, Education Code section 45307 gives the Commission the authority, on the one hand, to reject the hearing officers findings and rescind petitioners suspension and dismissal, and, on the other hand, to reinstate him with less than full back pay and benefits. The Commission also has the authority to impose, as a condition of reinstatement, a final warning.
The Commission, however, cannot demote, remove, suspend or dismiss a permanent employee without reasonable cause. (Bostean v. Los Angeles Unified School Dist. (1998) 63 Cal.App.4th 95, 110 (Bostean); see Ed. Code, §§ 45302, 45304.) Therefore, 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.) The Commission failed to do so in its amended decision, and it is unclear whether the comments made by the single commissioner at the March 22 hearing constituted findings adopted by the Commission as a whole. Certainly the commissioners comments explained why he had moved to modify the hearing officers recommendation and impose less stringent discipline, but nothing in the transcript indicates whether those comments were his alone or were the findings of the Commission.
The proper remedy for the Commissions error, however, was not for the court to reinstate petitioner with full back pay and benefits and to delete the final warning. Rather, the appropriate remedy was to vacate the Commissions decision, and to remand the matter to the Commission to make appropriate findings based on the administrative record. (BAM, Inc. v. Board of Police Comrs. (1992) 7 Cal.App.4th 1343, 1347-1349 [where Board of Police Commissioners rejected findings of hearing officer, but failed to make its own findings in support of the penalty it imposed, remedy was to vacate penalty and remand for proper findings]; Eureka Teachers Assn. v. Board of Education (1988) 199 Cal.App.3d 353, 369 [where board of education failed to state findings supporting its decision to change students grade, remedy was to remand case to the Board to make findings based on administrative record].)
Petitioner appears to contend that the trial court applied the independent judgment test to review the administrative decision, and that under that standard the court was entitled to set aside the Commissions decision. We agree that as a permanent classified employee of the District, petitioner has a fundamental vested right in his continued employment (Bostean, supra, 63 Cal.App.4th at pp. 109-112), and that therefore the proper standard for reviewing any administrative factual findings is the independent judgment standard (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658). Even under that standard, however, the court must still presume the correctness of the administrative findings. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) More importantly for the present case, as stated in a well-known treatise: "When the agencys findings are omitted or otherwise inadequate, the trial court, even under the independent judgment test, cannot rewrite the agency decision . . .; if inadequate findings cannot be cured by reference to the record . . . or by implied findings . . ., the court must remand the case to the agency to prepare adequate findings." (1 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2003) Courts Scope of Review Under CCP § 1094.5, § 6.168, p. 297; see American Funeral Concepts v. Board of Funeral Directors & Embalmers (1982) 136 Cal.App.3d 303, 311.)
Here, the trial court found that the Commission abused its discretion because it had not adopted the hearing officers findings of fact, and had not cited to evidence in the record to support the discipline it imposed. The remedy for that error, as we have explained, is a remand to permit the Commission to make appropriate findings based on the administrative record. That is the remedy we adopt.
DISPOSITION
The judgment of the trial court is reversed. The matter is remanded to the trial court with directions to issue a writ of mandate directing the Commission to vacate its decision of April 12, 2006, and to make whatever findings it deems appropriate based on the administrative record prior to issuing a new decision.
Each side shall bear its own costs on appeal.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.