Carpinteria Unified School District vs The Commission on Professional Competence

Case Number

24CV01068

Case Type

Hearing Date / Time

Fri, 03/21/2025 - 10:00

Nature of Proceedings

Petition for Writ of Mandate

Tentative Ruling

For the reasons set forth below, petitioner Carpinteria Unified School District’s petition for Writ of Mandamus is denied. The stay of enforcement of the Commission on Professional Competence’s Decision, granted on February 7, 2025, is lifted.

Background:

This action commenced on February 26, 2024, by the filing of the petition for Writ of Administrative Mandamus by petitioner Carpinteria Unified School District (the “District”) against respondent The Commission on Professional Competence (“Commission”). John Hotchner (“Hotchner”) is the real party in interest.

As alleged in the petition:

On March 18, 2022, the District issued a Notice of Unprofessional Conduct and Unsatisfactory Performance (“Notice”) for inappropriate and unprofessional conduct. (Pet., ¶ 8.) The Notice directed Hotchner “to, among other things, maintain professional boundaries with students; refrain from stating or implying that students are interested in anything other than a professional teacher-student relationship with him; refrain from stating or implying that he is interested in anything other than a professional teacher-student relationship; refrain from making comments about students interacting with others sexually or romantically or being sexually or romantically interested in others; refrain from making comments about or discussing spending time with students outside of school; refrain from touching students or their belongings; refrain from administering student dress code, ‘coding’ students, or speaking or communicating with students about their dress in any manner; refrain from teasing and picking on students; refrain from arguing with students and/or engaging in a power struggle with them; and refrain from removing students from another teacher’s class or reprimanding students in another teacher’s class or on campus.” (Ibid.)

On September 13, 2022, the Director of Human Resources signed and filed a verified Statement of Charges (“SOC”) with the District’s Board of Education (“Board”) charging that cause exists to immediately suspend Hotchner without pay and dismiss him from employment. (Pet., ¶ 9.) The Board approved the SOC and found that there was cause to dismiss Hotchner for immoral conduct, dishonesty, unprofessional conduct, and persistent violation of or refusal to obey regulations prescribed by the Board or the State. (Ibid.)

On September 14, 2022, the District served Hotchner with notice that the Board was suspending him without pay, effective immediately, and intended to dismiss him from employment at the expiration of 30 days from the date of service of the notice, unless Hotchner demanded a hearing. (Pet., ¶ 10.)

On October 14, 2022, Hotchner filed a Notice of Defense and Request for Hearing with Board and a Motion for Immediate Reversal of Suspension, alleging that the SOC failed to allege willful refusal to perform or immoral conduct sufficient to support an immediate unpaid suspension. (Pet., ¶ 11.) On November 16, 2022, the Motion was denied, finding that the District “alleged sufficient facts in the Statement of Charges that, if true, would constitute immoral conduct and support immediate suspension . . .” (Pet., ¶ 12 & Exh. 1.)

Over several days, from March 13, 2023, until September 1, 2023, the Commission conducted a hearing via videoconference. (Pet., ¶ 13.)

On December 26, 2023, the Commission issued its decision finding that Hotchner had engaged in conduct that was inappropriate, unprofessional, had no legitimate educational purpose, had the effect of making students uncomfortable or embarrassing them, and which negatively impacted students. (Pet., ¶ 15.) Despite these findings, the Commission concluded that dismissal was not warranted because the District failed to establish Hotchner was unfit to teach, and that the District failed to establish Hotchner’s actions were immoral, that he engaged in acts of dishonesty, that he engaged in persistent violation of or refusal to obey school laws, or that he was unfit for service. (Ibid.) As a result, the Commission dismissed the SOC against Hotchner and ordered that the District continue to employ Hotchner. (Ibid. & Exh. 2.)

The District alleges that the Commission’s dismissal was an abuse of discretion, not supported by the Commission’s own findings, conclusions, or the weight of the evidence in the record. (Pet., ¶ 17.)

On April 4, 2024, Hotchner filed his original answer to the petition. On April 24, 2024, Hotchner filed an amended answer to the petition, admitting some allegations, denying some allegations, and asserting six affirmative defenses.

On February 7, 2025, the court granted the District’s motion to stay enforcement of the Commission’s decision.

Analysis:

“Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. (Code Civ. Proc., § 1094.5, subd. (a).)

“The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.” (Code Civ. Proc., § 1094.5, subd. (b).)

“Where it is claimed that the findings are not supported by the evidence, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, abuse of discretion is established if the court determines that the findings are not supported by the weight of the evidence. In all other cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record.” (Code Civ. Proc., § 1094.5, subd. (c).)

“[I]n applying “ ‘ “independent judgment,” ’ ” a trial court must accord a “ ‘ “strong presumption of . . . correctness” ’ ” to administrative findings, and that the “ ‘burden rests’ ” upon the complaining party to show that the administrative “ ‘ “decision is contrary to the weight of the evidence.” ’ ” [Citations.]” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817.)

By way of its reply, the District appears to imply that it is Hotchner’s burden to prove that the Commission’s decision was supported by the weight of the evidence. It is not. It is the District’s burden to prove that the Commission’s decision was not supported by the weight of the evidence.

            Charges

Education Code section 44932, subdivision (a), sets forth the allowable grounds for dismissal of a permanent employee. Those grounds are:

“(1) Immoral conduct, including, but not limited to, egregious misconduct. For purposes of this chapter, “ ‘egregious misconduct’ ” is defined exclusively as immoral conduct that is the basis for an offense described in Section 44010 or 44011 of this code, or in Sections 11165.2 to 11165.6, inclusive, of the Penal Code.

“(2) Unprofessional conduct.

“(3) Commission, aiding, or advocating the commission of acts of criminal syndicalism, as prohibited by Chapter 188 of the Statutes of 1919, or any amendment to that chapter.

“(4) Dishonesty.

“(5) unsatisfactory performance.

“(6) Evident unfitness for service.

“(7) Physical or mental condition unfitting him or her to instruct or associate with children.

“(8) Persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the state board or by the governing board of the school district employing him or her.

“(9) Conviction of a felony or of any crime involving moral turpitude.

“(10) Violation of Section 51530 or conduct specified in Section 1028 of the Government Code, added by Chapter 1418 of the Statutes of 1947.

“(11) Alcoholism or other drug abuse that makes the employee unfit to instruct or associate with children.”

“Section 44932 provides that a teacher cannot be dismissed unless certain grounds are found to exist; it does not provide that a teacher must be dismissed if one of those grounds is found. Similarly, section 44944 provides that the commission is to decide whether a teacher should or should not be dismissed; it does not provide that the commission must dismiss a teacher if it finds that one of the statutory grounds exists. [¶] Viewed in the context of the entire statutory scheme, a fair reading of section 44944 recognizes the discretion given both an employing school district and a commission. The district may determine when to seek disciplinary action and what discipline to seek. It may, by choosing to pursue only a dismissal sanction, preclude the commission from imposing suspension. And it may, by invoking the procedures of section 44939, accompany the notice of dismissal with an immediate suspension of the employee without pay. But nothing in the statutory scheme indicates that the commission must be bound by the district’s choice to the extent that it is required to approve an employee’s dismissal if it is not persuaded, in the exercise of its discretion, that an offense is serious enough to warrant that step.” (Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 218.)

Pursuant to its SOC, the District sought to dismiss Hotchner based on claims of:

“(1) Immoral conduct (Education Code § 44932(a)(1));

“(2) Unprofessional conduct (Education Code § 44932(a)(2));

“(3) Dishonesty (Education Code § 44932(a)(4));

“(4) Evident unfitness for service (Education Code § 44932(a)(6)); and

“(5) Persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed for the government of the public schools by the state board or by the governing board of the school district employing you (Education Code § 44932(a)(8)).” (Administrative Record, vol. 1, part 1, AR 30-31.)

(Note: Citations to the administrative record are as follows: [volume] AR [page number of the pdf document of that volume of the administrative record].

            The Commission’s Decision

The Commission, consisting of Michelle Orelup, John Miller, and Carmen D. Snuggs-Spraggins, Administrative Law Judge, heard this matter on March 13-17, 20-24, August 21-25, and August 28 through September 1, 2023. (5 AR 127.) The Commission signed its decision on December 22, 2023, and December 23, 2023, ordering that the SOC against Hotchner be dismissed, and Hotchner shall not be terminated as a permanent certificated employee of the District. (5, 3, AR 236.) The decision was served electronically to all parties on December 26, 2023. (5 AR 237.)

At the beginning of the decision, the Commission provided a brief summary of Hotchner’s employment history as follows:

“[Hotchner] holds a Clear Single Subject Teaching Credential with a Social Science Authorization and a Clear Cross-Cultural language and Academic Development Certificate (CLAD). He has worked for the District for more than 20 years and is a middle school teacher at Carpinteria Middle School (CMS).

“[Hotchner] is the president of the Carpinteria Association of United School Employees (CAUSE). In 2007 or 2008, he was elected to serve as the chair of the Social Science Department and, at the request of the District’s superintendent, he served as the chair of the safety committee from 2015-2019.

“[Hotchner] has taught sixth, seventh, and eighth grade students. At all times relevant to the Statement of Charges (SOC), he taught history. Specifically, during the 2021-2022 school year, [Hotchner] taught History 7/Global Studies to seventh grade students. [Hotchner] also had an advisory period, which is a 20-minute class similar to homeroom, held prior to any instructional period. The students in [Hotchner’s] Advisory class were in the eighth grade.

“[Hotchner’s] written Class Procedures required students who were tardy to his class to stand by the door within his view and wait until he invited them into the classroom. He required all students to be quiet for the first ten minutes of class while they recorded their homework assignments. According to [Hotchner’s] Class Procedures, students must obtain his permission before leaving their seats. Specifically, they are required to raise their hands and wait for him to acknowledge them. Students are directed to watch for [Hotchner’s] thumb; when he raised his thumb above his head, students were advised “ ‘you will become absolutely silent, look forward, and prepare to listen to my instruction. You will also put your thumb up [in front of your face and between your eyes] to demonstrate that you are paying attention.’ ”  . . .

“In 2021, the Public Employment Relations Board issued a decision in [Hotchner’s] favor and against the District regarding a 2019 Notice of Unprofessional Conduct/Notice of Unsatisfactory Performance.

“In June 2022, [Hotchner] obtained an Arbitration Award against the District related to the District’s formal observation of [Hotchner’s] teaching in 2021.” (5 AR 130-131.)

The decision notes that Lisa O’Shea has been the principal at CMS for five years, and sets forth a summary of relevant school policies, emails, and the disciplinary system at CMS. (5 AR 131-136.)

With respect to the credibility of witnesses, at the hearings, the Commission explains:

“The bulk of the charges against [Hotchner] concern [Hotchner’s] alleged behavior and comments while in the classroom or otherwise on campus. The Commission evaluated the credibility of the witnesses pursuant to the factors set forth in Evidence Code section 780: the demeanor and manner of the witness while testifying, the character of the testimony[,] the capacity to perceive at the time the events occurred, the character of the witness for honesty, the existence of bias or other motive, other statements of the witness which are consistent or inconsistent with the testimony, the existence or absence of any fact to which the witness testified, and the attitude of the witness toward the proceeding in which the testimony has been given. The manner and demeanor of a witness while testifying are the two most important factors a trier of fact considers when judging credibility. The mannerisms, tone of voice, eye contact, facial expressions and body language are all considered, but are difficult to describe in such a way that the reader truly understands what causes the trier of fact to believe or disbelieve a witness.” (5 AR 137.)

The court finds that the Commission used the correct factors in determining the credibility of witnesses pursuant to Evidence Code section 780. Further, despite the District’s arguments to the contrary, the Commission specifically commented on what testimony and evidence it found credible, or not credible, and why.

Regarding the credibility of witnesses, the Commission determined:

“The testimony of some of the students was found to be credible, as they observed and interacted with Respondent over the school years and observed similar behavior, and testified in a clear concise, unequivocal manner, and supported their perspective with descriptive facts. The testimony of other students, however, was difficult to follow and at times did not fully address the allegations set forth in the SOC. The credible testimony of students, corroborated by their written statements and the testimony of Principal O’Shea established some of the Factual Findings set forth below. Where the Commission did not find the students’ testimony credible or no evidence was presented by the District with respect to some of the charges, the Commission found that the charges were not established.

“Similarly, with respect to some of the charges, Respondent was found to be credible and testified in a clear concise, unequivocal manner, and provided context for his conduct and statements. As to other charges, however, his testimony was difficult to follow and at times did not fully address the allegations set forth in the SOC. Several teachers testified on Respondent’s behalf. Their testimony regarding student violations of the dress code was credible. However, their testimony that CMS was not a trauma informed school and that they did not recall receiving emails from Principal O’Shea was unpersuasive.” (5 AR 137-138.)

As the court only relies on the evidence presented by review of the administrative record, the court will give the Commission’s opinions regarding credibility of witnesses the appropriate weight. To the extent that the court exercises its independent judgment regarding the credibility of witnesses, based on a complete review of the administrative record, the court agrees with the assessment of the Commission. Contrary to the argument made by the District, the Commissions credibility assessments were not “erroneous, arbitrary, and capricious.”

The District makes a point of bringing to the court’s attention that it “called 31 witnesses, of which 24 were students and 2 were parents.” (Opening Brief, p. 2, ll. 8-9.)

The District’s reliance on the number of witnesses is misplaced. “[I]t is elementary that the testimony of only one witness found worthy of belief is sufficient for the proof of any fact and justifies a finding in accordance with such testimony, notwithstanding a number of other witnesses have testified to the contrary.” (Michael Distributing Co. v. Tobin (1964) 225 Cal.App.2d 655, 660-661.)

The decision then spends several pages discussing specific alleged events, testimony, and other evidence. Even if not specifically mentioned herein, the court has thoroughly, and independently, reviewed all of the testimony and other evidence presented to the Commission.

After considering the testimony and other evidence, the Commission provided an analysis that includes:

“The evidence established that [Hotchner] made comments to students and engaged in behavior that made the students uncomfortable and was inappropriate. Examples include: confiscating student M.B.’s fidget spinner; telling a student that he did not get paid enough to see her bra strap; suggesting that he and his student have a sleepover for their birthdays; removing students’ hoodies; touching a student’s chest/shirt; directing peers to tell another student why her clothing was inappropriate; confiscating the phone of a student who had previously notified [Hotchner] that he had an appointment and was speaking with his mother; and making statements that suggested a student was stupid.

“The evidence did not establish that [Hotchner] engaged in grooming behavior, sexualized his students, or otherwise made sexual innuendos. Rather the evidence established that because of the age and developmental stage of [Hotchner’s] students, they imparted a sexual connotation to things [Hotchner] said. In addition, the evidence did not establish that [Hotchner] engaged in acts of dishonesty.

“The evidence did not establish that [Hotchner] fixated on specific female students to enforce the dress code. Instead, there were certain female students who routinely appeared in violation of the dress code. In addition, several CMS teachers testified that their female students were typically the students that violated the dress code.

“While [Hotchner] made repeated reports to Principal O’Shea between April 2022 and June 2022 that students were violating the dress code, he did not violate the March 18 NUC/NUP, in that he was instructed to notify administration of any concerns that he had. The directive was contradictory in that [Hotchner] was told not to concern himself with the dress code but allowed him to notify administration if he had any concerns. He asked clarifying questions on his own behalf and on behalf of CAUSE members about the dress code, but with exception of the initial responses notifying [Hotchner] that the issues he raised about specific students had been addressed, he was not provided any information.

“[Hotchner] violated the March 18 NUC/NUP in that he discussed seeing student A.Z. outside of class and confiscated a student’s phone on April 12, 2022.

“[Hotchner’s] communications to Principal O’Shea were defensive and at times, condescending.” (5 AR 224-225.)

The District failed to establish many of the charges contained in the SOC. (5 AR 225-227.)

“When all of the evidence is considered, [Hotchner] engaged in inappropriate and/or unprofessional conduct and demonstrated lapses in judgment. His conduct suggests that he would benefit from sensitivity training and other educational courses. However, the Commission does not find that [Hotchner] is unfit to teach.” (5 AR 227.)

The specific findings, as applied to the charges in the SOC will be individually discussed below.

The Commission ultimately concluded: “While the District established that [Hotchner] demonstrated unprofessional conduct in many ways with students and staff, the Commission concludes that dismissal is not warranted because the District failed to establish that [Hotchner] is unfit to teach.” (5 AR 235-236.)

            Application of the Appropriate Factors

The District’s argues that the Commission’s dismissal of the charges “constituted a prejudicial abuse of discretion,” and that the “findings and legal conclusions are against the weight of the evidence and the [Commission’s] own findings.” (Opening Brief, p. 2, ll. 27-28.) “The totality of the evidence shows that Hotchner is unfit to teach, evidently unfit for service, and engaged in immoral conduct, dishonesty, and persistent violation of and refusal to obey school rules.” (Id. at p. 3, ll. 1-2.)

By way of its argument, the District presents a one-sided argument and ignores the evidence presented in Hotchner’s favor. The District also solely relies on testimony and evidence that supports its position, without any regard to credibility. A review of the evidence shows that some of it is simply not believable, or, at the very least, exaggerated and sensationalized. As one of many examples that could be given: The District tries to turn Hotchner’s forming of a heart symbol with his hands into a sexual gesture. The evidence established that was not the case. Rather, the evidence established that others, including Principal O’Shea, used the symbol as a means of expressing appreciation. (16 AR 1656; 16 AR 1748-1749; 16 AR 1819-1820.)

Both the District and Hotchner acknowledge that the Commission is required to apply the “Morrison factors” (Morrison v. State Board of Education (1969) 1 Cal.3d 214; (Morrison).) in determining whether Hotchner’s conduct renders him unfit to teach.

“In Morrison, the court outlined seven factors courts should consider “ ‘to determine whether the unprofessional conduct demonstrated unfitness to teach: . . . ‘ “[1] the likelihood that the conduct may have adversely affected students or fellow teachers, [and] the degree of such adversity anticipated, [2] the proximity or remoteness in time of the conduct, [3] the type of teaching certificate held by the party involved, [4] the extenuating or aggravating circumstances, if any, surrounding the conduct, [5] the praiseworthiness or blameworthiness of the motives resulting in the conduct, [6] the likelihood of the recurrence of the questioned conduct, and [7] the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers.” ’ ” [Citations.] “ ‘  “ These factors are relevant to the extent that they assist the board in determining whether the teacher’s fitness to teach, i.e., in determining whether the teacher’s future classroom performance and overall impact on his [or her] students are likely to meet the [school district’s] standards.” ’ ” [Citation.]” (Crawford v. Commission on Professional Competence of Jurupa Unified School District (2020) 53 Cal.App.5th 327, 337-338.)

“[N]ot all Morrison factors need be examined, only the pertinent ones.” (Governing Board v. Haar (1994) 28 Cal.App.4th 369, 384.)

Addressing the Morrison factors, the Commission made the following findings:

“The first Morrison factor focuses on the “ ‘likelihood’ ” the conduct “ ‘may have’ ” adversely affected students, teachers, or the educational community, and the degree of adversity anticipated. The degree of adversity from [Hotchner’s] conduct was moderate. Actual adverse impacts of [Hotchner’s] conduct were demonstrated in that students were nervous and uncomfortable in his class and at times embarrassed.” (5 AR 232.)

“The second Morrison factor involves the proximity or remoteness in time of the conduct. [Hotchner’s] most recent misconduct was committed during the 2021-2022 school year, which is not remote in time.” (5 AR 232.)

“The third Morrison factor concerns the type of teaching certificate held by the party involved. [Hotchner] holds an appropriate credential for the subject matter he was assigned to teach and has several years of experience where he met expectations until his recent discipline. However, [Hotchner’s] credentials allow him to teach impressionable middle school students for whom he must serve as an appropriate role model.” (5 AR 232-233.)

“The fourth Morrison factor examines the extenuating or aggravating circumstances surrounding the conduct. The evidence established that [Hotchner] engaged in multiple acts of wrongdoing and had prior notice, warning or reprimands for similar conduct.” (5 AR 233.)

“Mitigating factors may include an absence of prior adverse action over many years of educational service and present misconduct which is not deemed most serious; references of good character by individuals aware of the misconduct; lack of harm to the person who is the object of the misconduct; objective action taken by the holder, demonstrating remorse and recognition of the wrongdoing and designed to timely make amends; the proximity or remoteness in time relative to the seriousness of the misconduct; or the nature and extent of subsequent rehabilitation. [Hotchner] worked in the District for many years without any prior adverse action.” (5 AR 233.)

“The next Morrison factor is the praiseworthiness or blameworthiness of the motives resulting in the conduct. Some of [Hotchner’s] conduct was praiseworthy, in that he attempted to build relationships with his students, genuinely believed that the same students were consistently violating CMS’s Dress Code policy, and in some instances [Hotchner] was representing the interests of CAUSE members. CMS teachers attested to [Hotchner’s] character and reputation at CMS; however, they were not aware of the extent of [Hotchner’s] misconduct.” (5 AR 233.)

“The next Morrison factor is the likelihood of the recurrence of the questioned conduct. [Hotchner’s] most serious violations occurred prior to the issuance of the March 18 NUC/NUP. Other than a few lapses, [Hotchner] has been able to demonstrate his ability to comply with the directives. [Hotchner’s] unprofessional lapses following the March 18 NUC/NUP appear to have largely been isolated lapses in judgment. [Hotchner’s] continual emailing to administration was not a violation of the March 18 NUC/NUP. [Hotchner’s] continual emails appear, in large part, based on the administration’s failure to explain to [Hotchner] that the clothing of the students at issue conformed to CMS’s Dress Code policy. Absent such communications, [Hotchner] was left with the impression that his concerns were not being addressed. Based upon the evidence in the record, the District did not prove, by a preponderance of the evidence, that [Hotchner] is likely to reoffend.” (5 AR 234.)

“The final Morrison factor is the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers. There is evidence of some notoriety within the District regarding [Hotchner’s] conduct, however, disciplinary action against [Hotchner] would not inflict an adverse impact or chilling effect on [Hotchner] or others, because there is no constitutionally protected speech or behavior in the conduct at issue.” (5 AR 234.)

In coming to its ultimate decision, the Commission explained:

“While [Hotchner] exercised, among other things, poor judgment and a lack of professionalism, the District did not establish by a preponderance of the evidence that [Hotchner] has a fixed character trait which is not remediable. [Hotchner] was issued 30 directives in the March 18 NUC/NUP and demonstrated that following receipt of those directi[ves], he was able to change some of his behavior. As noted above, [Hotchner’s] misconduct following the March 18, NUC/NUP were largely isolated incidents. [Hotchner’s] continual emailing of the administration regarding CMS’s Dress Policy was not a violation of the March 18, NUC/NUP in that [Hotchner] was instructed to direct any concerns regarding the dress policy directly to administration. The District did not present evidence that administration responded to [Hotchner’s] numerous emails to notify [Hotchner] that the clothing he considered to be in violation was not, in fact, a violation or instructed him to stop addressing the dress policy at all after early April 2022. Based on this record, the District failed to establish by a preponderance of the evidence that cause exists to terminate [Hotchner’s] employment as a permanent employee for evident unfitness for service under Education Code section 44932, subdivision (a)(6).” (5 AR 235.)

“ ‘ “The findings of a board where formal hearings are held should and do come before the courts with a strong presumption in their favor based primarily on the [rebuttable] presumption contained in section 1963, subsection 15, of the Code of Civil Procedure [currently Evidence Code section 664] “ ‘[t]hat official duty has been regularly performed.’ ” Obviously, considerable weight should be given to the findings of experienced administrative bodies made after a full and formal hearing. . . .” ’ ” [Citations.] Such a procedure “ ‘ “gives the reviewing court the power and duty of exercising an independent judgment as to both facts and law, but contemplates that . . . the burden shall rest upon the petitioner to support his challenge affirmatively, competently, and convincingly. In other words, rarely, if ever, will a board determination be disturbed unless the petitioner is able to show a jurisdictional excess, a serious error of law, or an abuse of discretion on the facts.” ’ ” [Citations.[“ (San Diego Unified School Dist. v. Commission on Professional Competence (2013) 214 Cal.App.4th 1120, 1141.)

The District has failed to show a jurisdictional excess, a serious error of law, or an abuse of discretion on the facts.

After a thorough review of the evidence contained in the administrative record, the court agrees with the decision of the Commission based on its assessment of the evidence presented and the burden of proof. Hotchner did, on occasion, exercise poor judgment, but that poor judgment does not reach the level where termination would be the appropriate result.

Contrary to the District’s arguments, the Commission did not apply the wrong legal standard, and did not fail to consider all relevant evidence. The District appears to misunderstand what the proper legal standard is and the weight that the Commission (and this court) are permitted to give to the evidence presented. The totality of the evidence supports the Commission’s findings. While other discipline may have been appropriate, termination is not.

            The Commission’s Rulings Regarding Evidence and Amendment of Charges

The District argues that the Commission committed a prejudicial abuse of discretion by allowing Hotchner to introduce evidence beyond the four-year statute of limitations, denying the District the same opportunity, and denying the District’s motion to amend the SOC to conform to proof.

“Evidence of records regularly kept by the governing board of the school district concerning the employee may be introduced, but no decision relating to the dismissal or suspension of an employee shall be made based on charges or evidence of any nature relating to matters occurring more than four years before the filing of the notice, except as allowed pursuant to subparagraph (A).” (Ed. Code, § 44944, subd. (b)(2)(B).)

As noted above, the District filed the SOC against Hotchner on September 13, 2022. The District argues that the performance evaluations, that were admitted over objection, from 2009, 2011, 2013, 2015, and 2016, were improperly admitted into evidence and relied on by the Commission. The District further argues that, because Hotchner was allowed to do so, the District should have been allowed to introduce memos from January 25, 2007, March 10, 2008, and March 28, 2017.

Hotchner argues that Education Code section 44944 is properly read to allow “records kept by the District that are older than four years, it explicitly states that other evidence relating to the dismissal or suspension of an employee cannot be made based on records that are more than four years old, thus preventing the District from introducing such evidence.” (Opp., p. 43, ll. 17-21.)

A fair reading of Education Code section 44944, subdivision (b)(2)(B), in context, strongly suggests that “matters” referred to in the statute (those occurring more than four years before the date of the notice) are employee actions that the employer seeks to use to support suspension or dismissal, whether directly or as instances of other bad behavior. The code section prohibits the Commission from “basing” a decision on charges or evidence relating to matters older than four years. The section thus restricts the age of the information that can be used to support a dismissal, but it does not preclude introducing other kinds of older relevant evidence, such as the performance evaluations introduced by Hotchner.

The Commission properly allowed the introduction of the performance evaluations and properly precluded the District from introducing evidence (that was not even in Hotchner’s file) of past allegations. Even if the evidentiary ruling had been incorrect, and assuming the District could prove the prior allegations, it would be harmless error. The weight of the evidence would still be in favor of Hotchner.

The District’s final argument is that it was prejudiced by the Commission denying its motion to amend the charges to conform to proof. The motion sought to add 30 additional allegations of misconduct to the charges, and was made following the conclusion of testimony.

“If the governing board of the school district has given notice to a certificated employee of its intention to dismiss or suspend him or her, based upon written charges filed or formulated pursuant to this section, the charges may be amended less than 90 days before the hearing on the charges only upon a showing of good cause. If a motion to amend charges is granted by the administrative law judge, the employee shall be given a meaningful opportunity to respond to the amended charges.” (Ed. Code, § 44934, subd. (d).)

In ruling on the motion, the Commission stated:

“Because the Motion was filed on the last day of hearing, the District was required to establish good cause to amend the SOC. The District does not argue or establish good cause for amendment in the Motion or in its reply brief. There is no reason the District could not have amended the SOC or filed its Motion between March 24, 2023, and August 21, 2023.” (5 AR 112.)

This court has reviewed the District’s motion (7 AR 42-48) and agrees with the Commission. The District did not establish good cause for attempting to amend the SOC following the conclusion of testimony. Further, the proposed amendments to the SOC do not change this court’s conclusion that the District failed to meet its burden of proof to support termination of Hotchner.

The petition for writ of mandamus will be denied.