IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFlH APPELLATE DISTRICT

Court ofAppeal Case No. F065365

(Stanislaus County Superior Court Case No. 667978)

YOSEMITE FACULTY ASSOCIAnON, JON KROPP, HALEH NlAZMAND, and BRIAN GREENE,

Respondents herein / Petitioners below,

v.

YOSEMITE COMMUNITY COLLEGE DISTRICT, GOVERNING BOARD and MEMBERS OF THE GOVERNING BOARD OF THE YOSEMITE

COMMUNITY COLLEGE DISTRICT,

Appellants herein / Respondents below.

Appeal from the Superior Court, Stanislaus County, Case No. 667978, The Honorable William A. Mayhew

RESPONDENTS' BRIEF

Robert J. Bezemek, SBN 58740 Myron Moskovitz, SBN 36476 Patricia Lim, SBN 209478 Attorney at Law

David Conway, SBN 253903 90 Crocker Avenue Law Offices of Robert J. Bezemek, P.C. Piedmont, CA 94611

1611 Telegraph Avenue, Suite 936 Tel: 510-384-0354 Oakland, CA 94612 myronmoskovitz@gmail.com Tel: 510-763-5690 Fax: 510-763-4255

rjbezemek@bezemeklaw.com

Attorneys for RespondentslPetitioners YOSEMITE FACULTY ASSOCIATION, JON KROPP, HALEH

NIAZMAND, and BRIAN GREENE

IN TIffi COURT OF APPEAL OF TIffi STATE OF CALIFORNIA

FIFlH APPELLATE DISTRICT

Court ofAppeal Case No. F065365

(Stanislaus COlmty Superior Court Case No. 667978)

YOSEMITE FACULTY ASSOCIAnON, JON KROPP, HALEH NIAZMAND, and BRIAN GREENE,

Respondents herein / Petitioners below,

v.

YOSEMITE COMMUNITY COLLEGE DISTRICT, GOVERNING BOARD and MEMBERS OF TIffi GOVERNING BOARD OF TIffi YOSEMITE

COMMUNITY COLLEGE DISTRICT,

Appellants herein / Respondents below.

Appeal from the Superior Court, Stanislaus County, Case No. 667978, The Honorable William A. Mayhew

RESPONDENTS' BRIEF

Robert J. Bezemek, SBN 58740 Myron Moskovitz, SBN 36476 Patricia Lim, SBN 209478 Attorney at Law

David Conway, SBN 253903 90 Crocker Avenue Law Offices of Robert J. Bezemek, P .C. Piedmont, CA 94611

1611 Telegraph Avenue, Suite 936 Tel: 510-384-0354 Oakland, CA 94612 myronmoskovitz@gmail.com Tel: 510-763-5690 Fax: 510-763-4255

rjbezemek@bezemeklaw.com

Attorneys for RespondentslPetitioners YOSEMITE FACULTY ASSOCIATION, JON KROPP, HALEH

NIAZMAND, and BRIAN GREENE

CERTIFICATE OF INTERESTED ENTITIES

(Rules of Court, rule 8.208)

Respondents know of no person or entity, other than the named

parties themselves, with a financial interest in the outcome of this

proceeding that the justices should consider in determining whether to

disqualify themselves under canon 3E of the Code of Judicial Ethics.

Dated: December 11,2012 By :----1,IL...L..!o~~--+--F--J.~O:::V_--&--=Robert J. Bezeme ,Atto ey Law Offices of Robert J. Bezemek Counsel for Respondents YOSEMITE FACULTY ASSOCIATION, JON KROPP, HALEH NIAZMAND, and BRIAN GREENE

TABLE OF CONTENTS Page No.

CERTIFICATE OF INTERESTED ENTITIES

INTRODUCTION 1

A SUMMARY OF THE LAW RE "BUMPING RIGHTS" 1

STATEMENTOFTHECASE 7

SUMMARY OF THE ARGUMENT 8

THE STANDARD OF REVIEW 13

ARGUMENT 15

I. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING RESPONDENT KROPP. . 15

A. The Trial Court's Findings 15

The Less Senior Faculty 16

Kropp's Electronics Technology Job Experience. . . . . . .. 16

Kropp's Hiring 17

Kropp's Initial Employment. 19

Kropp's Initial Assignment. 19

Kropp's Evaluations. . 19

Kropp's Assignments 21

The Layoff. 21

B. The Trial Court's Decision Is Supported by Substantial Evidence 22

-1

1. Appellant's Attack on the Substantive Findings Is Waived 22

2. The Decisions Rests on Substantial Evidence ..... 25

3. To Avoid the Selection Committee's Conclusions, Yosemite Relied On A Biased Committee Lacking

Jurisdiction 30

C. Appellant's Untimely Exhaustion of Remedies Defense .. 31

1. Appellant Waived its Exhaustion of Remedies Defense , 32

2. Neither the FSA Denial Process Nor the Equivalency Processes Present Administrative Remedies Which Kropp Had to Exhaust 34

II. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING HALEH NIAZMAND 37

A. The Trial Court Findings Concerning Niazmand 37

B. The Trial Court's Decision Is Supported by Substantial Evidence 40

1. Appellant's Attack on the Substantive Findings Is Waived 41

2. The Decision Is Supported By Substantial Evidence 41

a. ArtMQ 41

b. Graphic Arts MQ. . 41

C. The Appellant's Challenge to the Court's Decision Fails .. 43

D. Niazmand Had No Other Remedies To Exhaust 56

-11

III. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING BRIAN GREENE. . 56

IV. CONCLUSION 61

WORD COUNT CERTIFICATION 63

-111

TABLE OF AUTHORITIES

Page No. CASES

Alexander v. Board ofTrustees ofthe Delano Joint Union High School District

(1983) 139 Cal. App. 3d 567 1,passim

Anderson v. San Mateo Community College District (1978) 87 Cal. App. 3d 441 1,44,46

Arechiga v. Dolores Press, Inc. (2011) 192 Cal. App. 4th 567 22

Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal. App. 4th 1165 32,33

Bakersfield Elementary Teachers Assn. v. Bakersfield Unified School District

(2006) 145 Cal. App. 4th 1260 29,46,47

Balen v. Peralta Community College District (1974) 11 Cal. 3d 821 2, 12

Bledsoe v. Biggs Unified School District (2008) 170 Cal. App. 4th 127 12,passim

Bostean v. Los Angeles Unified School District (1998) 63 Cal. App. 4th 95 46

Branciforte Heights, LLC v. City ofSanta Cruz (2005) 138 Cal. App. 4th 914 34

Brough v. Governing Board (1981) 118 Cal. App. 3d 702 58

California Teachers Association v. Butte Community College District (1996) 48 Cal. App. 4th 1293 4

-lV

California Teachers Assn. v. Governing Board (2002) 98 Cal. App. 4th 369

Campbell v. Abbott (1978) 76 Cal. App. 3d 796

City o/Walnut Creek v. County o/Contra Costa (1980) 101 Cal. App. 3d 1012

Cousins v. Weaverville Unified School District (1994) 24 Cal. App. 4th 1846

County Sanitation District No.2 v. County 0/Kern (2005) 127 Cal. App. 4th 1544

Daniels v. Shasta-Tehama Community College Dist. (1989) 212 Cal. App. 3d 909

Dare v. Board 0/Medical Examiners (1943) 21 Cal. 2d 790

Davis v. Gray (1938) 29 Cal. App. 2d 403

Degener v. Governing Board (1977) 67 Cal. App. 3d 689

Duax v. Kern Community College District (1987) 196 Cal. App. 3d 555

Evans v. Thomason (1977) 72 Cal. App. 2d 978

Forker v. Board o/Trustees (1984) 160 Cal. App. 3d 13

Gallup v. Board o/Trustees (1996) 41 Cal. App. 4th 1571

29

4

32

48

34

2,passim

32

2, 50, 52, 55

28, 33

13, 14,53,54,55

16

44

14

-v

Gassman v. Board ofTrustees (1976) 18 Cal. 3d 137 48

Green v. Board ofDental Examiners (1996) 47 Cal. App. 4th 786 32

Green v. City ofOceanside (1987) 194 Cal. App. 3d 212 33

Greer v. Board ofEducation (1975) 47 Cal. App. 3d 98 4

Holbrook v. Board ofEducation (1951) 37 Cal. 2d 316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Hoyme v. Board ofEducation (1980) 107 Cal. App. 3d 449 29

Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal. 3d 770 15

Irvine College Academic Senate v. Board ofTrustees (2005) 129 Cal. App. 4th 1482 49

Kahn v. Department ofGeneral Services (1994) 22 Cal. App. 4th 1627 30

Karbach v. Board ofEducation (1974) 39 Cal. App. 3d 355 58,60,61

Kavanaugh v. West Sonoma County Union School District (2003) 29 Cal. 4th 911 15,29

King v. Berkeley Unified School District (1979) 89 Cal. App. 3d 1016 60

Krausen v. Solano Co. Junior College District (1974) 42 Cal. App. 3d 394 52

-vi

Linney v. Turpen (1996) 42 Cal. App. 4th 763 31

Martin v. Kentfield School District (1983) 35 Cal. 3d 294 45

Mokler v. County ofOrange (2007) 157 Cal. App. 4th 121 12,33

Moreland Teachers Assn. v. Kurze (1980) 109 Cal. App. 3d 648 44

Pegues v. Civil Service Commission (1998) 67 Cal. App. 4th 95 32

Peralta Federation ofTeachers v. Peralta Community College Dist. (1979) 24 Cal. 3d 369 2

Poppers v. Tamalpais Union High School District (1986) 184 Cal. App. 3d 399 48

Robles v. Employment Development Dept. (2012) 207 Cal. App. 4th 1029 15

Roddenberry v. Roddenberry (1996) 44 Cal. App. 4th 634 28

Rojo v. Kliger (1990) 52 Cal. 3d 65 35

Sanchez v. Unemployment Ins. Appeals Bd. (1984) 36 Cal. 3d 575 15

Santa Barbara Federation ofTeachers v. Santa Barbara High School District

(1977) 76 Cal. App. 3d 223 1

State Board ofEducation v. Honig (1993) 13 Cal. App. 4th 720 28

-Vll

Stryker v. Antelope Valley Community College District (2002) 100 Cal. App. 4th 324

Tahoe Vista Concerned Citizens v. County ofPlacer (2000) 81 Cal. App. 4th 577

Toyota Motor Sales US.A., Inc. v. Superior Court (1990) 220 Cal. App. 3d 864, 872

Vassallo v. Lowery (1986) 178 Cal. App. 3d 1210

Vosburgh v. Meda (1943) 61 Cal. App. 2d 398

STATUTES

Code of Civil Procedure §1094.5

Education Code §5.711 §13447 §13448 §13651 §44949 §44955 §44955(d) §70902(a)(4) §87356 §87357-87359 §87359 §87359(b) §87400 §87604 §87663 §87740 et seq §87740(b) §87740(c)

1

12,32

15

52

16

5,32

2 4

60 52 48

4, 12,44,48, 50, 51 50, 51, 55

46 3,6, 19

6 3, 6,49

49 6 1

19 2,passim

4, 7, 12, 14 4, 12

-V111

§87740(c)(3) §87743 §87743.3 §87743.4 §87743.5 §87744 §88732 A.B. 1725 Stats 1988, Ch.973, Sec.28

Evidence Code §664

Government Code §11500 et seq §11517 §11523

REGULATIONS

California Code of Regulations Cal. Code Regs., tit 5, §52000 Cal. Code Regs., tit 5, §52255 Cal. Code Regs., tit 5, §53407 Cal. Code Regs., tit 5, §5341O Cal. Code Regs., tit 5, §53415 Cal. Code Regs., tit 5, §53430 Cal. Code Regs., tit 5, §53430(b)

RULES OF COURT

Rule 8.204 Rule 8.208

OTHER AUTHORITIES

14 1, passim

33,34,35,36, 58 3,33

5 60 49

3,6

24, 28 .

5 5

49

53 53 45

6, 11, 19 6, 57

3,6, 19 26

63 Cert. Int. Entities

Websters Third New International Dictionary, Unabridged, Meriam-

Webster 2002

-IX

38

INTRODUCTION

On June 30, 2011, Jon Kropp, Haleh Niazmand, and Brian Greene,

three highly qualified, experienced, tenured instructors were laid off by the

Yosemite Community College District ("District," "YCCD" or

"Yosemite"). The District violated Education Code §87743 because each

had the necessary qualifications to be retained and reassigned. In a detailed

Decision, the trial court agreed.

To help the court fully understand the statutory scheme, we begin

with a discussion of layoff laws, tenure and qualifications.

A SUMMARY OF THE LAW RE "BUMPING RIGHTS"

For more than 75 years, California law has provided tenured teachers

with a measure ofjob security, to attract the best people into the teaching

profession, to protect them from political purges and cronyism, and to help

retain the most experienced instructors - all for the ultimate benefit of the

students. Santa Barbara Federation ofTeachers v. Santa Barbara High

School District (1977) 76 Cal. App. 3d 223, 230; Alexander v. Board of

Trustees (1983) 139 Cal.App.3d 567, 572; Anderson v. San Mateo

Community College District (1978) 87 Cal.App.3d 441,447.

The Education Code establishes a hierarchy of three categories of

academic employees: permanent (tenured or "regular"), probationary (or

"contract"), and temporary. §87604; Stryker v. Antelope Valley Community

1

College District (2002) 100 Cal.AppAth 324,329. 1 Temporary employees

may ordinarily be dismissed at any time, at a district's discretion. But

permanent employees may be terminated through layoff only for a

statutorily specified cause, after being afforded required notices and a

hearing, and only if there are no junior employees retained ("skipped") to

render services that the senior employees are competent to render.

§§87740, 87743; Balen v. Peralta Community College District (1974) 11

Cal. 3d 821, 826.2

Beginning with the adoption of its first Teacher Tenure Law in 1935,

California has followed a "modified" seniority system, which takes into

account a teacher's seniority date, and her or his competency.3 "The layoff

statutes give priority to tenured employees over contract employees (see

1 All statutory references are to the Education Code, unless otherwise indicated. The Joint Appendix is cited as: _ JA _, and the Administrative Record is denoted as _A.R._

2 Temporary faculty are hired for a limited duration, and automatically dismissed after each term. Daniels v. Shasta-Tehama Community College Dist. (1989) 212 Cal.App.3d 909,914; Peralta Federation ofTeachers v. Peralta Community College Dist. (1979) 24 Cal. 3d 369,380. They cannot be hired to teach classes which laid off faculty have the MQs to teach. Daniels, at p. 920-922.

3Former School Code §5.711 (Stats. I935,Ch.690,§22) provided, "[i]n making such dismissals, employees shall be dismissed in the inverse order in which they were employed. [~ Provided, however, that no permanent employee may be dismissed under the provisions of this section while a probationary employee is retained or employed to render a service which such permanent employee is certificated and competent to render." See Davis v. Gray (1938) 29 Cal.App.2d 403,406-407.

2

§87743) and priority based on seniority." Daniels, supra., 212 Cal.App.3d

at 919. It also "requires compliance with specified procedures before a

tenured employee ... can be laid off because of a reduction in services." Id.

Under this law, codified in §87743, college districts instituting layoffs are

prohibited from retaining junior (lesser seniority) faculty, while senior

tenured faculty are competent to perform the work for which the junior

faculty was "skipped."

It is this law which the District violated.

Section 87743 imposes mandatory duties on community colleges,

that in the event of a layoff:

"... the services of no tenured employee may be terminated under this section while any probationary employee, or any other employee with less seniority, is retained to render a service in a faculty service area in which the records of the district maintained pursuant to 87743.4 reflect that the tenured employee possesses the minimum qualifications prescribed by the board of governors and is competent to serve under district competency criteria.

"The board shall make assignments and reassignments in a manner that employees shall be retained to render any service which their seniority and qualifications entitle them to render." §87743 emphasis added4

4 The "Minimum Qualifications" requirement, replacing "credentials" for community college faculty, was enacted by California's community college reform statute, A.B. 1725 Stats 1988, Ch.973, Sec.28). The "MQs" are prescribed by the State, not by districts, for "disciplines." §87356 These laws require negotiations with faculty unions for additional standards, such as "Faculty Service Areas" ("FSAs"), competency standards, and "equivalency" to the MQs. (§87359; Cal. Code Regs.,tit. 5,§53430) "Equivalency" refers to the "possibility of hiring faculty who do not possess the exact degrees listed [for MQs], ... where "the governing

3

These layoff laws must be "strictly followecf' and ''fairly construecf'

to protect the rights of tenured faculty. California Teachers Association v.

Butte Community College District (1996) 48 Cal.App.4th 1293, 1301; Greer

v. Board ofEducation (1975) 47 Cal.App.3d 98, 105-106.

Under this statutory scheme, districts may layoff instructors for only

two reasons: reduction or discontinuance of a particular kind of service

("PKS"), or decline in attendance. §87743 While districts have broad

discretion to decide which services to cut,5 their discretion as to whom they

select for resulting layoffs is restricted by §87743.

Prior to March 15 of each year districts must identify those faculty

who may be laid off. §87740. Faculty members disputing their potential

layoff may "request a hearing to determine if there is cause for not

reemploying him or her for the ensuing year." §87740(b), emphasis added.

As provided in §87740(c), the hearing is conducted in accordance with Cal.

board determines that [the applicant] possesses qualifications that are at least equivalent to the minimum qualifications ..." "Minimum Conditions for Faculty and Administrators in California Community Colleges," March 2003 ed., 3AR 600.

5 While "PKS" reductions cannot eliminate mandated services, "[p]articular services ... in excess of the minimum mandated by statute are subject to discretionary reduction under section 13447." Campbell v. Abbott (1978) 76 Cal.App.3d 796,811. (Former §13447 is the antecedent of §§87743,44955) There are few mandated community college services, explaining why service reductions are rarely challenged legally, and were not challenged here (though YFA opposed the reductions - IOAR 22312233).

4

Govt. Code §11500 et seq., with an Administrative Law Judge ("ALJ")

presiding and issuing a proposed decision to the district's governing board,

which may adopt, reject or modify it. Govt. Code §11517 Any tenured or

probationary faculty employee who is laid off may then challenge the layoff

in court, via administrative mandamus. §87743; Cal. Code Civ. Proc.

§1094.5. This occurred here when the "three instructors," Jon Kropp,

Haleh Niazmand, and Brian Greene were laid off by District.

Appellant may not layoff an instructor with seniority and the

requisite MQs to provide services for which instructors with less seniority

were retained. The trial court summarized how this works:

"[W]hether an instructor is qualified and competent to provide community college instruction in a particular academic discipline may now be established by anyone of several different pathways.' ... 'Section 87743 affords tenured community college employees subject to layoff certain protections, including the ability to bump into positions held by ... junior employees and in which the more senior employees are qualified and competent to provide instruction.' ... In order to teach in a department or program, the faculty employee must possess the Minimum Qualifications in the relevant discipline(s), an FSA and competency. Because 'all faculty members within the District have the requisite FSA to serve in any academic position within the District.' and competency is the same as an MQ, Minimum Qualifications is the critical criteria that 'guiders] the analyses.' ... When one acquires an Equivalency, this is as good as a MQ, allowing one to teach the subject. Id. ..." (4JA 999:5-15)6

6In Yosemite an FSA is "tenured" or "probationary" employment, and "competency," negotiated per §87743.5, "is defined as Possession of the minimum qualification or equivalent for that discipline " (4AR 903, Article 15.2.1.1.)

5

Sections 87357-87359 direct the Community Colleges' Board of

Governors to prescribe disciplines as to which "MQs," or Equivalency,

must be possessed by faculty so as to be considered competent to teach.

Districts then "shall employ for academic positions, only persons who

possess the [Minimum] qualifications prescribed by the board of

governors." §87400. "In general, the appropriate focus of minimum

qualifications is in helping the colleges to ensure that they will select

faculty who are competent in subject matter and possess the basic academic

preparation needed to work effectively at the college level." A.B. 1725,

Stats. 1988, Chap.973, Sec.4(q)(l)f An instructor may be assigned to

teach courses only if s/he possesses the MQs (or equivalency) for a

discipline in which the course is taught. (§§87356, 87359; Cal. Code Regs.,

tit. 5,§§5341O, 53430). "Once obtained, an MQ is for life." 4AR 999:16)

There are two types of "disciplines," those where a Master's Degree

is typically awarded and "vocational" disciplines where a Master's is not

generally expected or available. 2AR 525 The State Chancellor's Office

explains, "each individual faculty member is expected to possess minimum

7 The State periodically reissues the controlling "Minimum Qualifications for Faculty and Administrators in the California Community Colleges." The standards to qualifY for MQs in ELTEC, Graphic Arts and the AAC have not changed since the instructors were hired. See "Minimum Qualifications etc.," editions 1994, 2003 and 2010, and Cal. Code Regs.,tit.5,§§5341O, 53415 2AR 554,566, 568, 582-585; 594, 626, 634, 612-615; 646, 698-700,712, 720

6

qualifications ... The regulations demonstrate that the focus of minimum

qualifications for 'teaching faculty' is on the qualifications ofpersons to

teach in a discipline, and not to teach individual courses." (3AR 354)

STATEMENT OF THE CASE

On March 9, 2011, the District decided to reduce "particular kinds of

services" as permitted by §87740. The next day the District gave written

notice to the instructors that the District's Chancellor recommended their

service be terminated effective July 1, 2011, explaining that each was

"entitled to request a hearing under Education Code section 87740(b) ..."

and that the "final decision regarding your proposed layoff will be made by

the Board according to ... section 87740." (lAR 6-7,9)

On March 22, 2011, the Chancellor issued a "Statement to

Respondent" and Accusation, to each instructor. (lAR 33-212) The

Accusations alleged that the instructors lacked the MQ and seniority to

bump any retained junior faculty, and that cause existed to lay them off.

(lAR 36, 96, 156) All three requested a hearing and filed a Notice of

Defense. lAR42-43, 103, 163,214-217,220-221

An ALJ conducted a hearing on April 12-13,2011. After briefing,

the ALJ issued a proposed decision. 9AR 2028,2117,2164,2179,2200 At a

school board meeting on May 25, 2011, where the faculty submitted further

evidence, the board voted 4-0 (with 3 members absent) to layoff the three

7

instructors, and to issue a Supplemental Decision adopting the ALl's

decision as its own. 1OAR 2224-2319; 1OAR 2345,2351-2352

The three instructors and their representative, the Yosemite Faculty

Association ("YFA"), filed a Petition for Writ of Administrative Mandamus

in the Stanislaus County Superior Court. 1OAR 2320; lJA 1 The instructors

then filed a Motion for a Writ of Mandate. lJA 46 The District Answered,

and filed its Opposition. lJA 79,94 After Petitioners replied, the Court

heard oral argument, and issued its Ruling, granting the Petition. lJA 156,

RT 1, 4JA 780 The court's Judgment and Statement of Decision were filed

on May 16,2012. 4JA 995,1031 The clerk issued the Writ on May 17,

2012, ordering the District to reinstate the instructors to their tenured

positions. 4JA 1034 The District's Appeal followed.

SUMMARY OF THE ARGUMENT

The trial court correctly found that the District violated its mandatory

duties under §87743 when in 2011 it laid off Kropp, Niazmand, and

Greene, and instead retained faculty with less seniority, to perform services

that the three instructors possessed the essential qualifications to perform.

Each instructor satisfied the necessary MQs, competency, and FSA to

"bump" junior faculty who the District exempted from layoff. "Senior

employees are given 'bumping' rights in that they will not be terminated if

there are junior employees retained who are rendering services which the

8

senior employee is certificated and competent to render." Alexander, supra,

139 Cal.App.3d at 571. The trial court's extensive factual findings,

supported by substantial evidence, establish that these instructors should not

have been laid off as they were competent and qualified to perform the

services of less senior employees whom the District retained.

In its desire to selectively layoff these senior faculty by skipping

"junior" faculty, Appellant misstates or disregards the essential facts, and

ignores or even rewrites the law. It claims now that it laid off these highly

qualified faculty for the benefit of the students and taxpayers. There is no

such exception to the mandatory bumping rules enacted in §87743 to

protect teachers.

Appellant's motives, whether they be altruistic or guided by a desire

to save money by retaining junior faculty with lower salaries, are irrelevant

to determining whether it complied with §87743. Similarly, whether

Appellant had good or bad reasons to eliminate or reduce services is

irrelevant.

Appellant deprecates the instructors' qualifications, contrary to the

substantial evidence. Mr. Kropp was laid off due to elimination of

Industrial Technology ("INTEC"), but the District retained two less senior

faculty whom he was qualified to bump in Electronics Technology

("ELTEC"). Although the District claims the Judgment orders him "hired"

9

into a "position" "new" to him, the court actually found that Kropp should

have been retained - not hired into a new position. Kropp has possessed the

ELTEC MQ since he was hired 12 years ago, by a District selection

committee of highly experienced educators; and he had been assigned to

and taught ELTEC classes for a dozen years. The District evaluated

Kropp's ELTEC teaching before he was given tenure, his personnel file

confirms his ELTEC qualifications, and he has taught an amount of ELTEC

comparable to that taught by the skipped DeAngelis.

Haleh Niazmand, a District Art professor since 2005, was laid off

due to a reduction in Art. The District skipped two junior faculty, one a

newly hired probationary teacher, to teach computer graphics courses,

which emphasize strong art skills. Niazmand should have been reassigned

to teach these courses, because she qualified through either her MQs in Art

or Graphic Arts. Appellant rejected her claim, contending she needed an

MQ or job experience in the "discipline" of computer graphics, a

"discipline" which it claimed to have "created," but which does not exist.

Both the ALJ and trial court found that only the State is authorized to create

disciplines, and that computer graphics is a program not a discipline. The

District's Brief concedes that faculty with MQs in either Art or Graphic

Arts are authorized to teach computer graphics courses. Niazmand has

both. Yet it asserts it possesses "absolute discretion" to refuse to reassign

10

her, because she allegedly lacks experience in "computer graphics," even

though only the MQ determines her qualifications to bump.8 The court

correctly held she was entitled to be reassigned.

Because both Kropp and Niazmand possessed the requisite MQs for

the disciplines ofELTEC, and Art or Graphic Arts, respectively, neither

would be bumping into services "new to them.,,9

Brian Greene possessed the MQ to bump skipped probationary

"junior" Craig Johnston. Appellant maintains Greene cannot be reinstated

because the "position ... no longer exists." Not exactly. The assignment

still exists, because the District, after the layoff hearing, realizing that

§87743 mandated Greene's retention, sought a way to avoid its duty by a

clever contrivance. It eliminated on paper the "position" of Academic

8Appellant still asserts the discredited argument that to teach computer graphics, Niazmand had to be able to immediately teach every computer graphics course. This is not required in Yosemite, where the MQ alone dictates whether one is qualified for reassignment. The Chancellor's Office 2003 Legal Opinion confirmed that "the focus of minimum qualifications for 'teaching faculty' is on the qualifications ofpersons to teach in a discipline, not to teach individual courses."3AR 354 The District agrees. 7AR1642:22-24. Appellant may negotiate with YFA for higher standards via "FSAs" or "competency 'criteria," or ask the State Senate to adopt tougher MQs, but in Yosemite the MQ governs for reassignment. §87743;4AR 903,Article 15.2; 7AR 1779:6-781 :11,1791 :7-14.

9While Appellant often refers to a "position" to describe an employee's work, the more accurate term is "assignment," as appears in §87743. Cal. Code Regs., tit. 5,§53410, also refers to faculty possessing the necessary degree in the discipline or in a discipline "reasonably related" to one's assignment. A position is essentially a "collection" of assignments. Holbrookv. Board ofEducation (1951) 37 Cal.2d 316,329.

11

Achievement Center Coordinator, held by Johnston, while retaining

Johnston to provide the same services, in the same Center. The trial court

decision, consistent with §87743 and precedent, ordered Greene reinstated.

Appellant asserts an exhaustion of remedies defense, and a policy

defense that the school board has absolute discretion over whom it lays off,

and how their qualifications are determined. These defenses were not

presented to the ALJ or trial court, and should be considered waived.

Mokler v. County ofOrange (2007) 157 Cal.App.4th 121, 133-137; Tahoe

Vista Concerned Citizens v. County ofPlacer (2000) 81 Cal.App.4th 577,

594. Even were these defenses considered, they lack merit. The sole

administrative remedy the instructors were required to pursue was the layoff

hearing contemplated by §87740(b)(c), which they fully exhausted.

Appellant's repeated assertion, in varying iterations, that the

"statutory framework is for educators, not the courts" (AOB 36) is

inconsistent with the Legislatively-decreed judicial role of reviewing

compliance with §87743 (or its K-12 corollary, §44955). Balen, supra., 11

Ca1.3d at 826. For decades courts have determined whether districts have

fulfilled their "absolute duty" to examine and compare the qualifications of

senior teachers to retained juniors, or whether laid off faculty possess the

qualifications to perform services of retained junior faculty. Bledsoe v.

Biggs Unified School District (2008) 170 Cal.App.4th 127, 130-143

12

("Bledsoe"); Alexander, supra., 139 Cal. App.3d at 571

Rather than ignoring the "comprehensive statutes and regulations,"

as Appellant claims, the Decision effectuates them, consistent with settled

precedent. Appellant's scattershot assault on the trial court's decision

disregards the controlling substantial evidence test, raises issues not

presented in the administrative process or the trial court, and is lacking in

merit.

THE STANDARD OF REVIEW

At AOB 14, Appellant briefly declaims that this Court's standard of

review in this case is de novo, because it involves "the application of the

statutory and regulatory scheme regarding community college instructors

..." However, the law's approach to appellate review in administrative

mandate cases is a bit more refined. "The nature of the hearing in the trial

court and the standard that court used in reviewing the administrative

decision determines [the appellate] court's standard of review." Duax v.

Kern Community College District (1987) 196 Cal.App.3d 555,561.

First, the standard of review for the trial court should not be

confused with the standard of review for the appellate court. Where the

issue involves an employee's fundamental and vested right (as it does here,

dealing with the continuation of tenured employment), "the trial court sits to

conduct a de novo review and must independently judge the sufficiency of

13

the evidence." Duax, supra., 196 Ca1.App.3d at 561-562; Alexander,

supra., 139 Ca1.App.3d at 572; Gallup v. Board o/Trustees (1996) 41

Ca1.App.4th 1571, 1581-1582. Further, §87740 decrees that academic

employees issued March 15 notices ofpossible layoff are entitled to an

administrative hearing to determine if there is "cause for not reemploying"

the employee, and that "none of the findings, recommendations, or

determinations contained in the [ALJ' s] proposed decision shall be binding

... on any court in future litigation." (§ 87740(b), (c)(3» The trial court

exercised its independent judgment in examining the Record. Alexander,

supra., 139 Ca1.App.3d at 572, lJA 1.

Second, as this Court has held, "[r]eview on appeal is not as

probing." This court does "not sit to conduct a de novo review; although ...

confronted with the identical record examined by the superior court, [this

court] is limited to a search for substantial evidence." Duax, supra., 196

Ca1.App.3d at 562. Hence, "[t]he trial court's judgment must be upheld on

appeal if supported by substantial evidence. All conflicts are resolved in

favor of the prevailing party, who is entitled to the benefit of every

reasonable inference to support the judgment. [citations]." Ibid. Accord,

Bledsoe, supra., 170 Ca1.App.4th at 134; Alexander, supra., 139 Ca1.App.3d

at 572; Gallup, supra., 41 Ca1.App.4th at 1581-1582.

Third, where the facts are undisputed but are subject to conflicting

14

inferences, the trial court's detennination regarding those inferences, if

supported by substantial evidence, is binding on the appellate court.

Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Ca1.3d 770,

774,fn.2.

Fourth, where the facts are undisputed, the appeals court may reverse

where the facts "clearly" require a conclusion different from the trial court's

conclusion. Sanchez v. Unemployment Ins. Appeals Bd. (1984) 36 Ca1.3d

575, 585; Kavanaugh v. West Sonoma County Union School District (2003)

29 Ca1.4th 911, 196. However, where there is any real conflict in the

evidence, or conflicting inferences may be drawn, "the detennination of the

trial court will be accepted on appeal even though a contrary detennination

would likewise be upheld." Toyota Motor Sales USA., Inc. v. Superior

Court (1990) 220 Cal.App.3d 864, 872. And of course the appellate court

reviews issues of law de novo. Robles v. Employment Development Dept.

(2012) 207 Cal.AppAth 1029, 1034.

ARGUMENT

Respondents believe that clarity will be served best by discussing

each instructor separately, beginning by summarizing the facts found by th~

trial court as to each, and then addressing Appellant's arguments.

I. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING RESPONDENT KROPP.

A. The Trial Court's Findings

15

After reviewing the entire record and considering conflicting

evidence, the trial court made findings on all the ultimate facts that were at

issue regarding Kropp. Vosburgh v. Meda (1943) 61 Ca1.App.2d 398,400.

These findings are "liberally construed in favor of the judgment." Evans v.

Thomason (1977) 72 Ca1.App.2d 978, 982, fnA. The essential facts

supporting the judgment as to Kropp appear in the Decision. 4JA 999-1014.

"The reason for Mr. Kropp's layoff was the District's decision to eliminate the Industrial Technology program ("INTEC") in which he taught. Because Mr. Kropp possessed the Minimum Qualifications ("MQs") to teach in the related discipline and program in Electronics Technology (known as "ELTEC"), he should have been reassigned under Section 87743, rather than be laid off, because the District had retained junior instructors DeAngelis and Howen to teach in ELTEC." 4JA 999.

The evidence shows, and the court found, these facts:

The Less Senior Faculty. Kropp was hired August 11, 2000

(seniority #143). The District retained two less senior faculty in the ELTEC

Department, DeAngelis (hired 8/1/05, #338), and Howen (hired

8/10/2001,#173) 3AR 737-738, 741. 10

Kropp's Electronics Technolo2Y Job Experience. Kropp had

extensive experience in the field of electronics before applying to work at

the District. After serving four years in the U.S. Navy as an Aerographers

Mate 2nd Class, Kropp attended MJC, then received a B.S. degree in

Industrial Technology and Manufacturing Management from CSU Chico in

10 The lower the number, the more seniority one has.

16

1986.

Kropp worked as a full-time, seasonal Customer Service

Representative in Modesto for ESM International, and for FMC-EPO, for

about 5 years, providing "round the clock customer service for repair and

maintenance of electronic sorting machines." 5AR 1175, 1177. During

1987-1989 he was a Research Engineer for Foster Farms in Livingston,

participating in projects for the "design, fabrication and field testing of a

prototype marigold harvester," experimenting with drying processes, and

consulting in the establishment of a Tomato Seed Separation Process. Id.

During 1989-1990 he was a Foster Farms Packaging Dept. Supervisor,

managing 10 foremen and 450 union employees, in all phases of "cutting

and packaging performance ..." Id. 11 His work experience, and his B.S.

degree, qualified him for the ELTEC MQ when he was hired. 4JA 1002:7

19.

Kropp's Hirio2. In 2000 Mr. Kropp applied for a position

advertised as an Instructor of Industrial Technology, which required a

bachelor's degree and 2 years ofprofessional experience directly related to

the assignment. 5AR 1180 The District sought someone "who could teach

both ... electronic technology and industrial technology." 7AR 1822-1823,

II In 2000, the District's Human Resources Department obtained signed verifications from Kropp's former employers or their successors, confirming his work experience. 4JA 1004:8-14-1005:5

17

3AR 844. This was because the INTEC and ELTEC programs were (and

remain) functionally integrated, essentially 'joined at the hip," and their

classes overlapped. 7AR 1821,1822:7,1897. FormerELTEC leader

LeRoy Holmes testified that ELTEC was really a part of INTEC; the 2011

MJC catalog still refers to ELTEC as 'Industrial Technology Electronics

within the "Industrial Technology Industry" program. 5AR 1328, 1OAR

2310; 4JA 1003:1-6.)

Kropp was interviewed by a District hiring committee with two

ELTEC faculty, Brian Lomax and Holmes, and the Dean of Technical

Education, Dr. Mark Bender. 12 4JA 1002:21-25 The Committee carefully

reviewed Kropp's work experience in Electronics Technology, quizzing

him "heavily" about his qualifications to teach ELTEC and INTEC.

Holmes testified at the administrative hearing that he understood Kropp's

troubleshooting and technician work history were relevant electronics

experience. 7AR 1834, 1829:1-9. Holmes and Lomax were familiar with

the work an ESM employee, such as Kropp, did and concluded his ESM

12 Lomax and Holmes were the "primary technical" teachers, creating and teaching most of the ELTEC classes. 7AR 1828-29,18331834. Holmes, a District instructor for 31 years, was Chair ofMJC's Engineering, Math and Physical Science Division. He taught both INTEC and ELTEC, designing ELTECIINTEC 223, which Kropp taught for 11 years. 7AR 1820,1821, 5AR 1223-1326. He and Lomax were responsible for dual-listing INTEC and ELTEC courses. 7AR 1821:24-1822:6. Although Holmes was an ELTEC teacher, he taught mostly INTEC in his last years. 7AR 1823.

18

experience was directly relevant to teaching ELTEC.

The committee "was satisfied that Kropp had the required 2 years of

eligible experience for ELTEC and INTEC." lOAR 2284-85. 13 Holmes

testified that Kropp met the MQ for ELTEC when he was hired. 7AR

1823:14 Lomax and Bender agreed. 3 AR 845-846; 7AR 1834-1835; 10

AR 2284-2289. Dean Bender wrote in 2011 that Kropp "had sufficient

occupational experience to teach ELTEC." 1OAR 2287. The committee

concluded that Mr. Kropp satisfied the MQ for both ELTEC and INTEC.

Kropp's Initial Employment. Kropp "came out on top," and was

hired. lOAR 2284-2289,7AR 1823,1824, 3AR 844-846; 4JA 1003:7

1004:7.

Kropp's Initial Assienment. After being hired, Kropp was

immediately assigned to teach ELTEC 212. 5AR 1222; 4JA 1004:8-14.

This class was not "cross-listed" with INTEC, so Kropp could not have

been assigned to it unless he had an ELTEC MQ. (§87356; Cal. Code

Regs.,tit.5,§§5341O, 53430y4

Kropp's Evaluations. As required by §87663, Yosemite evaluated

13 In 2000 an ELTEC MQ was, and remains, any Bachelors' degree and 2 years ofprofessional experience in the discipline. 2AR 546,459, 582, 584, 3AR 698,700; 4JA 1001:27-1002:1.

14 MJC Academic Senate president Michael Adams explained that, in order to teach a subject, you must have the minimum qualifications or the equivalent, so ifyou have already taught a class in a discipline, "then you've got it." 3AR 835

19

Kropp while he was a probationary teacher. These evaluations refer to him

as working in ELTEC. His 2000-2001 "self-evaluation" states: "My

primary assignment is to teach Industrial Technology and Electronics

Technology." This evaluation discussed his "priority" to "ensure the safety

of the students in the electrical lab ..." 5AR 1198, 1210, -,r1,3. Kropp

mentioned developing lab activities together with ELTEC instructors

Vaughan and Holmes, "planning and directing the installation of electrical

... infrastructure" in new lab facilities, and his involvement in the

"procurement" materials for the ELTEC and INTEC area. 5AR 1198-1199,

,1213, 1216;4JA1006:20-1007:8.

Dean Bender's 2001 evaluation refers to Kropp's "Current

Assignment: Industrial/Electronics Technology." 5AR 1196-1197. ELTEC

instructor Tim Vaughan's 2001 evaluation assesses Kropp's ELTEC

teaching in the ELTEC 223 Industrial Electrical Components class (which

Vaughan also taught), and a class he taught on electric motors entitled

Electric Motors and Motor Controls (ELTECIINTEC 266). 5AR l204;4JA

1010:3-11. Kropp's second year probationary evaluation mirrors his first.

5AR 1215. He received tenure in 2002. His 2002-2003 self evaluation

again confirms his contemporaneous understanding that "My primary

assignment is to teach Industrial Technology and Electronics Technology."

5AR 12l6;JA 1010:18-21.

20

Kropp's Assienments. Lomax testified that most teachers do not

teach the full range of courses in a department. 7AR 1836:17-22,1838-1839

This was so with Kropp, Howen, and De Angelis. 4JA 1010:22-1011:3 For

the next 9 years, the District assigned Kropp to teach both INTEC and

ELTEC classes every semester; about 45 INTECIELTEC 223 and 226

classes (55% of his assignments), and about 16 INTEC classes which are

electives for ELTEC-major students. 5AR 1219-1326

ELTEC instructor Howen received 44% of his workload in

INTECIELTEC classes: 15 INTECIELTEC 208 classes, 12

INTECIELTEC 221. DeAngelis taught about 82% of his workload in

INTECIELTEC: 40 INTECIE~TEC classes, 4 INTEC-only classes, and 5

ELTEC-only classes. 4JA 991 :fn19

The Layoff. When the possibility of layoffs arose in February 2011,

Kropp believed he already met the ELTEC MQ; along with Bender, Lomax

and Holmes, Kropp informed the District by March 11, that he had been

hired to teach INTEC and ELTEC. 8AR1901:1-2; 3AR 844-846 The HR

Director avoided considering this, and Kropp was advised to seek an

ELTEC equivalency. 8AR 1900:20-1901 :24, 5AR 1339 Kropp objected,

writing on March 4, 2011: "I do not believe that it is necessary for me to

retroactively appeal for equivalency ... for qualifications which were

established by my selection committee when I was hired 11 years ago."

21

5AR 1336-1337. He applied as a precaution, and was denied by a three-

person "pre-screening" committee which included skipped instructors

DeAngelis and Howen. 2AR 373

At hearing, Kropp, Lomax and Holmes testified that Kropp qualified

for the ELTEC MQ when he was hired. 7AR 1822-23, 1834-1835; 4JA

1006:5-13; 4JA 1003:1-1004:4 No District administrator testified as to

why Yosemite disregarded the infonnation that Kropp satisfied the ELTEC

MQ, or why it had skipped junior ELTEC faculty.

At the school board meeting to consider the ALJ Decision, Kropp

presented more evidence of his ELTEC MQ, to no avail. 1OAR 2229

2230,2284-2313

B. The Trial Court's Decision Is Supported by Substantial Evidence

1. Appellant's Attack on the Substantive Findings Is Waived

In challenging the substantive grounds for the Decision, Appellant is

obliged to completely and fairly summarize all of the material evidence

Arechiga v. Dolores Press, Inc. (2011) 192 Cal.AppAth 567, 571-572.

Appellant fails. Its argument rests on an incomplete and misleading

recitation of the facts, ignoring weighty evidence favorable to Respondents.

The evidence is not discussed cohesively, appearing almost randomly

throughout Appellant's brief. In this way Appellant wrongly tries to shift

22

the burden of presenting the material evidence to Respondents.

Appellant's Brief also misrepresents the evidence. Teaching ELTEC was

not "new" to Kropp (AOB 1,2) - he taught ELTEC classes every semester

since being hired. 4JA 991:24-28;5AR 1124-1329. It is incorrect to say

Kropp was "never found qualified to teach ELTEC" "by any educators"

(AOB 2-3, 40) - the 2000 educators' screening committee, found him

qualified for the ELTEC MQ. 4JA 1006:5-13;4JA 1000:18-19;7AR 1822

23, 1834-1835;5AR 1336-1340. It is untrue that Kropp lacked "experience

in electronics technology" (AOB 28), or that his experience was not verified

- the 2000 committee examined and verified his electronics experience as

being sufficient, as did the administration. (4JA 1002:21-1008:23)

While Appellant argues that verifications of Kropp's electronics

work experience in 2000 were for "salary purposes only" (AOB 43), the

committee provided credible evidence that they reviewed Kropp's

electronics work history, confirming it was directly relevant to teaching

ELTEC. Appellant ignores the Court's findings that Kropp's 11 years of

teaching ELTEC classes independently qualified him for an ELTEC MQ;

that ELTEC and INTEC are not comparable to other "cross-listed"

disciplit;les because they are "joined at the hip"; and that many ELTEC

classes are also INTEC classes. 4JA 991:24-28; 4JA 1014:10-12,1003:1-6

Kropp was not the "sole instructor" in INTEC (AOB 5) - retained

23

juniors DeAngelis and Howen also taught INTEC classes. 4JA 991 :24-28

It is immaterial that Kropp's degree was in "Industrial Technology," or "not

electronics" (AOB 10), because any Bachelor's degree fulfilled the ELTEC

MQ, since ELTEC is a "vocational" discipline. 2AR 582, 584 The

"primary legal basis" for the court's ruling was not an Evidence Code §664

presumption, but was instead evidence from Kropp, the 2000 selection

committee, his assignments, and his evaluations. 7AR 1822-23, 1834,

1835;5AR 1336-1340;9AR 1996-1999;5AR1205-1216

It is false to assert that Kropp "self-selected" his job title, and that

besides self-evaluations, "all other contemporaneous documentation

described [his] position as an instructor of industrial technology." (AOB 42)

The 2001 evaluations from ELTEC colleague Vaughan and Dean Bender'

discuss Kropp's teaching ELTEC. 5AR 1196-1197, 1204; 4JA 1007:8-11 )

It is inaccurate to claim Kropp's self-evaluations referred to his ELTEC

professorship only by title (AOB 42); they contain specific references to

ELTEC, including "My primary assignment is to teach Industrial

Technology and Electronics Technology." 5AR 1198;4JA 1007:2 Nor was

the 2011 "equivalency committee" "duly selected" (AOB 3) - it had no

jurisdiction and a disqualifying conflict of interest. 4JA 1012:14-24 The

District could not rely on it to supercede the duly-made determination of the

2000 District screening committee, and Kropp's ELTEC assignments and

24

evaluations.

Further, it misstates the evidence to claim "Kropp taught no

[ELTEC] courses, except for one in one semester ... , and another ... cross-

listed with ... INTEC." AOB 41 The District assigned Kropp 45 cross-listed

INTECIELTEC 223 and 226 classes and one ELTEC-only. By comparison,

DeAngelis was assigned 40 INTECIELTEC and 5 ELTEC-only classes.

4JA 991:fn.l9

Given Appellant's disregard of its duty to completely and fairly

summarize all material findings, this court should treat the substantial

evidence issues as waived and presume the record contains evidence to

sustain every finding of fact. Archiga, supra., 192 Cal.App.4th at p. 572.

2. The Decisions Rests on Substantial Evidence

The evidence supports the judgment. Kropp was hired, evaluated,

and assigned based on the original, informed conclusion of expert

educators, that he qualified for the ELTEC MQ. The functional integration

of INTEC and ELTEC further supports the judgment.

Appellant's challenge to the sufficiency of the evidence fails on the

merits - it reargues the facts in a one-sided way, or indulges in speculation

and conjecture. IS For instance, Appellant claims that Kropp assignment to

IS Appellant offered conflicting evidence concerning Kropp's hiring, the selection committee review, Kropp's assignments, his evaluations, whether he had a single-course equivalency, and the evaluation of his qualifications.

25

teach ELTEC 212 in 2000 resulted from an "illegal" "single-course

equivalency," asserting that "it was a practice to allow 'single-course

equivalencies' ... That changed with a 2003 legal opinion ... That Kropp

never taught another ELTEC-only class after this opinion demonstrates that

he was not considered to have the qualifications ..." (AOB 47-48) There is

no Record evidence of any "practice" in Yosemite for single-course

"equivalencies," nor that Kropp received one. The sole authority cited, the

2003 legal opinion, was addressed to the State Academic Senate, and

declared simply that "the focus of minimum qualifications for 'teaching

faculty' is on the qualifications ofpersons to teach in a discipline, not to

teach individual classes." 2AR 354 Thus, "a district is not authorized to

establish a single course equivalency as a substitute for the minimum

qualifications in a discipline." 2AR 355 Nothing in the Record proves that

Yosemite created a "single course equivalency" for Kropp in ELTEC 212.

In attempting to establish that the 2000 verifications of Kropp's jobs

by the selection committee and Human Resources were only for "salary

placement" (AOB 27,37-38,43), Appellant relies on a Spring 2006

handbook dealing with the processes for acquiring an "equivalency," that

cautions against the using HR offices to "establish equivalencies;" and Cal.

Code Regs.,tit 5,§53430(b), addressing equivalency determination

processes. 3A.R. 803, 818 Neither undermines the assessment performed

26

by Kropp's hiring committee.

Appellant argues that there is no "reasonable inference" that the

2000 selection committee determined Kropp was qualified for ELTEC.

(AOB 44) Actually, rather than "infer", the committee flat-out determined

this, and the court found credible the committee's evidence. 4JA 1006:14

1008:816

Appellant argues the 2000 selection committee, chaired by the Dean,

went "rogue," acting "ultra vires" (AOB 47), that it was "misnamed" a

"hiring committee" in the Decision, and that it only selected "candidates to

be interviewed," (AOB 44) Actually, Holmes referred to it as the "hiring"

committee (7AR 1821 :3-6), and Holmes, Lomax and Kropp all affirmed

that the committee interviewed Kropp and he "came out on top." 7AR

16 Holmes testified that Yosemite sought someone "who could teach both ... electronic technology and industrial technology..." that Kropp's work history included relevant electronics experience, that the committee was satisfied he had the required experience for ELTEC and INTEC, and "that Mr. Kropp met the MQ for ELTEC when he was hired." Lomax testified the committee wanted someone with an electronics background who could teach electronics; he confirmed to YCCD on March 13, 2011 that Kropp "exceeded the minimum qualifications to teach Electronics Technology and Industrial Technology," that Kropp's experience was "substantiated by YCCD Human Resources before the position was finalized," that Kropp was hired for both INTEC and ELTEC, and that the committee considered Kropp's specific electronics experience and was "confident" he was qualified to teach both INTEC and ELTEC courses. 3AR 846 Dean Bender concurred that "the committee determined that Jon Kropp was qualified to teach in both ELTEC and INTEC," met the MQs, and "had sufficient occupational experience to teach ELTEC." 1OAR 2287;4JA 1003:19-1004:4

27

1828,1834:25, lAR 297,299.

Appellant argues that "presumptively" the 2000 committee did not

find Kropp qualified for an ELTEC MQ, as no contemporaneous documents

were introduced confirming this. AOB 44. As Appellant bears the burden

ofdisproving the committee's testimony, it bears the burden ofproducing

contradictory evidence supporting its position. Its assertion that this court

should presume Kropp was not qualified due to the absence of

contemporaneous documents attempts to reverse the burden ofproof, and is

not substantial evidence. Roddenberry v. Roddenberry (1996) 44 Cal.App.

4th 634,654-655.

Appellant avers that the court's "primary legal basis" for ruling for

Kropp is its presumption (Evidence Code §664) that the 2000 committee

correctly did its job. AOB 11, regarding 4JA 1005:6-25. Not exactly - the

court's primary basis for deciding that Kropp was found by educators to

have qualified for the ELTEC MQ is 10 detailedfindings, crediting

evidence about the committee assessment of Kropp. 4JA 1002

1005:5,1006:5-19 The presumption was only collateral. Nor was the

presumption an unprecedented use of §664. Degener v. Governing Board

(1977) 67 Cal.App.3d 689, 697 (presuming district did not reduce service

below statutory minimum); State Board ofEducation v. Honig (1993) 13

Cal.App.4th 720, 749) (presumption official complied with requirements

28

for review of educational program's guidelines)

Appellant makes too much of Kropp's sensible, "precautionary"

application for an ELTEC equivalency, when Yosemite refused to

recognize his lifetime ELTEC MQ. 2AR 366 The Court found Kropp did

not need an "equivalence," as he already possessed the ELTEC MQ. 4JA

1000:4-1005:5

The court found Appellant was estopped to dispute, 11 years later,

Kropp's 2000 ELTEC MQ. Appellant argues estoppel is inapplicable

because there is "no penalty" for failing to maintain a seniority list or

having a dedicated "form" recording the MQs acquired, dismissing the

absence of a complete seniority list as a "paperwork problem." More like a

denial of due process. cf Bledsoe, supra, 170 Cal.App.4th at 139 (due

process satisfied by seniority list showing faculty's credentials). This Court

is aware that "paperwork" problems associated with statutory protections of

teachers may restrict their termination. Bakersfield Elementary Teachers

Assn. v. Bakersfield City School District (2006) 145 Cal.AppAth 1260,

1301-1302; California Teachers Assn. v. Governing Board (2002) 98

Cal.AppAth 369,385; Kavanaugh, supra., 29 Ca1.4th at 917-918; Hoyme v.

Board o/Education (1980) 107 Cal.App.3d 449,452-453 Appellant

conveniently ignores that Respondents needed to introduce evidence from

Kropp's 2000 selection committee, and about Appellant's practices of

29

treating an Art or Graphic Arts MQ as allowing computer graphics

teaching, because ofAppellant's "paperwork" error. Nonetheless, the

estoppel ruling was collateral, the court independently considering the

evidence that Kropp was found to have an ELTEC MQ in 2000.

Lastly, when Yosemite's board considered adopting the ALJ's

decision, the instructors presented limited additional evidence. 1OAR 2224

2319 Appellant asserts these materials were "particularly harmful" (AOB

59), focusing on declarations from Lomax, Holmes and Bender reiterating

or expanding slightly on Kropp's hiring. The court considered this evidence

as corroborative, ruling it would have reached the same decision without it.

4JA997:4 Substantial record evidence was relied upon to support the

findings without the supplemental materials. 4JA997:2-4,1001:3-1005:5

The Decision rests on a solid foundation, evidence which is

reasonable and credible, of "ponderable legal significance." Kahn v.

Department ofGeneral Services (1994) 22 Cal.App.4th 1627, 1633 17

3. To Avoid the Selection Committee's Conclusions, Yosemite Relied On A Biased Committee Lacking Jurisdiction

Moreover, the equivalency "process" was invalid due to a conflict of

interest: two-thirds ofthe 2011 "equivalency committee" stood to lose their

17 Kropp was entitled to be retained for another, independent reason: his 11 years of teaching ELTEC classes provided the requisite professional experience for the MQ (professional experience includes teaching). The Court agreed with this, 4JA 1014:10-12.

30

relative seniority ranking ijKropp satisfied the ELTEC MQ. 4JA 1012:21-24.

With an ELlEC "equivalency," Kropp would have leap-frogged over Howen

and DeAngelis, becoming the second-most senior ELlEC teacher. An ELlEC

layoff in 2011 or subsequent years would have put Howen's and DeAngelis' jobs

in jeopardy before Kropp's. Given their self-interest in not acknowledging

Kropp in ELlEC, neither Howen nor DeANeglis was a "reasonably impartial

and noninvolved reviewer." Linney v. Turpen (1996) 42 Cal.App.4th 763, 771

lAR 3-4,2AR 373, 4JA 100 I

C. Appellant's Untimely Exhaustion of Remedies Defense

In §§87740 et seq., the Legislature provided one administrative

remedy for tenured faculty facing layoff in the community colleges, a layoff

hearing. Kropp exhausted this administrative remedy by demanding and

participating in the administrative hearing. Nonetheless, Appellant now

argues that he cannot seek judicial redress for his layoff because he failed to

exhaust other "administrative" remedies.

Appellant waived this defense when it was not presented to the ALJ

or trial court. Moreover, there is no grievance or other administrative

remedy available to challenge a district's failure to recognize an MQ, as

happened here. Appellant avers Kropp should have pursued "grievance"

remedies for denial of an FSA or "equivalency," but his case turns on his

possession of an MQ. The only remedy provided to dispute a District's

31

failure to recognize an MQ is the hearing provided by §87740.

1. Appellant Waived Any Exhaustion of Remedies Defense

The law expects a party to make a full presentation of issues at

administrative hearings to preserve their integrity, to "endow them with a

dignity beyond that of a mere shadow play." Tahoe Vista Concerned

Citizens v. County ofPlacer (2000) 81 Cal.App.4th 577, 594; Pegues v. Civil

Service Commission (1998) 67 Cal.App.4th 95, 104. "It was never

contemplated that a party to an administrative hearing should withhold any

defense then available to him or make only a perfunctory or 'skeleton'

showing in the [§ 1094.5] hearing ..." Green v. Board ofDental Examiners

(1996) 47 Cal.App.4th 786, 792; Dare v. Board ofMedical Examiners

(1943) 21 Cal.2d 790, 799. Under this rule, issues involving statutory

interpretation and construction must be raised in the administrative hearing,

or are waived. City ofWalnut Creek v. County ofContra Costa (1980) 101

Cal.App.3d 1012, 1021. Because this defense was not raised before, it has

been waived.

Appellant claims this is a jurisdictional issue, not subject to waiver,

and argues it raised exhaustion in the trial court. Neither is true. Courts

have recognized that "[t]he doctrine of administrative exhaustion was

developed through the case law," is not an "inflexible dogma," and is not

jurisdictional in the sense a statute of limitations is jurisdictional. Azusa

32

Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52

Cal.Appo4th 1165, 1215; Green v. City o/Oceanside (1987) 194 Cal.App. 3d

212,222-223 A failure to exhaust does not deprive a court of subject

matter jurisdiction, and more importantly, the defense is subject to waiver.

Mokler v. County o/Orange (2007) 157 Cal.Appo4th 121, 133-137; Azusa

Land Reclamation Co., supra., 52 Cal.Appo4th at 1215-1216; Degener,

supra., 67 Cal.App.3d 689 at 699 (issue of competence for layoffwas

untimely raised for the first time on appeal).

Appellant never asserted during the administrative proceedings that

Kropp had a "grievance" remedy regarding Appellant's failure to recognize

his MQ. (District's briefs, 9AR 2139-2146,2185-2192) Nor did it plead

exhaustion of remedies as an affirmative defense in the trial court, nor raise

it in its Opposition to the Motion for Writ. lJA 79,124

Appellant claims otherwise, relying on perfunctory remarks it made

at oral argument about FSAs or equivalency, after the case had been briefed

and the court had issued a tentative decision. First:

" ... Education Code 8774304 provides exclusive remedy for a faculty member who has a dispute regarding whether they are qualified in a/acuity service area. That's the grievance process by which petitioners chose not to take advantage of." (RT 6:7-11, emphasis addedY s

IS District counsel referred to §8774304 providing "a specific remedy for that," referring to the denial 0/equivalency, and then to a "grievance" in the context of equivalency. (RT 8: 10-26, RT 20:23-26) Presumably she meant 87743.3; §8774304 concerns FSAs.

33

The final reference appears in its post-ruling Objections to the

Proposed Decision: "If Mr. Kropp wanted to challenge either the make-up

or the decision of the equivalency committee, he was required to file a

grievance. (Cal. Education Code §87743.3) He did not." 4JA 852,

emphasis added.

These statements are inapposite because there is no administrative

procedure, except for the §87740 hearing, to challenge a district'sfailure to

recognize an MQ. Because the District failed to raise this exhaustion

defense until appeal, it has been waived.

2. Neither the FSA Denial Nor the Equivalency Processes Present Administrative Remedies Which Kropp Had to Exhaust

Appellant unlawfully refused to recognize the ELTEC MQ which

Kropp had since 2000. The court agreed. 4JA 1002:20-1004:14 Appellant

now argues the trial court should be reversed because Kropp did not file a

grievance over denial ofan FSA and because his request for an ELTEC

"equivalency" was rejected by an "equivalency" committee with two junior

ELTEC faculty appointed in 2011.

The exhaustion doctrine does not apply in the absence of an

available administrative remedy. Daniels, supra., 212 Cal.App.3d at 927;

County Sanitation District No.2 v. County ofKern (2005) 127 Cal.App.4th

1544, 1617; Branciforte Heights, LLC v. City ofSanta Cruz (2005) 138

34

Ca1.App. 4th 914, 923; Rojo v. Kliger (1990) 52 Ca1.3d 65, 86.

Appellant's exhaustion defense contlates two distinct concepts,

FSAs and equivalency, with MQs. Neither FSAs nor equivalency is at issue

because Kropp was never denied an FSA, and as the trial judge found, he

did not need an "equivalency," since he already had the ELTEC MQ.

Kropp was not denied an FSA because, as the evidence confinns and

the court found, "all faculty members within the District have the requisite

FSA to serve in any academic position within the District", and competency

is the same as an MQ. Thus, "the MQs are the critical criteria that "guide[s]

the analyses.'" 4JA 999:5-15 FSAs are irrelevant, as is the FSA remedial

process.

Appellant's argument that Kropp failed to file a grievance results

from it confusing FSAs with MQs. Section 87743.3 makes the difference

apparent because there is a separate remedy for improper denial of an FSA:

"After initial employment, a faculty member may apply to the district to add faculty service areas for which the faculty member qualifies ... Any dispute arising from an allegation that a/acuIty member has been improperly denied a faculty service area shall be classified and procedurally addressed as a grievance."19 (emphasis added)

The plain wording of §87743.3 reveals that it does not provide an

19 Existence of a remedy for faculty to dispute denial of a "new" FSA application only matters in districts where there are multiple FSAs, unlike Yosemite.

35

administrative remedy for a district's failure to recognize an MQ.

Remarkably, Appellant argues that section 87743.3 has a different meaning,

by substituting "[Minimum Qualifications]" for "FSAs" in the statute's text,

misstating its meaning. Appellant's Brief rewrites the statute:

"The Education Code provides that, "after initial employment, a faculty member may apply ... Any dispute arising from an allegation that a faculty member has been improperly denied [minimum qualifications] shall be classified and procedurally addressed as a grievance.'" AOB 15, emphasis added.

Appellant deliberately replaced the words "faculty service areas" in

§87743.3 with "[minimum qualifications]", in a clever attempt to support

its argument that the "Code provides a specific remedy for an instructor

who believes they were improperly denied minimum qualifications: it

requires them to proceed via the grievance process." AOB 15. This

changes the meaning of §87743.3, which applies only to FSAs.2°

Even had a District policy required teachers to challenge failure to

recognize an MQ through the "equivalency process," there is actually no

available administrative or grievance remedy for the denial of an

"equivalency."21 Appellant acknowledged this at the Administrative level:

20 Appellant neglects to mention that final decisions on grievances are made by the school board. 2AR 360 If Kropp could have grieved, it would have been futile, since Appellant rejected his ELTEC MQ by adopting the ALI's recommended decision.

21 Appellant falsely claims at AOB 30, that a "pre-screening" equivalency committee's rejection of an equivalency application may be appealed and reviewed by the "permanent" Academic Senate Equivalency

36

"There is no appeal from the denial ofan equivalency application by the discipline-based equivalency pre-screening committee. (7AR 1657:21-1658: 1-4) If the Academic Senate Equivalency Committee denies an equivalency application which had been approved by the discipline-based equivalency pre-screening committee, the faculty member does have an opportunity to reapply provided the areas of concern have been addressed. (7AR 1658:9-24) (Appellant Brief to ALJ, 9AR 2132: 10-14, emphasis added)

Appellant's argument that employees denied equivalency should file

grievances is as meritless as its claim that they should "grieve" the refusal

to recognize MQs. As in County ofKern, supra., the coincidental

availability of a different process to file grievances over FSA denials does

not operate to bar this lawsuit.

II. THE TRIAL COURT COMMITTED NO REVERSIBLE ERROR REGARDING HALEH NIAZMAND.

A. The Trial Court Findings Concerning Niazmand

The court, after considering conflicting evidence, made findings on

all the ultimate facts. It found that the District's decision to layoff

Niazmand was an abuse of discretion, as the decision was not supported by

the findings, and the findings were not supported by the evidence or the

weight of the evidence; that the District had skipped two junior employees

(Sinclair and probationary teacher Christensen) to teach computer graphics

courses; and that Niazmand possessed the MQs to teach those courses. The

court concluded the District violated §87743, and ordered her reinstated to a

Committee. As the policy plainly states, only equivalency approvals are subject to full committee review. 2AR 359

37

tenured position?2 4JA 1018:14-24.

Niazmandeamed both Bachelor's and Master's Degrees of Fine

Arts. She taught art at the University of Arizona for three years, and at

Kirkwood Community College for two, then worked in graphic arts, part-

time for 4.5 years (YCCD equated to 2.17 full-time years) for True Identity

Design Studio, where she was responsible for "creative counseling, project

presentation, ... and computer generated images for various clients. ,>2)

Copies of District verifications of her experience were placed in her

personnel file. 4JA 1019:19-1020:11

Niazmand was hired by the District beginning August 1, 2005 as an

Art instructor (seniority #220).3 AR 843. She qualified for the MQ in Art

based on her Master's degree, and MQ in Graphic Arts, based on her

degrees and graphic art work experience. 3AR 615,506-514,839-840; 4JA

1018:9-13, 10 19:8-17

The District issued Niazmand a layoff notice, having reduced Art

22 Appellant was not ordered to give Niazmand any particular assignment, nor to reinstate Art services. It may assign her to any assignment within the scope of her qualifications. The computer graphics program employed many temporary faculty. 7AR 1738:3 The District must first assign reinstated faculty to assignments held by temporary employees. Daniels, supra. 212 Cal.App.3d at 920-922.

23 Although Graphic Arts means "painting and drawing," "engraving, etching, lithography, photography, ...", Appellant says it is "related but separate" from Art. AOB 31; Websters Third New International Dictionary, Unabridged, Meriam-Webster 2002.

38

instruction. 1AR 3-4,9. Before, at and after the administrative hearing,

Niazmand asserted that she had the necessary MQs to be reassigned to teach

computer graphics. 7AR 1577,1795,1808-1809;8AR 1905-1906,2045,

2110-2111,2174-2175;7AR 1021 :6-11

The District retained probationary faculty employee Kathryn

Christensen (#279, hired 8/112010) and less senior tenured instructor Brian

Sinclair (#233, hired 8/112005), to teach computer graphic courses.

Christensen's MFA and MQ are, like Niazmand, in Art. 1 AR 242.

Niazmand was senior to both, and "because she possessed the MQs for

computer graphics, she should not have been laid off." 4JA 1018:14-24;

2AR 741,743.

The District called no witnesses to explain its "comparison" of

Niazmand with the two skipped faculty, or why it laid offNiazmand rather

than reassign her. 4JA 1020: 19-23 Instead it offered evidence from a

computer graphics instructor (Hagen) and the 2005 computer graphics job

announcement, that the MQs to teach computer graphics were any

Bachelor's degree and two years of computer media graphics experience. 7

AR 1718:9-16; 2AR 379 The court found this not credible. 4JA1022:5

1024:28.

Because computer graphics is not a discipline there is no MQ called

"computer graphics." 1OAR 2214-2215;4AR 1018:25-1019:1;2AR 271

39

352, 380-456.14 MQs in either Art or Graphic Arts authorizes faculty to

teach computer graphics courses. 4AR 1019:1-18 The District Brief

concedes the correctness of the court's finding that, "the District's practice

has been to assign faculty with MQs in either Art or Graphic Arts, to teach

computer graphics" courses. AOB 38,4JA 1018:1425 Therefore, computer

graphics courses are within the disciplines of Art and Graphic Arts.

Niazmand's Art MQ entitled her to be reassigned to teach computer

graphics.

In addition, the MQ in Graphic Arts requires any Bachelor's or

Master's, and two years of relevant experience in graphic arts. 2AR 536

The court determined that Niazmand satisfied this as well. 4JA 1019: 19

1020: 11 Because the District retained Alan Layne, a printing instructor, to

teach computer graphics based on his qualifying for an MQ in Graphic Arts,

the court found that the District was obligated to treat Niazmand the same,

and reassign her to teach computer graphics. 7JA 1018:25-1025:4

B. The Trial Court's Decision Is Supported by Substantial Evidence

24 The District seniority list inaccurately lists Sinclair's "discipline" as "computer graphics." 3 AR 741

25 Tenured art instructor Rob Stevenson testified YCCD has assigned him, and Art instructor Terry Hartman, to teach computer graphic courses based on their Art MQs. 7AR 1841:14-42 Neither received equivalencies in Graphic Arts; and the discipline listed for them in the seniority list is Art. 3AR 731 (#5),738 (# 176) The District also rescinded the layoff of Alan Layne, who taught printing technology, who proved he qualified for the Graphic Arts MQ. 4JA 1021: 12-1022:4, 1022: 17-25.

40

1. Appellant's Attack on the Substantive Findings Is Waived

For the reasons argued as to Kropp above, the District waived any

challenge to the findings on Niazmand's case by not fairly and

completely summarizing the material facts.

2. The Decision Is Supported By Substantial Evidence

The Court's findings are supported by reasonable, credible evidence

of ponderable significance. Substantial evidence establishes that Niazmand

qualified for two MQs when she was hired, either of which allows her to

bump into computer graphics.

a. Art MQ. Niazmand qualified for the Art MQ .when she was hired

to teach art with her Master's in Fine Arts. 3AR 601. This entitles her to

teach any course in the Art discipline, because MQs focus on

"qualifications ... to teach in a discipline, not to teach individual courses"

within the discipline. 2AR 354; 8AR 1924;7AR 1643:16-25.

b. Graphic Arts MQ. This MQ requires any BA and two years of

experience directly related to one's assignment. Niazmand spent more than

two years as a graphic designer, and the evidence proved that experience in

graphic design is directly related to assignment in graphic arts, including

computer graphics. Alan Layne, who had been noticed for layoff, was

retained after proving that he had graphics experience which qualified him

41

for a Graphic Arts MQ. 9AR 2213-2216 (Computer graphics instructor

Brian Sinclair's occupational experience was also in graphic design. 3AR

770) The court agreed Niazmand satisfied the Graphic Arts MQ. 4JA

1022:5-9

The District concedes in its Brief that it " does not contest the court's

factual finding that 'the District's practice has been to assign faculty with

MQs in either Art or Graphic Arts, to teach computer graphics. '" AOB 38;

4JA 1019:5-12,1021:14-1022:4.26 Therefore, computer graphics courses are

within the disciplines ofArt and Graphic Arts. That should be the end of

Appellant's appeal, as Niazmand's MQs each entitle her to bump into

computer graphics classes, where the District retained junior computer

graphics instructors Sinclair and Christensen.

Nonetheless, the District raises a host ofperplexing, convoluted and

inconsistent defenses, starting with its insistence that Niazmand needs more

than MQs to bump into computer graphics -- it claims she also needs

computer graphics work experience.27 Neither the facts nor law support

26 The Court relied on evidence that Art instructors Rob Stevenson and Terry Hartman were assigned to teach computer graphics courses based on their Art MQs. 4JA 1021:19-1022:4.

27 These confusing defenses result from the District's initial missteps - incorrectly claiming that computer graphics was a discipline, arguing that Niazmand needed a non-existent MQ "in computer graphics." District counsel insisted "the District is allowed to and does often come up with disciplines ... That is our position... [Computer graphics] may be a hybrid ... It's not computer science. It's certainly not printing ... [it] is ... an

42

these defenses.

C. The Appellant's Challenge to the Court's Decision Fails

Appellant argues that Niazmand needed prior work experience in

computer graphics to bump the two skipped, junior computer graphics

instructors. AOB 38. However, as discussed above, in YCCD the only

requirement for bumping is possession of the requisite MQ. There is no

negotiated FSA or competency standard which requires experience in the

"field" of the courses taught. There is no negotiated FSA or competency

standard which requires experience in the "field" of the courses taught - a

teacher with an Auto Mechanics MQ does not need experience tuning high

perfonnance engines to bump a junior Auto Mechanic instructor teaching

classes in tuning high-perfonnance vehicles. Nor does an English instructor

need experience teaching Shakespeare to bump junior instructors teaching

Shakespeare classes. With her Art MQ, Niazmand qualifies to teach every

course within the Art discipline, and YCCD currently agrees that computer

graphics courses are within this discipline. Furthennore, this District

defense applies only to her alternative path, whether she qualified for the

Graphic Arts MQ.

offshoot of computer science and of art. It's more than art and it's more than computer science." 7AR 1747:6-7,1748:23-1749:5; and, "minimum qualifications" "are established by the District and these are reflected in the job description ..." 7AR 1743:15-24. (By "job description," counsel referred to the "job announcement" used for hiring. 7AR 1717:5-1734:9)

43

Appellant claims that educators, not the court, must decide whether

Niazmand had the "necessary" two years of experience "directly related to

the faculty member's teaching assignment," for the Graphic Arts MQ (AOB

25-26), and condemns judicial review as an "unwarranted intrusion into

educational affairs." The courts, however, have long recognized their duty

to examine the relative qualifications ofjunior or senior faculty, to assure

compliance with §87743 (and §44955). Alexander, supra., 139 Cal.App.3d

at 575-577; Bledsoe, supra., 170 Cal.AppAth at 130-143; Moreland

Teachers Assn. v. Kurze (1980) 109 Cal.App.3d 648,655; Forker v. Board

o/Trustees (1984) 160 Cal. App. 3d 13, 19.28

Substantial evidence establishes that graphic arts experience

qualified Niazmand for the Graphic Arts MQ. Junior computer graphics

instructor Sinclair was hired to teach computer graphics with prior

experience in Graphic Design, just like Niazmand, not computer graphics.

3AR 770, 7AR 1737:16 Joel Hagen had an Anthropology B.A. and no

computer graphics experience when he was hired to teach computer

graphics. 3 AR 776, 77929 The court concluded that the weight of the

evidence established Niazmand's qualifications to teach computer graphics

28 This duty also exists when there is no administrative remedy. Anderson, supra., 87 Cal.App.3d at 448.

29 Hagen's was experienced in martial arts, producing and selling sculpture and painting, as a partner in software company, and as a fisherman on an Icelandic trawler. 3AR 779

44

were equal or greater than Hagen's or Sinclair's when they were hired.30

Appellant argues that "what may have happened" with other faculty

is "not relevant." AOB 38. Not true. Inconsistently, it admits it "has a

responsibility to its faculty ... that qualifications are determined by

standards ... applicable to all." AOB 3 The Code requires "that competency

qualifications must be evenly applied." Martin v. Kentfield School District

(1983) 35 Cal.3d 294,300. Evidence that faculty are assigned to computer

graphics with Art MQs did not "balloon" the case (AOB 39) into

irrelevancies.

Appellant repeatedly avers that it is the "District's responsibility to

determine [FSAs] [and] to define disciplines." AOB 38,25,36,38 Not true.

FSAs are bargained with YFA, and disciplines are determined by the

State.3 !

Appellant confuses hiring with reassignment, mischaracterizing the

court's decision as ordering "Kropp and Niazmand be hired into positions

30 The District's disregards the fact that several required and elective computer graphics courses are actually Art courses: Art 120,124,160,170, 181,182,123. Art 102 is a prerequisite. 2AR 446,403.

3! Recall that there is one negotiated FSA in Yosemite (tenured teaching), and that the State-created Discipline Lists are issued periodically by the State Board of Governors, per Cal. Code Regs., tit. 5,§53407. §53407 unequivocally declares that the State Board of Governors "defines disciplines." The ALI ruled, and the District accepted (by adopting the proposed decision of the ALI), that the State, not the District, creates disciplines. 9AR 2214.

45

new to them." AOB 2, 3, 9, 10 Actually, the court ordered them

reinstated, as they should have been retained, reassigned, and continued in

service, not laid off. (4JA 1028: 17-24) This is a reassignment case, not a

"hiring case.'>32

While districts have considerable discretion to hire the "most

qualified," when it comes to reassigning tenuredfaculty to avoid layoff,

§87743 reflects the Legislature's balancing ofjob security and academic

excellence. For retention/reassignment purposes, incumbent faculty need

not be "the most qualified" -- an inherently subjective judgment. Instead,

§87743 requires districts to re-assign faculty to services provided by less

senior faculty, "not inconsistent with the Minimum Qualifications," to avoid

layoff. §70902(a)(4) Such simple criteria "minimize the risk of arbitrary or

prejudiced decisions or decisions based on inaccurate or incomplete facts or

misunderstandings." Anderson, supra., 87 Cal.App.3d at 447.

Appellant argues there is "no legal warrant" to "trump" the statutory

framework and tell a college that ifNiazmand can teach "a" she can teach

"b." Actually, §87743 requires that if she has the MQ to "bump," the

District must reassign her accordingly. The statutes entrust the judiciary

with responsibility to assure districts observe the mandates of §87743.

32 California law consistently holds that wrongfully dismissed teachers are entitled to reinstatement. Bakersfield, supra., 145 Cal.AppAth

at 1270; Bostean v. Los Angeles Unified School District (1998), 63 Cal.App. 4th 95,118.

46

Appellant claims absolute discretion to judge Niazmand's (and

Kropp's) qualifications, and determine whether cause exists for layoff. It

avers that the courts lack authority to rule on bumping rights under §87743,

complains that the court "rejected the findings of ... educators charged by

the law with determining qualifications", that the "trial courts should judge

rights, but they should not supplant educators," that such decisions are

"reserved" to the discretion of the District/educators (whom it references

interchangeably), and that the court "usurped" the role of the school board/

educators. AOB 3, 13,28, 31, 36.

This sweeping defense hinges on the District's newly expressed

interpretation of the layoff laws, and was not raised with the ALI, or the

trial court. Because this delay undermines the integrity of the

administrative proceedings, Appellant waived this defense.

If considered, this defense should be rejected. The Legislature's

intent in adopting §§87740, 87743, and their antecedents, was to provide

some measure ofjob security for tenured teachers, through due process, by

restricting a district's discretion in layoffs. These statutes are part of a

tenure scheme designed to limit, not enlarge, the power of districts to

terminate faculty. Bakersfield, supra., 145 Cal.App.4th at 1280. The Code

"requires compliance with specified procedures before a tenured or contract

employee can be laid offbecause of a reduction in services. The layoff

47

gives priority to tenured employees ..." Daniels, supra., 212 Cal.App.3d at

919.

The Sup