Little v. Com. on Teacher Credentialing ( 2022 )

Filed 10/19/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
KATHY LITTLE et al., C092001
Plaintiffs and Respondents, (Super. Ct. No.
34201980003254CUWMGDS)
v.
COMMISSION ON TEACHER CREDENTIALING
et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Sacramento County, James P.
Arguelles, Judge. Affirmed.
Rob Bonta, Attorney General, Carl W. Sonne, Senior Assistant Attorney General,
Andrew M. Steinheimer and Kevin W. Bell, Deputy Attorneys General, for Defendants
and Appellants.
Rothschild Wishek & Sands, Michael Rothschild for Plaintiffs and Respondents.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts A and B of the Discussion section (section II).
1
The California Commission on Teacher Credentialing (Commission) and the
Committee of Credentials of the Commission on Teacher Credentialing (Committee)
appeal from a judgment and peremptory writ of prohibition directing them to discontinue
certain investigative proceedings against present and former public school administrators
Kathy Little, Simone Kovats, and Debra Sather (together, the administrators). The
Commission and Committee argue the trial court erred in ruling the administrators were
excused from exhausting administrative remedies and misinterpreted Education Code
section 44242.5, which defines the scope of the Committee’s jurisdiction.1 Finding no
error, we will affirm.
I. BACKGROUND
A. The Parties and Relevant Nonparties
The Commission establishes the professional standards for obtaining teaching
credentials in California. (§ 44225.) The Commission is also authorized to take adverse
action against credential holders. (§ 44421.) The Commission may privately admonish
or publicly reprove a credential holder, or revoke or suspend a credential holder for
immoral or unprofessional conduct or persistent defiance of the laws regulating the duties
of persons serving in the public school system, or for any cause that would have
warranted the denial of an application for a credential or the renewal thereof. (Ibid.)
The Commission appoints the Committee, an investigatory arm comprised of
seven members (two full-time classroom teachers from public schools, one administrative
employee from a public school, one member of the governing board of a school district,
and three members of the public). (§ 44240.) The Committee is charged with
investigating allegations of misconduct by credential holders. (§ 44242.5, subd. (e).)
1 Undesignated statutory references are to the Education Code.
2
The administrators are credential holders currently or formerly employed by the
Palm Springs Unified School District (District) in administrative or supervisory
capacities. The Committee commenced an initial review of the administrators’ fitness to
continue as credential holders in 2019. We are concerned here with the Committee’s
jurisdiction to undertake that initial review.
Nonparty John Villani was a special education teacher employed by the District
between 2011 and 2014. Villani sued the District in Riverside County Superior Court in
2016. Villani’s lawsuit alleged the District unlawfully retaliated against him after he
reported that a teacher-aide, David Yoder, was “grooming” and paying inappropriate
attention to some of the minor students in his care. Yoder was subsequently charged and
convicted of several felony sex offenses against minors, including an offense against one
of the aforementioned students. As relevant here, Villani’s lawsuit also alleged the
administrators ignored his concerns about Yoder. These allegations would soon catch the
attention of the Commission.
B. The Investigation
The Commission learned about Villani’s lawsuit from a news article. An
investigator contacted Villani to request an interview. The investigator also asked that
Villani provide copies of his complaint and other court filings, and declarations
describing the administrators’ alleged failure to investigate Yoder. Villani met with the
investigator and provided the requested materials.
The Commission informed the administrators that their credentials were under
investigation by letters dated September 6, 2019. The Commission explained that the
investigation was focused on the administrators’ alleged failure to act on Villani’s
concerns about Yoder. The Commission invited the administrators to submit written
materials for the Committee’s consideration at meetings scheduled for November 13
through November 15, 2019.
3
The administrators responded by letter from their counsel herein. The
administrators objected to the manner in which the Commission had obtained documents
and information from Villani and argued the Committee had not established jurisdiction
to review their credentials. The administrators demanded the Commission cease the
investigation and the Committee drop the scheduled meetings. The Commission and
Committee declined to do so.
C. The Trial Court Proceedings
The administrators filed a petition for writ of mandate or prohibition and order to
show cause regarding contempt on October 25, 2019. The petition alleged the
Commission and Committee exceeded their jurisdiction by commencing an internal
review based on the news article concerning Villani’s lawsuit. The petition also alleged
the Commission violated a declaratory judgment and order issued in Hewitt v.
Commission on Teacher Credentialing, Superior Court Sacramento, 1999, No.
98CS01418 (Hewitt).2 The petition saught an alternative writ of prohibition and
peremptory writ restraining the Commission and Committee from investigating the
administrators, and an order to show cause why the Commission should not be found in
contempt due to the alleged violation of the Hewitt order. The administrators also filed
an ex parte application for a temporary restraining order to stop the investigation.
The trial court held a hearing on the application for a temporary restraining order
on November 5, 2019. During the hearing, the trial court indicated that the Commission
had exceeded its jurisdiction by requesting records from Villani, but could still properly
establish jurisdiction by requesting some of the same records from the Riverside County
Superior Court. The trial court explained: “It seems kind of like a futile or an idle act but
2 Although the parties spend considerable time on Hewitt, the judgment and order in
Hewitt played no part in the trial court’s statutory analysis and would not be binding on
us in any case.
4
I think, technically, it all comes down to you need to cross all the T’s and dot all the I’s.”
The trial court entered a temporary restraining order and preliminary injunction
suspending the investigation.3
The trial court subsequently entered a peremptory writ barring the Commission
and Committee from proceeding with any investigation or review based on records
obtained directly from Villani. The trial court denied the request for an order to show
cause regarding contempt.
The Commission and Committee filed a timely notice of appeal.
II. DISCUSSION
A. Standard of Review
This appeal raises two overarching issues. First, we must decide whether the
administrators were required to exhaust administrative remedies before filing the petition.
Second, we must decide whether the Commission and Committee exceeded their
jurisdiction in reaching out to Villani. Both issues present questions of law subject to de
novo review. (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536 [“An
appellate court employs a de novo standard of review when determining whether the
exhaustion of remedies doctrine applies”]; Farahani v. San Diego Community College
Dist. (2009) 175 Cal.App.4th 1486, 1491 [“The interpretation of a statute is a legal issue
subject to de novo review”].) In reviewing questions of law, we are not bound by the
trial court’s stated reasons or rationales. (Kaiser Foundation Hospitals v. Superior Court
(2005) 128 Cal.App.4th 85, 107.) We review the trial court’s ruling, not its rationale.
(Scott v. Common Council (1996) 44 Cal.App.4th 684, 689.)
3 The Commission and Committee evidently obtained records from the Riverside County
Superior Court the next day and issued a second letter notifying the administrators that
their credentials were under investigation. They then obtained another set of identical
declarations from Villani. These investigative activities are not currently before us.
5
B. Exhaustion of Administrative Remedies
The Commission and Committee argue the trial court should have denied the
petition for failure to exhaust administrative remedies. The administrators respond that
the exhaustion doctrine does not apply, because the Commission and Committee had only
commenced an initial review, and not formal administrative proceedings, when they filed
the petition. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67
Cal.2d 536, 543 [holding that “an investigation is not the equivalent of a formal
accusation compelling [the plaintiff] to seek relief from the administrative body before
recourse to the courts”]; see also Jacobs v. State Board of Optometry (1978) 81
Cal.App.3d 1022, 1029 [“The mere possession by some official body, such as the board,
of a ‘continuing supervisory or investigatory power’ does not itself suffice to afford an
administrative remedy. There must be ‘clearly defined machinery’ for the submission,
evaluation and resolution of complaints by aggrieved parties”].) We assume without
deciding that the doctrine applies and conclude that the administrators were excused from
exhausting administrative remedies.
“In general, a party must exhaust administrative remedies before resorting to the
courts.” (Coachella Valley Mosquito & Vector Control Dist. v. California Public
Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080 (Coachella Valley).) The
exhaustion doctrine “ ‘is principally grounded on concerns favoring administrative
autonomy (i.e., courts should not interfere with an agency determination until the agency
has reached a final decision) and judicial efficiency (i.e., overworked courts should
decline to intervene in an administrative dispute unless absolutely necessary).’ ” (Ibid.)
The doctrine requiring exhaustion of administrative remedies is subject to
numerous exceptions. (Public Employment Relations Bd. v. Superior Court (1993) 13
Cal.App.4th 1816, 1826-1827.) One such exception arises “when a party claims that ‘the
agency lacks authority, statutory or otherwise, to resolve the underlying dispute between
the parties.’ ” (Coachella Valley, supra, 35 Cal.4th at pp. 1081-1082.) This exception
6
does not automatically apply whenever a party challenges an agency’s jurisdiction.
Rather, “[i]n deciding whether to entertain a claim that an agency lacks jurisdiction
before the agency proceedings have run their course, a court considers three factors: the
injury or burden that exhaustion will impose, the strength of the legal argument that the
agency lacks jurisdiction, and the extent to which administrative expertise may aid in
resolving the jurisdictional issue.” (Id. at p. 1082.)
Applying the Coachella Valley factors, we conclude the exhaustion requirement
was excused. With respect to the first factor, the trial court opined that exhaustion would
impose a “minimal” burden on the administrators, and we do not disagree. (See
Coachella Valley, supra, 35 Cal.4th at p. 1082 [unusual or irreparable injury not shown
by requirement that an individual participate in agency proceedings before seeking
judicial resolution of jurisdictional limitations issue].) However, the Coachella Valley
court explained that the “burden” element can be satisfied, despite an absence of evidence
of unusual or irreparable injury, where there is “a significant public interest in obtaining a
definitive resolution of [a] fundamental legal question.” (Ibid.) We perceive a credible
argument that the interpretation of section 44242.5 is a matter of significant public
interest. Indeed, the Commission and Committee come close to saying as much, arguing
that the scope of their powers under section 44242.5 must be clarified so they can carry
out their duty to protect schoolchildren. The Commission and Committee also tell us that
they “seek a decision on the merits, rather than having this case decided solely on
jurisdictional grounds.” Under the circumstances, we conclude the first Coachella Valley
factor weighs in favor of judicial intervention. (Coachella Valley, supra, at p. 1082.)
Turning to the second Coachella Valley factor, the administrators make “a strong
and ultimately persuasive argument” that the Commission and Committee acted in excess
of their jurisdiction by reaching out to Villani. (Coachella Valley, supra, 35 Cal.4th at p.
1082.) We will discuss the merits of the administrators’ argument momentarily. For the
7
time being, it suffices to say that the second factor also weighs in favor of judicial
intervention. (Id. at p. 1083.)
As for the third Coachella Valley factor, we are satisfied that judicial intervention
would not deprive us of the benefit of the Commission and Committee’s expertise.
(Coachella Valley, supra, 35 Cal.4th at p. 1082.) Although we ordinarily accord
deference to an agency’s interpretation of governing statutes and implementing
regulations, the “ ‘weight’ ” of any such deference is “fundamentally situational.”
(Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12.) “An
agency’s interpretation is entitled to deference if it is long-standing, consistent, and
contemporaneous.” (Kaanaana v. Barrett Bus. Servs., Inc. (2021) 11 Cal.5th 158, 178.)
“A vacillating position warrants no deference.” (Ibid.)
The Commission and Committee have not consistently interpreted section 44242.5
or an accompanying regulation, California Code of Regulations, title 5, section 80308, in
the manner urged herein. To the contrary, the Commission has previously articulated
interpretations closer to those adopted by the trial court and administrators.4
Accordingly, we conclude the Commission and Committee’s current interpretations are
entitled to no deference. (Kaanaana v. Barrett Bus. Servs., Inc., supra, 11 Cal.5th at
p. 178.) We further conclude that the interpretation of section 44242.5 and California
Code of Regulations, title 5, section 80308, and their application to the undisputed
jurisdictional facts of this case, are pure questions of law, which we are well equipped to
resolve. (Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310.) As such,
the third Coachella Valley factor also weighs in favor of judicial intervention.
Considering all the Coachella Valley factors, we conclude the administrators were
excused from exhausting their administrative remedies, assuming the exhaustion doctrine
4We will discuss the Commission’s previous interpretations of section 44242.5 and
California Code of Regulations, title 5, section 80308 in the next part of this opinion.
8
applies. (Coachella Valley, supra, 35 Cal.4th at pp. 1081-1082.) Having so concluded,
we further conclude that judicial intervention was and is appropriate.5
C. Jurisdiction
We come now to the central issue in this case: the scope of the Commission and
Committee’s power to investigate prior to an initial review. The trial court determined
that the Commission and Committee exceeded their jurisdiction by requesting documents
and information directly from Villani. The Commission and Committee argue the trial
court misinterpreted section 44242.5. They raise a number of arguments to support their
broader interpretation of the statute, which would authorize the Commission to “pick up
the phone” and contact private citizens prior to commencing an initial review. As we
shall explain, these arguments lack merit.
5 The Commission and Committee argue in a related vein that the trial court should have
denied the petition under the doctrine of judicial restraint. They draw a connection
between the doctrine of judicial restraint, which holds that courts should decide the
fewest issues possible in resolving disputes, and Civil Code sections 3532 and 3533.
(See Morse v. Frederick (2007) 551 U.S. 393, 431; see also Civ. Code, §§ 3532 [“The
law neither does nor requires idle acts”] & 3533 [“The law disregards trifles”].) Tying
these concepts together, the Commission and Committee suggest the trial court should
have denied the petition because the court’s intervention only succeeded in requiring
them to collect records from the Riverside County Superior Court, rather than allowing
them to rely on records provided by Villani, and thus compelled them to jump through
unnecessary hoops.
The Commission and Committee do not appear to have raised this argument in the trial
court. To the contrary, the Commission and Committee argued they properly obtained
records directly from Villani. We need not consider arguments raised for the first time on
appeal. (Cf. People ex rel. DuFauchard v. U.S. Financial Management, Inc. (2009) 169
Cal.App.4th 1502, 1512 [exhaustion requirements not raised in trial court deemed
forfeited on appeal].) Furthermore, even assuming the argument were properly before us,
we would reject it. We cannot say that requiring compliance with section 44242.5 was an
idle act or mere trifle. Nor can we say that the trial court should have refrained from
resolving the parties’ dispute, particularly inasmuch as the Commission and Committee
maintained that they were free to obtain records from Villani.
9
1. Statutory and Regulatory Background
Before we begin our analysis, we will briefly review the procedures for
investigating complaints against credential holders. Those procedures can be divided into
three phases, each with their own requirements and limitations: the preliminary review
(Cal. Code Regs., tit. 5, § 80308), the initial review (§ 44242.5, subds. (b)-(c)), and the
formal review (§§ 44242.5, subd. (d) & 44244). We will describe each phase in turn.
California Code of Regulations, title 5, section 80308 authorizes the Committee to
conduct a preliminary review of information received about a credential holder, subject to
limitations discussed post. (Cal. Code Regs., tit. 5, § 80308, subd.(a); see also California
Teachers Assn. v. California Commission on Teacher Credentialing (2003) 111
Cal.App.4th 1001, 1006 (California Teachers Assn.).) Following the preliminary review,
the Committee “may either determine to end the review or instruct staff to set the matter
for initial review at a later meeting.” (Cal. Code Regs., tit. 5, § 80308, subd.(a).)
Section 44242.5, subdivision (b) vests the Committee with jurisdiction to
commence an initial review “upon receipt” of certain materials. An initial review
commences when a credential holder is notified that his or her fitness to hold a credential
is under review. (California Teachers Assn., supra, 111 Cal.App.4th at p. 1006, citing §
44242.5, subd. (c) and Cal. Code Regs., tit. 5, § 80307.1.) The credential holder must be
given a reasonable opportunity to provide written information to the Committee prior to
the meeting, and the Committee’s staff prepares a confidential investigative report for the
Committee’s consideration. (California Teachers Assn., supra, at p. 1006, citing Cal.
Code Regs., tit. 5, § 80309.1, subds. (c)-(d).)
A formal review may be held no more than six months after the commencement of
the initial review. (§ 44244, subd. (b)(1).) The credential holder may appear and respond
under oath to questions from the Committee, and the Committee may call material
witnesses to provide testimony, subject to examination for rebuttal evidence. (Cal. Code
Regs., tit. 5, §§ 80311, 80313, subds. (a)-(c); California Teachers Assn., supra, 111
10
Cal.App.4th at p. 1007.) The Committee then makes a probable cause determination.
(California Teachers Assn., supra, at p. 1007.) “If there is no probable cause, the
investigation is terminated. If there is probable cause, the credential holder may request
an adjudicatory hearing pursuant to the provisions of the Administrative Procedure Act.
(§ 44242.5, subd. (c).)” (Ibid.)
The Committee reports its probable cause findings and recommendation with
respect to any adverse action to the Commission. (§ 44242.5, subd. (e)(1); California
Teachers Assn., supra, 111 Cal.App.4th at p. 1007.) The Commission may adopt the
recommendation of the Committee without further proceedings if the credential holder
elects to forego an adjudicatory hearing. (§ 44244.1; California Teachers Assn., supra, at
p. 1007.) If the credential holder appeals from the Committee’s recommendation, the
Commission files an accusation or statement of issues. (§ 44242.5, subd. (c)(3)(B);
California Teachers Assn., supra, at p. 1007.) The administrative adjudication is subject
to the rules and procedures of the Administrative Procedure Act. (Gov. Code, § 11501,
subd. (b); California Teachers Assn., supra, at p. 1007.)
2. Section 44242.5
Having reviewed the procedures for investigating complaints against credential
holders, we now consider whether the Commission was authorized to contact Villani
prior to the commencement of the Committee’s initial review. The answer to this
question turns on the interpretation of section 44242.5. “ ‘ “ ‘As in any case involving
statutory interpretation, our fundamental task . . . is to determine the Legislature’s intent
so as to effectuate the law’s purpose. [Citation.] We begin by examining the statute’s
words, giving them a plain and commonsense meaning.’ ” ’ [Citation.] ‘[W]e consider
the language of the entire scheme and related statutes, harmonizing the terms when
possible.’ ” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; see People v. Valencia
(2017) 3 Cal.5th 347, 357 [“ ‘[t]he words of the statute must be construed in context,
keeping in mind the statutory purpose, and statutes or statutory sections relating to the
11
same subject must be harmonized, both internally and with each other, to the extent
possible’ ”].) If the language of the statute is clear and unambiguous, there is no need for
judicial construction and our task is at an end. If the language is reasonably susceptible
of more than one meaning, however, we may examine extrinsic aids such as the apparent
purpose of the statute, the legislative history, the canons of statutory construction, and
public policy. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses,
LLC (2015) 61 Cal.4th 830, 838; People v. Arias (2008) 45 Cal.4th 169, 177.)
Section 44242.5 contains two subdivisions pertinent to our review: subdivisions
(b) and (f). Subdivision (b) of section 44242.5 provides that the Committee “has
jurisdiction to commence an initial review upon receipt” of any of the following: (1)
official records from the Department of Justice or any law enforcement agency; (2) an
affidavit or declaration signed by a person with personal knowledge of the allegations of
misconduct; (3) a statement from an employer that the credential holder has been
dismissed, suspended for more than 10 days, or placed on administrative leave due to
allegations of misconduct; (4) a notice from an employer that a complaint was filed with
the school district alleging misconduct by a credential holder; (5) a notice from a school
district, employer, public agency, or testing administrator of specified violations of the
Education Code; or (6) an affirmative response on an application question relating to
conviction, adverse action, or denial of a license, or a pending investigation. (§ 44242.5,
subd. (b).)
The petition alleges the Committee exceeded its jurisdiction by commencing an
initial review based on materials not specified in section 44242.5, subdivision (b);
namely, the news article concerning Villani’s lawsuit. The Commission and Committee
acknowledge contacting Villani in response to the news article, but maintain the
Committee only commenced the initial review upon receiving the declarations, and thus
acquired jurisdiction pursuant to subdivision (b)(2). (§ 44242.5, subd. (b)(2) [the
Committee “has jurisdiction to commence an initial review upon receipt” of “[a]n
12
affidavit or declaration signed by a person or persons with personal knowledge of the acts
alleged to constitute misconduct”].) The Commission and Committee observe that
nothing in subdivision (b) precludes the Commission from reaching out to potential
witnesses and emphasize that they must have the ability to respond proactively to
allegations of misconduct in order to protect the safety and wellbeing of schoolchildren.
This is where section 44242.5, subdivision (f) comes in.
Subdivision (f) of section 44242.5 provides: “(1) Except as provided in paragraph
(2) and, notwithstanding subdivision (b), for purposes of determining whether jurisdiction
exists under subdivision (b), the commission, in accordance with Section 44341, may
make inquiries and requests for production of information and records only from the
Department of Justice, a law enforcement agency, a state or federal court, and a licensing
agency of this state or a licensing agency of another state. [¶] (2) For purposes of
determining whether jurisdiction exists, paragraph (1) does not apply to release of
personnel records.”6
The trial court interpreted subdivision (f)(1) of section 44242.5 as a limitation on
the Commission’s ability to seek information and records for the purpose of establishing
the Committee’s jurisdiction under subdivision (b). Subdivision (f)(1) provides that the
Commission “may make inquiries and requests for production of information and records
only from the Department of Justice” and other enumerated sources. (§ 44242.5, subd.
(f)(1), emphasis added.) The trial court reasoned that Villani was not among these
6 Section 44341, discussed in greater detail post, provides, in pertinent part: “(a)(1) For
the purpose of ascertaining the moral character and true identity of the holder of a
credential or an applicant for a credential or the renewal of a credential after jurisdiction
to commence an initial review pursuant to subdivision (b) of Section 44242.5 has been
established, the commission is authorized to require the production of information,
records, reports, and other data from any public agency. For the purposes of determining
whether jurisdiction exists, the commission is also authorized to require the limited
production of records as set forth in subdivision (f) of Section 44242.5.”
13
sources, and therefore, declarations produced in response to the Commission’s inquiries
and requests for information to Villani were not sufficient to establish the Committee’s
jurisdiction under section 44242.5, subdivision (b). The trial court’s interpretation was
reasonable and consistent with the plain language of the statute. (See Giorgianni v.
Crowley (2011) 197 Cal.App.4th 1462, 1474-1475 [“In cases of statutory interpretation,
‘where the language is clear, its plain meaning should be followed. [Citation.]’
[Citation.] We will ‘give effect to statutes “according to the usual, ordinary import of the
language employed in framing them . . .” ’ . . . and ‘will apply common sense to the
language at hand and interpret the statute to make it workable and reasonable’ ”].)7
The Commission and Committee urge another interpretation of section 44242.5.
They argue subdivision (f)(1) of section 44242.5 only modifies subdivision (b)(1), and
only limits the Commission’s ability to seek information and records from public
agencies. According to the Commission and Committee, subdivision (f)(1) of section
44242.5 does not apply to subdivision (b)(2), and does not limit the Commission’s ability
to solicit affidavits or declarations from private citizens like Villani. We disagree.
7 The administrators have requested that we take judicial notice of various documents
pertaining to the legislative history of subdivision (f), which was added to section
44242.5 in 2001. (Stats. 2001, ch. 342, § 11.) The request is denied on the ground that
the subject documents are not necessary to our resolution of the issues presented on
appeal. (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115
Cal.App.4th 168, 174 [request for judicial notice of legislative history denied because
language of statute was plain and consideration of legislative history was therefore
unnecessary].)
The administrators have also requested that we take judicial notice of an order
granting the District’s motion for a new trial in Villani’s civil action in Riverside County
Superior Court. The request is denied on the ground that judicial notice of the order is
not necessary to our review in this case. (Guarantee Forklift, Inc. v. Capacity of Texas,
Inc. (2017) 11 Cal.App.5th 1066, 1075 [appellate court “may decline to take judicial
notice of matters not relevant to dispositive issues on appeal”].)
14
As previously discussed, section 44242.5, subdivision (b) provides that the
Committee “has jurisdiction to commence an initial review upon receipt” of any of
several categories of records and documents, including affidavits or declarations signed
by persons with personal knowledge of acts alleged to constitute misconduct. (Emphasis
added.) Subdivision (b) neither permits nor precludes the Commission from seeking or
soliciting records or documents on which to base the Committee’s jurisdiction.
(§ 44242.5, subd. (b).) But subdivision (f)(1) makes clear that the Commission, “in
accordance with Section 44341, may make inquiries and requests for production of
information and records only from the Department of Justice” and other enumerated
agencies and official sources. (§ 44242.5, subd. (f)(1), emphasis added.) By using the
term of art “notwithstanding,” the Legislature expressed an intent to make subdivision
(f)(1) of section 44242.5 controlling over any grant of investigative authority that might
otherwise be implied in subdivision (b). (California Taxpayers Action Network v. Taber
Construction, Inc. (2017) 12 Cal.App.5th 115, 130 [“ ‘It is well established that the
phrase “notwithstanding any other provision of law” is a term of art that expresses a
legislative intent to have the specific statute control despite the existence of other law that
might govern’ ”].) Subdivision (f)(1) of section 44242.5 thus limits the Commission’s
ability to seek out information and records that might provide a basis for jurisdiction
under any paragraph of subdivision (b), other than the specifically authorized inquiries
and requests for production of information and records directed to the enumerated
agencies. Had the Legislature intended to limit the application of section 44242.5,
subdivision (f)(1) to subdivision (b)(1) in the manner the Commission and Committee
propose, it certainly could have done so. That the Legislature instead chose to make
section 44242.5, subdivision (f)(1) applicable “notwithstanding subdivision (b), for
purposes of determining whether jurisdiction exists under subdivision (b)” indicates that
subdivision (f)(1) was intended to modify all paragraphs of subdivision (b), including
subdivision (b)(2).
15
The Commission and Committee resist this conclusion. They find support for
their alternative interpretation of section 44242.5 in section 44341, subdivision (a)(1) and
California Code of Regulations, title 5, section 80308. Neither of these provisions
advance their cause, as we explain post.
3. Section 44341
Section 44341, subdivision (a)(1) addresses the Commission’s authority to require
the production of information and records before and after jurisdiction has been
established. After jurisdiction to commence an initial review has been established, the
Commission may, for the purpose of ascertaining the moral character and identity of a
credential holder, “require the production of information, records, reports, and other data
from any public agency.” (§ 44341, subd. (a)(1).) Section 44341, subdivision (a)(1)
further provides: “For the purposes of determining whether jurisdiction exists, the
commission is also authorized to require the limited production of records as set forth in
subdivision (f) of Section 44242.5.” Section 44341, subdivision (a)(1) merely reinforces
that the Commission can only pursue a limited range of information and records in
determining whether jurisdiction exists. Together, section 44341, subdivision (a)(1) and
section 44242.5, subdivision (f)(1) establish that the Commission can “only” request or
require the production of records from the Department of Justice, a law enforcement
agency, a state or federal court, and a licensing agency of this state or a licensing agency
of another state. Neither statute authorizes the Commission or Committee to reach out to
private citizens, let alone solicit declarations from them.8
8The administrators urge us to go a step further, arguing that the Commission and
Committee “should be barred from jurisdictional reliance upon affidavits or declarations
obtained from plaintiffs in unresolved civil litigation.” The administrators’ argument is
not properly before us and we decline to consider it.
16
4. California Code of Regulations, Title 5, Section 80308
The Commission and Committee’s reliance on California Code of Regulations,
title 5, section 80308 is equally unavailing. “Rules governing the interpretation of
statutes also apply to the interpretation of regulations. [Citation.] ‘In interpreting
regulations, the court seeks to ascertain the intent of the agency issuing the regulation by
giving effect to the usual meaning of the language used so as to effectuate the purpose of
the law, and by avoiding an interpretation which renders any language mere
surplusage.’ ” (Diablo Valley College Faculty Senate v. Contra Costa Community
College Dist. (2007) 148 Cal.App.4th 1023, 1037.) We do not construe a regulation in
isolation, but instead read it with reference to the scheme of law of which it is a part, so
that the whole may be harmonized and retain effectiveness. (Spanish Speaking Citizens’
Foundation, Inc. v. Low (2000) 85 Cal.App.4th 1179, 1214.)
California Code of Regulations, title 5, section 80308 provides: “(a) If the
Committee receives information about an applicant or holder, the Committee may
conduct a preliminary review of the information prior to commencing an investigation.
At the preliminary review, the Committee may either determine to end the review or
instruct staff to set the matter for initial review at a later meeting. [¶] (b) A credential
holder’s personnel records shall not be obtained without written notification to the holder.
[¶] (c) No contact shall be made by any Commission staff members with anyone except
the complainant prior to opening the investigation.” The Commission and Committee
argue California Code of Regulations, title 5, section 80308, subdivision (c) authorized
them to “pick up the phone” and contact Villani when they became aware of information
indicating the administrators may have committed misconduct. They argue that Villani
was a “complainant” in the sense that he filed a complaint against the District in
Riverside County Superior Court. They also assert that Villani was a “complainant”
within the meaning of California Code of Regulations, title 5, section 80300, subdivision
(h). These arguments miss the mark.
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When a statute provides a specific definition of a term, the term “must be
understood as it is defined, not in its colloquial sense.” (People v. Gonzalez, supra, 2
Cal.5th at p. 871.) Put another way, “[t]he plain and commonsense meaning governs
‘unless the statute specifically defines the words to give them a special meaning.’ ”
(Jackson v. LegalMatch.com (2019) 42 Cal.App.5th 760, 768.) Here, California Code of
Regulations, title 5, section 80300, subdivision (h) specifically defines “Complainant” as
the person or persons filing a statement pursuant to section 44242.5, subdivision (b)(2),
or an employer filing a notice pursuant to section 44242.5, subdivisions (b)(3) or (4).
(Cal. Code Regs., tit. 5, § 80300, subd. (h).) We must therefore decide whether Villani
was a “person . . . filing a statement pursuant to [] section 44242.5[, subdivision ](b)(2).”
(Ibid.) That Villani filed a complaint against the District in Riverside County Superior
Court has no bearing on this analysis. (People v. Gonzalez, supra, at p. 871.)
The Commission and Committee argue that Villani was a complainant within the
meaning of California Code of Regulations, title 5, section 80300, subdivision (h),
because he provided declarations under section 44242.5, subdivision (b)(2). (See §
44242.5, subd. (b)(2) [providing that the Committee obtains jurisdiction upon receipt of
“[a]n affidavit or declaration signed by a person or persons with personal knowledge of
the acts alleged to constitute misconduct”].) But this argument plays fast and loose with
the order of events. Although Villani would later provide declarations and become a
“person . . . filing a statement pursuant to [] section 44242.5[, subdivision ](b)(2),”
nothing in the record suggests he was such a person at the time of the Commission’s
initial contact with him. (Cal. Code Regs., tit. 5, § 80300, subd. (h).) To the contrary, the
declarations specifically state that they were submitted at the Commission’s request. It
follows that Villani was not a “complainant” within the meaning of California Code of
Regulations, title 5, section 80300, subdivision (h) at the time of the initial contact, and
the contact was unauthorized.
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The Commission and Committee argue California Code of Regulations, title 5,
section 80308, subdivision (c) retroactively authorizes pre-jurisdictional contact with
persons who eventually provide declarations or affidavits, regardless of whether they had
been provided at the time of the first contact. According to the Commission and
Committee: “It is of no consequence whether a complainant volunteers to provide a
declaration under penalty of perjury after initial contact by Commission staff, or whether
a complainant figures out – on their own – how and where and when and to whom and in
what manner and in what form they should provide that statement.” Again, we disagree.
California Code of Regulations, title 5, section 80300, subdivision (h) makes clear that a
person only acquires the status of “complainant” by filing an affidavit or declaration. A
person who has not filed a declaration is not a “complainant.” Such a person cannot be
contacted by the Commission as part of a preliminary review under California Code of
Regulations, title 5, section 80308, subdivision (c). (Cal. Code Regs., tit. 5, § 80308,
subd. (c) [“No contact shall be made by any Commission staff members with anyone
except the complainant prior to opening the investigation,” emphasis added].) Therefore,
contrary to the Commission and Committee’s contention, the regulations make quite
consequential, in determining whether the Commission may contact a person under
California Code of Regulations, title 5, section 80308, subdivision (c), that the person
acquire the status of “complainant” before any contact is made.
Having rejected the Commission and Committee’s interpretation of California
Code of Regulations, title 5, section 80308, we must also reject their contention that the
regulation somehow supports their interpretation of section 44242.5. Here, we note that
the Commission articulated an entirely different theory of the interplay between the
regulation and statute in a handbook entitled, “California’s Laws and Rules Pertaining to
the Discipline of Professional Certificated Personnel.” (Cal. Com. on Teacher
Credentialing, California’s Laws and Rules Pertaining to the Discipline of Professional
Certificated Personnel (2019) (Handbook).) The Handbook, excerpts of which are
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attached to the petition, reproduces the text of California Code of Regulations, title 5,
section 80308 and adds the following comment: “NOTE: Pursuant to court order, the
Commission has jurisdiction to conduct an investigation, including requests for
information to public agencies, only upon receipt of relevant information as specified
within and pursuant to [] section 44242.5. Unless the Commission receives such
information as specified in section 44242.5, it may not proceed to investigate, including
the undertaking of a preliminary review pursuant to [California Code of Regulations, title
5,] section 80308.” (Handbook, pp. 56-57.) The Commission and Committee do not
address the Handbook, which clearly contradicts their current interpretations of section
44242.5 and California Code of Regulations, title 5, section 80308. Regardless, their
current interpretations are inconsistent with the Commission’s previously stated views,
and as such, are not entitled to deference. (Kaanaana v. Barrett Bus. Servs., Inc., supra,
11 Cal.5th at p. 178 [“A vacillating position warrants no deference”].)
For all the foregoing reasons, we conclude the trial court’s interpretation of section
44242.5 was correct, and the Commission was not authorized to reach out to Villani as
part of its pre-jurisdictional investigation. Under California Code of Regulations, title 5,
section 80308, subdivision (c), the Commission was only authorized to make contact with
a “complainant” prior to opening an investigation. Villani was not a complainant. (Cal.
Code Regs., tit. 5, § 80300, subd. (h).) Under sections 44242.5, subdivision (f) and
44341, the Commission was only authorized to make inquiries and requests for
production of information to enumerated agencies for purposes of determining whether
jurisdiction existed under section 44242.5, subdivision (b). Villani was not among the
enumerated agencies. The contact was therefore unauthorized.
5. Policy and Legislative Purpose Arguments
The Commission and Committee offer several policy arguments against the trial
court’s interpretation of section 44242.5. They argue that section 44242.5 must be
liberally construed with a view to effecting its objects, which include protecting the
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safety and wellbeing of schoolchildren. (§ 2 [the provisions of the Education Code “are
to be liberally construed, with a view to effect its objects and to promote justice”].) We
acknowledge that protecting schoolchildren is among the statute’s objects. (See In re
R.G. (2000) 79 Cal.App.4th 1408, 1416-1417 [§ 44242.5 is one of several statutes in the
Education Code reflecting the Legislature’s intent to make school safe for students].)
However, the Commission and Committee’s interpretation would require us to ignore
section 44242.5, subdivision (f)’s express provision that the Commission may “only”
make inquiries or requests for production of information to enumerated public agencies,
“notwithstanding subdivision (b).” This we cannot do. (See Simpson v. Unemployment
Ins. Comp. Appeals Bd. (1986) 187 Cal.App.3d 342, 351 [“Liberality of interpretation
cannot accomplish an end outside the terms of the statute, no matter how desirable such a
result might be”]; see also Mason v. Department of Real Estate (2002) 102 Cal.App.4th
1349, 1354-1355 [a court may not use the maxim of liberal construction to construe
words to have other than their plain meanings].) By its terms, section 44242.5,
subdivision (f) modifies all of the paragraphs of section 44242.5, subdivision (b),
including subdivision (b)(2). We cannot, “under the guise of liberal construction, enlarge
the clear provisions of the statute.” (Simpson v. Unemployment Ins. Comp. Appeals Bd.,
supra, at p. 351.) To the extent the Commission and Committee believe the law should
be different, their remedy lies with the Legislature.
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III. DISPOSITION
The judgment granting the peremptory writ of prohibition is affirmed.
Respondents Kathy Little, Simone Kovats, and Debra Sather are entitled to recover their
costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
/S/
RENNER, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
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