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Court of Appeal, Fourth District, Division 2, California.

FONTANA UNIFIED SCHOOL DISTRICT, Petitioner and Appellant, v. Nancy BURMAN, Respondent and Cross-Appellant.


Decided: April 22, 1986

Wagner, Sisneros & Wagner and John J. Wagner, Burbank, for petitioner and appellant. Silver, Kreisler, Goldwasser & Shaeffer and George W. Shaeffer, Jr., Newport Beach, for respondent and cross-appellant.


The trial court proceedings were begun by Fontana Unified School District (petitioner district) in administrative mandamus after a decision by the Commission on Professional Competence (commission), seeking a writ authorizing dismissal of Nancy Burman (respondent teacher).   Ms. Burman, a certificated employee, was serving as Principal of Tokay School at the time the events occurred for which petitioner district sought the dismissal noted.

After compliance on both sides of the dispute with applicable sections of the Education Code, a hearing was conducted before the three members of the commission selected by the parties as provided for in section 44944, subdivision (b) of the Education Code.1

The commission rendered a two-to-one decision which included a finding of fact that “respondent is guilty of dishonesty within the meaning of Education Code section 44932(a)(3).”   Under its determination of issues, the decision included a recitation that “cause exists for disciplinary action against respondent under Education Code section 44932(a)(3), based upon the charge of dishonesty.”   Nevertheless, the decision stated finally, also under the determination of issues, “that the penalty of dismissal should not be imposed.”

In the face of this result before the commission, petitioner district took its grievance to superior court as above noted, naming only Nancy Burman as respondent.   After an independent review of the administrative record, the trial court incorporated the commission's decision as part of the court's statement of decision.   Thereupon, it denied the petition, ordered petitioner district to comply with the decision of the commission and awarded respondent teacher $1500 as reimbursement for her costs and attorney's fees.

Petitioner district appealed.   Respondent teacher cross-appealed, contending:  (1) that her demurrer based on the failure to join the commission as an indispensable party should have been sustained;  and (2) the award of attorney's fees was inadequate.

Because the evidence adduced before the commission was undisputed, and because such evidence is sufficient to support the findings of the trial court, no good purpose would be served by recounting the details of respondent teacher's dishonest behavior.   In other words, because this is not an “evidence” case as that characterization is used in appellate parlance, discussion of the evidence is not necessary in aid of the decisional task which this record presents.   The decision of the commission reflects in its findings all the details of the episode which led to this litigation, and for those interested in such details a copy of the decision is attached as an Appendix.


Petitioner district's principal assignment of error is in the form of a contention that the trial court had no choice but to render judgment sanctioning the discipline of dismissal once it had found the ultimate fact that cause for discipline existed based upon its threshold finding of respondent teacher's dishonesty.   Such contention, stated in garden variety terms, amounts to urging that the judgment is not supported by the findings.   In our view, there is no way of logically refuting such contention, and so, following the dictates of routine appellate procedure, we must reverse the judgment.


Turning then to a review of the administrative mandamus proceeding in the trial court, as already recounted, the court incorporated the commission's decision in its entirety as a part of the court's own statement of decision which it issued as contemplated by section 632 of the Code of Civil Procedure.

 That section has had a long and stormy history reflecting continuing efforts by the Legislature, at the instance of the civil trial bar, to arrive at a convenient and effective procedure for assuring meaningful appellate review of civil cases tried to the court sitting without a jury.   (See 7 Witkin, Cal.Procedure (3d ed. 1985) Trial, § 368, pp. 373–374.)   Even though there is now new terminology, i.e., statement of decision, we are satisfied that the purpose of this substantive determination by the trial court remains as it has always been.  “This mandatory requirement of written findings in superior [court] ․ was considered fundamental to the decision process.   The findings and conclusions of law were the decision of the court;  the judgment was based on and followed this decision.”  (Id., at p. 373, original emphasis.)   In other words, paraphrasing Witkin, the judicial act required of the court was and remains the reaching of a decision.   Once the decision has been made, the rendering of judgment is a ministerial act which must reflect the decision reached.  (Riggs v. Riggs, 223 Cal.App.2d 594, 35 Cal.Rptr. 793.)   Quoting from Riggs, “[f]indings of fact and conclusions of law constitute the decision of a court.  (Code Civ.Proc., § 632;  generally see:  28 Cal.Jur.2d 682, 683, and cases cited therein.)   The judgment is not the decision;  [it] is entered following such (Code Civ.Proc., § 664);  but must conform thereto (Mather v. Mather, 22 Cal.2d 713, 718 [140 P.2d 808] ․ and if it fails to do so is erroneous.  (Lyden v. Spohn-Patrick Co., 155 Cal. 177, 182 [100 P. 236] ․;  Nestor v. Burr, supra, 124 Cal.App. 369, 372 [12 P.2d 479].)”  (Id., 223 Cal.App. at p. 598, 35 Cal.Rptr. 793.)   In other words, with reference to the latter pronouncement in Riggs, the failure of the judgment to conform to the findings does not represent an abuse of discretion;  such nonconformity amounts to outright legal error.

The last recited concept is one often lost sight of by busy practioners, but it is the underlying premise of one of the many appellate inquiries made in assessing a record on appeal as the court works toward disposition.   To reiterate, the particular inquiry invoked by this record is whether the judgment is supported by the findings, i.e., whether, as a matter of law, the judgment correctly reflects the judicial act, formerly manifested by the findings and conclusions and now expressed in the statement of decision.   As will be explained, clearly the judgment here does not correctly reflect the judicial act represented by the contents of the statement of decision;  thus, the judgment entered was error quite beyond any exercise of discretion.


This view of the case, i.e., that the judgment does not conform to the statement of decision, is compelled by section 44944.   Preceding that section, sections 44932 and 44934 deal with the grounds for dismissal and suspension and the procedures leading to these possible disciplinary sanctions.   Section 44944 then brings the procedural scenario along to the hearing before the Commission on Professional Competence and then, under subdivision (c), sets forth what discipline shall be variously imposed.   That subdivision provides initially these options:

“(1) That the employee should be dismissed;

“(2) That the employee should be suspended for a specific period of time without pay;

“(3) That the employee should not be dismissed or suspended.”

Nevertheless, subdivision (c) later provides:  “The imposition of suspension pursuant to paragraph (2) shall be available only in a suspension proceeding authorized pursuant to subdivision (b) of Section 44932 or Section 44933.”

 In sum, if the originating accusation sought dismissal based on one of the grounds stated in subdivision (a) of section 44932, the commission would have no power to impose the discipline of suspension.   That alternative is available only where the originating accusation sought suspension based upon a charge of unprofessional conduct per subdivision (b) of section 44932.   As a consequence, where the originating accusation sought dismissal, the commission has only two choices by which to dispose of the charges under subdivision (a) of section 44932, namely, to dismiss or not to dismiss.   As noted, the commission here chose not to dismiss.

 Within this statutory framework, after the proceeding had moved on to administrative mandamus, the threshold finding of fact by the trial court likewise was that respondent teacher had been guilty of dishonesty within the meaning of section 44932, subdivision (a)(3).   It then proceeded, as did the commission, to find as an ultimate fact that cause for disciplinary action existed under section 44932, subdivision (a)(3), based upon the threshold finding of dishonesty.   This latter finding is the crux of the case.

Based upon the findings in mitigation, listed under Article III of the commission's decision and incorporated by the trial court in its own statement of decision, the court could just as well have reached an ultimate finding that cause for discipline did not exist.   That finding would have been supported by substantial evidence just as readily as the finding that cause for discipline did exist is supported by substantial evidence.   However, once the court had reached its decision as above described, all that remained was the ministerial act of rendering judgment reflecting that decision.   As section 44944 is now written and in view of the decision that cause for discipline existed under section 44932, subdivision (a)(3), the court had only one disciplinary option, and such option was that respondent teacher should be dismissed.   The statute affords no middle ground where the proceedings were for dismissal.

Recalling Governing Board v. Commission on Professional Competence (Pickering), 72 Cal.App.3d 447, 140 Cal.Rptr. 206, at three levels of determination, an effort was made there to introduce a measure of flexibility into these kinds of proceedings.   The commission, in the first instance, ruled that the power to dismiss included the power to stay such order under conditions commensurate with the degree of misconduct otherwise found to have occurred.   The trial court made the same determination, as did this court upon appeal by the district.   However, the Legislature would have none of it and amended section 44944 to provide specifically that “[t]he commission shall not have the power to dispose of the charge of dismissal by imposing probation or other alternative sanctions.”   The Legislature's reaction to Pickering could not be more pointed.   The clear intent of present section 44944, where discipline must be imposed, is that such discipline can only be dismissal.

Based on the foregoing, in the case here, applying the rule recited in Riggs in the context of section 44944, interpreted in light of a clear legislative intent, once a cause for discipline under section 44932, subdivision (a)(3) had been found by the trial court to exist, the court had no alternative but to determine that respondent teacher should be dismissed.   By determining that respondent teacher should not be dismissed, the trial court reached a judgment which does not conform to its decision, and so that judgment, being erroneous, must be reversed.  (Mather v. Mather, supra, 22 Cal.2d 713, 718, 140 P.2d 808.)


 The above holding that the judgment must be reversed stands notwithstanding the cross-appeal.   Respondent teacher demurred to petitioner district's petition on the ground of a misjoinder of parties (Code Civ.Proc., § 430.10, subd. (d)) because of its failure to join the commission as an indispensable party.  (Code Civ.Proc., § 389.)   The trial court overruled the demurrer at the same time that it ruled on the merits of the petition.   Respondent teacher assigns this ruling as error, contending, because of the misjoinder, that the petition should have been dismissed by the trial court.

Respondent teacher's argument is based upon certain language in section 1094.5 of the Code of Civil Procedure.   That section in its entirety is the statutory provision under which review of administrative orders or decisions is accomplished, i.e., proceedings in administrative mandamus.   Subdivision (f) provides that “The court shall enter judgment either commanding respondent to set aside the order or decision, or denying the writ.”   Thus, respondent teacher argues, without the commission's being a party to the proceeding, there is no way that the court could order relief within the ambit of the statute, should the court choose the former alternative.   Without more, we would have to agree with respondent teacher.   However, there is more.

Proceedings before the Commission on Professional Competence are conducted pursuant to section 44944, already variously discussed.   That section also provides that hearings shall be conducted and a decision reached in such proceedings “in accordance with Chapter 5 (commencing with Section 11500) of Part I of Division 3 of Title 2 of the Government Code.”   These sections of the Government Code deal in extensive detail with the subject of administrative adjudication, and section 11523 of the Government Code relates particularly to the matter of judicial review.   That section at the very outset says, “Judicial review may be had by filing a petition for a writ of mandate in accordance with the provisions of the Code of Civil Procedure, subject however to the statutes relating to the particular agency.”  (Emphasis added.)

In the case here, the emphasized language noted brings us back to section 44944 and the matter of judicial review of the orders or decisions of a particular agency, namely, the Commission on Professional Competence.   In subdivision (e) of section 44944 there is very detailed and elaborate provision made for dealing with when and who shall pay the expense of the hearing before the commission, together with further provisions for reimbursement of such expense, depending on the results reached should there be a later proceeding for review in “a court of competent jurisdiction” as happened here.   At this point, subdivision (e) reads, “In the event that the decision of the commission is finally reversed or vacated by a court of competent jurisdiction ․” (emphasis added) then certain results follow in terms of the reimbursement of the expense of the hearing.

The implication, if not the express meaning, of the statute, is clear.   Upon review in superior court of a section 44944 proceeding, the court has the power directly to reverse or vacate a decision of the commission.   As a consequence, to enable the court to dispose of the petition one way or the other, i.e., to deny the petition for a writ, or to reverse or vacate the commission's decision, it need not have the commission before it as a party.   The court has statutory authority, beyond that defined in section 1094.5(f) of the Code of Civil Procedure, to effect disposition of the administrative mandamus proceeding without the commission's being a party thereto.   (Ed.Code, § 44944, subd. (e).)

Based upon the foregoing, the trial court was correct in overruling teacher respondent's demurrer.   There was no misjoinder of parties;  more particularly, the commission was not an indispensable party per section 389 of the Code of Civil Procedure.


The judgment is reversed with directions to the trial court to amend its judgment to read:

“1. The petition for a Peremptory Writ of Mandate (section 44944 of the Education Code) is granted.

“2. Petitioner is authorized to dismiss from employment respondent Nancy Burman.

“3. Petitioner shall be entitled to reimbursement, as provided by law, of any expenses of the hearing before the Commission on Professional Competence heretofore paid.

“4. Petitioner shall recover its costs as demonstrated by the filing of an appropriate memorandum of costs as provided by law.”

Petitioner district shall recover its costs on appeal.



In the Matter of the Accusation Against:

NANCY BURMAN, Respondent.

No. L–31355


This matter came on regularly for hearing before the Commission on Professional Competence for the Fontana Unified School District, San Bernardino County, California on March 12, 1984 and was heard on March 12, 13, and 14, 1984.   The following members constituted the Commission on Professional Competence:  Michael W. Caston, selected by the employing school district;  Max Diamond, selected by respondent;  and Jerome Schwimmer, Administrative Law Judge of the State Office of Administrative Hearings, chairman.   Complainant was represented by John J. Wagner, Attorney at Law.   Respondent was present at the hearing and was represented by George W. Shaeffer, Jr., Attorney at Law.   Oral and documentary evidence was introduced and the matter was orally argued and submitted for decision.   The matter was considered by the Commission on Professional Competence in executive session on March 14 and 21, 1984.   The Commission on Professional Competence now finds true as follows:


The following allegations of the Accusation herein are found true pursuant to stipulation of the parties:

1. At all material times herein, the Board of Education of the Fontana Unified School District of San Bernardino County was and is the duly elected, qualified and acting Board of Education, organized, existing and operating pursuant to the provisions of the Education Code and other laws of California.

2. Respondent was and is a permanent certificated employee of the District.   She was assigned as principal of the Tokay School.

3. On January 3, 1984, the Board of Education of the Fontana Unified School District of San Bernardino County, by resolution, voted to give notice to respondent that said Board intended to dismiss her as a certificated employee at the expiration of thirty (30) days from the date of said notice unless said respondent should demand a hearing as provided by law.

4. On January 4, 1984, a notice of intention to dismiss was served upon respondent by United States Mail, registered or certified, together with a copy of the charges formulated by said Board and against respondent and a copy of the provisions of Title 2, Division 3, Part 25, Chapter 4, Article 3, of the Education Code of the State of California, commencing at Section 44930.

5. On January 23, 1984, the Board of Education of the Fontana Unified School District of San Bernardino County received a demand for hearing signed by respondent, dated January 23, 1984, notifying the Board of Education and Superintendent of Schools that respondent Nancy Burman demanded a hearing on said charges.


With respect to the facts alleged in the Statement of Charges set forth in the said Board Resolution of January 3, 1984, incorporated by reference in the Accusation, it is found true as follows:

1. From 1969 through the present, respondent Nancy Burman was and is a permanent certificated employee of the Fontana Unified School District of San Bernardino County.   She was assigned as principal of Tokay School in said District from July, 1982, to January 3, 1984.

2. Sometime prior to December 7, 1983, respondent decided to attend the space shuttle landing at Edwards Air Force Base, scheduled for the morning of December 8, 1983, and respondent planned to be absent from school for a portion of the day of December 8, 1983 for that purpose.   Respondent believed that she would not be granted personal necessity leave for that purpose, and she did not apply for such leave.   Respondent arranged for a third party to call her school on December 8, 1983 to report that she was ill and would not be at school.   On December 8, 1983, her school was so notified that she would be absent because of illness.   Respondent was not ill on December 8, 1983, and said notification was false.   Respondent did go to Edwards Air Force Base on December 8, 1983 and did not return to Fontana until approximately 2:30 p.m. on said date.

3. Respondent and the principal of Palmetto School in said District agreed to go to dinner on December 7, 1983.   They discussed inviting the custodian at Palmetto School to join them, and respondent did invite the custodian to accompany them.   He accepted the invitation and the three went to dinner at approximately 6:30 p.m.   The custodian had not completed his shift at Palmetto School, and he did not return to finish his shift that day.   The Palmetto School custodian consumed alcoholic beverages in respondent's presence at the restaurant during his duty hours on that day.   No attempt was made by either principal to preclude consumption of alcohol by the custodian during his duty hours or to have the custodian finish his assigned shift.

4. On December 7, 1983, after having dinner, respondent suggested that the three go to Tokay School to get the custodian there to join them for recreation purposes.   The three went in respondent's automobile to Tokay School, where respondent invited the custodian to join the party.   They remained at Tokay School for a period of time during which the two principals discussed school business and the custodian performed custodial duties.   Between 10:15 p.m. and 10:30 p.m., all four left Tokay School together in respondent's automobile to a night club in Colton, where they remained for several hours and each consumed some alcoholic beverages.   The custodian at Palmetto School was a friend of respondent's, and he left his assigned duty at Palmetto School on December 7, 1983 at the invitation of respondent.

5. After several hours together in Colton, the four decided to take a drive in respondent's new car.   They returned to Fontana, where the Palmetto School principal and custodian moved their cars out of the school parking lot and then went to Tokay school where the custodian removed his truck from a parking lot and parked it near respondent's residence.   All four then went for a ride in respondent's automobile.   Respondent asked if the others wished to go with her to see the space shuttle landing scheduled for the early morning of December 8 at Edwards Air Force Base.   At first, the Palmetto School principal and custodian declined, but all soon agreed to go together, and they left for Edwards Air Force Base in the early morning hours of December 8, 1983.   They arrived at Edwards at approximately 5 a.m.   They finally left Edwards Air Force Base to return to Fontana, after being advised of several delays and without seeing the landing.   They arrived back at respondent's residence in Fontana at approximately 2:30 p.m. on December 8.

6. Respondent knew that the two custodians were scheduled for duty on December 8, 1983, and that they were absent from that duty under false pretenses, and respondent did not report this to the District.

7. On December 8, 1983, respondent was confronted at her residence by the District Superintendent, accompanied by other District personnel, shortly after her return to her residence from Edwards.   When questioned about her absence from school on December 8, 1983, and whether she knew where the principal of Palmetto School was, she replied falsely that she had been ill at home all day and did not know where the other principal was.   She later asserted that she and the other principal and the two custodians had gone to see the space shuttle land but had returned at 6 a.m. and that she was ill.   After ten or fifteen minutes, respondent admitted to the truth concerning her activities on December 7 and 8, 1983, admitted that she was not ill, and admitted that the other principal was then present in respondent's home.   The District Superintendent then asked respondent to submit her resignation as principal and stated that he thought she could then preserve her position as a certificated employee with the District.   Respondent declined to do so.


The following facts were established by way of mitigation:

1. Respondent has been employed as a certificated employee in the District for more than fourteen years.   She served for ten years as a classroom teacher and served approximately one and one half years as a program manager and six months as a reading specialist, and respondent served as a principal from July 1, 1982 to January 3, 1984.

2. Respondent has been involved in no prior disciplinary action, and she has received no prior warnings or counseling with regard to any abuse of sick leave or any questionable conduct involving any custodian.

3. There is no evidence of any prior abuse of sick leave by respondent.

4. Evaluations of respondent as a certificated employee of the District have been satisfactory or better.


The evidence does not establish selective or unequal enforcement of the District's Rules of Conduct.


Based upon the foregoing findings and the totality of the evidence, it is found and determined as follows:

1. Respondent is guilty of dishonesty within the meaning of Education Code Section 44932(a)(3).

2. Respondent is not guilty of immoral conduct, evident unfitness for service or persistent violation of or refusal to obey the reasonable regulations of the Governing Board of the School District employing her, within the meaning of Section 44932(a)(1), (5) or (7).


It is found by the Commission that respondent is not unfit to continue to render services as a certificated employee of the District.   This finding is based upon the whole of the evidence, including particularly the previously unblemished record of respondent and the finding that respondent's conduct in this instance represented isolated conduct on the part of respondent not likely of repetition under any set of circumstances in the future.   Respondent has been removed from her position as principal.   The Commission finds that respondent should not be dismissed as a certificated employee of the District.


Were the charge of unprofessional conduct before us as an issue raised by the pleadings herein, the Commission would find unanimously that respondent was guilty of unprofessional conduct within the meaning of Sections 44932(a)(1) and 44933 of the Education Code.   In such case, the Commission would by its order impose a suspension and would order that respondent pay her own attorney's fees and would order that respondent pay one-half of the expenses of the hearing, including the cost of the Hearing Officer, as provided for in Education Code Section 44944.

Pursuant to the foregoing findings of fact, the Commission makes the following determination of issues:


All procedural requirements have been complied with.


Cause exists for disciplinary action against respondent under Education Code Section 44932(a)(3), based upon the charge of dishonesty.


The charges of immoral conduct, evident unfitness for service and persistent violation of or refusal to obey the reasonable regulations of the Governing Board are found not to be sustained.


Each and all of the special defenses raised by respondent in her notice of defense herein are rejected and overruled.   Specific rulings made thereon during the course of the hearing are confirmed.   The demurrers set forth in items 1 and 2 thereof were and are overruled as lacking in merit.   Items 3 and 4 thereof, raising defenses based upon Skelly v. State Personnel Board, 15 Cal.3d 194, 124 Cal.Rptr. 14, 539 P.2d 774, were and are rejected as raising issues outside the jurisdiction of this Commission.   Item 5 thereof, setting forth the defense of selective and unequal enforcement and disparate treatment and punishment, is determined not to have been established by the evidence.


Based upon the entirety of the evidence and the foregoing conclusions of law, it is determined that the penalty of dismissal should not be imposed.

WHEREFORE, IT IS ORDERED that respondent should not be dismissed.

This Decision shall become effective on March 21, 1984.



  /s/ Max Diamond


  /s/ Jerome Schwimmer



DATED:  March 21, 1984


I dissent.   I would order that respondent be dismissed.

  /s/ Michael Caston


DATED:  March 21, 1984


1.   Unless otherwise indicated, all statutory references in this opinion are to the Education Code.

McDANIEL, Associate Justice.

KAUFMAN, Acting P.J., and TAYLOR, J.*, concur.

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