Wednesday, July 29, 2009

California Case Upholds Tenured Teacher's Due Process Rights To A Hearing After Signing Agreement To Resolve Allegations Of Social & Sexual Advances

Score a legal victory for tenured community college teachers and upholding the due process rights given to teachers in the California Education Code! A recent California Court of Appeal decision Farahani v. San Diego Community College Dist., D054087 (4th Dist., July 28, 2009) is a must read for those interested in education and administrative law.

Here is a nutshell of the holding. (A more detailed analysis of the case is set forth below.) At issue in the case were the due process rights granted to community college faculty members in disciplinary matters. In California, Title 3, Division 7, Part 51, Chapter 3 of the Education Code (Chapter 3) governs the employment rights of community college faculty. These rights include the right to notice, opportunity to object, a hearing before an arbitrator or administrative law judge, and a decision by the governing board. (Educ. Code §§ 87669, 87672-87674, & 87678-87680.)

The Fourth District Court of Appeal ruled that a contract executed between a community college district and a faculty member to resolve a disciplinary dispute which purports to waive the faculty member's statutory due process rights is unenforceable.

The Court of Appeal affirmed the trial court's order granting tenured teacher Sam Farahani's petition for writ of mandate to require the San Diego Community College District ("District") to reinstate Mr. Farahani with full back pay, interest and benefits and requiring the District's governing board to determine whether Mr. Farahani should be terminated. In essence, this gave Mr. Farahani the right to a hearing. Thus, he won this battle but will still need to prevail at hearing in order to retain his tenured position.

The decision can be found at the court's website:

If you are reading this article after the above link has expired, a search can be done on the court's general website:

Facts of Case

The District began to receive complaints from female students and staff in 1994, alleging that Mr. Farahani had made unwanted sexual and social advances. In October 2000, after investigating some of these complaints, the District gave Mr. Farahani a written reprimand advising him that continued misconduct would result in discipline up to and including termination.

On September 20, 2004, the District sent Mr. Farahani written "Notice of Pre-Disciplinary Hearing: Suspension." The notice cited the basis for the recommended one-year suspension without pay as "a continuing pattern of inappropriate behavior toward students and employees over several years." The notice informed Mr. Farahani that he had "the right to respond to the proposed discipline either orally or in writing or both."

As a district faculty member, Mr. Farahani was covered by the collective bargaining agreement between the District's trustees and the American Federation of Teachers Guild, California Federation of Teachers Local 1931 (Union). The collective bargaining agreement provided for a hearing prior to any disciplinary action involving loss of pay.

In November 2004, an attorney for the Union presented Mr. Farahani with a proposed Agreement, and told him that the District would suspend him for a year without pay unless he signed it. Among other things, the proposed Agreement provided that Mr. Farahani: (1) accept a reduction of pay equivalent to one month's salary and (2) for a period of 18 months agree to refrain from conduct that constituted sexual harassment, "including any verbal, physical or visual conduct" on campus, and from "personal contacts and/or communications" with students off campus.

Importantly for this case, the proposed Agreement stated that if Mr. Farahani failed to comply with its provisions, he could be "terminated at the Chancellor's discretion, without the issuance of charges under the Education Code or District policies and without right of appeal . . . ." The proposed Agreement also included the following provision: "Farahani waives any and all appeal rights he may otherwise have to challenge the discipline or otherwise pursue any appeal relating to the pre-disciplinary notice."

When encouraging Mr. Farahani to sign the Agreement, the Union attorney told Mr. Farahani that although the Agreement was probably illegal, it would be best to "[g]ive your 18 months and get it over with." Although Mr. Farahani believed that the charges were baseless, he felt "compelled" to sign the Agreement.

While the Agreement was in effect, the District received new complaints about Mr. Farahani from female employees. The chancellor concluded that Mr. Farahani's conduct towards these women "constituted unwanted social advances which could create an uncomfortable work environment and/or conduct which could be considered sexual harassment." She terminated Mr. Farahani effective June 9, 2006, pursuant to the Agreement. The termination letter stated, "Since you are being terminated from employment because of a violation of the [Agreement], you do not have a right of appeal." (Our emphasis added.)

Mr. Farahani wrote members of the District's governing board, requesting reinstatement and an opportunity to meet. He received no response. Mr. Farahani's attorney wrote Carroll on July 14, 2006, demanding Mr. Farahani's reinstatement plus backpay and benefits. The District's response reiterated that "Mr. Farahani was not entitled to the issuance of formal charges or right to appeal his termination under the provisions of the [Agreement]."

Legal Procedural History

Mr. Farahani filed a petition for writ of mandate on March 7, 2007. The trial court issued a peremptory writ directing the District to: (1) reinstate Farahani with full back pay, interest and benefits and (2) require its governing board to determine whether Farahani should be terminated, "all in compliance with the requirements of the Education Code, including appropriate notice and opportunity to be heard." The District appealed.

Legal Analysis

The first paragraph of Education Code section 87485 provides that, except for agreements pertaining to reductions in force, "any contract or agreement, express or implied, made by any employee to waive the benefits of [the statutory rights set forth in Chapter 3] is null and void." The District contended that section 87485 was inapplicable to the Agreement signed by Farahani, which it described as a waiver in response to discipline.

The appellate court concluded that the District interpreted section 87485 too narrowly. Prior decisions had applied section 87485 to bar waiver of statutory classification and tenure rights. (Stryker v. Antelope Valley Community College Dist. (2002) 100 Cal.App.4th 324; Kalina v. San Mateo Community College Dist. (1982) 132 Cal.App.3d 48; Covino v. Governing Board (1977) 76 Cal.App.3d 314.) Each of the above involved the faculty member's waiver of a statutory right set forth in Chapter 3. Disciplinary due process rights also fall within Chapter 3 and thus also fall within the purview of section 87485. Because teachers are public employees and their tenure rights are elaborately regulated by the Education Code which reflects the public policy of the state, such rights cannot be waived by contract.

Nevertheless, the District argued that Mr. Farahani's petition for writ of mandate should have been denied based on three equitable defenses, each of which the appellate court rejected.

First, the District argued that Mr. Farahani's petition was barred by the doctrine of laches (unreasonable delay by Mr. Farahani and prejudice to the District). The District maintained Mr. Farahani's petition was barred by laches because he filed it nine months after his termination and the District had hired his replacement. The court found no delay, in that Mr. Farahani had advised the District one month after his termination that he was challenging denial of a hearing, and no prejudice because the District hired Mr. Farahani's replacement several months after his writ petition was filed.

Second, the District argued that Mr. Farahani acted with "unclean hands," i.e., in bad faith, by signing the Agreement with no intention of performing (given the Union attorney's counsel that the Agreement was probably illegal). The court found the evidence insufficient to suggest that Mr. Farahani signed the Agreement with the intent of not performing.

Finally, the District argued that Mr. Farahani failed to exhaust his administrative remedies under the collective bargaining agreement before filing his writ petition. The court found no merit in the District's contention, because the District had repudiated the administrative procedures.

Attorney Commentary

There are three issues that jump out at us in this case. First, with the cutbacks in education funding, and recent news coverage regarding problem teachers, we can expect an increase in disciplinary actions and attempts by cash-strapped school districts to cut corners in affording statutory due process rights. Schools will use contracts and other means to get tenured teachers to give up their rights.

Second, as troubling as the District's total disregard of Mr. Farahani's due process rights is the advice given by the Union attorney to sign an agreement believed to be illegal in order to settle a disciplinary dispute. While we often encourage clients to negotiate with public agencies or governing boards to resolve disciplinary disputes, illegalities should never form the basis of a settlement agreement.

Third, the underlying allegations of "unwanted sexual and social advances" are every teacher's worst nightmare. These allegations -- even if false and not proven -- can ruin a teacher's career. Even exonerated teachers can lose their careers. It does not help that some students might see a sexual harassment allegation as a lottery ticket and will be represented by contingency counsel that can get a significant settlement from a District.

Teachers, especially high school and college teachers, need to be careful of social situations in which the word of one student can be used to immediately suspend a teacher. Any teacher -- especially male -- should have their own boundaries and social rules to avoid these issues.

If there is any allegation (no matter how small it may seem at the time), the teacher should definitely seek legal advice before giving any statements. Anything you say can be used as evidence and your statements may not be properly recorded or reported. Investigations need to be handled properly at the beginning stage. Do not make the unsophisticated mistake of thinking that "you will look guilty" if you seek representation or have an attorney present during an interview.

In order to avoid problems, here are some common boundary rules to be followed:

--not being alone with a student except for professional reasons (but always with a door open);

--not making any comments regarding appearance;

--not giving out personal email addresses and cell phone numbers (except for professional emergencies);

--not driving alone with a student or having a student stay alone overnight in your home;

--not forming personal attachments that cloud your judgment;

--documenting and discouraging any advances by students;

--involving appropriate third parties if issues with a student arise; and

--using common sense and seeking the advice of trusted peers or professionals if you have any doubt as to how this could look to a third party.

Any questions or comments should be directed to: Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing individuals and companies in administrative and disciplinary proceedings and have represented teachers in those proceedings. They also have a personal interest in representing teachers since

Ms. Green was formerly on the Executive Committee of the PTA for her son's public school. The firm's website is:


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