McMahon v. Bd. of Trustees

Filed 7/3/02
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BRIAN J. M C MAHON,
Plaintiff and Appellant,
v.
BOARD OF TRUSTEES OF THE
EL CAMINO COMMUNITY COLLEGE
DISTRICT,
Defendant and Respondent.
B150910
(Los Angeles County
Super. Ct. No. BS047821 )
APPEAL from a judgment of the Superior Court of Los Angeles County. Dzintra
Janavs, Judge. Reversed with directions.
Brian J. McMahon, in pro. per., for Plaintiff and Appellant.
Liebert Cassidy Whitmore and Mary L. Dowell for Defendant and Respondent.
_________________________

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Brian J. McMahon (appellant) appeals the trial court’s denial of his writ of
mandate challenging the decision of the Board of Trustees of the El Camino Community
College District (the District) to dismiss him from his tenured faculty position due to
evident unfitness for service. Appellant contends that he was denied due process
pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215 (Skelly). Appellant is
correct. On that basis, we reverse. The trial court shall issue a peremptory writ of
mandate directing the District to set aside its decision to dismiss appellant.
PROCEDURAL AND FACTUAL HISTORY
On November 18, 1996, the District’s president recommended that its board of
trustees dismiss appellant due to “dishonesty, evident unfitness for service, and persistent
violation of District regulations.”1
The District served appellant with a letter that stated: “You are notified that you
are dismissed from employment with the El Camino Community College District
effective ninety days from November 18, 1996. Unless a written request for a hearing
signed by you or on your behalf is delivered or mailed to the El Camino Community
College District within thirty (30) days of the date of the Statement of Decision was
personally served on you, the El Camino Community College District will make your
dismissal effective without a hearing. The request for a hearing may be made by
delivering or mailing the enclosed form entitled Notice of Objection to Decision, or by
delivering or mailing a notice of defense as provided by Section 11506 of the
Government Code to President Thomas J. Fallo, El Camino Community College
District[.]” The District also served appellant with a statement of decision to dismiss and
1 Education Code section 44932, subdivision (a) provides: “No permanent
employee shall be dismissed except for one or more of the following causes: [¶] . . . [¶]
(3) Dishonesty. [¶] (4) . . . [¶] (5) Evident unfitness for service. [¶] . . . [¶]
(7) Persistent violation of or refusal to obey the school laws of the state or reasonable
regulations prescribed for the government of the public schools by the State Board of
Education or by the governing board of the school district employing him.”

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a statement of charges, copies of various sections of the Education Code, and a blank
notice of objection to the statement of dismissal. The president’s statement of charges
contained 24 separate charges of misconduct.
Appellant served the notice of objection to decision on December 13, 1996,
thereby requesting a hearing. His termination took effect on February 16, 1997. The
administrative hearing was held May of 1997, and the administrative law judge issued his
decision upholding the dismissal on October 1, 1997.
Appellant filed a writ of mandate, challenging his termination on various grounds,
including that he was denied due process rights under Skelly. The District conceded in its
opposition brief before the trial court that appellant’s termination was effective on
February 16, 1997. Following a hearing on the matter, the trial court entered judgment in
favor of the District.
This timely appeal followed.
STANDARD OF REVIEW
Normally we would review a trial court’s denial of a writ of mandate following
administrative proceedings under the substantial evidence rule. (West Valley-Mission
Community College Dist. v. Concepcion (1993) 16 Cal.App.4th 1766, 1775.) However,
when an appellant’s “contention regarding procedural matters presents a pure question of
law involving the application of the due process clause, we review the trial court’s
decision de novo.’ [Citation.]” (Bostean v. Los Angeles Unified School Dist. (1998)
63 Cal.App.4th 95, 107.)
DISCUSSION
The due process clauses of the federal and state Constitutions provide that a
person may not be deprived of life, liberty, or property without due process of law. (Cal.
Const., art. I, § 7, subd. (a); U.S. Const., 14th Amend., § 1.) Appellant’s claim rests on
the contention that he has a property interest in his faculty position and that the District
terminated him without due process. We agree.

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In Gilbert v. Homar (1997) 520 U.S. 924 (Gilbert), the Supreme Court noted that
“public employees who can be discharged only for cause have a constitutionally
protected property interest in their tenure and cannot be fired without due process[.]
[Citation.]” (Id. at pp. 928-929.) Education Code section 877322 provides that a regular
employee shall not be dismissed except for specified causes. There is no dispute that
appellant is a regular employee and that he accordingly has a property interest in his
tenure entitling him to due process before termination.
The pivotal question presented by this appeal is whether the process appellant
received was sufficient.
We begin with Skelly, in which our Supreme Court stated: “It is clear that due
process does not require the state to provide the employee with a full trial-type
evidentiary hearing prior to the initial taking of punitive action. However, at least six
justices on the high court agree that due process does mandate that the employee be
accorded certain procedural rights before the discipline becomes effective. As a
minimum, these preremoval safeguards must include notice of the proposed action, the
reasons therefor, a copy of the charges and materials upon which the action is based, and
the right to respond, either orally or in writing, to the authority initially imposing
discipline.” (Skelly, supra, 15 Cal.3d at p. 215.)
On the issue of pretermination hearings, the United States Supreme Court, in
Cleveland Bd. of Education v. Loudermill (1985) 470 U.S. 532, 542 (Loudermill), stated:
“We have described ‘the root requirement’ of the Due Process Clause as being ‘that an
individual be given an opportunity for a hearing before he is deprived of any significant
property interest.’ [Citations.] This principle requires ‘some kind of a hearing’ prior to
the discharge of an employee who has a constitutionally protected property interest in his
employment.”
2 All further statutory references are to the Education Code unless otherwise
indicated.

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In 1997 the United States Supreme Court indicated that an employee is not always
entitled to a hearing prior to being deprived of property. In Gilbert, the plaintiff was
employed as a police officer at a state university. While at the home of a friend, he was
arrested by state police during a drug raid. Later that day, the plaintiff was charged with
various drug offenses. Upon learning of the arrest, the university administration
immediately suspended the plaintiff without pay. A month later, the university demoted
the plaintiff to the position of groundskeeper. After the criminal charges were dropped,
the university voluntarily gave the plaintiff back pay. The plaintiff then brought suit,
alleging that the university had violated his right to due process by suspending him
without a hearing. In deciding against the plaintiff, the Supreme Court stated: “‘[W]e
have rejected the proposition that [due process] always requires the State to provide a
hearing prior to the initial deprivation of property.’ . . . [¶] . . . To determine what
process is constitutionally due, we have generally balanced three distinct factors: [¶]
‘First, the private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally, the
Government’s interest.’” (Gilbert, supra, 520 U.S. at p. 931.) After applying the three
factors, the Gilbert court concluded that the plaintiff was not entitled to a predeprivation
hearing and had not been denied due process.
Applying the three factors in Gilbert, we conclude that appellant was entitled to at
least an informal pretermination hearing.
The first factor favors appellant. Gilbert noted that “‘in determining what process
is due, account must be taken of ‘the length’ and ‘finality of the deprivation.’” (Gilbert,
supra, 520 U.S. at p. 931.) Unlike the plaintiff in Gilbert, who was merely demoted,
appellant lost his job and his source of income. Also, our Supreme Court in Coleman v.
Department of Personnel Administration (1991) 52 Cal.3d 1102 (Coleman) explained:
“When loss of the vested right to continued state employment results from a disciplinary
dismissal, the attendant stigma of the discharge may threaten the affected employee’s

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future livelihood. For instance, a disciplinary discharge resulting from dishonesty or
insubordination tarnishes the employee’s good name and may therefore hamper the
ability to obtain future employment. [Citation.]” (Id. at p. 1120.) As Loudermill stated:
“[T]he significance of the private interest in retaining employment cannot be gainsaid.
We have frequently recognized the severity of depriving a person of the means of
livelihood. [Citations.] While a fired worker may find employment elsewhere, doing so
will take some time and is likely to be burdened by the questionable circumstances under
which he left his previous job. [Citation.]” (Loudermill, supra, 470 U.S. at p. 544.)
Appellant’s termination and the attendant stigma are so significant that they called for a
pretermination hearing.
Regarding the second factor in our analysis, Loudermill is instructive. “[S]ome
opportunity for the employee to present his side of the case is recurringly of obvious
value in reaching an accurate decision. Dismissals for cause will often involve factual
disputes. [Citation.] Even where the facts are clear, the appropriateness or necessity of
the discharge may not be; in such cases, the only meaningful opportunity to invoke the
discretion of the decision maker is likely to be before the termination takes effect.
[Citations.]” (Loudermill, supra, 470 U.S. at p. 544.)
As indicated by Loudermill, disciplinary charges often involve factual disputes.
Appellant did in fact have an opportunity to state his position in writing3 before he was
3 As we have already indicated, the District informed appellant that he could
respond to the notice of intent to dismiss in the manner provided by Government Code
section 11506. Subdivision (a) of that statute provides: “. . . the respondent may file
with the agency a notice of defense in which the respondent may: [¶] (1) Request a
hearing. [¶] (2) Object to the accusation upon the ground that it does not state acts or
omissions upon which the agency may proceed. [¶] (3) Object to the form of the
accusation on the ground that it is so indefinite or uncertain that the respondent cannot
identify the transaction or prepare a defense. [¶] (4) Admit the accusation in whole or in
part. [¶] (5) Present new matter by way of defense. [¶] (6) Object to the accusation
upon the ground that, under the circumstances, compliance with the requirements of a
regulation would result in a material violation of another regulation enacted by another
department affecting substantive rights.”

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terminated, but there is no evidence that if he had submitted a statement that it would
have been reviewed prior to his termination.4 Also, although appellant was given the
option of presenting new matter or filing a simple form objection, he was never warned
that by filing the form objection that he would be giving up an important pretermination
right to defend himself. Accordingly, we conclude that appellant did not have a
meaningful opportunity to defend himself before his termination was effective. In other
words, the procedure in place created a risk that the District might erroneously deprive
appellant of his property interest.
Gilbert decided the second factor against the plaintiff only because of the felony
arrest. “We noted in Loudermill that the purpose of a pre-termination hearing is to
determine ‘whether there are reasonable grounds to believe the charges against the
employee are true and support the proposed action.’ . . . By parity of reasoning, the
purpose of any pre-suspension hearing would be to assure that there are reasonable
grounds to support the suspension without pay. . . . But here that has already been
assured by the arrest and the filing of charges.” (Gilbert, supra, 520 U.S. at p. 932.)
Significantly, the District did not have the same type of reliable external indicia (the
arrest) of the truth of the charges.
4 We note that section 87671 provides that a contract or regular employee may be
dismissed if the employee has been evaluated. Absent from section 87671 is any
requirement that a community college review (formally or informally) an employee’s
substantive defense prior to termination. That section provides: “A contract or regular
employee may be dismissed or penalized if one or more of the grounds set forth in
Section 87732 are present and the following are satisfied: [¶] (a) The employee has been
evaluated in accordance with standards and procedures established in accordance with the
provisions of this article. [¶] (b) The district governing board has received all statements
of evaluation which considered the events for which dismissal or penalties may be
imposed. [¶] (c) The district governing board has received recommendations of the
superintendent of the district and, if the employee is working for a community college,
the recommendations of the president of that community college. [¶] (d) The district
governing board has considered the statements of evaluation and the recommendations in
a lawful meeting of the board.”

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Loudermill is also instructive regarding the third factor. The Loudermill court
concluded: “The governmental interest in immediate termination does not outweigh [the
first two factors.] As we shall explain, affording the employee an opportunity to respond
prior to termination would impose neither a significant administrative burden nor
intolerable delays. Furthermore, the employer shares the employee’s interest in avoiding
disruption and erroneous decisions; and until the matter is settled, the employer would
continue to receive the benefit of the employee’s labors. It is preferable to keep a
qualified employee on than to train a new one. A governmental employer also has an
interest in keeping citizens usefully employed rather than taking the possibly erroneous
and counterproductive step of forcing its employees onto the welfare rolls. Finally, in
those situations where the employer perceives a significant hazard in keeping the
employee on the job, it can avoid the problem by suspending with pay.” (Loudermill,
supra, 470 U.S. at pp. 542-544.)
Appellant was entitled to receive a pretermination hearing and did not receive one.
Therefore, the judgment must be reversed. But even if appellant were not entitled to a
pretermination hearing, we would still reverse. We would be compelled to conclude that
the posttermination hearing and disposition were not sufficiently prompt in this factual
context to satisfy due process.
Barry v. Barchi (1978) 443 U.S. 55 (Barry) is illustrative. In Barry, New York’s
racing and wagering board suspended the license of a harness race horse trainer without a
presuspension hearing. The applicable statute did not specify a time for a post-
suspension hearing, and it gave the racing and wagering board 30 days after conclusion
of any such hearing to issue a ruling.
Although Barry concluded that the challenged presuspension procedures were
satisfactory, that still left “unresolved how and when the adequacy of the grounds for
suspension is ultimately to be determined. As the District Court found, the consequences
to a trainer of even a temporary suspension can be severe; and we have held that the
opportunity to be heard must be ‘at a meaningful time and in a meaningful manner.’

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[Citation.] Here, the provision for an administrative hearing, neither on its face nor as
applied in this case, assured a prompt proceeding and prompt disposition of the
outstanding issues between Barchi and the State. Indeed, insofar as the statutory
requirements are concerned, it is as likely as not that Barchi and others subject to
relatively brief suspensions would have no opportunity to put the State to its proof until
they have suffered the full penalty imposed. Yet, it is possible that Barchi’s horse may
not have been drugged and Barchi may not have been at fault at all. Once suspension has
been imposed, the trainer’s interest in a speedy resolution of the controversy becomes
paramount, it seems to us. We also discern little or no state interest, and the State has
suggested none, in an appreciable delay in going forward with a full hearing. On the
contrary, it would seem as much in the State’s interest as Barchi’s to have an early and
reliable determination with respect to the integrity of those participating in state-
supervised horse racing. In these circumstances, it was necessary that Barchi be assured
a prompt postsuspension hearing, one that would proceed and be concluded without
appreciable delay. Because the statute as applied in this case was deficient in this
respect, Barchi’s suspension was constitutionally infirm under the Due Process Clause of
the Fourteenth Amendment.” (Barry, supra, 443 U.S. at p. 66.)
Furthermore, even though Gilbert sanctioned a demotion without a prior hearing,
it stated: “Whether respondent was provided an adequately prompt post-suspension
hearing in the present case is a separate question. Although the charges against
respondent were dropped on September 1 (petitioners apparently learned of this on
September 2), he did not receive any sort of hearing until September 18. Once the
charges were dropped, the risk of erroneous deprivation increased substantially, and, as
petitioners conceded at oral argument, there was likely value in holding a prompt hearing
. . . . Compare [FDIC v. Mallen (1988) 486 U.S. 230,] 243 (holding that 90 days before
the agency hears and decides the propriety of a suspension does not exceed the
permissible limits where coupled with factors that minimize the risk of an erroneous
deprivation). Because neither the Court of Appeals nor the District Court addressed

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whether, under the particular facts of this case, petitioners violated due process by failing
to provide a sufficiently prompt postsuspension hearing, we will not consider this issue in
the first instance, but remand for consideration by the Court of Appeals.” (Gilbert,
supra, 520 U.S. at pp. 935-936.)
In this case, unlike in Gilbert and Barry, a pretermination hearing was required.
That appellant did not receive a pretermination hearing is all the more reason why the
posttermination proceedings should have been prompt. However, appellant had to wait
over two months for his hearing and over seven months for the disposition. Under the
circumstances, neither was prompt.
The District complains that the record is silent as to whether appellant sought to
address the board on November 18, 1996, or whether appellant obtained an unidentified
Skelly hearing prior to his administrative hearing. But these are nonissues. Even if
appellant had attended the November 18, 1996, board meeting, Skelly would not be
satisfied because that meeting occurred before appellant was given a copy of charges and
notified that he had an opportunity to respond. If there was some other hearing that
would satisfy Skelly, then it was incumbent upon the District to provide evidence of that
below, and then refer to it on appeal. (See People v. Sakelaris (1957) 151 Cal.App.2d
758-759 [“On appeal, it is established . . . that no facts outside the record . . . can be
considered”).]
Additionally, the District argues in a footnote that the due process issue is not
properly presented on appeal because appellant did not argue it to the administrative law
judge. The District relies on Woodland Joint Unified School Dist. v. Commission on
Professional Competence (1992) 2 Cal.App.4th 1429 (Woodland Joint USD). But the
District’s reliance is misplaced. In that case, the appellant claimed that his due process
rights were violated when material in private files was admitted before the commission.
The appellate court concluded that the appellant “waived this contention by failing to
object to the material on this ground either before the Commission or in the trial court.”
(Id. at p. 1449.) Woodland Joint USD involved waiver of an evidentiary objection; it

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does not hold that a terminated employee waives a Skelly objection by failing to assert it
in a postdeprivation administrative hearing.
Regardless, even if there were law establishing that appellant should have raised
his Skelly argument before the administrative law judge, we would not be foreclosed
from considering it. First, appellant raised the issue in superior court and the District did
not object. Second, an appellate court has the discretion to review an issue raised for the
first time on appeal if it is a question of law on undisputed facts. (See Ward v. Taggart
(1959) 51 Cal.2d 736, 742.) Because the facts are undisputed, and because a
constitutional issue is presented, we would decide the issue even if appellant did not raise
it at his administrative hearing.
Having concluded that the District violated appellant’s right to due process, we
need not reach appellant’s other contentions.
DISPOSITION
The judgment is reversed. The trial court shall issue a peremptory writ of mandate
directing the District to set aside its decision to dismiss appellant. Appellant shall
recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________, J.
ASHMANN-GERST
We concur:
_______________________________, P. J.
BOREN
_______________________________, J.
NOTT

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