How Perjury Usurped Due Process in California Education- A Technical Brief

Berkeley Schools Labor Caucus.pngHow Perjury Usurped Due Process in California Education- A Technical Brief;By Berkeley Schools Labor Caucus

P.O. Box 2461

San Leandro, CA 94577

berkeleylaborcaucus@gmail.com

August 2018

Many educators have inquired why the teaching profession in California is in such dire straights. Much publicized has been the stories of the statewide teacher shortage, forced retirements, and a lack of new teachers coming into credentialing programs. The teaching profession, which in the past has been the most respected and important profession has been diminished in many ways to constant abuse, bullying and outright crimes perpetrated by the administrators, private law firms and by extension local school boards. To explain the current we must look to the past and examine the education code last updated in 1976.

In 1976 State Senator John Stull wrote many of the principles highlighted in the evaluation process, student conduct and most importantly teacher discipline and removal. The requisite statutes can be found in California Education Codes 44660-44664, 44932, 44938, 44939 and 44934 all inclusive. While the codes and statutes were well intentioned for the times, in the post modern era the omissions of these statutes have unwittingly opened the door for the attack on teachers and pubic education employees at large.

A cursory analysis of the performance evaluation code (44664b) punctuates the point: The Evaluation (b) The evaluation shall include recommendations, if necessary, as to areas of improvement in the performance of the employee. If an employee is not performing his or her duties in a satisfactory manner according to the standards prescribed by the governing board, the employing authority shall notify the employee in writing of that fact and describe the unsatisfactory performance. The employing authority shall thereafter confer with the employee making specific recommendations as to areas of improvement in the employee's performance and endeavor to assist the employee in his or her performance. If any permanent certificated employee has received an unsatisfactory evaluation, the employing authority shall annually evaluate the employee until the employee achieves a positive evaluation or is separated from the district.

While at first glance the statute seems neutral what is missing is the binding authority of statute. The phrase "the evaluation shall be signed under penalty of perjury" is missing. Therefore the "description" of the unsatisfactory performance, "areas of improvement" can easily and often are based on fiction and not on the actuality events that occurred in the classroom observation. Testimonies of teachers ..."my administrator said I didn't have a warm up on the board, he said I didn't have a goal and objective, he said I didn't check for understanding, he said I didn't have an exit ticket..none of this was true."

California Education Code 44938: The NUC/NUP also called the 45/90

The statute states: 44938.

(a) The governing board of any school district shall not act upon any charges of unprofessional conduct unless at least 45 calendar days prior to the date of the filing, the board or its authorized representative has given the employee against whom the charge is filed, written notice of the unprofessional conduct, specifying the nature thereof with such specific instances of behavior and with such particularity as to furnish the employee an opportunity to correct his or her faults and overcome the grounds for the charge. The written notice shall include the evaluation made pursuant to Article 11 (commencing with Section 44660) of Chapter 3, if applicable to the employee.

As the statute is designed the NUC/NUP is derived from the evaluation. Like the evaluation again there is no stipulation in the language that the "specific instances of behavior" need be truthful. Nor is there any criteria established in the statute to justify the disciplinary document. As the appellate court complained in Perez vs Commission on Professional Competence;1983;[149 Cal. App. 3d 1170]

"We conclude unsatisfactory teacher performance said to be unprofessional conduct should be measured by the standard of fitness to teach. Absent this objective measure of performance, the livelihood of the teacher is dependent upon an abstract characterization of conduct which will shift and change from board to board, district by district and year by year. Such discretion is required to be bridled by the restraints of the standard of fitness to teach."

Going beyond the analysis of the appellate court the standard of the fitness to teach should be anchored and based on the truthfulness, accuracy, and integrity of the events surrounding the education process and the employee in question. A recent anonymous teacher opined, "I just received a warning letter from my administrator. He said that I was recording the P.E. teacher on my Iphone. Not only was this not true, I was not even on the playground when this happened."

The Notice of Unprofessional Conduct (44938) also is not signed under penalty of perjury which gives the administrator license to arbitrarily threaten the livelihood of a teacher.

California Education Code 44939 (b) and (c); Egregious Misconduct-Immediate Suspension and Removal

The statute states:

(b) Upon the filing of written charges, duly signed and verified by the person filing them with the governing board of a school district, or upon a written statement of charges formulated by the governing board of a school district, charging a permanent employee of the school district with immoral conduct, conviction of a felony or of any crime involving moral turpitude, with incompetency due to mental disability, with willful refusal to perform regular assignments without reasonable cause, as prescribed by reasonable rules and regulations of the employing school district, or with violation of Section 51530 , the governing board of the school district may, if it deems that action necessary, immediately suspend the employee from his or her duties and give notice to him or her of his or her suspension, and that 30 days after service of the notice of dismissal, he or she will be dismissed, unless he or she demands a hearing.

(c)(1) An employee who has been placed on suspension pursuant to this section may serve and file with the Office of Administrative Hearings a motion for immediate reversal of suspension.  Review of a motion filed pursuant to this section shall be limited to a determination as to whether the facts as alleged in the statement of charges, if true, are sufficient to constitute a basis for immediate suspension under this section.  The motion shall include a memorandum of points and authorities setting forth law and argument supporting the employee's contention that the statement of charges does not set forth a sufficient basis for immediate suspension.

Analysis. In this statute the statement of charges can be signed by an administrator or by the governing board of the school district. Consistent with the previous mentioned statutes the charges are not signed "under penalty of perjury" and therefore the charges have no standard of being factual or accurate. In addition, the motion to oppose the charges is not allowed to contest the truthfulness or accuracy of the charges, but simply allows the employee to "beg" not to be dismissed. In effect, in all above mentioned statutes the employee is guilty until proven innocent rather than innocent until proven guilty. This is the reverse of due process guaranteed by the California Constitution.

An anonymous teacher in Los Angeles reports: "A student who had been suspended and reprimanded several times accused me of slamming him up against a locker after I removed him from class. Over 25 students were in the class at the time. Miraculously somehow only 7 reported that this had actually happened. I have been in teacher jail for almost 2 years. The preponderance of evidence standard is over 51%. This is not fair...3 witness statements totally contradicted the accusations."

Remedies: Reporting by School Employees of Improper Governmental Activities Act

In any other venue besides education these situations would be prosecuted as crimes. On the level of Superintendent or Assistant Superintendent these crimes could be enforced under the "Abuse of Office Clause" residing in California Code 53243. Contrary to popular belief employees do have recourse in these situations where their livelihood is threatened under false pretenses. Beginning with California Education Codes 44110-44114 employees may file a compliant with law enforcement in the following situations:

For the purposes of this article, the following terms have the following meanings: California Ed Code 44112:

(a) "Employee" means a public school employee as defined in subdivision (j) of Section 3540.1 of the Government Code.

(b) "Illegal order" means any directive to violate or assist in violating a federal, state, or local law, rule, or regulation or an order to work or cause others to work in conditions outside of their line of duty that would unreasonably threaten the health or safety of employees or the public.

(c) "Improper governmental activity" means an activity by a public school agency or by an employee that is undertaken in the performance of the employee's official duties, whether or not that activity is within the scope of his or her employment, and that meets either of the following descriptions:

(1) The activity violates a state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty.

(2) The activity is economically wasteful or involves gross misconduct, incompetency, or inefficiency.

(d) "Person" means any individual, corporation, trust, association, any state or local government, or any agency or instrumentality of any of the foregoing.

(e) "Protected disclosure" means a good faith communication that discloses or demonstrates an intention to disclose information that may evidence either of the following:

(1) An improper governmental activity.

(2) Any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.

(f) "Public school employer" has the same meaning as in subdivision (k) of Section 3540.1 of the Government Code.

*(Note California Ed Code 44110-44114 must be enforced by law enforcement )*

After much legal research done by a statewide team we can find only 1 case where "perjury" was enforced and invoked in an educational setting. The case in question (People vs Clark;72 Cal.App.3d82) dealt with a College Professor who filed a falsified grievance. Over 40 years ago the legislature omitted this issue from the ed code, but the issue still resides in other statutes in California state law.

Remedies in Penal Codes 132, 134 and 135

Penal Code 132: Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or ante-dated, is guilty of felony.

Penal Code 134: Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.

Penal Code 135: A person who, knowing that any book, paper, record, instrument in writing, digital image, video recording owned by another, or other matter or thing, is about to be produced in evidence upon a trial, inquiry, or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor.

Penal Codes enforced in an Educational Setting: People vs Clark; [72 Cal. App. 3d 82]

"1b] In the instant case the language of Penal Code section 134 clearly covers administrative proceedings instituted pursuant to section 24315 of the Education Code. Section 134 of the Penal Code applies to matters intended to be produced at "any trial, proceeding, or inquiry whatever, authorized by law." The Legislature in addition to providing that this section apply to full-scale trials, provides a penalty for falsely produced material at other proceedings or inquiries "authorized by law," which plainly need not be full-scale trials. (United States v. Bekins, 304 [72 Cal. App. 3d 84] U.S. 27, 47 [82 L. Ed. 1137, 1141, 58 S. Ct. 811]. fn. 3) The instant grievance board hearing is both a proceeding authorized by law, Education Code section 24315, and an inquiry pursuant to that code section."

To continue,... "[3] This statute must also be construed to effectuate the purpose of the law. (Moyer, supra, 10 Cal. 3d 222; Select Base Materials v. Board of Equal., 51 Cal. 2d 640, 645 [335 P.2d 672].) Interpretation of the Penal Code section shows that its objective is to prevent the fraudulent introduction of material in a proceeding under the authority of law. To apply the Penal Code section to inquiry proceedings is necessitated by the purpose of discouraging introduction of this material."

In addition:

"[1c] Respondent states that Penal Code section 134 has only been used in proceedings before a fully convened court of law. (People v. McKenna, 11 Cal. 2d 327 [79 P.2d 1065]; People v. Housman, 44 Cal. App. 2d 619 [112 P.2d 944]; People v. Horowitz, 70 Cal. App. 2d 675 [161 P.2d 833]; People v. Geibel, 93 Cal. App. 2d 147 [208 P.2d 743].) However, respondent has not cited any authority proscribing application of section 134 to other proceedings. The fact that section 134 has not been invoked outside the courtroom is not authority against permitting such use. [72 Cal. App. 3d 85]"

There is no ambiguity that a performance evaluation or notice of discipline is in fact a proceeding, inquiry or whatever authorized by law. The evaluation and notice of discipline is a document with legal and professional consequences, therefore the document not being signed under penalty of perjury taints the entire process of the public education system.

The Failure of Collective Bargaining Contracts:

For whatever reason, the unions have failed to address this glaring issue when it comes to defending the rights of public education employees. As a consequence, veteran teachers have been driven out of the profession. Counterposed to that young adults no longer want to come into a profession where they can be arbitrary abused and summarily dismissed. The unions have also failed to address the rights of "temporary" and "probationary" teachers who can be dismissed even with a stellar evaluation. However as noted before "tenure" ultimately gives no protections for teachers for reason I have outlined above. The Berkeley Schools Labor caucus has amassed data for thousands of teachers throughout the State of California. The data shows a disproportionate number of veteran teachers targeted for credential removal, teacher jail, administrative leave, Notices of Unprofessional Conduct, PAR, subpar evaluations and forced retirement. The data we have quantified shows the acute attack on teachers over 46 years of age, African American, highly educated and seniority on the salary schedule. Janus v AFSCME and agency shop dues are the least of the unions worry. A larger factor and point is their failure to advocate for a tangible deterrent for administrative and school board abuse.

Mandatory vs Directory Language:

Often times the employer will argue directory language (or discretionary language) as a rationale to discipline an employee. However mandatory language such as "shall" protects not only the employee but the governing board from discretionary administrative abuse. A simple modification of California Ed Codes 44664, 44938, and 44939 will focus the discussion to objective facts and truths and away from what Berkeley Unified School District Superintendent Donald Evans calls "micro-politics". A careful read of Evans thesis shows a complete deviation from the rule of law and a total embrace of politicizing events and outcomes in public education.(http://digitalassets.lib.berkeley.edu/etd/ucb/text/Evans_berkeley_0028E_10299.pdf) Public education is not a cesspool of power struggles going on at any given moment. At its best public education is the incubation of creativity and ideas and the development of young minds. Therefore, for this reason Evans thesis must be rejected outright.

To quote Evans thesis:

"Five out of six principals found the evaluation process very political. Disagreements over observations often involved other teachers, parents and the district."(@p27&28)

The appellate court in Perez v Commission on Professional Competence found this outcome in the evaluation process displeasurable.

The School Board:

School Boards have an inherent conflict of interest when it comes to voting to retain or dismiss an employee. Over 99% of the time the employee is told not to demand their rights to an open hearing to clear their names. The rebuttal to the statement of charges is never read, and the accuracy and veracity of the charges are not considered. The edict of the Superintendent is considered sacrosanct. In many districts the Superintendent is paid $250,000.00 per year to "manage" the district with no oversight. The boards have totally surrendered their fiduciary duty to serve the public and provide oversight. School Boards are reticent to hold the Superintendent accountable because by nature the job of the Superintendent is to provide "political cover" for the board. The board doesn't want to be seen as losing confidence in the Superintendent because the "appearance" of operations appearing above board is what will allow them to become a multi term incumbent. The lawyers have a financial interest in not only creating conflict but also advising the board how to violate the rights of the employee in question. Often times it is the lawyers themselves who are authoring the fraudulent statement of charges! The charges are then signed by a lower level administrator who will garner no consequence after the crime is committed. The final vote of the board is done in the star chamber of closed session as a throw back to the privy council for the Queen of England.

(http://www.bbc.com/news/uk-politics-34458190)

As a result the teacher or employee gets fired under false pretenses rubber stamped by the unwitting school board. It can't be understated how many thousands of public school employees have lost their jobs, homes, marriages, careers and health in the current system.

"...its a system of trust and it works." (Quote from anonymous school board member). The fact of the matter is the system is enmeshed with criminal racketeering and it should be defined as just that. A teacher or employees job and career is at the mercy of arbitrary discipline the current state of affairs can not stand.

Fatal Jurist Error in DeYoung v Commission on Professional Competence; An analysis of California Ed Code 44934 on Dismissals:

The appellate court construing on Due Process has upheld perjury in direct contravention the spirit of constitutional due process. We cite the plain language of California Ed Code 44934 "(a) This section shall apply to dismissal or suspension proceedings based on charges as specified in Section 44932 or 44933, including proceedings based on charges of egregious misconduct in combination with other charges. Section 44934.1 shall apply to dismissal or suspension proceedings based solely on charges of egregious misconduct described in paragraph (1) of subdivision (a) of Section 44932.

(b) Upon the filing of written charges, duly signed and verified by the person filing them, with the governing board of the school district, or upon a written statement of charges formulated by the governing board of the school district, charging that there exists cause, as specified in Section 44932 or 44933, for the dismissal or suspension of a permanent employee of the school district, the governing board of the school district may, upon majority vote, except as provided in this article if it deems the action necessary, give notice to the permanent employee of its intention to dismiss or suspend him or her at the expiration of 30 days from the date of service of the notice, unless the employee demands a hearing as provided in this article. Suspension proceedings may be initiated pursuant to this section only if the governing board of the school district has not adopted a collective bargaining agreement pursuant to subdivision (b) of Section 3543.2 of the Government Code."

The statute denotes a mandatory and non directory meaning to the statute as derived from California Ed Code 75: "Shall" is mandatory and "may" is permissive. Previous higher court authority has ruled "Shall" is construed as mandatory where failure to follow the statutory command has a result of substantial consequence. (Thomas v. Driscoll, supra, 42 Cal. App. 2d 23, 25-26; County of San Diego v. Milotz, 119 Cal. App. 2d Supp. 871, 881 [260 P.2d 282]; Ward v. Fremont Unified Sch. Dist., 276 Cal. App. 2d 313, 322 [80 Cal. Rptr. 815]; Karbach v. Board of Education, 39 Cal. App. 3d 355 [114 Cal. Rptr. 84].)

The definition of "shall" as mandatory in the pertinent provision of the Education Code itself requires that absent some indication that the statutory definition was not intended, it must be applied. (Great Western Sav. & Loan Assn. v. City of Los Angeles, 31 Cal. App. 3d 403, 409 [107 Cal. Rptr. 359].)

In the case of DeYoung the appellant argued "...DeYoung moved to dismiss the administrative proceeding, citing the governing board's violation of section 44934 when it failed to consider or formulate written charges before initiating his dismissal.   At the start of the four-day evidentiary hearing, the Commission's chairperson asked DeYoung's counsel if he had "any case law to support any situation where there's ever been a decision to dismiss the case because of this type of oversight?"  He responded:  "There's no precedent on 44934 that I'm aware of."

"....He claimed the Commission lacked jurisdiction over the proceeding because the District's governing board "was not acting on written charges presented to it when it authorized the District to terminate [his] employment," as required by section 44934.   He did not contest the merits of the Commission's decision.   The trial court rejected DeYoung's strict interpretation of section 44934, choosing to apply "a less strict construction viewed in conjunction with the allover circumstances which are present."  In denying the petition, the court found "the failure to prepare written [charges] as the very first step in the process was error, but it was non-substantive and non-prejudicial." The court ruling against DeYoung held :

"Under section 44944, subdivision (c)(2), the question of whether a school district's or governing board's procedural error is "non substantive" or "prejudicial" is an evidentiary consideration for the Commission and the trial court.  (See Crowl, supra, 225 Cal.App.3d at p. 349.)   Strictly construing section 44934's procedural requirements as mandatory or jurisdictional would render section 44944, subdivision (c)(2) meaningless, because the Commission would lack jurisdiction to ever decide whether a procedural error substantively or prejudicially affected the dismissal process."

However, reading the primary portion of Ca Ed Code 44934 shows there were in fact several cases to back up DeYoung's claims (see (Thomas v. Driscoll, supra, 42 Cal. App. 2d 23, 25-26; County of San Diego v. Milotz, 119 Cal. App. 2d Supp. 871, 881 [260 P.2d 282]; Ward v. Fremont Unified Sch. Dist., 276 Cal. App. 2d 313, 322 [80 Cal. Rptr. 815]; Karbach v. Board of Education, 39 Cal. App. 3d 355 [114 Cal. Rptr. 84].)(Regarding mandatory nature of statute)

The fatality in this ruling for teachers is that the charges need not be signed under penalty of perjury and need not be true. This would be repugnant in any other legal venue but is noticeably absent in California Education. To punctuate this point we move to Galland v Governing Board of Los Angeles Unified School District (unpublished opinion but instructive) The court opined:

"Plaintiff argues that the board lacked subject matter jurisdiction. His argument rests on two premises: (1) the Education Code requires that the statement of charges and *8 accusation be "verified," and this means those documents must be signed under "penalty of perjury" (which they were not in this case); and (2) the absence of a proper verification robs the governing board and the commission of subject matter jurisdiction. Neither premise is legally valid."

"[likening statement of charges to other charging documents, such as indictments].) This is undoubtedly why it may be filed based on information and belief, rather than personal knowledge. (Jewett, supra, 21 Cal.App.2d at p. 69; accord, Code of Civ. Proc., § 446, subd. (a) [allowing for verification of civil pleadings on information and belief]; compare Evid. Code, § 702 [generally requiring personal knowledge as prerequisite for admission of evidence].) Because Code of Civil Procedure section 2015.5 is designed to render out-of-court statements admissible as evidence (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 605-606 [discussing use of section 2015.5 declarations to oppose summary judgment motions]), its requirement of a penalty-of-perjury recitation is irrelevant where, as here, the out-of-court statement has no evidentiary value. Jewett did not purport to decide the question of whether a penalty-of-perjury declaration is required, and--notwithstanding its broad language--"'[i]t is axiomatic that cases are not authority for propositions not considered.'" (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)"

"If we were to insist that she also certify, under the penalty of perjury, *10 to the truth of the information of which she admittedly (and permissibly) has no personal knowledge, we would be "allow[ing] hyper technical procedural oversights to thwart the orderly process delineated by the statutory scheme" and would be "exalt[ing] form over substance . . . result[ing] in an abuse of the judicial process." (Governing Board, at p. 333.)"

In summary Evidence Code 702 does not apply to the California Ed Code, therefore teachers by the thousand can be (and are easily terminated and fired which is the case in California. (California Evid. Code 702(a)(b) reads "Subject to section 801, the testimony of a witness, concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter. (b) A witness' personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony.)

*(of note this hyper technical procedure is afforded in criminal procedures not CA Ed code)*

To sum it up, teachers have less due process rights in a civil venue than they would otherwise have in a criminal venue. This state of affairs would appear to fly in the face of People v Marcos Arturo Sanchez;Super. Ct. No. 11CF2839;California State Supreme Court.

The California State Supreme Court ruled that "Some of those hearsay statements were also testimonial and therefore should have been excluded under Crawford. The error was not harmless beyond a reasonable doubt. Accordingly, we reverse the jury findings on the street gang enhancements." As dictated by the education code, the entirety of a statement of charges against a teacher is written and signed by a person with no material knowledge of the allegations, no personal knowledge, and the hearsay document itself is passed on as fact. Lastly to add insult to injury rubber stamped by the local school board of jurisdiction.

Issue of the 6th Amendment to The United States Constitution

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

To sum it up, teachers in the State of California are afforded no trial by jury of their peers, no standard of truth and are in fact guilty until proven innocent. The property interest of a teacher to fundamental due process guaranteed under the Constitution is non existent. The Berkeley Schools Labor Caucus has amassed data on thousands of teachers (who are disproportionally over 45 years of age, male, African American, a high degree of education and maxed out on the salary schedule) who have lost their jobs, livelihood and dignity under false pretenses. The relevant stakeholders in the legislature and other bodies must be held accountable for this state of affairs. This brief serves as a cause of action in this endeavor.

Written in Tandem by The Members of The Berkeley Schools Labor Caucus.

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