Teacher Entitled to Attorney’s Fees and Costs When Accusation Unilaterally Dismissed by District After Hearing Scheduled

    A tenured school teacher, who had been charged in an accusation with conduct meriting dismissal, denied the conduct and requested a hearing which the school district scheduled. Later, the Commission on Professional Competence which was to hear the matter, dismissed the accusation at the request of the district, over the objection of the teacher, without a determination that the teacher should not be dismissed. A finding that the teacher should not be dismissed would have entitled the teacher to his reasonable attorney’s fees and costs.

   The teacher took two writ petitions. The Superior Court issued a writ of administrative mandate to order the commission to modify its dismissal order to include a determination that the teacher should not be dismissed and issued a writ of administrative mandate to order the school district to pay the teacher’s reasonable attorney’s fees and costs.

   On appeal, the orders were affirmed in Boliou v. Stockton Unified School District. The relevant provisions of the Education Code provide that if a teacher demands a hearing on disciplinary charges and the board of the school district exercises its option to schedule a hearing, instead of rescinding the charges, the hearing shall be commenced. The hearing must be conducted by the commission and the commission shall prepare a written decision containing a disposition that shall be, solely, one of the following: (A) That the employee should be dismissed; (B) That the employee should be suspended for a specific period of time without pay; (C) That the employee should not be dismissed or suspended. If the commission determines that the employee should not be dismissed or suspended, the governing board shall pay the expenses of the hearing and reasonable attorney’s fees incurred by the employee.

  Once a hearing is scheduled, the district cannot unilaterally withdraw the accusation without making one of the these findings. Since the district withdrew the accusation prior to any evidence of misconduct being offered, the commission could issue only one possible finding, i.e., that the teacher should not be dismissed. That only possible finding entitled the teacher, as a matter of law, to reasonable attorney’s fees and court costs.