Judge: Curtis A. Kin, Case: 24STCP00534, Date: 2025-01-21 Tentative Ruling

Case Number: 24STCP00534    Hearing Date: January 21, 2025    Dept: 86

Petitioner William S. Hart Union High School District (“District”) petitions for a writ of mandate directing respondent Commission on Professional Competence to set aside its decision not to dismiss real party in interest James Duncan from employment with the District and to enter a new decision ordering his dismissal from employment. 

I.       Factual Background

A.           May 13, 2022 Incident

Real party James Duncan is a physics teacher employed by the District since 1995. (AR 1888 [HT 456:15-23], 1889-90 [HT 457:25-458:3].) On May 13, 2022, shortly after 9:00 a.m., during a break period known as “brunch,” Duncan was walking south on the campus of Valencia High School. As he passed the multi-purpose room, he pulled out his cell phone to review an email or text. (AR 682 [Ex. 27, “MPR” on School Map], 688 [Ex. 30, 0:00-0:35], 1895 [HT 463:3-9], 1897 [HT 465:2-9].)

Duncan looked up in the direction of a female student, D.S., pulled out his phone, took a photo of her, and then picked up his walking pace towards her. (AR 688 [Ex. 30, 0:35-1:00], 567 [Photo 1].) Duncan started videorecording, initially focused on D.S. (AR 688 [Ex. 30, 1:00-1:30]; AR 572 [Video, Ex. 7].) He then walked past D.S. and pointed the phone toward a circle of female students. (AR 572 [Ex. 7, 0:07-0:13].)

A student looked right at him. (AR 572 [Ex. 7, 0:14-16], 522:3-8 [stills of video], 588 [A.H. Stmt.], 587 [S.Z. Stmt.], 587 [“My friends and I were standing in a circle when we noticed Mr. Duncan…. [W]e all were looking at him….”]; 586 [K.M. Stmt.].) Duncan immediately turned, angled his phone towards the ground, and then faced D.S. (AR 572 [Ex. 7, 0:16-0:20].) Then D.S. “made direct eye contact” with Duncan. (AR 572 [Ex. 7, 0:16-0:20], 1776-77 [345:18-346:15], 522:13-17 [stills of video].)

Duncan immediately stopped recording, looked down at his phone, and paused for about eight seconds. (AR 572 [Ex. 7, 0:21-23], 576 [Ex. 11, 0:25-0:35], AR 688 [Ex. 30, 1:27-1:36].) Duncan then took four photos while pivoting from right to left and walked away. (AR 688 [Ex. 30, 1:36-2:00]; 568-71 [four photos].)

Thereafter, according to Principal Pete Getz, three to five students went to the administrative office and reported that there was an older man appearing to film or follow students with his phone. (AR 1644 [HT 213:9-25], 1701 [HT 270:12-25].) Getz went outside the office to see what was occurring but did not observe anything. (AR 1645 [HT 214:1-12].) Getz and the assistant principals immediately reviewed the school security cameras and determined that it had been Duncan. (AR 1645-46 [HT 214:13-215:9], 1647 [216:5-16].)

According to Duncan, he had noticed two students significantly out of dress code, turned on his phone camera, and took pictures of students while remaining behind them. (AR 1895 [HT 463:10-24], 1897 [HR 465:12-17].) Duncan decided to document and photograph other students that were out of dress code. (AR 1899 [HT 467:4-21].) From the time he noticed the students, Duncan followed the students for two to two and a half minutes. (AR 1895-96 [HT 463:25-464:4].) Duncan maintains that he was not focused on one student but rather multiple students, as he was attempting to document and highlight students that were out of dress code. (AR 1945-46 [HT 513:5-514:1].) In total, Duncan took about 5 pictures and one purportedly inadvertent video lasting 20 to 24 seconds. (AR 1899-1900 [467:22-468:7], 1954 [HT 522:7-22], 2040-42 [HT 607:11-609:21].) Duncan explained that he took pictures of students to gather evidence of dress code violations. (AR 1947 [HT 515:13-25].)

Duncan’s stated purpose for taking the pictures was to document the dress code violations to show them to Assistant Principal David Miles, his immediate supervisor. (AR 1900-01 [HT 468:8-469:7].) Duncan had raised the dress code issue with Miles before, as it was discussed in monthly department meetings during the 2021-22 school year. (AR 1900-03 [HT 468:8-470:1; 470:18-471:4].) While taking the pictures at issue, Duncan did not say anything to the students, did not make eye contact with the students, did not touch them, and did not know their identities. (AR 1920-21 [HT 488:24-489:24].)

According to Duncan, after taking the pictures, he headed to the administration office to find Miles to discuss dress code violations. (AR 1907-08 [HT 475:8-15, 476:6-14].) Duncan could not find Miles, so he collected his mail and went back to his class to meet with his 3rd, 4th and 5th period students. (AR 1910 [HT 478:1-24].) Duncan had planned to return to speak with Miles later during Duncan’s conference period, when he was not scheduled to teach any students. (AR 1910-11 [HT 478:25-479:6].)

J.M. and D.S were the only students who testified during the administrative hearing before the Commission on Professional Competence.  Both acknowledged that they observed Duncan very briefly (for a couple of minutes), did not know who Duncan was and had ever seen him before; both also stated that Duncan did not say anything to them or touch them. (AR 1585 [HT 155:3-8], 1590 [HT 160:24-161:1], 1778 [HT 347:7-10], 1789 [HT 358:9-24], 1790 [HT 359:10-15].) J.M. testified that he did not see what was happening when it occurred. (AR 1586 [HT 156:19-21].) D.S. became aware of Duncan when she got to some benches and only became aware of Duncan for less than a minute before he walked away. (AR 1789-90 [HT 358:13-359:3].) D.S. testified that she felt “creeped out” because she did not know what was happening or what he was filming and because she had never seen Duncan before. (AR 1776-78 [HT 345:18-347:6].) D.S. first went to the administrative office because, after the incident, she was cited for a dress code violation by another teacher and sent to the administrative office, where she was given a shirt by the school staff to wear over her clothes. (AR 1777-78 [HT 346:16-347:6], 1793 [HT 362:15-24], AR 1794 [HT 363:16-23].) D.S. returned to class, upset that she had been, in her words, “dress coded” and complained about it to her teacher, Mr. Albert, explaining to him what happened during brunch. (AR 1795 [HT 364:11-21], 1780-81 [349:15-350:14].) Mr. Albert advised D.S. to speak to Principal Getz. (AR 1781 [HT 350:7-15].) D.S. then returned to the office, possibly with J.M., to speak to Getz. (AR 1795 [HT 364:22-25].) D.S. and J.M. both provided short and brief statements about what had happened during brunch. (AR 579 [J.M. statement], 580 [D.S. Statement]). D.S. stated that Getz appeared to be surprised and shocked about the incident and that Getz did not inform her that a group of students had reported it previously. (AR 1782:3-8, 1798-99 [HT 367:13-368:5].)

B.           May 13, 2022 Meeting with Principal Getz

Principal Getz testified that he sent Duncan an email requesting an explanation, but Duncan did not respond. (AR 1648 [HT 217:8-22], 1716-17 [HT 285:24-286:7], 1717-18 [HT 286:24-287:3].) Duncan testified that he did not recall receiving an email from Getz. (AR 1912 [HT 480:7-13].) Because Getz did not receive any response from Duncan, Getz sent Miles to Duncan’s classroom at 1:00 p.m. to ask him to come to Getz’s office. (AR 1718 [HT 287:4-17].)

During the May 13, 2022 meeting, Getz did not go into detail about what the allegations were and only asked Duncan if he was aware of an adult on campus who was filming students. (AR 1753 [HT 322:4-12].) Getz also called Gene Truex-Hill into the meeting as the union site representative for Duncan. (AR 1754-55 [323:20-324:5].) According to Getz, Duncan did not indicate whether he was willing to proceed with the meeting and remained on his own accord. (AR 1753-54 [HT 322:13-323:1].) In his administrative hearing testimony, Getz also denied that Duncan requested to be represented by Union President John Minkus during the May 13, 2023 meeting. (AR 1753-54 [HT 322:20-323:8].) According to Getz, if Duncan had requested a specific representative, Getz would have rescheduled the meeting. (AR 1754 [HT 323:5-8].) By contrast, both Truex-Hill and Duncan testified that Duncan could request that Union President Minkus be there and that Duncan did so. [AR 1833-34 [HT 401:18-402:23], 1915 [HT 483:5-24], 1918 [HT 486:3-20].) According to Duncan, Getz appeared to oppose his request to have President Minkus be present and instead informed Duncan that he already recommended that Duncan be placed on administrative leave. (AR 1918-19 [486:21-487:1].)

According to Getz, the May 13, 20222 meeting lasted 20 minutes, after which he “then closed [his] door and wrote down bullet points of the important pieces of that conversation.” (AR 1654-56 [HT 223:23-224:11].) According to Getz’s notes, he asked Duncan “if he knew anything about anyone, including himself, filming students on campus.” (AR 581.) Duncan said no. Getz “specifically asked” if Duncan “had filmed any students on campus during 1st bru[n]ch.” Duncan said no. When Getz told Duncan that he had a video of Duncan “following one group of students (one male, two females), filming with his phone,” Duncan said “he knew nothing about this.” When Getz asked Duncan if he would like to share his phone, Duncan “declined the opportunity.” Getz, Truex-Hill, and Duncan watched and re-watched the footage from the security cameras. Duncan “continually questioned the overall quality of the footage” but acknowledged at several points that it was him. Also, according to Getz’s notes, while watching the footage, Duncan made statements like “Yes, that is a bit weird,” “I can see why this would be concerning,” and “This is odd for sure.” Getz additionally wrote: “At this point, [Duncan] agreed that he was the teacher following the students with his phone out.” According to his notes, Getz asked Duncan for an explanation, but Duncan provided none. Getz then indicated that Duncan would be placed on paid administrative leave. (AR 581.)

During the administrative hearing, Truex-Hill was asked the following question about the May 13, 2022 meeting: “[D]uring the meeting, did Mr. Duncan deny that he had either photographed or filmed students.” (AR 1835 [HT 403:22-24].) Truex-Hill vaguely responded, “Not in so many words.” (AR 1835 [HT 403:25].) Getz, Duncan, and Truex-Hill all acknowledged in their hearing testimony that surveillance videos were shown to Duncan at the meeting. (AR 1755 [Getz, HT 324:12-18], 1836 [Truex-Hill, HT 404:1-6], 1919 [Duncan, HT 487:2-5].) However, while Truex-Hill testified that Getz showed Duncan the surveillance videos and that Duncan acknowledged he appeared in the videos, Truex-Hill did not recall Duncan making comments like “that is a bit weird,” “this is odd for sure,” or “I can see why that would be concerning.” (AR 1837-38 [HT 405:19-406:5].) Duncan also testified that he never made such statements. (AR 1922-23 [HT 490:18-491:4].) Truex-Hill also testified that he understood, by the end of the meeting, that there would be a follow up meeting that same day if Union President Minkus was available. (AR 1838-39 [HT 406:20-407:18].) Similarly, Duncan testified that he was prepared to return for another meeting that day and answer questions with Minkus representing him; indeed, he returned later that day for such a meeting, but Minkus had not been contacted, and no subsequent meeting occurred on May 13, 2022. (AR 1920 [HT 488:9-23], 1923 [HT 491:5-23], 1925 [HT 493:9-18].)

C.           May 16, 2022 Meeting and Student Statements

On May 16, 2022, Principal Getz met with D.S. and her parents. (AR 1669 [HT 238:4-8].) During that meeting, D.S. learned the person involved in the incident was Duncan, whom she had never met before. (AR 1784 [HT 353:13-20], 1792 [HT 361:10-23].) D.S. testified that she wrote a more detailed statement after she was shown the videos, because at the time she wrote the first statement had not fully comprehended what had happened on May 13. (AR 1785 [HT 354:4-25], 1787-88 [HT 356:24-357:7], 1791 [HT 360:17-24].) After viewing the videos, D.S. testified that she was “weirded” and “creeped out” because she did not know why Duncan was filming. (AR 1785 [HT 354:20-25].)

Principal Getz claimed that an initial group of students came in right after brunch to tell him that they saw someone filming on campus. However, he stated that the group was not part of the initial investigation. (AR 1649 [HT 218:13-19].) Getz testified that after reviewing security footage of the quad area, his administrative team was able to identify other students who had been filmed by Duncan. (AR 1649 [HT 218:20-25].) Getz then stated his administrative team supposedly brought that group of students into the administrative office to collect statements and conduct interviews on May 13. (AR 1650 [HT 219:1-3].)

D.           May 20, 2022 Meeting with Vierra

Duncan met with Assistant Superintendent Michael Vierra and Union President Minkus on May 20, 2022. The meeting was set by Vierra. District employees Mark Crawford and Erica Galicia were also present. (AR 1924 [HT 492:16-19], 1932 [HT 500:18-20].) During the meeting Duncan acknowledged that he had taken five pictures and also claimed that he inadvertently took a 23- to 24-second video between pictures one and two. (AR 1935-36 [HT 503:3-504:2].) Duncan provided Vierra with all five pictures he had of the incident during the meeting. (AR 1937-38 [505:10-506:13]; see also AR 567-71 [five photos].) The video was subsequently emailed to Vierra. (AR 1951-52 [HT 519:21-520:6].)

At the meeting, Duncan explained to Vierra that his reasons for taking the photographs was to document “pervasive dress code violations” and that he had intended, all along, to share the pictures with Miles. (AR 1955-56 [HT 523:10-524:6].) Vierra did not say anything to Duncan in response. (AR 1956 [HT 524:7-10].) With respect to the video, Duncan testified that it was not his intent to record a video. (AR 572.) Duncan explained that he inadvertently recorded the video while in the process of attempting to take the pictures. (AR 1899-1900 [HT 467:22-463:7], 1954 [HT 522:7-24], 2040-42 [HT 607:11-609:22].)

Vierra never told Duncan during the meeting that a dress code was not in effect during the 2021-2022 school year, and at no point prior to the meeting had Duncan been advised by the District that there was no dress code in effect. (AR 1956 [HT 524:11-21].) Duncan told Vierra that he did not know the identities of the students whom he had photographed and videotaped on May 13. (AR 1984-85 [HT 552:21-553:1].) Duncan reviewed the school surveillance videos and explained what he was doing in those videos to Vierra. (AR 1982 [HT 550:3-15].) Duncan was aware that the District had surveillance cameras because there were signs posted and because notification of the surveillance cameras were sent to students every year. (AR 1985 [HT 553:7-23].) During the meeting, Duncan answered every single question that was asked of him. (AR 1983 [HT 551:19-23].) Duncan also took notes on his laptop during the meeting. (AR 1986 [HT 554:5-21].) Duncan reviewed his notes and made corrections for grammar after the meeting. (AR 1987 [HT 555:1-13].) He provided those notes to his attorney, and eventually, the notes were shared with the District’s counsel. (AR 1987 [HT 555:1-13], AR 683-87 [Ex. 29].)

Vierra testified that he did not speak to any student witnesses. (AR 1516 [HT 86:7-11].) Vierra stated that the May 20, 2022 meeting lasted about 90 minutes, during which video clips were shown and displayed on a large monitor. Duncan answered all of Vierra’s questions cooperatively and did not refuse to answer any question asked. [AR 1528-29 [HT 98:4-99:25].) Duncan would stand up at times to point something out on the screen to explain what was happening in the video. [AR 1528-29 [HT 98:7-99:1].) To Vierra, it appeared that Duncan took the meeting seriously and was emotional at times; Vierra did not believe that Duncan had taken the situation as a joke. (AR 1530 [HT 100:1-11].) In his hearing testimony, Minkus stated that, at that meeting, Duncan discussed the issues regarding the dress code at Valencia High School, explaining that enforcement of the dress code was the “whole point” for why Duncan took the pictures. [AR 1851-52 [HT 419:18-420:2]; 1852-53 [HT 420:24-421:1].)

E.           Dress Code

Duncan testified that concerns regarding the dress code came up frequently during monthly department meetings with Miles and at no point did Miles tell Duncan that there was no dress code in place. (AR 1902-03 [470:18-471:22].) School administration, including Getz, never informed Duncan that there was no dress code policy for that year. (AR 1903 [471:18-22].) Further, Miles never told Duncan that, during the 21-22 school year, the school was easing back on the dress code and not enforcing it. (AR 1903-04 [471:23-472:3.) Christopher Spann, a science teacher at Valencia High School during the 2021-22 school year, corroborated Duncan’s remarks about the dress code. Spann testified that he worked closely with Duncan, that they discussed the dress code, and that the dress code had always been an issue at school. (AR 1876 [HT 444:5-19], 1877-78 [HT 445:19-446:24], 1881 [HT 449:9-20].) Spann testified that the issue of the dress code came up at every department meeting where an administrator (Miles) was present during the 2021-2022 school year. (AR 1879-80 [HT 447:1-448:15].) Finally, Spann testified that during the 2021-2022 school year, no administrator ever told him either orally or in writing that Valencia High had no dress code policy in place and affirmed that he would have remembered if it had happened. (AR 1875-76 [HT 443:10-444:19].)

Getz testified on direct that, during the 2021-2022 school year, there was no formal dress code policy in place and no dress code policy would be enforced based on an agreement of the campus community and a desire to focus on helping students transition back to in-person learning after the pandemic. (AR 1732-34 [HT 301:1-303:2].) On cross-examination, however, Getz acknowledged that he had not shared this understanding with Duncan or Duncan’s union; Getz was not able to affirm that this understanding was communicated to other teachers on campus either. (AR 1734-36 [HT 303:3-305:1].)  

In contrast to Getz’s testimony, student J.M. testified that, during the 2021-22 school year, the dress code was in place and students were “dress coded” if they wore things that were considered too revealing. (AR 1599 [HT 169:16-25.) Getz, however, admitted that D.S. was dress-coded by another teacher, Ms. Loch, on the same day that D.S. was filmed by Duncan. (AR 1721-23 [HT 290:7-292:5], 1763 [HT 332:7-13].)

F.           Statement of Charges

In August 2022, the District served Duncan with a Statement of Charges advising him that the District had taken action to dismiss him from his employment as a permanent certificated teacher with the District. (AR 5 [Notice of Intention to Dismiss].) Thereafter, on September 6, 2022, Duncan timely requested a hearing and the District submitted a Request to Set Teacher Dismissal Case to the Office of Administrative Hearings (“OAH”) so that the matter would be heard before the Commission on Professional Competence (“Commission”). (AR 63 [Request for Hearing], 1-4 [Request to Set].) The Commission heard the matter on August 21-25, 2023. (AR 2264.)

The operative pleading addressed by the Commission was the Statement of Charges dated August 15, 2022. (AR 6-11.) The District alleged that Duncan had allegedly: “stalked, photographed, and videotaped students at Valencia High School and elsewhere in the District” by “walk[ing] around campus taking photos of and videotaping students”; was dishonest in an investigatory meeting regarding the pictures; “repeatedly sat in [his] car at various swim meets, watching students”; told a “bizarre story about [him]self”; and “exploited [his] authority in order to harass students”—all of which was alleged to constitute “sexual harassment, in violation of Education Code section 200…[and] District Board Policies and regulations…in contravention of the California Standards for the Teaching Profession.” (AR 7-9.) Based on these allegations, the District moved to dismiss Duncan for alleged (1) immoral conduct, (2) dishonesty, (3) evident unfitness for service, and (4) the persistent violation of or refusal to obey the school laws and regulations. (AR 9-10.)

G.           Decision from Commission

On December 22, 2023, the Commission issued a 35-page decision (“Decision”) concluding that the District failed to establish by a preponderance of evidence the causes of (1) immoral conduct, (2) dishonesty, (3) evident unfitness for service, and (4) the persistent violation of or refusal to obey the school laws and regulations.  Having found the District failed to meet its evidentiary burden of proof, the Commission determined that Duncan could not be dismissed and instead dismissed the Statement of Charges against him. (AR 2264-98.)

More specifically, the Commission found that: (1) the evidence did not establish that Duncan engaged in immoral conduct and that Duncan’s conduct was not indicative of indecency or depravity (AR 2289-90); (2) the evidence did not establish that Duncan persistently violated school laws and regulations, as the District failed to present evidence of any school policy or regulation that was violated (AR 2290-91); (3) the evidence did not establish that Duncan was dishonest about his concerns about the dress code and thus the dishonesty alleged by the District was not proven (AR 2291-93); and (4) the evidence did not establish that establish Duncan’s conduct was caused by a temperamental defect such that cause for dismissal for evident unfitness was not established (AR 2293-96).

II.      Procedural History

            On February 20, 2024, petitioner filed a verified Petition for Writ of Mandate. On March 25, 2024, real party Duncan filed an Answer. On July 11, 2024, respondent Commission filed a Notice of Non-Participation.

            On September 6, 2024, petitioner filed an opening brief. On October 8, 2024, Duncan filed an opposition. On October 23, 2024, petitioner filed a reply and Duncan filed errata to the opposition. The Court has received an electronic copy of the administrative record and a hard copy of the joint appendix.

III.     Standard of Review

            Upon petition, courts may review decisions of the Commission on Professional Competence in dismissal or suspension proceedings concerning permanent employees of school districts. (Ed. Code §§ 44932, 44934, 44945.) “The court, on review, shall exercise its independent judgment on the evidence.” (Ed. Code § 44945.)

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby v. Pierno (1971) 4 Cal.3d 130, 143.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.”  (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, internal quotations omitted.) Nevertheless, courts are “not bound by the findings of the Commission in exercising its independent judgment review” and are free to make their “own determination of the credibility of witnesses in the process.” (Pittsburg Unified School Dist. v. Commission On Professional Competence (1983) 146 Cal.App.3d 964, 977.)

IV.     Analysis

            Permanent employees of school districts may not be dismissed except for causes enumerated in statute. Two of those causes include dishonesty and evident unfitness for service. (Ed. Code § 44932(a)(4), (a)(6).)[1] The standard of proof in dismissal proceedings is preponderance of the evidence. (Gardner v. Commission on Professional Competence (1985) 164 Cal.App.3d 1035, 1040.) The District challenges only the Commission’s Decision that Duncan’s dismissal is not warranted due to dishonesty and evident unfitness for service.

A.           Dishonesty

            Dishonesty “connotes a disposition to deceive.” (Midway School Dist. of Kern County v. Griffeath (1946) 29 Cal.2d 13, 18.) It “necessarily includes the element of bad faith.” (Hogg v. Real Estate Com'r (1942) 54 Cal.App.2d 712, 717.) It denotes “an absence of integrity; a disposition to cheat, deceive, or defraud; deceive and betray.” (Ibid., internal citations omitted.) “[W]hether the Legislature intended that all deception, however slight, should result in dismissal is doubtful.” (Ibid.) “Dishonest conduct may range from the smallest fib to the most flagrant lie…. [N]ot every falsehood will constitute ‘dishonesty’ as a ground for discipline.” (Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 220, fn. 12.)

            With respect to dishonesty, the District raises the following grounds: (1) Duncan was purportedly dishonest about recording and photographs prior to May 13; (2) Duncan suppressed and destroyed evidence of photos he took of students prior to May 13; (3) Duncan falsely claimed his recording of students was inadvertent; (4) Duncan was dishonest about his reason for going to the administration office after recording students on May 13; (5) Duncan’s stated justification for recording and photographing students based on the dress code is invalid and illogical; and (6) Duncan suppressed and destroyed evidence during the underlying administrative proceedings.

1.            Pre-May 13 Recordings and Photographs

            As to the first and second grounds, Duncan is correct that the “basis for dismissal must be raised on allegations in the [Statement of] Charges.” (Opp. at 14:3-8.) Section 44934 governs the required notice to be given to employees in dismissal proceedings. School districts may commence dismissal proceedings upon the formulation of a written statement of charges by the governing board. (§ 44934(b).) “Any written statement of charges shall specify instances of behavior and the acts or omissions constituting the charge so that the employee will be able to prepare his or her defense. It shall, where applicable, state the statutes and rules that the employee is alleged to have violated, and it shall also set forth the facts relevant to each charge.” (§ 44934(c).) 

            The first and second grounds were not set forth in the Statement of Charges served on Duncan by the District. In the Statement of Charges, the District accused Duncan of “stalk[ing], photograph[ing], and videotap[ing]” female students at Valencia High School and “elsewhere in the District.” (AR 7.) This allegation was based on the events of May 13 with D.S., the meeting with Principal Getz on May 13, and the meeting with Assistant Superintendent Vierra on May 20. (AR 7-9.) No reference was made to recordings or photographs made by Duncan prior to May 13, 2022. (AR 6-10.)

In the reply, the District argues that it attached to the Statement of Charges notes taken by Getz and Vierra of their respective meetings with Duncan and student statements. (Reply at 5:4-12.) The Statement of Charges merely states: “Attached are the 19 pages of documents you requested, relating to the recommendation.” (AR 9.) From the language of the Statement of Charges, it is not altogether clear what the 19 pages are and for what purpose they wee attached.  More to the point, even if such documents were provided to Duncan along with the Statement of Charges and such documents reference pre-May 13 recordings and photographs, in order to be a basis for discipline, the conduct relating to any such recordings and photographs was required to be specified in the Statement of Charges so Duncan could prepare a defense. (§ 44934(c).) The District was required to “set forth the facts relevant to each charge.” (§ 44934(c).) A vague reference that the documents “relate” to the recommendation to dismiss cannot be said to have provided Duncan with notice that the dismissal proceedings would be based on pre-May 13 records in addition to the May 13 recordings and photos. The District had the opportunity to move to amend the Statement of Charges prior to the hearing to include allegations concerning pre-May 13 recordings and photos, but the District did not do so. (See § 44934(d).)

Accordingly, the District may not seek reversal of the Commission’s Decision based on Duncan’s purported dishonesty concerning recordings and photos taken prior to May 13.

2.            Inadvertent Video of D.S.

The District contends that, during Duncan’s May 20 meeting with Vierra, Duncan misrepresented that his video recording was inadvertent. (See AR 591 [question 15], 593 [question 29].) In addition to relying on Vierra’s notes, the District relies on the following finding from the Commission:

Respondent does not dispute that he photographed and videorecorded students during the May 13 incident. At hearing, respondent claimed the 24-second video was taken inadvertently and accidentally. The Commission did not find respondent’s claim convincing. In reviewing the 24-second video, the Commission saw no indication it was recorded accidentally or inadvertently. The 24-second video appears to have been recorded as respondent held his phone upright in front of him and pointed it towards students J.M. and D.S.

(AR 2269-70, citing Ex. 7.)

            Duncan testified that, while he was taking pictures, he inadvertently recorded a video between the first and second pictures that he took. (AR 1935-36 [HT 503:3-504:2]; 567-71 [five photos].) The Court has reviewed the video Duncan took, as well as the surveillance footage from the school’s security cameras. (AR Exs. 7, 30.) Duncan kept his phone upright, with some slight angling of the phone downward, throughout the entirety of the recording with the phone pointed at students, including D.S. While Duncan’s keeping his phone upright could be consistent with actively attempting to video record students, it is also consistent with positioning the camera to take a series of photos, during which he accidentally pushed “record” video button instead of the adjacent “take a picture button” to snap a “series of pictures” quickly and discretely. (See AR 1899-1900 [HT 467-23-468:7].)

            Given the equally plausible explanations for the existence of the video recording, the Court does not find that the District proved that it is more likely than not that Duncan was dishonest about how the recording was created.  (See Chamberlain v. Ventura County Civil Service Com. (1977) 69 Cal.App.3d 362, 369 [preponderance of the evidence is such evidence “as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests”].)  Indeed, considering that petitioner voluntarily provided to the District the video along with the photos as evidence of what he did on May 13, 2022, it seems less plausible that Duncan would bother to fabricate a story that the video was accidental while fully admitting the photos were taken intentionally.  (See AR 1937-38 [505:10-506:13], 1951-52 [HT 519:21-520:6].)

3.            Duncan’s Explanation for May 13 Visit to Administrative Office

The District argues that, during his meeting with Vierra, Duncan stated that, after he took the pictures, he was possibly going to the office but not sure why. (AR 590 [question 12], 594-594 [question 38].) Duncan confirmed in his deposition that he made such a statement. (AR 2145-46 [HT 711:3-712:23 [reading deposition].) At the Commission hearing approximately one year later, Duncan testified that he went to the office to look for Miles and report violations of the dress code with the pictures on his proof as proof. (AR 1907-08 [HT 475:8-476:14].) Duncan, however, could not find Miles. (AR 1910 [HT 478:1-8].)

The District contends Duncan falsely testified that he went to the administrative office to report dress code violations because the real reason Duncan went to the office was merely to sign in on a daily attendance sheet. (Opening Br. at 11:13-25; AR 2156-57 [HT 722:23-733:4] [Getz testified that petitioner signed in on May 13].)  In support of this claim of deception, the District cites Getz’s testimony that Duncan signed his attendance sheet on May 13, 2022.  (AR 2156-57.)  This proves little, as Duncan could have signed the attendance sheet at any time on May 13, 2022, or, more likely, when he was in the administrative office seeking to show the dress code violation photos to Miles.

In reply, the District additionally argues that, when Miles went to Duncan’s classroom on May 13 to summon him to Getz’s office, Duncan did not inform Miles of the dress code violations, even though Miles and Duncan walked together to Getz’s office. (Reply at 7:5-10; AR 2275 [¶ 37 – stating that May 20 was first time Duncan explained that he took pictures to document dress code violations], 591 [question 15].)   This also proves little.  Duncan testified that Miles told him he had to go to Getz’s office immediately. (AR 1912-13 [HT 480:25-481:4].) Given the urgency with which he was summoned, the fact that Duncan did not raise the dress code violations to Miles on the way to the urgent meeting with Getz is understandable, let alone proof of deception.

            For the foregoing reasons, the District fails to show by a preponderance of the evidence that Duncan’s statement that he went to the administrative office to report dress code violations to Miles was dishonest.

4.            Duncan’s Stated Reason for Recording and Photographing Students

The District contends that Duncan’s stated reason for photographing and recording students on May 13 based on the dress code is false because it is an illogical explanation for the following reasons: (1) on May 13, Duncan denied filming students and offered no explanation after having been shown security footage; (2) Duncan asserted that dress code violations were getting much worse and were out of control compared to other schools, but he never went to other schools and had no evidence of violations at other schools; (3) Duncan never sent students to the administrative office for a dress code violation; (4) Duncan never raised dress code issues with Principal Getz; (5) Duncan claimed that he took photographs due to the “Capturing Kids Hearts” program, but the program was not about promoting disciplinary enforcement; and (6) it is common knowledge that teachers were not to photograph students without authorization.

With respect to the first ground, according to Getz’s notes, Getz asked Duncan on May 13 if he filmed any students on campus during brunch. (AR 581.) Duncan said no. (AR 581.) Duncan’s denial is consistent with his testimony that he only discovered after his meeting with Getz on May 13 that he inadvertently recorded a video, i.e., “filmed” students. (AR 1935 [HT 503:13-23].) Further, even though Duncan did not offer any explanation after Getz showed him security camera footage, Duncan explained that he had asked for the president of his union, John Minkus, to be present at his meeting with Getz. (AR 1918-19 [HT 486:3-487:12].) Duncan testified that he would not provide any statement or explanation without Minkus present. (AR 1920 [HT 488:5-8], 1923 [HT 491:17-23].) Under these circumstances, Duncan’s refusal on May 13 to provide an explanation of the footage was not evidence of dishonesty, but evidence of his desire to have his preferred union representative to be present at the meeting.

The Court recognizes that Getz denies Duncan told him that he wanted Minkus at the meeting. (AR 1753-54 [HT 322:20-323:8].)  The Court does not credit Getz’s assertion.  Truex-Hill, the union representative, who was present during the May 13 meeting, testified that Duncan stated on May 13 (1) that Truex-Hill was not his preferred representative, (2) that Duncan would not make any kind of statement, (3) and that Duncan wanted a follow-up meeting with Minkus present. (AR 1833 [HT 401:5-20].) In reply, the District contends that Truex-Hill should not be believed due his purported bias in favor of Duncan because Minkus was the union president (AR 1845 [HT 413:18-22]), because Minkus and Duncan have been friends since 1998 (AR 1848-49 [HT 416:21-417:2]), and because Duncan served in union positions for years (AR 1929 [HT 497:11-18].) The District thus argues that “there was significant downward pressure on Truex because he was the representative at a disciplinary meeting for Duncan, a longtime friend of the union president.” (Reply at 11:24-12:4.)

The Court finds the District’s argument concerning Truex-Hill’s bias entirely speculative. The District has no direct evidence of any bias and, more to the point, proffers no evidence that Truex-Hill may have lied about what occurred during the May 13 meeting. The District argues that Truex-Hill reviewed Duncan’s notes to prepare for his hearing testimony, which purportedly biased Truex-Hill’s testimony. (Reply at 12:5-11; AR 1825-26 [HT 393:24-394:3].) But, the District entirely ignores the fact that Truex-Hill also reviewed Getz’s notes regarding the May 13 meeting. (AR 1825-26 [HT 393:24-394:4].) There is thus no basis to conclude that Truex-Hill’s testimony was biased in favor of Duncan.

Given that Getz and Truex-Hill clearly testified that Duncan asked for Minkus to be present, and there being no apparent reason for True-Hill to have testified falsely or inaccurately, the Court credits Getz’s claim that he asked for Minkus to be present and would not further participate in the May 13  meeting with Getz without Minkus.  The Court does not find that the Duncan denied filming students or improperly refused to provide an explanation for his conduct on May 13.

With respect to the second through sixth grounds stated above, even if the stated grounds are true, other witnesses support Duncan’s assertion that there was a problem with dress code violations at Valencia High School. Spann, who taught during the 2021-22 school year, testified that dress code has always been an issue at the school. (AR 1876 [HT 444:5-19], 1881 [HT 449:9-20].) Spann also testified that the dress code issue was raised to Miles during the 2021-22 school year. (AR 1879-80 [HT 447:1-448:15.) Spann testified that teachers had never been notified that there was no formal dress code in place during the 2021-22 school year. (AR 1875-76 [HT 443:10-444:19].) Indeed, Getz conceded no such notification took place. (AR 1734-36 [HT 303:3-305:1].) Further, Getz conceded that D.S. was sent to the administrative office by another teacher, Ms. Loch, on May 13 for a dress code violation. (AR 1721-23 [HT 290:7-292:5], 1763 [HT 332:7-13].) Thus, Duncan’s stated justification for taking photographs of students, including D.S., is not “unreasonably farfetched,” as asserted by the District. (Reply 10:6.)  To the contrary, D.S. having been “dress-coded” by Ms. Loch is evidence that Duncan was most likely truthful regarding his reasons for taking the pictures.  To be sure, the taking of photos and recording of video of students without authorization was inappropriate, but the evidence is lacking to show that Duncan was dishonest about it.

5.            Duncan’s Purported Suppression and Destruction of Evidence During Administrative Proceedings

The District argues that Duncan destroyed his original handwritten notes and prepared typed notes. With respect to the May 13 meeting, Duncan testified that he wrote notes by hand during the meeting, typed the notes, then disposed of the handwritten notes. (AR 723 [Depo. 118:6-17], 725 [Depo. 147:3-5], 726-27 [Depo. 120:9-17], 729 [Depo. 232:23-233:09], 942-44.) With respect to the May 20 meeting, Duncan testified during deposition that he did not remember whether he edited his notes the day after the meeting. (AR 726 [Depo. 204:5-8].) During the hearing, when asked if he could locate the original notes from the May 20 meeting, he testified: “I’m not sure really what that means for original notes. I merged everything—I didn't save different versions of the—of the notes. Some things, I typed before the meeting. Some things, I typed during the meeting. Some things, I typed after the meeting for the purpose of giving them to my attorney.” (AR 2140 [HT 706:6-20].) Duncan later produced his notes with certain redactions based on privilege. (AR 683-87, 1450 [HT 20:18-20].)

To begin with, the destruction of notes did not form the basis for the Statement of Charges. The District charged Duncan with having been dishonest in interviews concerning the May 13 incident. (AR 8-9.) The destruction of evidence was nowhere contained in the Statement of Charges. As noted above with respect to alleged pre-May 13 photographs, the District could have sought to amend the Statement of Charges based on purported destruction of evidence but did not do so. (See § 44934(d).) Accordingly, the District may not rely on purported dishonesty outside the four corners of the Statement of Charges to obtain Duncan’s dismissal.

Even if the Court were to entertain the District’s arguments, they are unavailing. The District does not demonstrate any bad faith intent to conceal by Duncan. From the testimony referenced by the District, it appears that Duncan sought to recapitulate his written notes of the May 13 meeting in electronic form. While Duncan’s description of his May 20 notes suggests that his notes contain information outside of what occurred at the May 20 meeting, there is no indication that Duncan improperly concealed information in his notes. Duncan redacted the notes based on privilege.

For the foregoing reasons, the District does not demonstrate by a preponderance of the evidence that dismissal of Duncan is warranted based on dishonesty due to purported destruction of evidence.

B.           Unfitness to Teach

            In addition to the purported examples of dishonesty asserted above, the District asserts three grounds to demonstrate that Duncan is evidently unfit for service: (1) Duncan took photos of students prior to May 13 without authorization; (2) Duncan demonstrated a lack of remorse for his conduct; and (3) Duncan’s claim of retaliation evidences a lack of accountability and credibility.

            With respect to the first ground, as stated above with respect to dishonesty, any conduct prior to May 13 was not specified in the Statement of Charges. (See Section IV.A.1, supra.) Any pre-May 13 conduct cannot form the basis for discipline.

            With respect to the second ground, the District argues that Duncan did not express any remorse during the May 13 meeting, despite having been told by Getz that a “young lady came to the office” and reported “some creepy dude was following her around filming her” and that “there have been several students since then reporting that there is some guy on campus filming girls.” (AR 581 [Getz notes], 942 [Duncan notes].) The District also argues that Duncan did not express remorse during the May 20 meeting. (AR 597 [questions 51 and 52].) In connection with a preliminary notice of dismissal and the notice of intention to dismissal, the District argues that Duncan had an opportunity to explain his conduct and express remorse, but he did not. (AR 1498-1500 [HT 68:17-70:6], 1616-17 [HT 186:12-187:1], 1619 [HT 189:16-25].)

            The Court disagrees with the District’s assessment of Duncan’s remorse.  Notably, during the hearing, after witnessing D.S. testify, Duncan expressed remorse. (See AR 1788 [HT 357:8-11] [D.S. testified she would feel nervous, uncomfortable, and a little bit scared around Duncan].) Duncan testified: “[D.S.]’s testimony was really hard for me to hear…. What was hard for me to hear, and it made so much more sense after hearing her testimony, and then from Dr. Getz, that it was [D.S.]’s understanding that there is no dress code. So, there’s absolutely no reason for anybody to be taking pictures of people outside of that just kind of randomly.” (AR 1994 [HT 562:10-21].) After hearing D.S. testify to how upset her parents were regarding the incident, Duncan ultimately expressed regret: “I kind of wish I could somehow communicate with her parents; say, whoa, I’m sorry. You know, I -- misunderstanding here, so they don’t worry. Certainly not something I'm, you know -- that I’d do again. I just didn't see it from the perspective, but it makes -- it makes sense. I could see how she would be upset. I could see how her family would be upset. You know, I regret that. Sorry.” (AR 1995-96 [HT 563:21-564:3].) Duncan testified that had the District given him a directive not to film students again without their permission, he would “absolutely” comply. (AR 1996 [HT 564:4-9].)

The Court finds Duncan’s expression of remorse during the hearing to be genuine. While Duncan ought to have expressed remorse for recording and taking photographs of students without authorization prior to the hearing, the Court cannot find that Duncan is “evidently” unfit to serve as a teacher. (§ 44932(a)(6).) Duncan’s goal in taking pictures of students was to evidence dress code violations, not to stalk or otherwise harass students. Although misguided, Duncan demonstrates that he did not intend to cause discomfort in students. Duncan now understands the anguish his actions caused. Dismissal is not warranted.

            With respect to the third ground, Duncan claimed he had concerns about unfair treatment because he believed Vierra previously tried to fire him for lacking a certification. (AR 1928-29 [HT 496:25-497:9].) Even if Duncan’s concerns were invalid, the Court does not find that a misguided belief that certain school administrators sought to cause him harm renders his dress code concerns unbelievable or warrant a finding that Duncan refuses to take accountability.

C.           Application of Morrison Factors

“In determining whether the teacher’s conduct thus indicates unfitness to teach the board may consider such matters as the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers.” (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 229, footnotes omitted.) The factors set forth in Morrison also apply in “an attempt to discipline a permanent employee on grounds of dishonesty.” (Fontana Unified School Dist. v. Burman (1988) 45 Cal.3d 208, 220, fn. 12.) “[N]ot all Morrison factors need be examined, only the pertinent ones.” (Governing Board v. Haar (1994) 28 Cal.App.4th 369, 384.)

With respect to whether Duncan’s conduct adversely affected students or teachers, D.S. and her parents were very upset with Duncan and raised concerns about student safety on campus. (AR 1675-76 [HT 244:25-245:13], 1776-78 [HT 345:18-347:6], 1784-85 [HT 353:21-354:3], 1785:86 [HT 354:20-355:14].) Getz was also alarmed with Duncan’s conduct. (AR 1688-89 [HT 257:22-258:14].)

With respect to the praiseworthiness or blameworthiness of the motives resulting in the conduct, Duncan’s concerns about dress code violations were not unreasonable. But, his conduct in filming students without authorization was inappropriate and unwarranted. As the Commission found, Duncan could have notified an administrator during the brunch period about his observation of dress code violations. (AR 2297 [¶ 27].)

With respect to whether Duncan’s conduct is likely to recur, the District points to pictures that Duncan may have taken prior to May 13 and destruction of related evidence. As stated above, pre-May 13 conduct may not form the basis of discipline because it was not set forth in the Statement of Charges. Moreover, even if Duncan had taken pictures of students without authorization prior to May 13, the Court credits Duncan’s newfound understanding that filming students without authorization is wrong, as he expressed during the hearing. Based on his testimony, the Court finds that there is minimal or no likelihood that Duncan’s conduct is likely to recur.

            Based on the foregoing factors, the Court finds that Duncan is not unfit to teach. Duncan took pictures of students because of dress code violations, which other teachers also found to be an issue. The fact that there was no formal dress code during the 2021-22 school year was not conveyed to Duncan or other teachers. Although Duncan’s means to enforce the dress code were inappropriate and misguided, his motives were not unreasonable.

V.      Conclusion

The petition is DENIED. Pursuant to Local Rule 3.231(n), real party in interest James Duncan shall prepare, serve, and ultimately file a proposed judgment.