Judge James C. Chalfant, Case Number: 22STCP04419, Date: 2023-12-07 Tentative Ruling

Elia Cisneros v. Commission on Teacher Credentialing State of California, 22STCP04419

Tentative decision on petition for writ of mandate: denied

Petitioner Elia Cisneros, aka Elvia Duenas (“Cisneros”), seeks a writ of mandate compelling Respondent Commission on Teacher Credentialing (“Commission”) to set aside its decision revoking her credentials.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner Cisneros commenced this proceeding on December 19, 2022, alleging a cause of action for administrative mandamus. The verified Petition alleges in pertinent part as follows.

On December 3, 2003, the Commission issued a Clear Multiple Subject Teaching Credential to Cisneros. On November 19, 2018, Cisneros applied for a Clear Multiple Subject Teaching Credential with an added authorization in English.

In the 2016-17 school year, Cisneros worked as an academic coach in the English Language Learners (“EL”) Department of the Bakersfield City School District (“District”). In early 2017, the EL Department learned that it would be disbanded and reconstituted. This restructuring included the promotion of Cisneros’ supervisor, Erick Casallas (“Casallas”), to school principal.

EL Department academic coaches were assigned to different district school sites and spent most of the day at those sites. The EL Department’s office space has no cubicles, and EL Department employees can use their own login information on any computer to print mailing labels.

On November 27, 2017, the District discovered a letter purportedly from Casallas in Spanish (the “Letter”) that someone had mailed out in District envelopes. The Letter said that he was gay, he loved boys, and it invited parents to a school board meeting to discuss his sexual orientation. The Letter included a picture from social media of Casallas with his male partner. The District Superintendent Office’s phone number was on the back of the Letter. Someone also distributed the letter by text and social media to parents and former and current students. Casallas did not know about the Letter until an employee sent him a photo of it.

The District’s investigation named only Cisneros as a possible suspect. The District made a police report to the San Bernardino Police Department to that effect. On December 28, 2017, the Kern County District Attorney's Office filed charges against Cisneros of petty theft and embezzlement. On September 21, 2018, the District Attorney's Office dismissed the criminal charges against Cisneros.

On January 23, 2018, District filed a Statement of Charges to dismiss Cisneros, and she resigned instead of disputing them.

On April 2, 2021, the Commission filed an Accusation and Statement of Issues (the “Accusation”) against Cisneros. The Administrative Law Judge (“ALJ”) heard the Accusation on January 18 and 19, 2022.

On March 22, 2022, the ALJ issued a Proposed Decision. On June 24, the Commission notified Cisneros that it had rejected the Proposed Decision pending further argument and review of the record. After further argument, on November 20, 2022, the Commission issued a Decision revoking Cisneros’ credentials.

Cisneros seeks a writ of mandate compelling the Commission to set aside the Decision, plus an award of attorney’s fees and costs in excess of $20,000.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514-15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). An administrative decision imposing discipline on a professional licensee is decided under the independent judgment standard. Griffiths v. Superior Court, (2002) 96 Cal.App.4th 757, 767.

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, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013-16.

“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, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150-51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The agency’s decision must be based on the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514-15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

The standard of proof in administrative proceeding is relevant to judicial review in mandamus. Li v. Superior Court (Sacramento County, (2021) 69 Cal.App.5^th 836, 844. Where the administrative burden of proof is clear and convincing evidence, the trial court must account for that standard of proof when exercising its independent judgment on the sufficiency of the evidence. Id. at 865. The trial court must apply the principles of deference and presumptive correctness in deciding whether the findings are supported by clear and convincing evidence rather than a mere preponderance of the evidence. Id.

The Commission may revoke a teacher’s credentials due to immoral or unprofessional conduct, evident unfitness for service, or any cause that would have warranted the denial of an application for such credentials or their renewal. Education Code[2] §44421.

“Immoral” conduct is that which is hostile to the welfare of the general public and contrary to good morals, including conduct inconsistent with rectitude or indicative of corruption, indecency, depravity, or dissoluteness. Orloff v. Los Angeles Turf Club, (1951) 36 Cal.2d 734, 740.

“Unprofessional conduct” is conduct which violates the rules or ethical code of a profession or such conduct which is unbecoming a member of a profession in good standing. Board of Education of the City of Los Angeles v. Swan, (1953) 41 Cal.2d 546, 553.

The concept of moral turpitude defies exact description but includes acts of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between men. Clerid v. Department of Motor Vehicles, (1990) 224 Cal.App.3d 1016, 1027.

Within 100 days of receipt by an agency of the ALJ’s proposed decision, the agency may (1) adopt the proposed decision in its entirety, (2) reduce or otherwise mitigate the proposed penalty and adopt the balance of the proposed decision, (3) make technical or other minor changes in the proposed decision and adopt it as the decision, (4) reject the proposed decision and refer the case to the same administrative law judge if reasonably available, otherwise to another administrative law judge, to take additional evidence, or (5) reject the proposed decision and decide the case upon the record, including the transcript, or upon an agreed statement of the parties, with or without taking additional evidence. Government Code (“Govt. Code”) §11517(c)(2).

If the agency chooses to decide the case upon the record, it must (1) make a copy of the record available to all parties (Govt. Code §11517(c)(2)(E)(i)), (2) not decide any case without affording the parties the opportunity to present either oral or written argument before the agency itself (Govt. Code §11517(c)(2)(E)(ii)), and (3) issue its final decision not later than 100 days after rejection of the proposed decision (Govt. Code §11517(c)(2)(E)(iv)).

On November 27, 2017, the District learned about the Letter sent via U.S. mail to parents of students at Voorhies Elementary School (“Voorhies”). AR 183, 265, 268. The letter was in Spanish and impersonated Casallas, introducing himself as Voorhies’s new principal. AR 183, 265, 268. The Letter said that Casallas was a gay man who loved boys and would have them close to him. AR 183, 268. He invited anyone who considered that a problem to come to a board meeting to express their opinions. AR 183-84, 265. The label on the back of the envelopes advised recipients to call the number for the District Superintendent’s Office. AR 184, 266.

On November 25, 2017, Casallas filed a police report with the Bakersfield Police Department. AR 175. On December 28, 2017, Cisneros was charged in Kern County Superior Court with misdemeanor violations of Penal Code sections 488 (petty theft) and 503 (embezzlement of $950 or less). AR 175. On September 21, 2018, the criminal case against Cisneros was dismissed. AR 175.

On November 28, 2017, the District notified Cisneros that she was being placed on paid administrative leave, effective that day. AR 316. The notice explained that the District would investigate allegations of inappropriate use of District property and unauthorized distribution of communication to parents. AR 316.

Erin Johnston (“Johnston”) was assigned by the District to investigate who wrote the Letter. On January 19, 2018, Johnston released a summary of her investigation. AR 268.

Johnston interviewed Casallas, who said that Jayme Cook, a Vorhees teacher and mother to a Voorhies student, told him about the Letter and sent him a screenshot of it. AR 268. Casallas knew that someone had distributed the Letter via text messages and Facebook. AR 268-69. The Letter included a picture of Casallas and his partner, which his partner uses as a Facebook and Snapchat profile picture. AR 184, 269.

Casallas said that the parents who approached him did not believe that he wrote the Letter. AR 269. Casallas said he could only think of two people with motive: Cisneros and Jorge Solis (“Solis”). AR 269. Cisneros was upset when her position was dissolved and was returned to a classroom for the 2017-2018 school year. AR 269. She also frequently asked for time off to go to doctor’s appointments in Santa Barbara (where the Letter was postmarked). AR 269. Solis was dismissed in January 2017 after failing his probationary period. AR 269. Casallas said that employees in the EL Department, including both suspects, would have easy access to the envelopes. AR 269.

Johnston conducted interviews of Voorhis employees beginning on November 27, 2017, including Cisneros, Secretary Linda Villalpando (“Villalpando”), Program Specialist Courtney McMahon (“McMahon”), EL Department Director Beatrice Castilleja-Gray (“Castilleja-Gray”), Technology Data and Assessment Analyst Tina Mendez (“Mendez”), Instructional Specialist Maldonado, Lead Language Assessor Ana Hensen (“Hensen”), Coordinator of Migrant Education Janie Flores (“Flores”), Academic Coach Holly Hinh (“Hinh”), and Academic Coach Jane Ferdinand (“Ferdinand”). AR 269, 270, 273, 275, 276-278, 281, 283.

Cisneros was first interviewed on November 28, 2017. AR 270. Cisneros said that she was one of four academic coaches. AR 270. She had a cordial relationship with Casallas. AR 270. When asked if that changed when Casallas accused her of falsifying his letter of recommendation, she brought her concern to the teachers’ union, knew that she was not going to work in the EL Department for long, and patched it up with Casallas. AR 270.

Cisneros asserted that, although she helped send mass mailers for EL Department events, she did not prepare envelopes or labels. AR 271. Villalpando prepared them because it required use of the machines in the back of the office. AR 271. Cisneros never received training on how to prepare those labels. AR 271.

Johnston asked why a mass production of labels would appear on Cisneros’ computer. AR 271. Cisneros said that, although her computer was password protected, Villalpando and Ferdinand had her password. AR 271. She stated that Villalpando showed her how to print labels, but then stated that Villalpando would print the labels because she (Cisneros) did not know how. AR 271.

When asked where she was during the Thanksgiving vacation, Cisneros said that she was visiting an uncle in Baja, California and stopped to visit a sister in Ventura County on the day before Thanksgiving. AR 272. She returned to Bakersfield on Saturday. AR 272.

Cisneros swore on her father’s grave that she did not prepare the Letter, the envelopes, or the labels. AR 272.

During a second interview on December 6, 2017, Cisneros confirmed that her last day of work with the EL Department was June 8, 2017. AR 279. She stated that she only went back on one occasion to speak with the Migrant Office and stated that she could not remember if she used the copy machine during the month of June. AR 279.

Cisneros admitted writing a different letter in 11-point Calibri font, the same size and font as the letter. AR 279. She first denied going to Santa Barbara during Thanksgiving weekend, then retracted that statement and said that she went to a medical clinic in Santa Barbara on November 20, 2017, the Monday before Thanksgiving. AR 279.

Villalpando stated that Cisneros prepared her own paperwork and was good at running labels and printed her own. AR 272. Villalpando only had to help Hinh and another employee on occasion with labels. AR 272.

Cisneros always questioned Casallas’ authority and she did not want to substitute teach when there was a shortage. AR 276. Cisneros did not react well when she was told she was going back into the classroom for the 2017-2018 school year due to restructuring. AR 276. Cisneros was well aware that Casallas was going to Voorhies and that it was not his decision to dissolve her position. AR 276.

In her November 28, 2017 interview, McMahon said that Cisneros often was not where she said she would be and Casallas had to speak with her about it. Cisneros was upset that she was losing her position at the end of the school year. AR 274. McMahon always went to Villalpando for help with labels. Cisneros often sent letters to parents and ran her own labels. AR 274.

Solis is gay and would not have written such a letter based on its content. AR 274. She would not put it past him to have helped Cisneros, however. AR 274.

In a December 5, 2017 telephonic follow-up interview, McMahon stated that this past summer she and Maldonado were the only two EL Department members still working because they were providing staff training. AR 278. One day, Maldonado texted McMahon and asked why Cisneros was working in the office. AR 278. McMahon responded that she did not know. AR 278.

On one occasion, McMahon also saw Cisneros working in the EL Department, but she knew this was not the first day Cisneros had been there working late. AR 278. Cisneros seemed to be making a lot of copies of the same thing, but McMahon did not look at it or speak to her because they did not have a good relationship. AR 278. Cisneros had no business being in the EL Department. AR 278.

Cisneros once sent an upsetting letter to parents. AR 276. The letter scared those parents into thinking their children would not be reclassified and they needed to attend a parent training that Cisneros was putting on. AR 276. No one in the EL Department was aware that Cisneros sent out the letter, and it was sent as if it was coming from Casallas. AR 276.

Johnston concluded that, although Cisneros denied it, there was sufficient evidence that she prepared and sent the Letter. AR 284.

On March 21, 2018, Cisneros deposed Robert Burks (“Burks”). AR 429. Burks was the Assistant Director of Information Technology (“IT”). AR 633-34.

Cisneros asked Burks about a November 27, 2017 email stating: “It appears 35 people ran that particular label that is formatted differently.” AR 428. Burks explained that meant 35 people ran a collection of multiple reports that produced labels with the name format that started with the first name, showed the middle initial, and ended with the last name. AR 429.

Burks could only remember one of the men, Chris Holloway (“Holloway”), who ran these labels specifically for Voorhies. AR 429. Burks did not think the other was Solis. AR 429.

In September 2018, Cisneros and the District signed a Resignation Agreement and Release of all Claims (“Resignation”). AR 359, 361. The District agreed to cancel the pending dismissal proceedings if Cisneros resigned and relinquished any right she might have to reinstatement in District employment for any position. AR 360. She agreed not reapply for District employment or seek any other business relationship with the District. AR 360.

On November 19, 2018, the Commission received Cisneros’ application for a Clear Multiple Subject Teaching Credential with an added authorization in English (the “Application”). AR 133

On April 2, 2021, the Commission’s Executive Director (“Complainant”) filed an Accusation against Cisneros. AR 143. The Complainant sought both denial of her Application and revocation of her existing credentials. AR 143. The causes of discipline for revocation included unprofessional conduct, immoral conduct, and acts of moral turpitude. AR 142. The Accusation alleged acts of moral turpitude as a cause for denial of the Application. AR 143.

An ALJ heard the Accusation on January 18 and 19, 2022. AR 83. Pertinent documentary evidence and testimony is as follows.

Cisneros’ last day of work with the EL Department was June 8, 2017. AR 544. Close to 600 Voorhies families received the Letter. AR 566.

When the EL Department was disbanded, Casallas was reassigned to be Voorhies’ principal. AR 571. This was not a demotion and was more akin to a lateral reassignment. AR 571. Casallas never said that he was upset about the reassignment. AR 571. Johnston never investigated whether anyone who wanted the position was responsible. AR 572.

When asked who had a positive motive, Casallas could only think of Cisneros and Solis. AR 530. Casallas had previously disciplined Solis. AR 571. Because Solis had been dismissed in January 2017 and the address labels were printed in May, he was ruled out. AR 530, 534-35.

IT confirmed that the labels were generated from Cisneros’ computer using her password. AR 538. Her computer was password protected. AR 538. Cisneros said that Villalpando and Ferdinand had her password and the District wanted to rule out anyone’s access to Cisneros’ computer. AR 539.

Johnston understood that, of the academic coaches, only Cisneros ran her own labels. AR 575. According to Burks, the labels used to send the Letter match labels printed on April 27 and May 18, 2017. AR 578. Johnston found that only Cisneros and Villalpando ran labels in the EL Department. AR 575. Johnston never compared the labels printed for the Letter to labels Cisneros had previously printed because she did not have any old labels to make such a comparison. AR 579.

When Johnston interviewed Cisneros on November 28, 2017, Cisneros denied sending the Letter. AR 542. Johnston asked her where she was during Thanksgiving break. AR 541. Cisneros said she visited an uncle in Baja California and a sister in Ventura. AR 541. She did not say she was in Santa Barbara. AR 541. In a December 6, 2017 interview, Cisneros admitted that she was in Santa Barbara at some point during Thanksgiving. AR 549-50.

Johnston did not have anyone check if there was surveillance footage or fingerprints on the drop mailbox in Santa Barbara that was used to send the Letter. AR 589. She did not recall if she investigated Cisnero’s alibi that she was at an off-site training on May 18, 2017. AR 591.

Cisneros showed Johnston a document reflecting that she had a doctor's appointment in Santa Barbara on November 20, 2017. AR 595. Johnston could not determine Cisneros’s whereabouts on November 21 or 22, 2017. AR 583, 595.

Nobody saw Cisneros write the Letter, print the label reports in April or May 2017, or take 600 envelopes from the District office. AR 595-96. Johnston believed Cisneros did these things because she had no evidence to the contrary. AR 596. Cisneros was the most likely suspect, she was in the area at some point, it was within a reasonable timeline, and she had some motive. AR 596.

Casallas’s interactions with Cisneros as her supervisor were professional but sometimes awkward. AR 607. She did not like to be supervised, overly managed, or receive feedback. AR 607. It reached a point where their conversations stopped being positive. AR 607. Her honesty was questionable. AR 607. She would sometimes say she was going to school sites but not report there, or she would say that she was there for two hours and really was there only 15 minutes. AR 607.

At the end of 2015, Cisneros asked Casallas for a letter of recommendation for employment in the school district her children attended. AR 608. He agreed to write it. AR 608. In 2017, various smaller issues made Casallas feel that the contents of the letter were no longer valid. AR 609. He called Human Resources, which told him that Cisneros had submitted a letter of recommendation from him just two weeks earlier. AR 609. He had not done so. AR 609-10. He checked the letter and found that it was the same letter he had written in 215 with the date changed. AR 610.

Cisneros did not react with animosity toward Casallas when she learned her position was being eliminated. AR 613. All his performance evaluations for Cisneros were positive. AR 618.

When Johnston asked Casallas who may have written the Letter, he said Cisneros. AR 614. He does not feel like he has enemies, but there was a lot of bad blood in the air. AR 614. If anyone was going to do something like that, it probably would be her. AR 614.

It was not common for EL Department academic coaches to run label reports. AR 627. Only Cisneros and the secretary did so. AR 627. Cisneros held a lot of parent sessions, and Casallas wanted to support that. AR 627. Everyone in the EL Department had access to label reports, but not everyone used it. AR 628.

Burks was asked to determine who made the labels; he was not asked to determine who wrote the Letter. AR 636. He later learned that the Letter had been sent to Vorhees alumni who had gone on to middle school. AR 636. This was important because it told him a school year to look at. AR 637.

Burks noticed the labels displayed the names by first name, then middle, then last. AR 637. This was uncommon because most labels start with the last name, then first, then middle initial. AR 637. In the computer system they use, only two or three label generators would start with the first name. AR 637.

Burks narrowed down who generated the labels to three people. AR 639. Halloway, a database administrator, had run that label report twice at the beginning of the school year within a few minutes of each other. AR 639. This was most likely testing. AR 639. The other two possible generators of the labels were Cisneros and a name Burks could not remember. AR 639.

Burks knew that Cisneros’s account generated the label reports on April 27 and May 18, 2017. AR 652. He could not say for certain that Cisneros was the person using her account. AR 652. It is also possible to run a label report on one occasion but not print the labels until another day. AR 652. This meant the labels printed on April 27 and May 18, 2017 could have used label reports made some period earlier. AR 655.

Burks knew that the envelopes used the send the Letter were available somewhere in the District building, but he did not know where. AR 658.

Burks was very confident that on May 18, 2017 Cisneros generated the labels used to send the Letter. AR 663.

Villalpando worked with Cisneros on a daily basis and never saw anyone else use Cisneros’ computer. AR 669. The EL Department employees all were aware if anyone had used their computers. AR 669. It was not common practice to share passwords for employee accounts. AR 668.

Villapando did not recall that Cisneros ever gave her computer login and password to Villalpando. AR 668. Even if Cisneros had, Villalpando had no reason to generate address labels for Vorhees on May 17, 2017. AR 668. Villalpando printed labels as part of her job duties. AR 681. She never generated address labels for Voorhies students for another year. AR 668. Villalpando never saw Cisneros print a label report for Voorhies. AR 683.

Although Villalpando and Cisneros had a cordial relationship for the first few years, Villalpando soon grew to not trust her. AR 670. It started with things Cisneros would say or do without being illegal. AR 670. She started doing personal tasks while at work and contradicting herself as to where she was going to be. AR 670-71. Villalpando once saw Cisneros shopping at Costco when she was supposed to be on assignment somewhere else. AR 672. Another time, she saw Cisneros leave the District in her car when she said she was just going to see Human Resources. AR 672-73.

All EL Department and District staff had access to envelopes used to mail the Letter. AR 683. They were in an office cupboard, but the cupboard was unlocked. AR 683.

She never saw Cisneros print letters mailed to District students and employees. AR 683. She never saw Cisneros mail the envelopes containing the Letter. AR 684. Villalpando never saw Cisneros in the EL Department office after June 8, 2017. AR 682.

After Cisneros left the EL Department, she sent Villalpando a text threatening her family for her role in the District investigation and Cisneros’ unemployment. AR 674-75.

When he was an academic coach, he had his own login and password. AR 692. Cisneros never gave Ferdinand her login information. AR 692. Ferdinand does not know of anyone with whom Cisneros shared her password and username. AR 692-93. He never used her computer and does not know that anyone else did. AR 692.

As an academic coach, he would only have reason to create address labels for schools assigned to him. AR 693. Villalpando was their secretary, and she ran label reports for him. AR 694. He did not send the Letter. AR 693.

Icardo was an academic coach until July 1, 2017. AR 697. She worked with Cisneros for five years. AR 697. Cisneros never gave Icardo her login information. AR 699. Icardo never used Cisneros’ computer or saw anyone else use it. AR 699-700. It was not common practice to share computers. AR 700. They each had their own beautiful computer. AR 700.

EL Department coaches spent the day visiting school sites to support principals, teachers, and students. AR 706. Whether Hinh saw Cisneros varied by day. AR 706.

Hinh had her own EL Department login, and policy prohibited sharing it. AR 707-08. Cisneros never shared her login with Hinh, and Hinh does not know anyone else she shared it with. AR 708.

When the EL Department academic coaches learned they would no longer be coaches, they were upset to varying degrees. AR 713-14. They were not losing their jobs insofar as they would remain teachers, but two of them did retire instead. AR 714.

When Maldonado started working in the EL Department in 2016, she observed a few interactions between Cisneros and Casillas. AR 729-30. Those moments created a hostile work environment. AR 729. Cisneros did not speak to Casillas in a professional way, and she always tried to do the opposite of whatever he said. AR 730.

In 2017, the District chose to eliminate the EL Department’s academic coaching positions. AR 730. Cisneros was the only coach who was very upset about this. AR 731. She blamed Casillas and thought the decision was made against her personally. AR 731. She was very vocal about it. AR 731. The decision came from the superintendent and other superiors; Casillas did not decide to eliminate the coaching positions. AR 732.

EL Department employees signed a document of privacy promising not to share passwords to their accounts. AR 732-33. Cisneros never shared her login with Maldonado, and Maldonado does not know anyone else with whom she shared it. AR 733. She never saw anyone else use Cisneros’ computer. AR 733.

In either June or July 2017, after she learned the coaching positions were eliminated, Maldonado saw Cisneros printing letters in the EL Department offices on a couple of occasions. AR 733. On one occasion she saw Cisneros with a rolling cart. AR 734. Between 4:30 and 6:00 p.m., she then saw her printing labels from her computer printer. AR 734. At the same time, Cisneros was making a large number of copies on the copier. AR 734-35. She did not see the content of what Cisneros was printing and copying. AR 739. This was after Cisneros’ position had been eliminated and she had taken all her personal stuff. AR 735. Cisneros became upset that Maldonaldo was there and asked why. AR 735. Cisneros acted like she was not expecting anyone else to be there at the time. AR 735.

Maldonado texted McMahan, the program specialist, to let her know that Cisneros was in the office. AR 739. She had instructions to document the date and time she saw Cisneros, but she did not because she was so busy and did not think anything of the incident. AR 739-40.

McMahon was an academic coach at the District. AR 788. At the time of the incident, the EL Department had five coaches: Hinh, Icardo, McMahon, Casallas, and Mendez. AR 791-92. There was also a secretary, Villalpando. AR 792.

EL Department employees were not supposed to share passwords to their accounts. AR 792. Cisneros never shared her login with McMahon, and McMahon does not know anyone else she shared it with. AR 792-93. No one else used Cisneros’ computer. AR 793.

It was commonplace for EL Department staff to run label reports, although McMahon did not personally do so. AR 803. McMahon was not aware of secretaries running label reports, although Villalpando may have done so. AR 803-04.

Sometime toward the end of June or the beginning of July 2017, McMahon reported that she saw Cisneros inside the EL Department office. AR 804. Maldonado was with her. AR 805. Cisneros was copying or printing something, but McMahon could not see what it was. AR 805. She and Cisneros did not speak to each other on that occasion. AR 805.

During the District’s investigation, McMahon produced pictures posted on Facebook that showed Cisneros at a landmark restaurant in Santa Barbara in November 2017. AR 796, 798-99.

She believed the postmarks show the Letter was mailed from Ventura County. AR 799. McMahon tried to place Cisneros in Santa Barbar because she was the only one who disliked Casallas enough to write the Letter. AR 799, 812-13. She never saw Cisneros write the Letter, print its label reports, take the 600 envelopes, or mail the Letter. AR 813.

In the five years Mendez worked with Cisneros, she never saw Cisneros share her computer login information. AR 831. She also never saw anyone use Cisneros’ computer. AR 831.

Cisneros shared her EL Department computer password with Icardo and Ferdinand. AR 856. Villalpando also would have had it. AR 856. IT also would have had it. AR 856.

Cisneros’ flight itinerary shows that she was in Mexico from June 24 to July 8, 2017. AR 881. Her calendar for April and May 2017 is 100% accurate. AR 497-98, 897.

On Thanksgiving week, she was in Ventura County and returned to Bakersfield on November 21, 2017. AR 917. Cisneros was confronted with Johnston’s testimony that Cisneros said in her November 28, 2017 interview that she spent Thanksgiving in Baja California and then with her sister in Ventura County. AR 914. Cisneros initially stated that Johnston misunderstood, and that her testimony was false. AR 915. Cisneros subsequently testified that Johnston was lying. AR 919.

She never told Johnston that she was in Santa Barbara for the week; she told her that she was visiting her sister in Santa Barbara but failed to realize that her sister lives in Ventura County. AR 918. She went to a doctor’s appointment in Santa Barbara on Monday, November 20, 2017. AR 918. Johnston lied when she testified that Cisneros never mentioned Santa Barbara in the interview. AR 918-19.

Villalpando also was lying when she testified that Cisneros texted and threatened her and her family for her role in the incident. AR 923.

Cisneros’ April and May 2017 calendars show that she was scheduled on May 18, 2017 to be out for the “Renaissance/STAR 360 Program” from 9:00 a.m. thereafter. AR 497-98.

Printouts from Expedia show that Cisneros booked flights between various cities in Mexico on June 24, June 28, and July 7, 2017. AR 491.

On March 22, 2022, the ALJ issued a Proposed Decision recommending that the Commission revoke Cisneros’ Clear Multiple Subject Teaching Credential and deny the Application to add an English authorization. AR 30. The Proposed Decision noted that Cisneros asserted Mendez, Villalpando, Ferdinand, and Johnston all lied in their testimony. AR 24. Her uncorroborated testimony alone did not raise sufficient doubt to refute this clear and convincing evidence. AR 24.

On June 24, 2022, the Commission notified Cisneros that it had rejected the Proposed Decision and would decide the case itself at a regularly scheduled Commission meeting. AR 31. On July 6, Cisneros was notified that the Commission had received the transcript of the administrative hearing and that she was invited to submit written argument by August 15. AR 33.

On November 20, 2022, the Commission issued the Decision modifying two of the ALJ’s factual findings and 11 of the legal conclusions. AR 83-84, 110. The Decision expanded the proposed revocation to all credentials the Commission had issued Cisneros and denied her application to add an English authorization to her Clear Multiple Subject Teaching Credential. AR 110.

During the 2016-2017 academic year, Casallas was the EL Department’s supervisor. AR 85. Casallas supervised the four academic coaches and other staff in the EL Department. AR 85. Each academic coach was assigned to different District school sites. AR 85. Cisneros started the 2016-2017 academic year as the academic coach responsible for Voorhies. AR 85. Academic coaches spent part of the day in the EL Department office, but most visit their assigned school to support students and staff. AR 85.

The EL Department’s office space had no cubicles. AR 86. Each staff member created their own confidential computer login name and password. AR 86. Although each employee had a separate computer, any EL Department employee could use their own login information to log onto any of the computers. AR 86. Coaches and secretaries alike could use those computers to generate labels for mailings to parents of students at particular schools. AR 86. Any EL Department staff member could access the G&T Department’s envelopes stored in an unlocked cupboard. AR 86.

In early 2017, the District informed Casallas that he would be reassigned as the principal of Voorhies. AR 86. The EL Department’s four academic coach and program specialist positions would be eliminated, and the four coaches and program specialist McMahan would be permitted to apply for District teaching positions. AR 86-87.

To demonstrate that Cisneros wrote and sent the Letter, the Complainant introduced evidence that Cisneros had motive and opportunity and that no one else in the EL Department did. Everyone in the EL Department testified. AR 88-89.

IT Director Burk testified that the labels for the letter were in Arial font, the font used by the District’s SIS program for most of its labels. AR 89. The labels used the parent names with first name, middle name, and then last name rather than the usual last name first that is used in most label programs. AR 89. The text in the Letter suggested that the labels were created with 2016-17 Voorhies enrollment information. AR 90.

SIS keeps a record of every time a label report is run, including the date and time and user whose login was entered to run the report. AR 90. Burks identified Holloway, Cisneros, and a third person as the only ones whose logins showed that they ran the program that could have generated these labels. AR 90. He ran a spreadsheet showing 35 pertinent label reports. AR 90. The spreadsheet showed that on April 27, 2017 someone used Cisneros’ login to run these mailing labels. AR 90. On May 18, someone used the same login to run a schoolwide student address label report. AR 90. This report only runs when the user specifies that the labels are to be sent to parents of students at a particular school. AR 90.

Burks is very confident that the May 18 labels were used to send the Letter to Voorhies parents. AR 91. This May 18 date was close to the end of the school year, and he did not know whether an academic coach would have reason to generate labels so late in the school year. AR 91. He acknowledged that generated label reports can be saved and used to print labels at a later date. AR 91. Thus, he acknowledged that label reports generated earlier than April 27 could have been used to mail the Letter. AR 91.

Burks did not investigate who had access to Cisnero’s login. AR 92. He acknowledged that he cannot be certain Cisneros generated the labels. AR 92. However, his evidence supports the conclusion that Cisneros’ login and password were used to generate the labels to send the Letter. AR 92.

The other academic coaches and EL Department employees all testified that they had their own logins and passwords. AR 92. Some of them testified, without contradiction, to a policy prohibiting the sharing of login information. AR 92. All of them said that Cisneros never shared her login information with them, and they did not know anyone with whom she shared it. AR 92. They also all said that they never used her workstation or saw anyone else use it, and it was very uncommon and not generally appreciated to use another employee’s computer. AR 92.

The coaches all prepared letters to families of students, but their testimony varied as to who prepared the labels. AR 93. Some said the EL Department secretary or clerk would do that. AR 93. But the clerk, Mendez, denied preparing label reports for the coaches. AR 93. Both Mendez and the secretary, Villalpando, testified that Cisneros never asked them to run a label report. AR 93. McMahon testified that coaches often run labels for their own school sites. AR 93. Maldonado testified that she saw Cisneros do so a couple of times. AR 93. Even if the secretary or clerk sometimes prepares labels, the coach does not need to share login information for them to do so; the secretaries have their own logins and can access the same information. AR 93.

No one in the EL Department saw Cisneros write the Letter, print the label reports, take 600 envelopes from the office, or mail the letter. AR 95. All EL Department staff denied sending the Letter. AR 93. No evidence supports a finding that any EL Department employee other than Cisneros created the Letter or envelope labels. AR 93.

Maldonado and McMahan testified that they saw Cisneros in the EL Department office in June or early July 2017, after her coach position was eliminated on June 8. AR 94. Maldonaldo said she saw her enter with a rolling cart and print a huge number of photocopies, but she did not see what the document was. AR 94. Cisneros was upset when she saw Maldonaldo and asked why she was still there. AR 94. Maldonaldo texted McMahon about it, who was also in the office. AR 94. McMahon advised her to document it, but Maldonado was too busy to do so. AR 94. Cisneros’ only duty during the summer was to supervise students, not prepare mass mailings or photocopies. AR 95.

McMahon testified that she saw Cisneros at her old desk while copying machines were running. AR 95. She could not see what she was copying or printing. AR 95. She reported it to Casallas but did not document it. AR 95.

After the Letter’s publication, McMahon found photographs from Cisneros’ Facebook showing that she was in Santa Barbara on November 20, 2017. AR 95. The Letter was mailed from Santa Barbara and postmarked on November 22. AR 95.

McMahon, Mendez, and other EL Department employees testified that Cisneros was the only employee who had a difficult relationship with Casallas. AR 95-96.

Casallas suspected Cisneros because of their negative professional relationship, which is rare for Casallas. AR 96. Johnston did not consider whether other candidates for the position of Voorhies principal might have prepared the Letter. AR 96. She concluded that someone printed the Letter at the EL Department office because no evidence suggested it was printed offsite. AR 96. She did not compare the April and May 2017 labels with labels that Cisneros had previously printed because the District did not have them. AR 96-97. No one saw firsthand who wrote or sent the Letter, and attempts to test it for fingerprints failed. AR 97.

Johnston testified that Cisneros was in Santa Barbara around the time the Letter was mailed from that location. AR 97. The postmark was dated November 22, 2017, and Cisneros was in Santa Barbara sometime between November 20 and 24. AR 97.

Johnston was confident that Cisneros sent the letter. She was the most likely to do so, she had motive, she was in Santa Barbara around the right time, other EL Department employees testified to facts suggesting that she created the Letter and labels, and IT confirmed that Cisneros must have made the labels. AR 97.

Cisneros denied any involvement with the Letter. AR 98. Cisneros testified that she learned about the Letter on the Monday after Thanksgiving, November 27, 2017. AR 98.

She admitted that she was in the office on April 27, 2017, but did not remember if she ran a label report that day. AR 98. She could have asked Mendez, Villalpando, or Ferdinand to do it and she would have given them her login information. AR 98. This testimony was not credible. AR 98. Cisneros did not identify Mendez as someone she would share her password with during the investigative interviews. AR 98. All three employees denied she ever gave them her password. AR 98. They had their own passwords and would not have needed it to create labels. AR 98. Cisneros testified that the testimony of Mendez, Villalpando, and Ferdinand on this issue was false. AR 98.

After Cisneros left the EL Department on June 8, 2017, she still had access to its office. AR 99. She spent that summer as a Migrant Education Services coordinator at the District’s Pioneer Elementary School. AR 99. She went to the EL Department office on July 25, 2017 for an interview but did not go there any other day that summer. AR 99. She said that McMahon and Maldonado were “absolutely lying” about seeing her there because she was out of the country on the days when they claimed to have seen her in the office. AR 99.

Cisneros testified that she planned to visit her uncle in Baja California the week of Thanksgiving. AR 99. When that plan fell through, she visited her sister in Ventura instead. AR 99. She arrived there on Sunday, November 19. AR 99. On November 20, she left her children with her sister while she visited a Santa Barbara medical clinic, then returned to Ventura. AR 99. Cisneros testified that she then drove to Bakersfield on November 21 to spend Thanksgiving with her husband. AR 99. Cisneros failed to explain how there were Facebook pictures of her entire family in Santa Barbara on November 20. AR 99.

The District’s summary of Cisneros’ interview during the week after Thanksgiving reflects that Cisneros said she visited her uncle in Baja California, then her sister in Ventura. AR 100. Johnston testified that Cisneros never mentioned Santa Barbara in the interview. AR 100. Cisneros testified that she said in the interview that she visited her sister in Santa Barbara, and she did so because she did not understand her sister lived in Ventura. AR 100. Cisneros testified that Johnston lied that she never mentioned Santa Barbara in her interview. AR 100.

Cisneros testified that her relationship with Casallas was cordial and that she would never impugn him in a letter. AR 100. She admitted their relationship faltered in January or February 2017, when substitute teaching assignments forced her to cancel her parent workshops. AR 100.

Cisneros testified that she wanted to use Casallas’ 2015 letter of recommendation in 2017 to apply for some jobs. AR 100-01. Ms. Stout in Human Resources suggested that Cisneros change the date from 2015 to 2017. AR 101. She “was floored” when she learned on April 26, 2017, that Casallas asserted she had fraudulently written the letter. AR 101. This April 26 accusation was made one day before her login was used to print label reports for Voorhies. AR 101.

Cisneros asserted that Johnston’s Investigative Summary’s description of both interviews was inaccurate and that Johnston’s testimony at the hearing was absolutely false. AR 102. Cisneros asserted that Mendez, Villalpando, Ferdinand, and Johnston all lied in their testimony. AR 102. However, her own testimony as to the events in her interviews was inconsistent and confused. AR 102. Her uncorroborated testimony did not raise sufficient doubt to refute what appears to be clear and convincing evidence. AR 102.

The evidence supports the conclusion that she planned the Letter, ran label reports in April and May 2017, printed the Letter and envelopes in June or July, and mailed the Letter in November while in Santa Barbara. AR 102.

Drafting and mailing the letter while using school resources to further her scheme is cause to take adverse action against Cisnero’s credentials under section 44421 based on unprofessional conduct. AR 106.

The Letter’s fraudulent content and the steps taken to mail it to parents reflect indecency, depravity, and moral indifference to the opinions of respectable members of the community. AR 106-07. Cisneros also ignored the public welfare because the Letter encouraged parents to voice concerns about statements wrongfully attributed to Casallas at a public meeting. AR 107. Cause exists to take adverse action under section 44421 based on immoral conduct. AR 106.

The entire scheme reflects a general readiness to do evil without excuse. AR 107. The Complainant established by clear and convincing evidence cause to take adverse action against Cisnero’s credentials based on acts of moral turpitude. AR 107.

Multiple aggravating factors are present. AR 108. Cisneros demonstrated a pattern of misconduct because she engaged in a multi-step scheme with multiple acts of misconduct. AR 108. She drafted a fraudulent Letter, used District resources to print and mail it to parents, and denied the misconduct during the District’s investigation. AR 108. The nature of these bad acts proves they were made in bad faith and dishonesty. AR 108. They also harmed the educational and public system because many parents and staff members approached Casallas about the letter. AR 109.

There was nothing praiseworthy about this conduct. AR 109. The likelihood of recurrence was high because Cisneros would not take responsibility for her actions. AR 109. She instead chose to argue that every witness except herself lied under oath. AR 109. Finally, the widespread distribution of the Letter shows Cisneros intended to create both negative publicity and notoriety for Casallas. AR 109.

Petitioner Cisneros contends that (a) the Commission erred in applying the burden of proof, (b) Johnston’s investigation was biased and incomplete, and (c) the findings that she wrote and sent the Letter to student parents is not supported by the weight of the evidence.

Cisneros contends that the Commission’s Decision[4] states that “Respondent’s uncorroborated testimony alone has not raised sufficient doubt to refute what appears to be clear and convincing evidence” (emphasis added). AR 102. The Complainant’s burden of proof was actual clear and convincing evidence, not the appearance of clear and convincing evidence. Just as the appearance of impropriety is not the same as actual impropriety, the appearance of clear and convincing evidence is not tantamount to actual clear and convincing evidence. Pet. Op. Br. at 11.

Further, the Commission inappropriately shifted the burden of proof to Cisneros, noting, in relevant part, that her “uncorroborated testimony alone has not raised sufficient doubt to refute” the evidence established by the record. AR 102. Cisneros argues that it was solely the burden of the Complainant to prove each and every allegation by clear and convincing evidence, regardless of whether or not Cisneros could refute the evidence or present any evidence on her own behalf. Pet. Op. Br. at 11.

The Commission responds that Cisneros is conflating the Complainant’s clear and convincing burden of proof to revoke Cisneros’ credentials with Cisneros’ burden to prove by a preponderance of evidence that her Application for English authorization should be granted. The Commission’s Decision states that the Complainant established by clear and convincing evidence that Cisneros engaged in unprofessional, immoral conduct and committed acts of moral turpitude by sending the Letter. AR 110. For the Application, it states that Cisneros failed to prove by a preponderance of evidence that she did not engage in acts of moral turpitude. AR 110. Opp. at 11.

Cisneros does not reply to this argument. In any event, loose language in the context of analysis does not show that the Commission was unaware of or misapplied the correct burdens of proof for revocation and the Application or that the burden was improperly shifted to Cisneros.

Cisneros notes that the Letter was mailed in November 2017 to the parents/families of Voorhies. Almost immediately, two persons were designated as likely culprits: Cisneros and Solis. Solis had been disciplined by Casallas but was never investigated by Johnston. From the onset, Johnston’s investigation solely focused on Cisneros. Pet. Op. Br. at 12.

Johnston worked with the IT Department Director John Deaton and Assistant Director Burks. Johnston estimated that 600 copies of the Letter were sent out to the parents of the Voorhies Elementary School. Burks noticed that the labels that were sent to the parents of Voorhies were in a unique format of first name, middle name, last name, which allowed him to narrow down the search to three people: Chris Holloway, the database administrator; a second person whose name Burks could not remember when he testified, and Cisneros. AR 639. Johnston never interviewed Chris Holloway or investigated the reason why he ran a label report. Nor did she attempt to locate the other person who ran the labels for Voorhies. Pet. Op. Br. at 12.

The Commission contends that, on May 18, 2017, Cisneros generated the labels that were used to mail out the Letter in November 2017. No one saw Cisneros type the Letter. No comparison of the labels was made to any labels that Cisneros printed on other occasions. AR 579. Cisneros presented evidence that she was offsite for training on May 18, 2017. AR 497, 498, 897. Yet, Johnston did not investigate Cisneros’ alibi for May 18. AR 591. Pet. Op. Br. at 13.

Johnston learned from the U.S. post office that the envelopes were mailed on November 22, 2017 from a postal drop box in Santa Barbara. However, the evidence only established that Cisneros was in Santa Barbara on November 20, 2017. AR 583. No video surveillance existed to determine who mailed the Letter. AR 589. No fingerprints were recovered from the envelopes and copies of the Letter. AR 589. There was no evidence that Cisneros was in Santa Barbara on November 22, 2017. AR 595. Cisneros testified that she returned home to Bakersfield from her sister’s house in Ventura County on November 21, 2017. AR 917. Pet. Op. Br. at 13.

Cisneros argues that Johnston’s investigation concerned motive and opportunity as opposed to actual evidence. No witnesses saw Cisneros print the labels. No witnesses saw Cisneros type the Letter. No witnesses saw Cisneros print copies of the Letter. No witnesses saw Cisneros mail the Letter. Cisneros’ fingerprints were not on any documents. Thus, there is no actual evidence linking Cisneros to creating and mailing the Letter. Pet. Op. Br. at 13.

Much of Cisneros’ argument really is that the Commission’s Decision is not supported by sufficient evidence as opposed to an argument about the inadequacy of Johnston’s investigation. The sufficiency of the evidence is addressed post. It also should be noted that the adequacy of Johnston’s investigation is significant only as it bears on Complainant’s circumstantial case. Cisneros is not entitled by due process or statute to any particular type of , or a complete, investigation.

With this in mind, much of what Cisneros states is true with a few exceptions. AR 429. Cisneros faults Johnston for never interviewing Chris Holloway about the reason why he ran a label report and for not attempting to locate the second person who ran the labels for Voorhies.

Yet, it was clear that Holloway was not a suspect. He was a data administrator who that label report twice at the beginning of the school year within a few minutes of each other. AR 639. This was most likely testing. AR 639. The timing of Holloway’s label report early in the year also eliminated him as a suspect. As for the third, unstated person, it is true that Johnston did not investigate him or her. However, other evidence shows that the label reports were generated with Cisneros’ login and password and there is no evidence that this third person had access to Cisneros’ computer or any EL Department computer.

Cisneros states that no comparison of the labels was made to other labels that Cisneros had printed. AR 579. She leaves out the fact that Johnston never compared the labels to labels Cisneros had previously printed because she did not have any old labels for such a comparison. AR 579.

Cisneros notes that she presented her calendar and testified that she was offsite for training on May 18, 2017 (AR 497, 498, 897) and argues that Johnston did not investigate Cisneros’ alibi for May 18. AR 591. Actually, Johnston testified that she did not recall if she investigated whether Cisneros was at offsite training on May 18. It is true that Johnston could have checked whether Cisneros attended the May 18 training, but it would not have proved much. She could have come back to work after the training ended, or after hours, to run the label report.

Finally, although Solis may have had motive to attack Casallas, he could not have written the Letter. First, McMahan stated in her interview that Solis is gay and would not have written a Letter like that. AR 274. While she would not put it past him to help Cisneros (AR 274), he had been dismissed in January 2017 after failing his probationary period and did not have access to the EL Department computers. See AR 269.[5]

Cisneros argues that the Complainant did not meet the burden of proving the allegations by clear and convincing evidence. Pet. Op. Br. at 14. This is a circumstantial evidence case and Cisneros focuses mostly on the evidence that does not exist. But the court’s independent review of the evidence that does exist shows that Cisneros wrote and mailed out the Letter.

Cisneros argues that no witnesses saw her run label reports for Voorhies students. IT Assistant Director Burks was asked to determine who created the labels used on the envelopes, but not who printed the Letter. AR 636. On May 18, 2017, the labels were run for Voorhies students from the 2016 through 2017 school year. AR 644. Burks stated that the labels had been mailed to former Voorhies students who had moved on to Middle School. AR 636. Burks noted that the labels were unusual because they were printed with the student’s first name, followed by their middle and then followed by their last name. AR 637, while the labels were generated using the last name first. AR 637. In his deposition (AR 307, 429), Burks testified that 35 people ran a label report produced in this unusual format. AR 429. At the hearing, Burks testified that there were three people who ran labels using the same program: Chris Holloway (likely for system testing purposes), a second person (whom Burks could not remember), and Cisneros. AR 639.[6] Pet. Op. Br. at 14.

Burks admitted that he could not say that Cisneros was the person at the computer who generated these label reports. AR 652. Burks also admitted that it was possible that the label reports were run prior to the dates of April 27, 2017 and May 18, 2017. AR 655. In other words, these label reports could have been run by someone at any point prior to the parameters established by Burks. Pet. Op. Br. at 15.

Johnston believed that the labels from the Letter received by former Voorhies parents matched the labels that were printed on April 27^th and May 18^th. AR 578. However, Burks testified that someone could run label reports but not print them on the same day. AR 652. Hence, no one knows when the label reports were printed or who printed the label reports. Pet. Op. Br. at 15.

The Commission’s Decision contends that the EL Department employees did not have one another’s logins or passwords. Secretary Villalpando noted that it was not common practice for employees to share login passwords, but she could not recall if Cisneros ever provided her with her login password. AR 668. Villalpando never saw Cisneros run a label report for Voorhies. AR 683. Thus, the exact identity of the individual who created and printed the labels is not known with certainty. The mere fact that reports were created using Cisneros’ login information does not establish that she created and printed said labels. Pet. Op. Br. at 15.

This is what is known about the label reports. Cisneros does not dispute Burks testimony and he testified that the labels were in Arial font, which is used by the District’s SIS program for most of its labels. AR 89. The labels used the Voorhies parent names with first name, middle name, and then last name rather than the usual last name first used in most label programs. AR 89. The text in the letter suggested that the labels were created with the 2016-17 Voorhies enrollment information. AR 90.

SIS keeps a record of every time a label report is run, including the date and time and user whose login was entered to run the report. AR 90. Burks identified Holloway, Cisneros, and a third person as the only ones whose logins showed that they ran the program that could have generated these labels. AR 90. On April 27, 2017, someone used Cisneros’ login to run these mailing labels. AR 90. On May 18, 2017, someone used the same login to run a schoolwide student address label report. AR 90. This report only runs when the user specifies that the labels are to be sent to parents of students at a particular school. AR 90.

Burks was very confident that the May 18 labels were used to send the letter to Voorhies parents. AR 91. He acknowledged that generated label reports can be saved and used to print labels at a later date. AR 91. Thus, he acknowledged that label reports generated earlier than April 27 could have been used to mail the Letter. AR 91. But this did not affect his confidence level that Cisneros’ login and password was used on April 27 and again on May 18 to create label reports, and that the May 18 login generated a schoolwide student address label report. AR 91, 663.

Consequently, the evidence that the label reports for the Letter were generated using Cisneros’ login and password on April 27 and May 18 is strong but not without any doubt.

So, the question becomes who had access to Cisneros’ computer to generate these label reports? The evidence on this issue was compelling. All EL Department witnesses testified and said that they had their own logins and passwords. AR 92. Some of them testified, without contradiction, to a policy prohibiting the sharing of login information. AR 92. All of them said that Cisneros never shared her login information with them, and they did not know anyone with whom she shared it. AR 92. They also all said that they never used her workstation or saw anyone else use it, and it was very uncommon and not generally appreciated to use another employee’s computer. AR 92.

Cisneros testified that she shared her EL Department computer password with Icardo and Ferdinand. AR 856. Villalpando also would have had it. AR 856. IT also would have had it. AR 856. This testimony is rebutted by Icardo and Ferdinand, who denied receiving Cisneros’ password, and Villalpando, who testified that she “honestly did not recall that she gave me that information.” AR 668, 669, 692.

Moreover, The EL Department employees all testified that they had their own logins and passwords. AR 92. Some of them testified, without contradiction, to a policy prohibiting the sharing of login information. AR 92. None knew of anyone with whom Cisneros shared her password. AR 92. They all said that they never used her workstation or saw anyone else use it, and it was very uncommon and not generally appreciated to use another employee’s computer. AR 92.

Thus, it is highly probable that the label reports were generated using Cisneros’ login and password on Cisneros’ computer, and there is no evidence that anyone had access to this login and password other than her own contradicted testimony.

Cisneros’ last day of work at the EL Department was June 8, 2017. AR 544. Maldonado testified that, in either June or July, after she learned the coaching positions were eliminated, Maldonado saw Cisneros printing letters in the EL Department offices on a couple of occasions. AR 733. On one occasion she saw Cisneros with a rolling cart. AR 734. Between 4:30 and 6:00 p.m., she then saw her printing labels from her computer printer. AR 734. At the same time, Cisneros was making a large number of copies on the copier. AR 734-35. She did not see the content of what Cisneros was printing and copying. AR 739. Cisneros became upset that Maldonaldo was there and asked why. AR 735. Cisneros acted like she was not expecting anyone else to be there at the time. AR 735. Maldonado texted McMahan, the program specialist, to let her know that Cisneros was in the office. AR 739. She did not document the date and time she saw Cisneros because she was so busy and did not think anything of the incident. AR 739-40.

McMahan testified that, sometime approximately toward the end of June or the beginning of July 2017, she saw Cisneros inside the EL Department office. AR 804. Maldonado was with her. AR 805. Cisneros was copying or printing something, but McMahon could not see what it was. AR 805. She and Cisneros did not speak to each other. AR 805.

Cisneros contends that McMahan and Maldonado were not credible. McMahon, an academic coach, was not aware that secretaries ran label reports (AR 803), but Villalpando testified that she did print labels. AR 681. Casallas confirmed that both Cisneros and the secretary would run label reports. AR 627. While Maldonado claimed to have seen Cisneros in the EL Department and that she texted McMahon when she saw Cisneros, the need to text indicates that the two were not together. Pet. Op. Br. at 16. This directly contradicts McMahan, who stated that Maldonado was with her. Villalpando also testified that she never saw Cisneros at the EL Department after June 8, 2017. AR 681. Pet. Op. Br. at 17.

This argument is rebutted by the fact that there were two post-June 8 occasions when Cisneros was seen: once by Maldonado alone and a second time when Maldonado and McMahon were together. Both Maldonado’s testimony and McMahon’s interview support this conclusion. AR 278. Additionally, McMahon’s testimony that she was not aware that secretaries ran label reports, but Villalpando might have (AR 803), does not affect her credibility.

Cisneros notes that she testified that she was in Mexico from June 24, 2017 through July 8, 2017. AR 881. She was corroborated by a copy of her flight information. Pet. Op. Br. at 17.

True, but the flights only cover the June 24 to July 8 period and are not inconsistent with McMahan’s and Maldonado’s testimony that they saw her in the EL Department on more than one occasion in either June or July.

The implication from the fact that Cisneros was in the EL Department office after June 8 on more than one occasion printing labels and making a large number of copies, and was upset at seeing Maldonaldo, is suggestive that she was printing and copying the letter. It is only suggestive, however, and the Complainant did not directly prove that she printed the Letter.

Cisneros argues that the Complainant failed to establish that she took envelopes from the District. No witnesses saw her taking the hundreds of envelopes used to mail the letters. Burks was not even sure of the location of the envelopes. AR 658. Villalpando also noted that any envelopes used for label reports were available to all EL Department staff. AR 683. In other words, anyone could have addressed these particular envelopes. Pet. Op. Br. at 18.

True, but the evidence concerning the envelopes concerned only their availability. All EL Department and District staff had access to envelopes used to mail copies of the Letter. AR 683. They were in an office cupboard, but the cupboard was unlocked. AR 683. It is undisputed that they were in the District building and available to anyone, including Cisneros.

Cisneros argues that the evidence failed to show that she mailed the Letter to parents of former Voorhies students. McMahon incorrectly testified that she “believed” the copies of the Letter were mailed from Ventura County. AR 799. No fingerprints were recovered from the mailers, and one could identify Cisneros mailing the Letter from Santa Barbara on November 22, 2017. AR 589. Nor could Cisneros’ presence in Santa Barbara be traced to the exact date when the Letter was mailed. Pet. Op. Br. at 18.

The copies of the Letter were postmarked in Santa Barbara on November 22, 2017. During Cisneros’ first interview on November 28, 2017, Johnston asked her about her whereabouts during Thanksgiving break. AR 270. Cisneros said that she was visiting an uncle in Baja, California and stopped to visit a sister in Ventura County on the day before Thanksgiving. AR 272. She returned to Bakersfield on Saturday. AR 272. At the hearing, Johnston testified that Cisneros did not say that she was in Santa Barbara in her first interview. AR 541.

During the District’s investigation, McMahon produced pictures posted on Facebook showing that Cisneros was at a landmark restaurant in Santa Barbara in November 2017. AR 796, 798-99. In a follow-up interview on December 6, 2017, Cisneros first denied going to Santa Barbara during Thanksgiving weekend, then retracted that statement and said that she went to a medical clinic in Santa Barbara on November 20, 2017, the Monday before Thanksgiving. AR 279.

Cisneros testified that she had planned to visit her uncle in Baja California the week of Thanksgiving. AR 99. When that plan fell through, she visited her sister in Ventura instead. AR 99. She arrived there on Sunday, November 19. AR 99. On November 20, she left her children with her sister while she visited a Santa Barbara medical clinic, then returned to Ventura. AR 99. Cisneros testified that she then drove to Bakersfield on November 21 to spend Thanksgiving with her husband. AR 99.

The court agrees with the Commission that Cisneros’s testimony explains that she was in Santa Barbara for a medical appointment on Monday, November 20, but does not explain why Facebook pictures depict her entire family at a restaurant in Santa Barbara on that day. See AR 99. The clear inference is that Cisneros may well have been in Santa Barbara on November 22, 2017 and could have mailed the copies of the Letter.

Cisneros argues that the weight of the evidence does not show her motive. What did she have to gain by writing and mailing copies of the Letter? The decision to eliminate the academic coaches position was made by the District, not Casallas, a fact of which Cisneros was aware. AR 730. Casallas had been Cisneros’ supervisor at the EL Department for three years. Casallas admitted to authoring excellent performance evaluations for Cisneros (AR 618), and that he did not feel that Ms. Cisneros had any animosity toward him (AR 613). Casallas claimed that Cisneros did not like to be supervised, and that she was argumentative and had questionable honesty. AR 607. As a result, Casallas withdrew a 2015 letter of recommendation for Cisneros after Cisneros changed the date of the letter of recommendation. AR 608. However, no evidence was presented that Cisneros altered the date of the letter of recommendation. Pet. Op. Br. at 19.

“‘Clear and convincing’ evidence requires a finding of high probability.” In re Angelia P., (1981) 28 Cal.3d 908, 919. Johnston and Casallas both believe that Cisneros sent the letters because “if anyone was going to do something like that, was probably going to be her.” AR 614. Casallas’ mere belief that the culprit must be Cisneros is not grounded in any reliable facts or evidence. There is only speculation and that does not meet the clear and convincing burden of proof required. Pet. Op. Br. at 19-20.

In her interview, McMahan stated that Cisneros was upset about losing her position. AR 274.

Maldonado also testified that Cisneros alone was extremely upset and vocal at the elimination of her academic coach position and blamed Casallas. AR 731-32. Maldonado added that, prior to the elimination of her position, Cisneros was defiant towards Casallas; she frequently defied his instructions and wanted to do the opposite, creating a hostile environment. AR 729-30.

In his interview, Johnston asked Casallas if he could think of anyone responsible for sending the Letter and Casallas named Cisneros and Solis. AR 535. They were the only two that he could think of two who had motive. AR 269. Cisneros was upset when her position was dissolved, and that she was returned to a classroom for the 2017-2018 school year. AR 269.

Valillapado also stated in her interview that Cisneros always questioned Casallas’ authority and she did not want to substitute teach when there was a shortage. AR 276. Cisneros did not react well when she was told she was going back into the classroom for the 2017-2018 school year due to restructuring. AR 276.

Casallas testified about the letter of recommendation. At the end of 2015, Cisneros asked Casallas for a letter of recommendation for employment in the school district her children attend. AR 608. He agreed to write it. AR 608. In 2017, various smaller issues had made Casallas feel that the contents of the letter were no longer valid. AR 609. He called Human Resources, who told him that Cisneros had submitted a letter of recommendation from him just two weeks earlier. AR 609. He had not done so. AR 609-10. He checked the letter and found it was the same letter he had written with the date changed. AR 610.

As the Commission’s Decision notes, Cisneros testified that in 2017 she wanted to use Casallas’ 2015 letter of recommendation to apply for some jobs. AR 100-01. Ms. Stout in Human Resources suggested that Cisneros change the date from 2015 to 2017. AR 101. She “was floored” when she learned on April 26, 2017 that Casallas asserted that she had fraudulently written the letter. AR 101. (This April 26 day that she was floored by Casallas’ accusation was one day before her login was used to print label reports for Voorhies. AR 101.)

Thus, Cisneros was hostile towards Casallas before her position was eliminated. When she found out, she was angry that she would have to go back to the classroom and wrongly blamed Casallas. He then floored her by accusing her of fraud. This is plenty of motivation and she is the only EL Department member who had a motive to harm Casallas.

The court agrees with the Commission that Cisneros lacked credibility. Aside from the evidence about her misrepresentations about where she was going or would be (AR 274, 670-3) and sending Villalpando a threatening text (AR 674-5), she made an unauthorized alteration of the letter of recommendation letter Casallas had written for her in 2015. Cisneros admitted as much, and her Ms. Stout suggested the alteration does not excuse its falsity.

At the hearing, Cisneros denied threatening Villalpando and claimed that she was absolutely lying. AR 923. She also testified that Johnston lied about her first interview. AR 919. These contradictions do not support her credibility.

She also was contradicted by other EL Department witnesses. She told Johnston that she had given her password to Ferdinand and Villalpando (AR 271) and at the hearing, claiming that she provided her log-in credentials to Icardo, Ferdinand, and Villalpando. Icardo and Ferdinand denied ever having her login information and Villalpando could not recall if Cisneros ever provided her with her login password. AR 856, 699-700, 692-93, 668.

Cisneros stated in her November 28 interview that, although she helped send mass mailers for EL Department events, she did not prepare envelopes or labels. AR 271. Villalpando prepared them because it required use of the machines in the back of the office. AR 271. Cisneros said that she never received training on how to prepare those labels. AR 271.

McMahan contradicted her, stating in her interview that Cisneros often sent letters to parents and prepared her own labels. AR 274. Villalpando also stated that Cisneros prepared her own paperwork and was good at running labels and printed her own. AR 272.

Finally, Cisneros’ explanation that she was in Santa Barbara for a medical appointment on Monday, November 20, was contradicted by her Facebook pictures of her entire family at a restaurant in Santa Barbara on that day.

Petitioner Cisneros has not met her burden of showing that the weight of the evidence does not support the Commission’s Decision. The Petition is denied.

The Commission’s counsel is ordered to prepare a proposed judgment, serve it on Cisneros’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for January 17, 2024 at 1:30 p.m.

[1] Cisneros failed to timely lodge a Joint Appendix. When she did, she failed to sort the pages in consecutive numerical Bates-stamp order. Her counsel is admonished to follow Local Rule 3.231(j) when preparing future joint appendices.

[2] All further statutory references are to the Education Code unless otherwise stated.

[3] The parties have not cited AR 133, 268, 273-75, 277, 281, 428, 572, 633, 634, 740, but the court has reviewed these pages and found them to be relevant.

[4] Cisneros refers to the ALJ’s Proposed Decision, but it is the Commission’s Decision that the court reviews.

[5] Cisneros adds that Johnston never investigated who printed the label reports and this fact could have easily been discovered if she requested the report/analysis from Burks. Similarly, Burks could have further investigated who ran the label report, but he admittedly did not do so. Pet. Op. Br. at 16. The first contention is unsupported by evidence and the second is too vague to merit consideration.

[6] These were two different parameters. Burk explained that 35 people ran a label report with the unusual first name first format (AR 429) and that three people used this format for Voorhies students. Id.