Judge James C. Chalfant, Case Number: 23STCP03040, Date: 2024-06-11 Tentative Ruling

Petitioner Matthew Sorensen (“Sorensen”) seeks a writ of mandate directing Respondent California Commission on Teacher Credentialing (“Commission”) to set aside its decision to revoke his credential.

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

A. Statement of the Case

Petitioner Sorensen commenced this proceeding on August 22, 2023. The verified Petition alleges in pertinent part as follows.

On December 7, 2021, the Commission brought charges against Sorensen, alleging that he had engaged in conduct demonstrating unfitness to teach.

On October 11, 2022, a three-day hearing was held before an Administrative Law Judge (“ALJ”). The ALJ found that most allegations were unsubstantiated. For the remaining allegations, specifically Sorensen’s interactions with a female student, G.S., and his failure to appear in court for a traffic ticket issued in the 1990s, the ALJ found that those facts did not warrant revoking Sorensen’s teaching license and revocation would be “excessively punitive”. Therefore, the ALJ recommended a public reprimand.

On June 23, 2023, the Commission overturned the ALJ’s decision, made its own findings of fact, and revoked Sorensen’s teaching license. The Commission’s decision was mainly based on its contention that Sorensen showed G.S. an “egregious” video even though the Commission never saw it. The Commission also based its decision on Sorensen’s failure to appear in court for a 20-year-old traffic ticket. The decision failed to set forth any clear basis that warranted overturning the ALJ’s decision.

Sorensen submitted a Petition for Reconsideration. On July 24, 2023, the Commission sent a letter to Sorensen, stating that his Petition for Reconsideration was “denied by operation of law because no action was taken by the Commission on the Petition before the Decision and Order took effect.”

Petitioner Sorensen alleges that the Commission abused its discretion because it did not proceed in the manner required by law, and its decision was not supported by the findings and the findings are not supported by the evidence.

B. Standard of Review

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). A trial court reviewing an administrative decision that imposes discipline on a professional licensee must exercise its independent judgment based on the evidence before it. Sulla v. Board of Registered Nursing, (2012) 205 Cal.App.4th 1195, 1200.

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 Cmrs., (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, 150-151; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of 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 515.

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. Alford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (“Lake”) (1975) 47 Cal.App.3d 224, 228. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (“Nightingale”) (1972) 7 Cal.3d 507, 515. The policy consideration underlying such allocation of authority is the expertise of the administrative agency in determining penalty questions. Cadilla v. Board of Medical Examiners, (“Cadilla”) (1972) 26 Cal.App.3d 961.

C. Governing Law

1. The Investigation

Each allegation of an act or omission by a holder of a credential for which he may be subject to an adverse action shall be presented to the Committee of Credentials (“Committee”). Education Code[2] §44242.5(a). The Committee has jurisdiction to commence an initial review upon receipt of, inter alia, an affidavit or declaration signed by a person or persons with personal knowledge of the acts alleged to constitute misconduct (§44242.5(b)(2)) or a statement from an employer notifying the Commission that a credential holder has resigned as a result of, or while an allegation of misconduct is pending. §44242/5(b)(3). The initial review commences on the date that the written notice is mailed to the credential holder informing him that his fitness to hold a credential is under review. §44242.5(c).

Except for an allegation of sexual misconduct with a minor or a pattern of misconduct, the allegation shall be presented to the Committee for initial review within four years from the date of the alleged act or omission, or within one year from the date the act or omission should have reasonable have been discovered. §44242.7(a).

The Committee’s formal review shall be held no later than six months after commencement of the initial review. §44244(b)(1). Pursuant to the formal review, the Committee shall investigate all alleged misconduct and circumstances in mitigation and aggravation. §44242.5(c)(1).

In conducting its investigation, the Committee shall determine the relationship between the alleged misconduct and the credential holder’s fitness, competence, or ability to effectively perform the duties authorized by the credential. 5 CCR §80302(a). Such relationship may be based on facts which include the following: (1) the likelihood that the conduct may have adversely affected students, fellow teachers, or the educational community, and the degree of such adversity anticipated; (2) the proximity or remoteness in time of the conduct; (3) the type of credential held or applied for by the person involved; (4) the extenuating or aggravating circumstances surrounding the conduct; (5) the praiseworthiness or blameworthiness of the motives resulting in the conduct; (6) the likelihood of the recurrence of the questioned conduct; (7) the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the person involved, or other certified persons; (8) the publicity or notoriety given to the conduct. Id.

Upon completion of the investigation, the Committee shall report its actions and recommendations to the Commission, including its findings as to probable cause, and if probable cause exists, its recommendations as to the appropriate adverse action. §44242.5(e)(1). If the Committee determines that probable cause for an adverse action on the credential exists, the credential holder may request a hearing and the Commission shall initiate an adjudicatory hearing as required by the Administrative Procedures Act in title 2, Division 3, of the Government Code (§11520 et seq.). §44242.5(c)(3)(B).

2. Grounds for Discipline

The Commission shall revoke or suspend a teacher’s credential if it finds inter alia that the teacher engaged in immoral conduct, unprofessional conduct, or acts of moral turpitude. §44421, 44345. There is a substantial overlap between these forms of misconduct. Morrison v. State Board of Education, (“Morrison”) (1969) 1 Cal.3d 214, 220, n. 9.

a. Immoral Conduct

The courts have developed a broad and well-understood definition of “immoral conduct” in teacher dismissal cases: “[...] that which is hostile to the welfare of the general public and contrary to good morals. Immorality has not been confined to sexual matters, but included conduct inconsistent with rectitude, or indicative of corruption, indecency, depravity, dissoluteness; or as willful, flagrant, or shameless conduct showing moral indifference to the opinions of respectable members of the community, and as an inconsiderate attitude toward good order and public welfare.” Palo Verde Unified School Dist. v. Hensey, (1970) 9 Cal.App.3d 967, 971-72 (quoting Board of Education of San Francisco Unified School Dist. v. Weiland, (“Weiland”) (1960) 179 Cal.App.2d 808). Based on this definition, a teacher’s falsification of attendance records to add names of three students to secure continued employment was deemed immoral conduct and dishonesty. Weiland, supra, 179 Cal.App.2d at 808. Similarly, a teacher’s removal of school property (a public address system speaker) from the classroom wall was deemed immoral. Palo Verde Unified School District v. Hensey, supra, 9 Cal.App.3d at 967.

b. Unprofessional Conduct

“Unprofessional conduct” is behavior that “violates the rules or ethical code of a profession” or conduct that is “unbecoming [of] a member of a profession in good standing.” Board of Education of City of Los Angeles v. Swan, (1953) 41 Cal.2d 546, 553, overruled on other grounds, Bekaris v. Board of Education of the City of Modesto, (1972) 6 Cal.3d 575, 588, n. 7. A particular act or omission on the part of a teacher may constitute not only unprofessional conduct but also evident unfitness for service and a persistent violation of or refusal to obey prescribed rules and regulations. Perez v. Comm’n on Prof. Comp., (1983) 149 Cal.App.3d 1167, 1174-1175; Board of Education v. Swan, (1953) 41 Cal.2d 546, 551. Conduct constituting evident unfitness for service will often constitute unprofessional conduct. Woodland Joint Unified School District v. Comm’n on Prof. Comp., (1992) 2 Cal.App.4th 1429, 1445.

c. Moral Turpitude

The California Supreme Court has defined “moral turpitude” as “an act of baseless, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to societ in general, contrary to the accepted and customary rule of right and duty between man and man, or everything done contrary to justice, honesty, modesty or good morals.” Rice v. Alcoholic Beverage Control Appeals Board, (1979) 89 Cal.App.3d 30, 36 (citation omitted). “Yet it is innately a relative concept depending on both contemporary moral values and the degree of its inimical quality whose purpose as a legislative standard is not punishment but protection of the public.” Id. Pursuant to section 44345, moral turpitude is only actionable when it is related to fitness to teach, so it is similar to evident unfitness for service.

d. Unfit to Teach

A finding of misconduct is not alone enough to revoke a credential. Instead, that misconduct must render the teacher unfit to teach. San Dieguito Union High School District v. Commission on Professional Competence, (“San Dieguito”) (1982) 135 Cal.App.3d 278, 288. The conclusion of unfitness must be based upon an objective standard such as that articulated in Morrison, supra, 1 Cal.3d at 220. See also San Dieguito, supra, 135 Cal.App.3d at 288.

In Morrison, the California Supreme Court articulated factors to consider in whether a credentialed employee’s misconduct renders him unfit for service as a teacher: (a) likelihood that the conduct at issue may have adversely affected students/fellow teachers; (b) degree of such adversity anticipated; (c) proximity or remoteness in time of the conduct; (d) type of teaching certificate held by the party involved; (e) extenuating or aggravating circumstances, if any, surrounding the conduct; (f) likelihood of recurrence of the questioned conduct; (g) praiseworthiness or blameworthiness of motives resulting in the conduct; (h) extent to which disciplinary action may inflict an adverse impact or chilling effect upon constitutional rights of the teacher involved or other teachers. Id. at 229-30. Not every Morrison factor must be considered; a trier of fact may consider all the factors that are relevant to the respective case. Ibid; West Valley-Mission College v. Concepcion, (1993) 16 Cal.App.4th 1766.

The Commission has adopted factors similar to Morrison in 5 CCR section 80302(a).

On or about August 4, 2004, the Commission issued a Single Subject Teaching Credential to Sorensen with an expiration date of July 1, 2025. See AR 46. From the middle of the 2017-2018 school year through the 2019-2020 school year, Sorensen was a Probationary Teacher at Golden Valley High School (“Golden Valley”) in Santa Clarita, California, a school in the William S. Hart Union High School District (“Hart School District”). During this time, he was employed as a certificated social studies teacher and baseball coach. See AR 46.

In light of red flags surrounding Sorensen -- he had the highest number of complaints of any other teacher or coach -- the Golden Valley administrators documented the basis for his non-reelection. See AR 47. Effective June 30, 2020, his employment by Hart School District was terminated. See AR 47.

On December 7, 2021, the Commission's Executive Director, Mary Vixie Sandy, filed the Accusation alleging that Petitioner's credential is subject to discipline for (1) unprofessional conduct, (2) immoral conduct, (3) evident unfitness for service, and (4) acts involving moral turpitude. AR 114-21.

The charges were based on the Golden Valley principal’s questioning of students in December 2020 and a meeting of the Hart School District in November of 2019 where the following accusations were raised:

a. During summer camp in 2019, Sorensen invited cross-country girls to run through the sprinklers on the field. Sorensen did not invite the cross-country boys;

b. Sorensen asked a student, without context, about his first kiss. Sorensen stated that he remembered his first kiss and that "she had the biggest jugs I've ever seen. Bigger than any of the girls at this school";

c. Sorensen requested that female students be team manager and did not base his selection on baseball knowledge;

e. A staff member reported that Sorensen reset the seating chart to be boy/girl and when asked why he stated it was to teach them to be gentlemen;

f. Sorensen would approach students in class multiple times during the same period;

h. Sorensen asked a student to go check with players to see what they were bringing to potluck during class time;

j. A female student reported that Sorensen called her “Princess”. AR 118-19.

The remainder of the Accusation was based on the Commission’s investigation after Sorensen was terminated by Hart School District, including two criminal misdemeanor convictions in 1997 for violating Penal Code section 853.7 (failure to appear in court) and Vehicle Code section 14601.1(A) (driving on a suspended license). AR 119-20.

The Golden Valley principal’s December 2020 interviews alleged that another incident occurred in January of 2020 in which Sorensen showed a student, G.S, “a video of the type of dance he wanted, which involved “twerking” and ‘stripper moves’” and that he brought marijuana to campus. AR 119.

As aggravating factors, Sorensen’s misconduct (a) evidenced multiple acts of wrongdoing or demonstrate a pattern of misconduct, (b) significantly harmed a child entrusted to the care of a credential holder or applicant, and significantly harmed the public or the educational system and (c) demonstrated indifference toward the consequences of his misconduct. AR 121.

An ALJ conducted a hearing regarding the Accusation from October 11 to October 13, 2022. AR 105. The parties cite only a portion of the testimony from the hearing. The cited portions are as follows.

The Hart School District sent Sorensen a notice of non-reelection on February 24, 2020. Reporter’s Transcript (“RT”) Vol. I, p. 47; AR 154. The notice explained that Sorensen had not been rehired for the following academic year and no specific details were given why he was not re-elected. See RT Vol. I, p. 45-46.

Sorensen was given the option to resign so that the non-election would not impact his job search. RT Vol. II 128-29. Instead of resigning, Sorensen objected to his non-reelection based on his performance evaluations and hired a lawyer who advanced a claim of wrongful termination in a letter dated April 14, 2020. AR 217, 248-54.

Soon after Sorensen asserted his wrongful termination claims, the Hart School District reported an investigation of him to the Commission. RT Vol. II, pp. 85-86. The documents related to Sorensen’s claim of wrongful termination were provided to the investigator, Judith Arce (“Arce”), on or around June 26, 2020. RT Vol. II, p. 97. As part of her investigation, she discovered that Sorensen had a 1997 misdemeanor conviction for driving without a license and failure to appear in Court. RT Vol. II, pp. 79-80, 90-91; AR 174-75. Arce contacted students beginning in December of 2020 regarding their recollections of Sorensen’s conduct while he was employed at Golden Valley. RT Vol. II, pp. 65-66; AR 167-69.

G.S. testified at the hearing that Sorensen made her feel “really uncomfortable” when he said that his request for her to organize a dance should remain between the two of them. RT Vol. II, p. 33. He “showed [G.S.] a video of what he did at his other school with the cheerleaders and the baseball team that he was also the coach of, and the girls, they were dancing for the baseball team, and it was very inappropriate.” RT Vol. II, p. 33. G.S. testified that she “felt uncomfortable” when she watched the video, both because Sorensen was present and because “they were dancing like, basically, strippers. They were bending over, dancing very feminine, but in an inappropriate way….” RT Vol. II, p. 33.

The ALJ concluded that many of the Accusation’s charges were unproved. AR 11. However, G.S. testified credibly about her interactions with Sorensen. AR 11. G.S.’s testimony substantiated that (1) Sorensen approached students multiple times in class during the same period, (2) he asked a student to get him lunch during class time, (3) he asked a student during class time to go check with the players to see what they were bringing to potluck, and (4) he showed G.S. a video of the type of dance he wanted her to coordinate, which involved “twerking” and “stripper” moves, which made her uncomfortable. AR 11. Sorensen also admitted to sarcastically calling a student “Princess” to make a point. AR 12. His 1997 misdemeanor convictions also were established. AR 14-15.

After evaluating the Morrison factors, the ALJ concluded that showing G.S. an inappropriate video was the “most serious” misconduct. AR 25. Sorensen “violated the trust placed in him as a teacher when he showed G.S. an inappropriate video….” AR 15. This harmed both G.S. and the educational system. AR 15. He also demonstrated indifference toward the consequence of his misconduct, and he should have known that it could negatively impact her. AR 15. In mitigation, Sorensen generally received positive performance reviews during his employment at Golden Valley and at his new school after his termination, nine Golden Valley teachers wrote him letters of recommendation for his job search, and two coaches testified to his character. AR 17. The Complainant also “offered no evidence of similar misconduct.” AR 25.

The ALJ concluded that Sorensen demonstrated poor judgment, but this did not warrant revocation of his teaching credential and doing so would be “excessively punitive.” AR. 25. The ALJ recommended that Sorensen be publicly reprimanded.

The Commission rejected the ALJ's proposed decision of public reproval. AR 27. The Commission thereafter decided the case upon the record as authorized by the Administrative Procedures Act (“APA”). Govt. Code §11517(c)(2)(E)). In accordance with the APA, the Commission ordered the reporter’s transcript and requested briefings from the parties, which were reviewed at its April 2023 meeting. See Govt. Code §11517(c)(2)(E)(ii).

On June 23, 2023, the Commission issued its decision, effective July 23, 2023, revoking all credentials, certificates, and authorizations issued to Sorensen. AR 77.

The Commission discussed Sorensen’s background as a probationary social studies teacher and baseball coach at Golden Valley, Principal Salvador Frias’ November 4, 2019 meeting with Sorensen to discuss allegations of misconduct, the red flags of an unusual number of complaints about Sorensen, and the school board’s February 19, 2020 decision not to re-elect Sorensen. AR 47.

The Commission discussed the testimony of Sorensen's former female student, G.S. G.S testified that she was a student in Sorensen’s history class during the 2019–2020 school year. AR 48. Prior to starting the class, she had heard rumors about him that concerned her. AR 48. During class, she noticed that Sorensen would approach students and have conversations with them or ask them to do things for him. AR 48. He repeatedly approached her and asked her personal questions about her family, friends, and dating life. AR 48. He initiated similar conversations with her outside of class. He asked her for input during class about a baseball team potluck meal he was planning and asked her to check with players about what they would bring. AR 48. On one occasion, he asked G.S. to retrieve his lunch from him during class. AR 48. She perceived him as making an "extra effort" to have personal conversations with her, which made her uncomfortable. AR 48-49. G.S. testified that these distractions caused her to do poorly in that class. AR 48-49.

G.S. was a member of the school dance team, and Sorensen asked her to organize and perform a dance with other dance team members for the upcoming baseball team banquet and to "make it very feminine." AR 49. He offered to let the dancers practice in his classroom. AR 49. When G.S. suggested that he coordinate with the dance team supervisor, he said “it should just stay between [G.S.] and him and [the supervisor] did not need to know about it.” AR 49.

Sorensen showed G.S. a video of what he described as female students dancing for his baseball team at another school where he worked before Golden Valley. AR 49. G.S. described this video as "very inappropriate" and the students were "dancing like basically strippers." AR 49. G.S. told her dance team supervisor and then an assistant principal. AR 49. G.S. was transferred out of Sorensen’s classroom mid-year. AR 49. G.S. concluded that Sorensen’s behavior had made her feel uncomfortable throughout the school year. AR 49. Memoranda of G.S’s statements to the dance team supervisor and the investigator corroborated her testimony. AR 49.

Golden Valley Principal Frias’ notes show that he met with Sorensen to discuss the multiple complaints, which were red flags since Sorensen was a probationary teacher and should have been on his best behavior. AR 50. The red flags included a complaint that Sorensen had marijuana in his coaching bag during a baseball game, that he invited only the girls of the cross country team to run through sprinklers, that he told students about his first kiss and made crude reference to the girl having the "biggest jugs," that he only asked female students to be the baseball team manager without consideration of their baseball knowledge, that he attempted to organize a joint baseball/softball practice of boys and girls, that he assigned a seating chart with boy/girl placement to teach boys to be gentlemen, that he engaged in unauthorized driving of two female students in a vehicle, and that he called a female student "Princess." AR 46, 47, 50-52.

The Commission noted Sorensen’s two 1997 misdemeanor criminal convictions for violating Penal Code section 853.7 (failure to appear in court) and Vehicle Code section 14601.1(a) (driving on a suspended license). On June 30, 2021, the court granted Sorensen’s motion to have this conviction expunged. AR 52-53.

Sorensen admitted asking G.S. to choreograph a dance for the baseball team but denied showing an inappropriate video. AR 53. He claimed that he showed G.S. a video on YouTube produced by Disney. AR 53. He asked multiple students to choreograph the dance and G.S. “backed out for whatever reason”. AR 53. He typically asked students about their families but had no specific memory of personal conversations with G.S. and denied crossing the line with her. AR 53. He denied taking an inappropriate interest in G.S. and said that "nothing stood out about her. She was a run of the mill student". AR 53. As a result, he had not noticed that she transferred out of his class mid-year. AR 53.

Sorensen denied the bulk of the other accusations. AR 54. He did admit to driving students in his vehicle to a baseball game and asserted that it was not improper since he needed to get the kids to the game. AR 55.

The Commission discussed Sorensen’s claim of retaliation (AR 54-55) and noted that he has taught at Monterey High School and a charter school in Palmdale subsequent to leaving Golden Valley. AR 55-56. He received positive performance reviews at Golden Valley and Monterey, two Golden Valley baseball coaches testified to his character, and Sorensen also submitted two character references from former Golden Valley students who played baseball. AR 57.

The Commission concluded that, as G.S. testified, the Complainant proved that Sorensen approached students in class multiple times in the same period, he asked a student to get him lunch during class time, and he asked a student to go check with players to see what they were bringing as potluck. AR 58. He also asked G.S. to organize a dance for the baseball team and showed her a video involving “twerking” and “stripper moves” which made her uncomfortable. AR 58. G.S. testified credibly and was corroborated by her prior consistent statements. AR 58. Sorensen’s testimony about G.S. as a run of the mill student about whom nothing stood out was not credible given that he admitted asking her to coordinate a dance for the baseball team. AR 58-59. Complainant also proved that Sorensen called a student “Princess” and that he had suffered the two misdemeanor convictions. AR 59. The remaining allegations were unproved. AR 59-60.

The Commission concluded that Sorensen had committed unprofessional conduct by approaching students in class to discuss personal matters and asking G.S. to get him lunch during class time and help with the potluck, both of which interfered with education time. AR 62. This behavior evidenced overfamiliarity with students and failed to maintain professional boundaries. AR 62.

Sorensen’s behavior escalated when he asked G.S. to organize a dance for the baseball team. AR 62. When she tried to redirect him by asking that he speak with the dance supervisor, he attempted to ensure her secrecy by telling her the matter should stay between them and the supervisor did not need to know about it. If his intentions were innocent, he would not have made that request. AR 62. He escalated this wildly inappropriate interaction by showing her a video involving “twerking” and “stripper moves” which made G.S. uncomfortable and made it necessary for her to transfer classes mid-year. AR 63. Finally, Sorensen’s misdemeanor convictions set a poor example for students, suggesting that obedience to law is unimportant. AR 63. As a result, Sorensen was guilty of unprofessional behavior. AR 63.

Sorensen’s showing of a video to G.S. where the girls danced like strippers also was immoral and aggravated by his request that she organize a dance for the baseball team without the dance supervisor’s knowledge. AR 64. These same actions reflect acts of moral turpitude. AR 67. Sorensen was not guilty of the charge of evident unfitness for service. AR 64-65.

After considering the Morrison factors, the Commission decided to revoke Sorensen’s license. AR 68-73. The Commission acknowledged that many allegations were unproved, but those that were proved demonstrated an alarming pattern of lack of boundaries and poor judgment which harmed a student and had a great likelihood of harming other teachers and the educational community. AR 75. Admittedly, some allegations were woefully lacking in detail, but G.S. testified credibly and his request that she organize a dance was not an innocent request. AR 75. It was exacerbated by the video and his attempt to maintain secrecy. AR 75. Sorensen’s failure to show remorse or appreciate the wrongfulness of his misconduct was an aggravating factor, his favorable letters and performance reviews did not alleviate this concern, and revocation of his credentials was necessary to protect the public. AR 76.

Sorensen submitted a Petition for Reconsideration in advance of the date by which the Commission’s decision was to become final. On July 24, 2023, the Commission sent a letter to Sorensen stating that his Petition for Reconsideration had been “denied by operation of law because no action was taken by the Commission on the Petition before the Decision and Order took effect.”

Petitioner Sorensen seeks a writ of mandate directing the Commission to set aside its decision on the ground that the penalty of credential revocation is not supported by application of the Morrison factors.

Petitioner Sorensen’s opening brief does not challenge the Commission’s findings that he is guilty of unprofessional conduct, immoral conduct, and acts of moral turpitude. The opening brief only challenges the Commission’s conclusion that, based on the findings and an evaluation of the Morrison factors, he is unfit to teach. Sorensen contends that the Morrison findings are unsupported.

Sorensen attempts to challenge the three findings of misconduct in his reply. Sorensen argues that the ALJ only cited the dance incident with G.S. and Sorensen’s use of the term “Princess” as a basis for unprofessional conduct. AR 23. The Commission expanded this scope to include Sorensen’s 1996 failure to appear in court, his requests to have students help him organize a potluck, and his personal questions to students as conduct warranting adverse action. AR 61-63. Sorensen argues that none of these additional acts can support an unprofessional conduct finding because section 44938(a) requires a school district to send a teacher a 45-day notice when it seeks to dismiss the teacher on the ground of "unprofessional conduct” and Sorensen never received such a notice. See Woodland Joint Unified School Dist. v. Commission on Professional Competence, (1992) 2 Cal. App. 4th 1429, 1445. In fact, the Commission found “it is unclear what notice respondent was provided of any need for remediation. AR 65. Reply at 2.

Similarly, Sorensen notes that the Commission found that the showing of the video to G.S. was “immoral as it is contrary to good morals” (AR 64) and demonstrative of “flagrant, shameless indecency” giving rise to a finding of immoral conduct. He argues that “[i]n a disciplinary proceeding against a public school teacher, the administrative agency cannot ‘abstractly characterize'’ a teacher’s conduct in the statutory language (i.e., as ‘immoral’ and so on) unless that conduct indicates his unfitness to teach.” Comings v. State Bd. of Education, (1972) 23 Cal.App.3d 94,103. Immoral conduct warranting dismissal has been found to include such conduct as falsification of records to secure continued employment and public posting on a Web site of pornographic photos and obscene texts accessible to students. Board of Education v. Weiland, (1960) 179 Cal. App. 2d 808, 812; San Diego Unified School Dist. v. Commission on Professional Competence, (2011) 194 Cal. App. 4th 1454, 1466. However, having “bad taste” is not the same as immorality. Palo Verde Etc. Sch. Dist. v. Hensey, (1970) 9 Cal. App. 3d 967, 973 (“while we find this incident to be in bad taste, we can find in it no evidence of immorality”). Reply at 3.

Again, Sorensen raises a new issue raised for the first time in reply and is waived. Regency, supra, 31 Cal.App.4th at 1333. Additionally, he has the burden to demonstrate that the administrative record does not contain sufficient evidence to support the agency’s decision. State Water Resources Control Board Cases, (2006) 136 Cal.App.4th 674, 749. If a petitioner contends that some issue of fact is not sustained, he is required to set forth in his brief all the material evidence on the point and note merely his own evidence. Unless this is done, the error is deemed to be waived. Id. (quoting Foreman & Clark Corp. v. Fallon, (1971) 3 Cal.3d 875, 881). Sorensen fails to set forth the underlying evidence on the video issue.

Finally, with respect to acts of moral turpitude, Sorensen argues that the Commission’s opposition deliberately misquotes In re Lesansky, (2001) 25 Cal. 4th 11, *14, which dealt with the question of whether a criminal felony conviction could lead to summary disbarment of an attorney. Id. at 9. In contrast, section 44345(e), on which the Commission relies, requires a showing that any adverse action based on “moral turpitude” shall be “based upon reasons related to the applicant's fitness to teach….” Reply at 3-4.

While this argument is raised in response to the Commission’s opposition, it is irrelevant because Sorensen does not dispute the Commission’s finding he is guilty of acts of moral turpitude.[3]

Thus, the only issue properly raised is whether the Morrison factors implemented by 5 CCR section 80302(a) support revocation of Sorensen’s credentials. The Commission considers only those factors most pertinent to the fitness inquiry (West Valley-Mission Community College District v. Concepcion, (1993) 16 Cal.App.4th 1766, 1777), and not all eight Morrison factors need be examined (Governing Bd. of ABC Unified Sch. Dist. v. Haar, (1994) 28 Cal.App.4th 369, 384).

a. The Likelihood that the Conduct May Have Adversely Affected Students/Teachers

This factor in actual adverse impacts as well as the likelihood that the teacher's conduct may have adversely affected students and other teachers. Broney v. California Commission on Teacher Credentialing, (“Broney”) (2010) 184 Cal.App.4th 462, 477.

The Commission found that Sorensen's conduct towards G.S. "did in fact adversely affect G.S. as she struggled to learn while in respondent's class." She became so uncomfortable that she requested to transfer from his class. AR 69. She had to re-start her studies mid-year with a new teacher, learn new classroom procedures, and catch up to where the other students were. AR 69. Other staff and administrators were told about his behavior and had to take actions to protect G.S., which was undoubtedly unpleasant. The teacher who had to instruct G.S. for the remainder of the year also was affected. AR 69.

The Commission also found a substantial likelihood of adverse effects. Students who learned of the misconduct would "likely lose their ability to respect and learn" from Sorensen. Other teachers would have to deal with rumors about Sorensen and struggle to interact with him after doing so. AR 69. It further is likely that they would have to deal with parents who learned that a teacher had been reported behaving so inappropriately. AR 69. It is reasonable to conclude that these likely effects actually were felt at Golden Valley. The rumors heard by G.S. about Sorensen before she started in his class show that rumors of his misconduct did circulate. AR 70. While calling a student “Princess” did not have any likely adverse effect, there was a likelihood of adverse effects from Sorensen’s misdemeanor convictions if students learned about them because they teach disobedience to authority. AR 70.

Sorensen argues that the Commission drew conclusions that both were at variance with the ALJ and unsupported by the record. The ALJ found only that Sorensen’s actions adversely affected G.S when he showed her a video that made her uncomfortable. AR 20. Yet, the Commission concluded that the same evidence “negatively affected the community.” AR 69-70. No evidence exists of an impact on the community, and none can be manufactured by conjecture. Pet. Op. Br. at 6.

Sorensen argues that there must be some actual evidence to support both the likelihood and degree of adversity on students and fellow teachers. Broney, supra, 184 Cal.App.4th at 474. In Broney, A teacher wearing an ankle bracelet after being convicted of a crime may have adversely impacted a teacher’s ability to teach when (1) a co-worker knew of the conviction, and (2) students likely saw her wearing the ankle monitor. Id. at 477. Thus, there was (1) evidence of conduct that could impact students and did impact fellow teacher, and (2) a clear assessment of degree of impact that the conduct would have. Reply at 5.

The court agrees with the Commission’s opposition (Opp. at 14) that the Commission was entitled under Broney to consider likely impacts as well as actual impacts. The video is something that Golden Valley students, teachers, and parents likely would hear about, and the rumors G.S. did hear about Sorensen before she started in his class show that rumors pass easily at the school.

Sorensen adds that the Commission’s conclusion that his traffic violations in 1996 created an adverse effect on the students at Golden Valley is unsupported because Golden Valley did not even know about the convictions when he was employed. AR 70. This factor should not be expanded to include any impact on the community. The Commission’s conclusion that a 25-year-old traffic violations that no one knew about could have harmed students and teachers is ridiculous. Pet. Op. Br. at 6; Reply at 5-6.

The court agrees that the misdemeanor convictions have no bearing on this Morrison factor; the Commission’s finding of a likelihood of adverse effects if students learned about them is pure speculation.

The Commission noted that Sorensen’s misconduct at Golden Valley occurred during the 2018–2019 and 2019–2020 school years and the period of three years from the misconduct is not considered remote for purposes of this Morrison factor. AR 70. The Commission acknowledged that Sorensen’s misdemeanor convictions were remote and carried little weight. AR 71.

Sorensen argues that, while the Commission conceded that the 1996 traffic misdemeanors carry little weight, it still included them in every Morrison factor. The misdemeanors for driving without a license and failure to appear in court were expunged under Penal Code 1203.4a (AR 53) and the Commission’s reliance on expunged misdemeanors violates Business and Professions Code section 480(c)(“Notwithstanding any other provision of this code, a person shall not be denied a license on the basis of any conviction, or on the basis of the acts underlying the conviction, that has been dismissed pursuant to Section 1203.4…of the Penal Code….) The 1997 traffic misdemeanor convictions should be given no weight. Reply at 6.

Sorensen failed to argue that the misdemeanor convictions cannot be considered in his opening brief, and apparently also failed to make this argument to the ALJ. This issue is waived. Regency, supra, 31 Cal.App.4th at 1333. The misdemeanor convictions were never a significant part of the Commission’s analysis anyway.

The Commission found that Sorensen held a Single Subject Teaching Credential that authorized him to teach students up to grade 12. Although he did not teach elementary or middle school students, that credential allows him to do so. Broney held that the impressionable nature of elementary school students, and their need for role models, weighs in favor of finding unfitness to teach. 184 Cal.App.4^th at 477. Even though high school students may not be as impressionable, the damage is significant when an authority figure and role model asks a student to perform a sexual dance and shows her an inappropriate video. AR 71. The Commission also found that referring to a female student as "Princess" and Sorensen’s misdemeanor convictions do not set a good example, even for this age group. AR 71.

The court agrees with Sorensen (Pet. Op. Br. at 6-7) that the Commission misapplied Broney, supra, 184 Cal. App. 4th at 473. In Broney, the court valued this factor when considering whether an elementary school teacher wearing an ankle monitor should be suspended because of the “the impressionable nature of elementary school students, and their need for appropriate adult role models.” AR 71. The Commission suggests that Sorensen could in theory teach elementary students, but disregards the evidence. Sorensen taught high school students only and never taught elementary students. AR 71. The Commission must rule on the facts and this factor should be given no weight.

The Commission’s opposition argues that, although Broney involved elementary school students, that does not take away from recognition of the impressionable nature of the students at or below 12^th grade. Placement of Sorensen in a position of authority over impressionable and vulnerable teenage students creates a concern that he is unable to create a safe learning environment for the minors entrusted to him. Opp. at 14-15.

This argument – that all students are vulnerable – differs from that relied on in the Commission’s decision, which was that Sorensen could possibly teach vulnerable elementary students. Moreover, Sorensen is correct that the Commission overlooks the context of the incident in which he asked G.S. to organize a dance for the high school baseball team’s yearly banquet. RT Vol. III pp. 167, 169. There is nothing to suggest that he would take similar action with elementary school students. See Reply at 6. Finally, the conclusion that Sorensen asked G.S. to perform a sexual dance is subject to criticism. See post.

An “aggravating factor” is defined in section 80300(b) as “an event or circumstance which demonstrates that a greater degree of adverse action for an act of unprofessional misconduct is needed to adequately protect the public, schoolchildren, or the profession.” AR 71-72.

The Commission found that Sorensen committed multiple acts of wrongdoing that demonstrate a pattern of misconduct. AR 72. Each act of misconduct resulted from his failure to exercise proper judgment and proper boundaries. AR 72. He regularly misused class time, behaved in an overly familiar fashion, and contacted G.S. outside class. His decision to organize a sexual dance for the baseball team and to show an inappropriate video was the culmination of a pattern of poor judgment. AR 27. The misdemeanor convictions demonstrate that his poor judgment is a pattern and not a recent lapse of judgment. AR 72.

The misconduct significantly harmed G.S., a student entrusted in his care, and significantly harmed the educational system and violated the trust placed in Sorensen as a teacher when he singled G.S. out for focused attention, asked her to organize a sexual dance for the baseball team and showed G.S. an inappropriate video. AR 73. The misconduct negatively affected G.S.'s education and impacted the educational system and public trust. AR 72.

Further, Sorensen demonstrated indifference to his conduct when he denied asking G.S. to organize a sexual dance or showing her an inappropriate video. AR 73. Sorensen lacked candor when he admitted asking G.S. personal questions and to perform a dance but claimed he did not notice when she transferred out of his class mid-year. AR 73. He did not testify that he recognized any impact of his actions on his students. AR 73.

With the exception of his lack of remorse, the court agrees with Sorensen (Pet. Op. Br. at 7) that these are not aggravating factors. Rather, his misuse of class time, personal interactions with students, and contacting G.S. outside of class time are simply the circumstances of misconduct that singularly would not even be the subject of discipline. The fact that they show a pattern is not an aggravating circumstance, it is the misconduct. Sorensen’s traffic violations from 1996 (when he was 18 years old) are not evidence of a pattern of poor judgment either. As Sorensen argues, the misdemeanor convictions have no impact on his fitness to teach in light of his 20 years of teaching. Pet. Op. Br. at 7-8.[4]

The Commission also erred in not considering an important mitigating circumstance. The decision repeatedly concludes that Sorensen asked G.S. to organize a sexual dance and showed her an inappropriate sexual video. In reaching this conclusion, the Commission relied solely on G.S.’s testimony that the video was highly inappropriate and “egregious” and apparently never saw the video itself. AR. 76.

Sorensen argues that the Commission fails to cite anything in the record which accurately characterizes the contents of the video. Sorensen testified that the video was a baseball skit played to the song “Hey, Batter, Batter” from the Disney channel, either “Glee” or “High School Musical.” RT Vol. III, p. 155. The video is on YouTube and Sorensen offered to show it to the ALH, who declined to watch it. RT Vol. III, p. 157. Thus, the Commission based its conclusion to revoke Sorensen’s credentials in major part based on evidence that neither the ALJ nor the Commission ever saw. Pet. Op. Br. at 7.

This case has been presented to the court as a matter in which Sorensen is guilty of unprofessional conduct based in part on the video involving “twerking” and “stripper moves” which made G.S. uncomfortable. AR 58. He also was found guilty of immoral acts and acts of moral turpitude based solely on showing of the video. AR 64, 67. Yet, no one saw this video except G.S. While G.S. was credible, her subjective discomfort at viewing it may not have been objectively reasonable. As Supreme Court Justice Stewart Potter famously said about obscenity: “I’ll know it when I see it.” The court strongly believes that the ALJ and Commission should not have taken G.S.’s word that the video was highly inappropriate. Sorensen remains guilty of the charges, but the Commission’s failure to verify that the video was the “sexual dance” with “stripper” movements as described by the Commission (AR 72) is a compelling mitigating factor.

The Commission’s opposition notes that its decision states: "If [Sorensen’s] request had been innocent, he would not have made such a request of a child." AR 62. Sorensen’s conduct demonstrates aggravating circumstances surrounding the conduct "which demonstrates that a greater degree of adverse action for an act of unprofessional misconduct is needed to adequately protect the public, schoolchildren, or the profession." AR 73. Opp. at 16.

It is true that Sorensen tried to hide the request from G.S.’s dance supervisor, and that fact indicates that it was inappropriate. That does not mean, however, that he tried to hide the video. He showed G.S. the video after suggesting that they keep the request between themselves. Nor does it mean that the video was a sexual dance as opposed to part of a request that he knew he should not be making. This fact does not undermine mitigating fact that no one saw the video.

The Commission found that Sorensen did not express any remorse and instead claimed that the charges against him were due to retaliation by a disgruntled student and former assistant coach. AR 74. Sorensen’s failure to "fully appreciate the nature and consequences of his actions, [creates] an elevated likelihood of recurrence exists." AR 74.

Sorensen argues that the Commission was wrong as a matter of law to consider his lack of remorse as a factor supporting likelihood of recurrence. The word “remorse” is nowhere mentioned in Morrison as an appropriate measure of likelihood of recurrence. Nor should it be. The accused has the right to defend his conduct in any manner, including expressing his belief in his own innocence. This is supported not only by logic, but by precedent. Maltaman v. State Bar, (1987) 43 Cal. 3d 924, 958 (lack of remorse is not an aggravating factor when based upon an honest belief in innocence (citing Calaway v. State Bar, (1986) 41 Cal.3d 743, 747). To mandate that Sorensen show remorse would necessarily impact his ability to defend himself. This is doubly so when the litigant is self-represented. The Commission used the wrong legal basis for this factor. Pet. Op. Br. at 8.

The court agrees with the Commission’s opposition that the remorse of a credential holder is a mitigating factor "which demonstrates that the public, schoolchildren and the profession would be adequately protected by a more lenient degree of adverse action or no adverse action whatsoever…." 5 CCR §80300(m)(5). Conversely, a lack of remorse shows that the accused has not learned from his actions and is prone to recurrence of his misconduct. See Opp. at 17.

Sorensen replies that 5 CCR section 80300(m)(5) only refers to “spontaneously demonstrating remorse at the time of the misconduct.” He was never questioned at the time of any incident or at trial on this issue and no record of lack of remorse near the time of any incident was ever part of the record. Reply at 8-9. The short answer is that 5 CCR section 80300(m)(5) applies only by analogy. As a matter of logic and law, lack of remorse may bear on willingness to repeat misconduct.

The Commission found that Sorensen alone is to blame for his failure to maintain proper boundaries with his students, especially G.S., and his commitment of criminal misdemeanors. AR 72.

The Commission and the parties initially fail to address the proper issue. Sorensen argues that the Commission’s statement avoids its responsibility to consider the totality of the circumstances and should not be considered. Pet. Op. Br. at 8. The Commission responds that Sorensen fails to identify what additional review is required and that no one else is to blame for Sorensen’s misconduct. Opp. at 16.

In reply, Sorensen finally reaches the correct point. Reply at 6. Morrison requires an assessment of “the praiseworthiness or blameworthiness of the motives resulting in the conduct.” Morrison, supra, 1 Cal.3d at 229. Nowhere does the Commission explain why Sorensen’s motives are praiseworthy or blameworthy. The relevant factor is his motivation for asking G.S. to organize a “feminine dance” and showing her the dance video, which was to teach the freshmen baseball team a dance to perform for the varsity baseball team. The Commission did not consider the proper factor, which may work in his favor because it did not occur for a selfish purpose.

g. Extent to Which Discipline May Chill Constitutional Rights of the Teacher or Other Teachers

The Commission found that "the outcome of this case will have no chilling effect on credentialed teachers exercising their constitutional rights." AR 74.

Sorensen argues that the right to practice one’s profession is deemed a fundamental right by the courts. Bixby, supra, 4 Cal. 3d at 144. A great protection is needed where “a professional license has been revoked.” Id. at 145. The Commission impeded upon his constitutional rights by looking up old infractions. Teachers have no real right to challenge an accusation when the Commission’s conclusions are arbitrary, argumentative, and not based on facts in the record. Pet. Op. Br. at 9.

The Commission’s opposition correctly states that Sorensen does not state what rights were impacted. Opp. at 17. Only in reply does Sorensen suggest that he was deprived of his right to pursue his profession of over 20-years through a process that was fundamentally unfair. In June of 2020, Hart School District asked the Commission to initiate an investigation to revoke Sorensen’s teaching credential long after he no longer worked there, and only after it was threatened with a lawsuit for wrongful termination in May of 2020. AR 161-64. The Commission did the school district’s bidding by drumming up Sorensen’s old traffic violations over 20 years old and using the manufactured November 4, 2019 “Reported Concerns” document as a basis for these proceedings. If the Commission’s decision were to stand, it would erode the due process rights of teachers. Reply at 9-10.

This argument, made for the first time in reply, essentially is that Sorensen has a due process right not to be charged falsely. That is not a right addressed by this Morrison factor, which concerns the exercise of constitutional rights as part of the charged misconduct.

Perhaps for this reason, Sorensen also argues that the Commission’s decision condemns him for calling students royal titles sarcastically, including “Princess.” AR 53. He argues that discipline for using this term when it is not linked to any negative impact on a student chills the First Amendment rights of teachers to speak freely and openly. Reply at 10. Again, this argument is made for the first time in reply. Moreover, the Commission did not significantly rely on Sorensen’s reference to a female student as "Princess"; it only stated that the Princess reference and the misdemeanor convictions do not set a good example. AR 71.

The Commission found that notoriety from misconduct can impair future on-campus relationships, citing San Diego Unified School District, (2011) 194 Cal.App.4^th 1454, 1463. The Commission found no evidence of publicity that would have affected his relationships at Monterey or the charter school. AR 75.

Sorensen concurs and concludes that there is no concern that this factor would leave Petitioner unfit to teach. Pet. Op. Br. at 9.

The Commission’s opposition argues that Sorensen’s failure to discuss his misconduct with a future employer should not lessen the Commission's concern about his fitness to teach. On the contrary, it further demonstrates that he does not take responsibility for his conduct that has harmed students and the community. Opp. at 18. This is a non-sequitur. The fact remains that there has been no publicity which could have a wider impact outside Golden Valley.

The Commission concluded, based on the Morrison factors, that Sorensen is unfit to teach. It acknowledged that many allegations were unproven, but the evidence demonstrated an alarming pattern of lack of boundaries and poor judgment that harmed a student as well as a great likelihood of harming others. AR 75. Sorensen’s response was a self-serving denial and assertion that he was being retaliated against as a baseball coach. AR 75. His lack of remorse and his favorable letters of support and performance reviews do not alleviate this concern, particularly when he was not upfront with his employers or recommenders about the allegations of misconduct he faces in this case. Therefore, revocation was necessary to protect the public. AR 76.

There are serious reasons to doubt the Commission’s decision, which is full of conclusions and not many facts. The Commission admits that many allegations were unproved, and those that were proved were mostly based on generalities and almost totally on G.S.’s testimony. The Commission accepted G.S.’s testimony that Sorensen would approach students in class multiple times in the same period, he asked a student to get him lunch during class time, and he asked a student to go check with players to see what they were bringing as potluck. AR 58. The Commission concluded that Sorensen had committed unprofessional conduct by approaching students in class to discuss personal matters, which interfered with education time. AR 62. This behavior evidenced overfamiliarity with students and failed to maintain professional boundaries with students. AR 62.

Although they were proved, the Commission could not seriously conclude that these allegations justify revocation of Sorensen’s right to teach. Nor did the Commission believe that the misdemeanor convictions or using the term “Princess” had a strong bearing on the revocation issue. AR 71.

This leaves the Commission’s conclusions about Sorensen’s request for G.S. to organize a dance for the baseball team and showing her a video involving “twerking” and “stripper moves” which made G.S. uncomfortable. AR 58. G.S. testified credibly and was corroborated by her prior consistent statements whereas Sorensen’s testimony about G.S. as a run of the mill student was not credible given that he admitted asking her to coordinate a dance for the baseball team. AR 58-59. Most seriously, when G.S. tried to redirect him by asking that he speak with the dance supervisor, he attempted to ensure her secrecy by telling her the matter should stay between them and the supervisor did not need to know about it. He escalated this “wildly inappropriate interaction” by showing her a video which G.S. stated involved “twerking” and “stripper moves” which made G.S. uncomfortable and made it necessary for her to transfer classes mid-year. AR 63.

There is much that is not known about this video, including its contents, whether G.S. is correct that it involved stripper moves and twerking, whether G.S. is naive or inordinately sensitive, and whether the video is objectively a sexual video. If not, the Commission would be left with an incident in which Sorensen tried to get G.S. to organize dancing for the baseball team and hid that fact from the dance supervisor. Should Sorensen’s credentials be revoked on that basis, or for the totality of evidence stated by the court? The ALJ thought not, and only recommended a public reprimand. In light of the unknown, the Commission’s decision to revoke is dubious.

Nonetheless, the court may not overturn a penalty unless there has been a manifest abuse of discretion (Lake, supra, 47 Cal.App.3d at 228), and cannot substitute its discretion for that of the agency on the degree of punishment. Nightingale, supra, 7 Cal.3d at 515. Most important, the policy importance of a properly considered video is a matter within the expertise of the Commission in determining penalty questions. See Cadilla, supra, 26 Cal.App.3d at 961.

The case will be remanded to the Commission to take further action with respect to the Morrison analysis that properly considers the issues.

The Petition for writ of mandate is granted. A writ shall issue directing the Commission to set aside its decision to revoke Sorensen’s credential and reconsider the discipline in a manner that lies within its discretion.

Petitioner’s counsel is ordered to prepare a writ and proposed judgment, serve them on the Commission’s 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 July 25, 2024 at 9:30 a.m.

[1] The parties failed to follow the court’s direction at the February 1, 2024 trial setting conference. The parties prepared a complete administrative record, but they failed to bates-stamp it from beginning to end. Rather, the reporter’s transcripts of the three-day hearing are presented and cited separately.

Additionally, Petitioner’s counsel failed to lodge a joint appendix ten days before the hearing. When the clerk pointed this out and directed Petitioner’s counsel to provide hard copies of all pages cited by the parties, counsel simply provided a hard copy of the entire record. Again, this was improper. Both parties’ counsel are admonished to follow the court’s directions in future writs cases.

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

[3] For this reason, the discussion in the Commission’s opposition that there was clear and convincing evidence that Sorensen is guilty of unprofessional conduct, immoral conduct, and acts of moral turpitude need not be addressed. See Opp. at 11-13.

[4] Sorensen argues in reply that the Commission should not be able to rely on Principal Frias’ notes -- a two-page document titled “Reported Concerns” (AR 158-59) -- to establish a pattern of misconduct. The notes were not prepared by Principal Frias at the time of the meeting. Principal Frias testified that he did not create the notes; they came from “either our attorney or through our Department of Human Resources.” RT Vol. I, p. 63. The notes could not have been created on or near November 4, 2019 since they reference an incident that occurred in January of 2020. AR 160. The Commission itself considered the contents of the notes to be hearsay (AR 60) and should not have considered them as evidencing a pattern of misconduct. AR 72 (citing AR 51-52, ¶20). Reply at 7-8. This is a new issue raised in reply and has not been considered. Regency, supra, 31 Cal.App.4th at 1333.