Metropolitan News-Enterprise


Friday, May 7, 2010


Page 1


Court of Appeal: Habitual Drunk Driver Unfit to Teach




The California Commission on Teacher Credentialing did not abuse its discretion by suspending the credential of a fifth-grade teacher with three drunk driving convictions, the Third District Court of Appeal ruled yesterday.

The court agreed with counsel for Shirley Marie Broney that Sacramento Superior Court Judge Patrick Marlette applied an erroneous legal standard in holding that the convictions alone justified a finding that Broney was unfit to teach. But the panel upheld Marlette’s denial of Broney’s writ petition, finding that the judge likely would have reached the same result had he applied the correct standard.

The commission opened an investigation following the third of Broney’s convictions, which occurred between 1987 and 2002. She was teaching in the Westminster School District at the time, having been hired there in 1999.

At the conclusion of the investigation, the commission staff recommended a 60-day suspension of her teaching credential. She challenged the recommendation, and a hearing was held before Los Angeles-based Administrative Law Judge Joseph D. Montoya.

After hearing testimony from Broney, a substance abuse counselor, and the school principal—who testified that Broney had made “poor choices” by driving while intoxicated but was a good teacher and had shown no signs of substance abuse at school—and reviewing the records of the three court cases, Montoya said there was no proof of unfitness and proposed that the accusation be dismissed.

The commission, however, rejected the proposed decision and opted for a 60-day suspension, stayed with three years’ probation. Broney challenged the ruling by filing a petition for a writ of administrative mandate.

Marlette, in denying the writ, cited Watson v. State Bd. of Education (1971) 22 Cal.App.3d 559. The court in that case affirmed the trial court’s ruling that an applicant with seven prior alcohol-related convictions, including one while his application was pending, was per se unfit to teach.

Because those convictions left no doubt as to the applicant’s unfitness, the appellate court said, it was unnecessary to apply the seven-factor test of Morrison v. State Board of Education (1969) 1 Cal.3d 214. The case involved a teacher whose credentials were revoked on the ground that his homosexual relationship with another teacher constituted “immoral or unprofessional conduct” within the meaning of the Education Code.

The Supreme Court ruled that the broad language of the statute would render it unconstitutional unless it were interpreted to apply only when the conduct established lack of fitness to teach.

In order to determine whether the conduct rendered someone unfit, the high court said, the agency had to consider the likelihood of an adverse effect on students or other teachers, the timing of the conduct, the type of teaching credential involved, any aggravating or mitigating circumstances, the praiseworthiness or blameworthiness of the conduct, the likelihood of future misconduct, and the extent to which the constitutional rights of other teachers would be impacted if discipline were imposed.

Justice George Nicholson, writing yesterday for the Court of Appeal, said Marlette erred in following Watson rather than Morrison, because criminal convictions are per se disqualifying only when a statute specifically says so, as in the case of a serious felony. Subsequent case law makes it clear that the Morrison test is controlling otherwise, the justice said.

In Broney’s case, however, the result would have been the same under either test, Nicholson concluded. He reasoned that six of the seven Morrison factors apply, based on the evidence presented at the administrative hearing, and all six support the commission’s decision.

Students might have been affected, he explained, because they may have seen Broney’s ankle bracelet during a 30-day period that her whereabouts were being electronically monitored, Nicholson said. The commission was also entitled to consider that the third conviction was recent; that Broney was credentialed to teach the youngest students, that one of the convictions involved a blood alcohol level three times the legal limit, which was a serious aggravating factor; there was nothing praiseworthy about the conduct; and the fact that Broney’s last arrest occurred after she had attended Alcoholics Anonymous meetings and alcohol education classes strongly suggests that she will re-offend, Nicholson concluded.

The case is Broney v. California Commission on Teacher Credentialing, 10 S.O.S. 2414.


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