Metropolitan News-Enterprise


Wednesday, June 8, 2011


Page 1


ALJ’S Personal Problems Held No Excuse for Decision Delay


By a MetNews Staff Writer


This district’s Court of Appeal yesterday scolded an administrative law judge for abandoning his duties in reviewing a former Simi Valley Unified School District employee’s challenge to the termination of his employment.

Div. Six concluded the school district then created “a second bigger problem” by hiring attorneys to review the transcripts of the administrative hearing and render the decision in John Absmeier’s case.

Writing for the panel, Presiding Justice Arthur Gilbert said the trial court decision upholding the administrative decision had to be reversed.

“Problems solved,” he said.

Absmeier worked as  personnel director for the school district before he was terminated in 2002. After Absmeier requested a hearing to review his dismissal, the district appointed Carl Lange as the administrative law judge to conduct this hearing.

On Oct. 23, 2003, after the presentation of the testimony, closing arguments and briefs, Lange took the case under submission.

Lange promised the parties that he would comply with the district’s rule requiring a decision be returned in less than 10 working days. When no decision was forthcoming, the school district called Lange on Nov. 18 inquiring as to his findings.

The next day, Lange wrote to counsel for the parties that he did not “have a projected time line for completion other than to say it will be as soon as possible,” and asked the district’s attorney to find out why the bill he had submitted for his services in October had not yet been paid.

On Nov. 25, the district’s attorney wrote to Lange, advising him that payment was being mailed and on Jan. 5, 2004, wrote again, requesting a “projected date” for a decision in Absmeier’s case. Lange did not respond.

In February, the school district tried, without success, to call Lange, and sent a second letter requesting a “brief status report with a decision timeline.”

Lange wrote back on Feb. 16, explaining he had recently sold his home, and because of this transaction, the holidays, and his relocation, he had “been unable to visit this case in any depth.”

On March 30, the district advised Lange that because there was still no decision, it had retained the law firm of Miller, Brown & Dannis “to review the transcript record and all evidentiary exhibits and provide the Commission with a report and recommendation.”  It also directed Lange to submit his report and recommendations to the district “not later than Monday, April 5, 2004.”

Lange did not file his decision within that deadline, but instead sent a letter dated April 4 stating he had “terminated all work and further consideration of the matter.”

The district notified Lange that it considered this letter his withdrawal from the case, which it accepted “in light of the lack of any recommended Decision from you for a period of eight months from the close of evidence, seven months from oral arguments, and six months from the filing of written briefs.”

Miller, Brown & Dannis later filed a 46-page decision, based on the written transcript of the hearings Lange had conducted, which weighed the evidence and resolved conflicts in the testimony in favor of the school district.

Absmeier then petitioned for a writ of administrative mandamus but Ventura Superior Court Judge David R. Worley declined to set aside the decision upholding Absmeier’s termination.

In his decision for the appellate court, Gilbert agreed with Worley’s determination that the school district had good cause to remove Lange as the hearing officer, but said that the law firm was not a suitable replacement.

Gilbert opined “Lange inexcusably delayed the proceedings,” and that his “displeasure with the District about his pay present[ed] a serious financial conflict of interest because Lange was deciding the validity of the District’s actions.”

The justice further remarked that it was “inappropriate” for Lange to “[i]nject[] his personal business and problems into this case,” and that his February 16 letter “leads to the reasonable inference that he gave priority to the sale of his home over his duty to render a prompt decision.”

Based on Lange’s “conduct, his delays, his failure to respond to the Commission’s inquiries, his failure to meet the deadline, and his April 4th letter, the trial court could reasonably infer that he abandoned this case,” Gilbert said.
He went on to note that “nothing” in the district’s rules for conducting hearings  authorized the appointment of a law firm to assume the role of hearing officer, and that Absmeier was entitled to a trier of fact who could see the demeanor of the witnesses as they testified and rule on their credibility. 

“The law firm was not in a position to assume the role of an ALJ,” because it did not preside at the evidentiary hearing, and because the district’s rules only allow for an administrative law judge to make findings of fact, Gilbert explained.

He said “the validity of the entire administrative decision making process was undermined” by the district’s decision to have the law firm act as the hearing officer.

“The unfairness is evident,” Gilbert wrote, since the law firm “wore two hats” and could not balance its duty of loyalty as counsel to the district with the obligation to be a neutral fact-finder for the hearing.

Joined by Justices Kenneth R. Yegan and Paul H. Coffee, Gilbert ordered the case remanded to the trial court to set aside its prior decision and appoint a hearing officer to conduct a new hearing on Absmeier’s claims.

Absmeier was represented on appeal by Glenn J. Campbell of the Ventura Law Group. Robert E. Thurbon and Lindsay Moore of Thurbon & McHaney LP served as counsel for the school district.

The case is Absmeier v. Simi Valley Unified School District, 11 S.O.S. 3041.


Copyright 2011, Metropolitan News Company