David Jay Agosto appeals a judgment denying his petition for a writ of mandate directing the Board of Trustees of the Grossmont-Cuyamaca Community College District (District) to reinstate him to his former position of vice-president of Cuyamaca College and pay him backpay. On appeal, Agosto contends the trial court erred by (1) denying his request for reinstatement because he has statutory and property rights to his former position as a community college administrator; (2) denying his request for reinstatement while inconsistently awarding him partial backpay; (3) denying his request for reinstatement based on its alternative finding he was unable to work as an administrator because of his disability; (4) finding he waived his right to reinstatement; and (5) excluding certain evidence.
In March 1995, District and Agosto entered into a contract pursuant to which he was employed as "Executive Dean, Student Services" for a two-year term from March 27, 1995, through March 27, 1997. That contract provided: "6.
Agosto's employment contract was periodically renewed, although his position was subsequently redesignated as "Vice President, Cuyamaca College." In 2004 and 2005, Agosto was assigned by District as interim associate vice-chancellor, which assignment was to end on June 30, 2006. In September 2005, he was diagnosed with kidney disease and took intermittent leave from September 2005 through January 2006, and then was on full-time leave until November 30, 2006.
On February 21, 2006, District's board of trustees met in closed session and gave "alternative instructions of negotiation" to the chancellor apparently to "explore" with Agosto the termination, or nonrenewal, of his contract (in comparison to its outright nonrenewal of another administrator's contract). On March 10, 2006, District sent Agosto a letter informing him of the board's decision not to renew his appointment as interim associate vice-chancellor, that his position would end on July 1, 2006, and he would not be offered any other administrative position. However, the letter informed Agosto he may have the right to return to a faculty position pursuant to the provisions of Education Code
In July 2006, District offered Agosto, and he accepted, reassignment to a full-time counselor position as a first-year probationary faculty employee for the coming academic year. However, Agosto apparently never performed any work in that position because he was on disability leave before and after a medical procedure performed in September 2006.
On July 29, 2008, we reversed the judgment for District and remanded the matter for further proceedings consistent with the views expressed in our opinion. (Agosto v. Board of Trustees of the Grossmont-Cuyamaca Community College Dist. (July 29, 2008, D051045) [nonpub. opn.].) We concluded that although District did not sign the written contract, "[t]o permit [District] to assert the statute of frauds defense in these circumstances would facilitate a fraud upon Agosto and unjustly allow the District to escape its obligations to him under the contract." We refrained from deciding the question whether Agosto's two-year contract renewed on March 27, 2007. Nevertheless, we concluded District's March 10, 2006, notice of termination (or nonrenewal) of his two-year contract was untimely.
On remand, the trial court (San Diego County Superior Court Judge Ronald S. Prager) considered the evidence presented by the parties and their written and oral arguments. On May 27, 2009, the court issued an order denying in part and granting in part the petition for writ of mandate. The court noted that our July 29, 2008, opinion concluded Agosto's employment contract was not terminated because District failed to comply with section 72411's notice requirements, but our opinion did not address District's defenses and we remanded for further proceedings. The trial court stated:
"This Court finds that the parties have not modified or rescinded the contract by subsequent conduct from the two-year term to a year-to-year appointment; there is insufficient evidence that the Board voted to terminate [Agosto's] employment; and that his term of employment extended to March
"As to the issue of what is the appropriate remedy, [Agosto] is entitled to the difference in pay between an administrator and a faculty member for July through part of November 2006 and an amount of lump-sum vacation pay since he was not able to work or be paid after November 2006 because of his disability (Ed. Code[,] § 87789.) The Court notes that [Agosto] retired in 2008.
"However, reinstatement is not proper for two reasons. One, he took the position that he was disabled and stopped working in 2005 but was paid until November 2006 by sick pay and other disability benefits. He cannot take an inconsistent position about his own health, and has not provided medical evidence to show that he was not really disabled. Two, the court in [Barthuli] held that reinstatement is not an appropriate remedy for an administrator because an administrator, unlike a teacher, does not possess a statutory right to his position." Agosto timely filed a notice of appeal.
"In reviewing the trial court's ruling on a [petition for] writ of mandate [citation], the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence." (Saathoff v. City of San Diego (1995) 35 Cal.App.4th 697, 700 [41 Cal.Rptr.2d 352].) "[I]n a proceeding for a writ of mandate, when the matter is heard only on written evidence, all conflicts in the written evidence are resolved in favor of the prevailing party, and factual findings are examined for substantial evidence." (Capo for Better Representation v. Kelley (2008) 158 Cal.App.4th 1455, 1462 [71 Cal.Rptr.3d 354].) "However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed." (Saathoff, at p. 700.)
Agosto contends the trial court erred by denying his petition for writ of mandate for reinstatement because, pursuant to section 72411, he has statutory and property rights to his former position as a community college administrator.
Section 72411 provides:
"(a) Every educational administrator shall be employed, and all other administrators may be employed, by the governing board of the district by an appointment or contract of up to four years in duration. The governing board of a community college district, with the consent of the administrator concerned, may at any time terminate, effective on the next succeeding first day of July, the term of employment of, and any contract of employment with, the administrator of the district, and reemploy the administrator, on any terms and conditions as may be mutually agreed upon by the board and the administrator, for a new term to commence on the effective date of the termination of the existing term of employment.
"(b) If the governing board of a district determines that an administrator is not to be reemployed by appointment or contract in his or her administrative position upon the expiration of his or her appointment or contract, the administrator shall be given written notice of this determination by the governing board. For an administrator employed by appointment or contract, the term of which is longer than one year, the notice shall be given at least six months in advance of the expiration of the appointment or contract unless
"(c) If the governing board fails to reemploy an administrator by appointment or contract in his or her administrative position and the written notice provided for in this section has not been given, the administrator shall, unless the existing appointment or contract provides otherwise, be deemed to be reemployed for a term of the same duration as the one completed with all other terms and conditions remaining unchanged...." (Italics added.)
Section 72411.5 provides: "... The dismissal of ... an administrator employed by appointment or contract pursuant to Section 72411 shall, if the administrator does not have tenure as a faculty member, be in accordance with the terms of the appointment or contract of employment. If the administrator has tenure as a faculty member, the dismissal of ... the administrator shall be in accordance with the provisions applicable to faculty members."
Agosto asserts that because District did not give him six months' advance written notice of its purported February or March 2006 determination not to reemploy him on the expiration of his two-year contract as required by section 72411, he had a statutory right to his administrative position that precluded District from reassigning him or dismissing him from his position during the term of that contract (and any "automatic" renewal thereof pursuant to § 72411, subd. (c)). However, based on our independent interpretation of section 72411, we conclude the trial court correctly found Agosto did not have either a statutory right or property right to his position as a community college administrator and therefore was not entitled to a writ of mandate directing District to reinstate him to his former position. We, like the trial court, conclude Barthuli is controlling authority and compels us to conclude a community college administrator, like the school district administrator in Barthuli, does not have a right to reinstatement to an administrative position.
In Barthuli, supra, 19 Cal.3d 717, the Supreme Court affirmed the trial court's judgment denying a petition for writ of mandate to compel a school district to reinstate the petitioner to his former position as an associate superintendent for business. (Id. at pp. 719, 723.) In that case, the school district's board voted to rescind the petitioner's four-year contract after only one year based on his purported breach of his employment contract. (Id. at pp. 719-720.) The trial court denied the petition for writ of mandate relief, finding the petitioner had an adequate remedy at law in a breach of contract
"Section 13314 (§§ 44893, 87454) provided that a tenured teacher `when advanced from a teaching position to an administrative or supervisory position ... shall retain his permanent classification as a classroom teacher.' (Italics added.) Section 13315 (§§ 44897, 87458) stated: `A person employed in an administrative or supervisory position requiring certification qualifications upon completing a probationary period, including any time served as a classroom teacher, in the same district, shall ... be classified as and become a permanent employee as a classroom teacher.' (Italics added.)
"Although numerous statutes list grounds for teacher dismissal, providing hearings for charges of teacher misconduct [citation], there are no similar statutory provisions governing assistant superintendent misconduct.
"In the absence of such provisions sections 13314 (§§ 44893, 87454) and 13315 (§§ 44897, 87458) must be read as establishing that administrative and supervisory personnel do not possess a statutory right to their positions. The statutes vest such persons with rights to the position of classroom teachers, not to administrative positions. [Citations.]" (Barthuli, supra, 19 Cal.3d at p. 721.) Barthuli noted the petitioner had not sought reinstatement to his position as a classroom teacher or alleged he would be refused such a position. (Ibid.) Barthuli concluded: "[I]n the absence of a deprivation of a constitutional right [(which deprivation Barthuli concluded did not exist)], reinstatement to his former position is not an available remedy for a discharged associate superintendent; reinstatement is available only to the position of classroom teacher." (Ibid., italics added.) Barthuli further stated: "Petitioner, in his position as an administrator, is not a permanent employee. [Citation.] The Legislature has not given him a property right in the administrative position. Rather, the Legislature has made clear by sections 13314 (§§ 44893, 87454) and 13315 (§§ 44897, 87458) that petitioner's
Barthuli is not inapposite to this case because it involved a statutory scheme involving school district administrators and not community college administrators. Rather, we conclude Barthuli's express reference to two statutory provisions dealing with the rights of community college administrators demonstrated it did not intend its reasoning to apply solely to school district administrators. Barthuli parenthetically referred to sections 87454 and 87458, both of which relate to the rights of community college administrators. (Barthuli, supra, 19 Cal.3d at pp. 721, 723.) Section 87454 provides: "A tenured employee, when assigned from a faculty position to an educational administrative position, or assigned any special or other type of work, or given special classification or designation, shall retain his or her status as a tenured faculty member." Regarding nontenured administrative employees (such as Agosto), section 87458 provides:
"A person employed in an administrative position that is not part of the classified service, who has not previously acquired tenured status as a faculty member in the same district and who is not under contract in a program or project to perform services conducted under contract with public or private agencies, or in other categorically funded projects of indeterminate duration, shall have the right to become a first-year probationary faculty member once his or her administrative assignment expires or is terminated if all of the following apply: [¶] ... [¶]
"(c) The administrator has completed at least two years of satisfactory service, including any time previously served as a faculty member, in the district.
Barthuli is not inapposite to this case because the administrator's contract in Barthuli was terminated by the school district for an alleged breach of
Agosto also argues Barthuli does not apply to his case because since 1988 the statutory scheme for community college administrators has been amended to take tenure rights away from community college administrators and replace them with contract rights. In support of his argument, he cites "AB1725." (Stats. 1988, ch. 973, p. 3087.) Agosto argues: "AB1725 repealed longstanding provisions entitling administrators to earn tenure and providing due process for issues of discipline and termination. In doing so, the Community College model was diverted from the K-12 system in which, even today, academic administrators can earn tenure while serving in administrative positions. For community college administrators, in exchange for the loss of
Agosto contends the trial court erred by denying his request for reinstatement while inconsistently awarding him partial backpay. He argues that inconsistency in the judgment shows the court was confused and should also have issued a writ of mandate directing his reinstatement to his former position, consistent with its award of backpay.
In support of his argument, Agosto cites Norton v. San Bernardino City Unified School Dist. (2008) 158 Cal.App.4th 749 [69 Cal.Rptr.3d 917] (Norton). In Norton, the trial court entered a judgment that denied in full the petition for a writ of mandate directing the reinstatement of the petitioner to his former position with full backpay and reversing the administrative order imposing a one-month suspension without pay, but also inconsistently ordered that he be reinstated to his former position with full backpay. (Id. at pp. 755, 759.) Norton concluded the judgment was "internally inconsistent and in error because it denies Norton's petition for reinstatement, but orders
Unlike Norton, the judgment in this case is not internally inconsistent regarding whether the trial court denied Agosto's petition for a writ of mandate directing District to reinstate him to his former administrative position. Rather, the trial court clearly concluded Agosto was not entitled to reinstatement to his former administrative position. After awarding Agosto partial backpay, the court stated: "[R]einstatement is not proper for two reasons.... Two, the court in [Barthuli] held that reinstatement is not an appropriate remedy for an administrator because an administrator, unlike a teacher, does not possess a statutory right to his position." (Italics added.)
Nevertheless, because District did not file a cross-appeal challenging the trial court's writ of mandate directing District to pay Agosto backpay (for the period of July through Nov. 2006), District cannot now challenge the trial court's error in awarding him backpay after (correctly) denying his petition for a writ of mandate directing District to reinstate him to his former administrative position. In its respondent's brief, District concedes it made a deliberate decision not to challenge the trial court's error in awarding Agosto backpay while denying him reinstatement: "In theory, [District] could have cross-appealed from the granting of the writ with respect to back-pay and sought reversal, since back-pay awards are attendant to the finding of reinstatement; since Agosto had no right to reinstatement, his correct procedural right was a suit at law for breach of contract. ([Barthuli], supra, 19 Cal.3d at p. 720.) However, in the interests of judicial economy, [District] did not challenge the procedural anomaly, since the trial court treated the back-pay award as if the claim were for a breach of contract, and the final result would be the same regardless." Lacking a timely appeal by District challenging the trial court's error in partially granting Agosto's petition for a writ of mandate directing District to pay him backpay, we may not reverse that part of the judgment reflecting that error.
Agosto contends the trial court erred by denying his petition for a writ of mandate directing District to reinstate him to his former administrative position on the alternative grounds that (1) he was unable to work as an administrator because of his disability; and (2) he waived his right to reinstatement. However, because we concluded above the trial court correctly denied Agosto's petition for a writ directing his reinstatement based on the absence of any statutory or property right to his former administrative position and the holding in Barthuli, we need not address the court's alternative grounds for denying his request for reinstatement.
Agosto contends the trial court erred by excluding certain evidence he proffered in support of his petition for writ of mandate. While conceding his contention may be irrelevant to our disposition of his appeal, Agosto argues the trial court erred by excluding paragraph 7 of his second declaration in support of his petition.
The judgment is affirmed. The parties shall bear their own costs on appeal.
O'Rourke, J., and Aaron, J., concurred.