Filed 4/26/16 Bellflower Unified School Dist. v. Comm. On Prof. Competence CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE


BELLFLOWER UNIFIED SCHOOL                                                  B262523
DISTRICT,
                                                                           (Los Angeles County
         Plaintiff and Appellant,                                          Super. Ct. No. BS146618)

         v.

COMMISSION ON PROFESSIONAL
COMPETENCE,

         Defendant and Respondent;

PAMELA McMACKIN,

      Real Party in Interest and
Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Joanne O’Donnell, Judge. Affirmed.
         Law Offices of Eric Bathen, Eric J. Bathen and Jordan C. Meyer for Plaintiff
and Appellant.
         Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez and
Robert A. Bartosh for Real Party in Interest and Respondent, Pam McMackin.


                            _______________________________________
                                   INTRODUCTION
       Bellflower Unified School District appeals from the judgment of the trial court
denying its petition for writ of mandate to set aside the decision of the Commission on
Professional Competence which reinstated teacher and administrator Pamela
McMackin. McMackin was the program administrator of the Bellflower Alternative
Education Center, a school serving students who had been expelled or removed from the
mainstream classroom setting. The district attempted to dismiss McMackin following
an incident involving the sale of marijuana at the center. The commission found
McMackin displayed extremely poor judgment during and after the incident, but
reversed the district’s decision to dismiss McMackin, mainly because the incident was
isolated, McMackin realized the gravity of her misconduct shortly after the incident and
cooperated with the district’s investigation, and she testified credibly she would not
repeat her mistake in the future. The commission also noted McMackin performed her
job well for many years, and in a particularly demanding educational setting. Bearing in
mind the limited scope of our review in these proceedings, we affirm.
                   FACTS AND PROCEDURAL BACKGROUND
       A.     McMackin’s Employment With the District
       McMackin earned her teaching credential in 1980. Throughout her professional
career, she worked in the area of alternative education, assisting both adults and
students in grades K-12 who had been unsuccessful in a traditional classroom setting.
McMackin joined the district in 2006, working as a program administrator at Somerset
High School, a continuation school.
       In March 2012, McMackin became the program administrator at the Bellflower
Alternative Education Center. The center is small, generally serving between 20 and
35 students in grades 6 through 12. Students at the center typically fall into two
categories: those who have been expelled from the mainstream school setting, and those
who have been transferred to the center for disciplinary reasons. McMackin described
these students as “often angry, defiant, and not successful in the regular K-12 setting.”
The center is the final option for district students who have been expelled; although the

                                             2
students may be required to perform community service hours or receive counseling if
their issues do not resolve, the students generally cannot be expelled from the center.
Students who remain at the center, rather than returning to their home school, rarely
complete high school successfully. McMackin knew of only two or three students at the
center who graduated during the six years she worked at Somerset.
       As the center’s program administrator, McMackin generally spent 80 to
90 percent of her day handling student discipline issues. Boys in the 12-to 15-year-old
age range generally presented the most challenging discipline issues, as they tended to
be the most defiant and disrespectful, and freely used curse words in their interactions
with the teachers. At the insistence of the teachers, students were searched on their way
in to the center in the morning, and were also subject to random searches while on
campus. The center had one security guard who was on campus for 15 minutes in the
morning and 30 minutes at lunch.
       After McMackin became the center’s administrator, she began making
significant changes to the program in an effort to set higher expectations for the
students. For example, she began developing project-based lessons, which she hoped
would increase student interest, focus and success. McMackin also did away with the
teachers’ prior common practice of showing movies (including R-rated movies) during
the afternoon school sessions. McMackin hoped by emphasizing and improving the
quality of education at the center, students would be more engaged in the program and
discipline would improve as a result.
       B.     The Marijuana Sale
                                                                                          1
       The drug sale at issue in this proceeding involved two students, J.C.G. and J.T.
McMackin met J.C.G. when he started attending the center in July 2012. McMackin
described J.C.G. as “smart” and “bright,” but said he had discipline problems at the
center. Every teacher at the center had, at some point, sent him out of class because he

1
        Because the students are minors and their identities are confidential, they are
identified in the administrative record only as “J.T.” and “J.C.G.”


                                             3
was disrespectful, defiant, or told the teacher to “F off.” McMackin suspended J.C.G. at
least nine times between his arrival at the center and the incident on October 4, 2012.
McMackin tried to improve J.C.G.’s situation by consulting other administrators in the
district and trying different discipline approaches with him. She spoke frequently with
both J.C.G. and his parents, who were very upset by his behavior. However, her efforts
did not yield results and McMackin became increasingly frustrated with J.C.G.
Although McMackin did not think J.C.G. was part of a gang, she suspected he was
involved in some way in the on-campus drug presence.
       McMakin had more success with J.T., who transferred to the center after getting
in a fight at her previous school. J.T. was in the special education class at the center,
which was taught by Ricardo Carlos. Because J.T. struggled with emotional problems
and was prone to tantrums, her teachers often sent her to McMackin’s office, where
McMackin allowed her to help with small tasks such as stapling papers. McMackin felt
she developed a good rapport with J.T. during those frequent visits.
       The marijuana sale took place on October 4, 2012, roughly six months after
McMackin took over as administrator of the center. That morning, Carlos came to
McMackin’s office and said he learned about a possible drug deal between J.T. and
another student. J.T., who was waiting in the hall outside McMackin’s office, came in
and told McMackin she planned to buy drugs from J.C.G. during the lunch break.
Apparently, J.T. was irritated with J.C.G. because he tried to sell her “bad drugs”
(marijuana laced with an unknown substance) on a prior occasion. McMackin was
already aware of the presence of drugs at the center and wanted to get drugs off the
campus. McMackin approved the sale and suggested J.T. use a pen to mark the bill she
would use to purchase the marijuana.
       Carlos, who was present during this exchange, counseled against McMackin’s
plan. He proposed they search J.C.G. instead, presumably in the hopes of discovering
the marijuana. McMackin authorized Carlos to search J.C.G. at a later time but did not
call off the sale. Carlos and J.T. returned to their classroom.



                                             4
         Coincidentally, another teacher, Nico Turien, brought J.C.G. to McMackin’s
office later that morning after J.C.G. burst into Turien’s classroom and threatened
another student. When J.C.G. arrived at McMackin’s office, he was visibly upset and
had to be restrained by Turien. Turien searched J.C.G. and found him in possession of
$29, but found no marijuana. After J.C.G. calmed down, McMackin sent him back to
class.
         When the student lunch break began, McMackin went outside to the student
lunch area. She watched the drug deal between J.T. and J.C.G. as it took place, but did
not approach the students during or immediately after the exchange because she feared
J.C.G. would cause a disruption or leave the campus. Shortly thereafter, J.T. met
McMackin at her office and gave her the bag of marijuana she purchased from J.C.G.
After J.T. left, McMackin asked the school’s security guard to bring J.C.G. to her office.
At McMackin’s request, the guard searched J.C.G. and found $29 in his wallet and
a crumpled five-dollar bill in his pocket. The five-dollar bill had scribbled pen
markings on it. J.C.G. initially denied selling marijuana to J.T., but admitted to the sale
after McMackin showed him the bag of marijuana and told J.C.G. she saw him sell it to
J.T. When McMackin threatened to call the police, J.C.G. begged her not to do so.
J.C.G promised he would improve his behavior and McMackin believed him because he
appeared to be “broken down.” McMackin did not call the police or report the incident
to anyone at the center at that time.
         After the school day ended, McMackin left the campus to go to the post office.
As she thought about what had transpired, she began to feel uncomfortable with her
decision regarding the marijuana sale and eventually “realized [she] had made
mistakes.” McMackin returned to campus and met with her direct supervisor, Joe Perry,
about the sale. When she met with Perry, McMackin was upset, but described the
incident candidly and took responsibility for her actions. After discussing the incident
with McMackin and several other administrators, Perry asked McMackin to return to
her office and prepare a written statement concerning the events of the day. McMackin
explained she had worked extremely hard to make improvements at the center, but had

                                             5
become increasingly frustrated with student discipline problems. She fully
acknowledged she made a “terrible mistake” and a “terrible error in judgment.”
         After McMackin completed her statement, Perry placed her on administrative
leave.
         C.    The District’s Notice of Suspension and Intention to Dismiss
         On November 16, 2012, the district notified McMackin in writing of her
suspension and the district’s intention to dismiss her. McMackin requested a hearing.
The district then filed an accusation setting out the reasons the district sought
McMackin’s dismissal. The district identified several statutory grounds for termination
                        2
under Education Code section 44932, subdivision (a): “immoral or unprofessional
conduct,” “evident unfitness for service,” and “persistent violation of or refusal to obey
the school laws of the state or reasonable regulations prescribed for the government of
the public schools by the State Board of Education or by the governing board of the
school district employing him or her.” The district also alleged grounds to terminate
McMackin under section 44939 for “[w]illful refusal to perform regular assignments
without reasonable cause, as prescribed by the rules and regulations of the employing
school district.”
         D.    The Hearing and the Commission’s Decision
         McMackin requested a hearing before the Commission on Professional
Competence. At the hearing, which took place over two days in May 2013, McMackin
acknowledged her conduct on October 4, 2012, was wrong. McMackin was contrite,
and said she had learned from the experience and would handle a similar situation
differently in the future. McMackin also explained that October 4, 2012, was
a particularly hectic day. At that time, McMackin was aware students were bringing
drugs on campus and she was focused on ways to get drugs off the campus. She
professed that, at the time she spoke with J.T., she was not thinking of the five-dollar
marijuana sale as a crime, but rather as a means to curtail drug activity on campus.
2
         All further undesignated statutory references are to the Education Code.


                                             6
However, McMackin denied she was making an excuse for her misconduct: “I’m
raising an excuse for why I didn’t have time to think it through. Once I had time to
think it through, I had no excuse.” McMackin also claimed she was unaware she was
required to report the on-campus drug sale to police.
       The commission issued its initial opinion on December 2, 2013, and its amended
decision on April 8, 2014. The commission found McMackin’s conduct—specifically,
failing to stop the drug sale—was “immoral” conduct within the meaning of
section 44932, subdivision (a)(1). But although the commission found statutory
grounds for termination existed, two of the three members of the commission concluded
“her conduct did not demonstrate ‘such unfitness to teach as to warrant terminating the
teacher’s employment.’ [Citation.]” The commission reversed the district’s decision to
dismiss McMackin and ordered the district to reinstate her and compensate her for lost
wages and benefits. One member of the commission dissented in part, stating she
agreed with the commission’s factual findings but would have upheld the dismissal.
       E.     The District’s Petition for Writ of Administrative Mandamus
       The district filed a petition for writ of mandate in the Los Angeles County
Superior Court. The district challenged the commission’s decision to reinstate
McMackin despite finding McMackin unfit to teach, arguing mainly that McMackin’s
misconduct was so egregious that her termination was required. The trial court denied
the petition, finding the weight of the evidence supported the commission’s findings.
The court further found the commission did not abuse its discretion by reinstating
McMackin, inasmuch as the commission perceived McMackin to be credible, honest
and contrite, and on that basis reasonably concluded McMackin was unlikely to repeat
her misconduct in the future. The court entered judgment in McMackin’s favor,
denying the petition and awarding McMackin costs and attorney’s fees. The district
timely appeals.




                                            7
                                      DISCUSSION
       A.     Legal Framework
       “ ‘A permanent employee, such as a certificated tenured teacher, has a vested
right to [his] position and may not be deprived of it without due process of law.
[Citation.]’ [Citation.] The Education Code prescribes the ‘procedures’ to be followed
when a school district wishes to dismiss, suspend or otherwise discipline a tenured
teacher. [Citations.] Section 44932 lists the causes for dismissal. [Citation.]”
(DeYoung v. Commission on Professional Competence Etc. (2014) 228 Cal.App.4th
568, 574, first alteration and omission in the original.) As is pertinent here, an
employee may be dismissed for cause due to “immoral” or “unprofessional” conduct,
“evident unfitness for service,” or “persistent violation of or refusal to obey the school
laws of the state or reasonable regulations prescribed for the government of the public
schools by the state board or by the governing board of the school district employing
                                                        3
him or her.” (§ 44932, subd. (a)(1), (2), (6) & (8).)
       A finding of statutory grounds for dismissal is not sufficient standing alone to
permit the dismissal of a teacher. In Morrison v. State Board of Education (1969)
1 Cal.3d 214 (Morrison), our Supreme Court concluded that section 44932 was vague
and potentially overbroad in permitting a teacher’s dismissal for immoral or
unprofessional conduct because those terms were not connected to the requirements of
the teaching profession. (Id. at pp. 228-230.) The court held that a certificated teacher
cannot be dismissed unless the immoral or unprofessional behavior showed that the
teacher is “unfit to teach.” (Id. at p. 229.) Accordingly, to dismiss a teacher on these
grounds, there must be findings of immoral or unprofessional conduct, together with an
additional finding that the misconduct renders the teacher “unfit to teach.” The

3
       Subdivision (a) of section 44932 was amended effective January 1, 2016, so that
“immoral” conduct and “unprofessional” conduct each have their own enumerated
subsection. (See § 44932, subd. (a)(1) & (2).) Although the enumeration of the
remaining subsections changed as a result, the statute is identical in all other respects to
the version in force at the time of McMackin’s misconduct.


                                             8
determination of “unfitness to teach” requires consideration of “(1) the likelihood that
the conduct would recur; (2) the existence of aggravating or extenuating circumstances;
(3) the impact of publicity; (4) the effect on teacher-student relationships; (5) any
disruption of the educational process; (6) the employee’s motive for the conduct; and
(7) the proximity or remoteness in time of the conduct.” (Fontana Unified School Dist.
v. Burman (1988) 45 Cal.3d 208, 220 (Fontana), restating Morrison, supra, 1 Cal.3d at
p. 229.)
       An employee receiving notice of the school district’s intention to suspend or
dismiss her is entitled to an evidentiary hearing before the Commission on Professional
Competence. (§§ 44934, 44944, subd. (a).) The commission’s role is to determine
whether the charged conduct occurred and “whether that conduct—measured against the
Morrison criteria [citation]—demonstrates unfitness to teach . . . . ” (Fontana, supra,
45 Cal.3d at p. 220.) The commission’s decision to suspend or dismiss the employee
(or not to do so) constitutes the final administrative decision. (§ 44944, subds. (c)(1),
(d)(4).)
       B.     Standard of Review
       Either party may obtain judicial review of the commission’s decision by filing
a petition for writ of mandate in the trial court. (§ 44945.) The trial court must exercise
its independent judgment on the evidence in the record and determine whether the
weight of the evidence supports the commission’s decision. (Ibid.; Code Civ. Proc.,
§ 1094.5, subd. (c).) However, because the commission has experience and expertise in
evaluating teachers’ performance, its findings are entitled to a strong presumption of
correctness even under an independent judgment review. (See Fukuda v. City of Angels
(1999) 20 Cal.4th 805, 817 (Fukuda).)
       “Where a superior court is required to make such an independent judgment upon
the record of an administrative proceeding, the scope of review on appeal is limited. An
appellate court must sustain the superior court’s findings if substantial evidence
supports them. [Citations.] In reviewing the evidence, an appellate court must resolve
all conflicts in favor of the party prevailing in the superior court and must give that

                                             9
party the benefit of every reasonable inference in support of the judgment. When more
than one inference can be reasonably deduced from the facts, the appellate court cannot
substitute its deductions for those of the superior court. [Citation.]” (Pasadena Unified
Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314; see
DeYoung, supra, 228 Cal.App.4th at p. 574.) “ ‘In other words, rarely, if ever, will
a board determination be disturbed unless the petitioner is able to show a jurisdictional
excess, a serious error of law, or an abuse of discretion on the facts.’ ” (Fukuda, supra,
at p. 814.)
       C.      The Trial Court’s Application of the Standard of Review
       The district first contends the trial court applied the incorrect standard of review.
We disagree.
       According to the district, although the court’s written decision states it performed
an independent review, the court’s “analysis reveals that it is essentially applying
a ‘substantial evidence’ standard of review to the Commission’s decision, which is
a level of deference not afforded at the Superior Court’s level of review.” More
particularly, the district notes the trial court’s analysis focuses on the same evidence
relied upon by the commission and on that basis the district infers the court did not
review the evidence in full and did not independently evaluate the evidence. In support
of its argument, the district cites San Diego Unified School Dist. v. Commission on
Professional Competence (2013) 214 Cal.App.4th 1120 (San Diego Unified). However,
if the case has any relevance here, it counsels us to affirm the court’s decision.
       In that case, a school district attempted to terminate a teacher due to allegations
that he inappropriately touched one of his students. (San Diego Unified, supra, at
p. 1126.) During proceedings before the commission, both the victim and her mother
testified. (Id. at pp. 1126-1130.) The commission also reviewed the testimony they
provided in two prior criminal proceedings against the teacher and found a number of
inconsistencies which reflected negatively on their credibility. (Id. at pp. 1130-1132,
1137-1138.) Based largely on that credibility finding, as well as other conflicts in the
evidence, the commission found no substantial evidence to support the district’s

                                             10
dismissal. Considering the district’s petition for writ of administrative mandamus, the
trial court issued a cursory opinion which failed to discuss the conflicting evidence
analyzed by the commission and rejected the commission’s credibility finding based on
the court’s own prior experience with juvenile matters. (Id. at pp. 1139-1140.)
Although the Court of Appeal ultimately reversed the decision of the trial court, it did
not do so because the trial court failed to apply the correct standard of review, as the
district suggests. Rather, the court held the trial court erred by failing to give
appropriate weight to the commission’s credibility determinations and by failing to
consider all the evidence in the administrative record. (Id. at pp. 1146-1149.)
       The district’s proffered authority is readily distinguishable. This is not a case in
which the trial court rejected a commission’s decision and substituted its own judgment
based upon a selective, partial review of the underlying evidence. Rather, this is a case
with a very limited set of undisputed facts, which did not require the trial court to
resolve conflicts in the evidence. Further, the court here properly deferred to the
commission’s assessment of McMackin’s credibility, unlike the court in San Diego
Unified. In any event, the fact the written decisions of the commission and the trial
court rely upon the same evidence in this case simply reflects the small universe of
relevant facts; it is not symptomatic of any error by the trial court.
       Although the district repeatedly argues the trial court erred, it fails to support its
argument with any facts or reasonable inferences drawn from the evidence before us.
The district does not, for example, direct our attention to any relevant evidence it
contends the trial court should have, but did not, consider. Nor could it because, as
noted, the essential facts here were undisputed. The district fails to demonstrate any
error on the part of the trial court in this regard. (See, e.g., Denham v. Superior Court
(1970) 2 Cal.3d 557, 564 [“ ‘A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown’ ”].)
       San Diego Unified is useful on another point, however. The court emphasized
“[i]ndependent judgment review ‘ “does not mean that the preliminary work performed

                                             11
by the administrative board in sifting the evidence and in making its findings is wasted
effort. . . . [I]n weighing the evidence the courts can and should be assisted by the
findings of the board.” ’ [Citation.]” (San Diego Unified, supra, 214 Cal.App.4th at
p. 1141.) The court also criticized the trial court’s rejection of the commission’s
decision and its credibility findings, particularly given the cursory analysis provided by
the trial court: “We recognize that the trial court is entitled to substitute its own
credibility determinations [citations], but it cannot ignore its statutory obligation to
defer to the Commission’s considered credibility findings in doing so. In our view, the
superior court’s decision—which is silent as to the Commission’s thoughtful reasoning
and analysis as to the witnesses’ credibility—did not afford the respect due those
findings.” (Id. at p. 1148.) Accordingly, to the extent the district suggests the trial court
should have ignored the findings of the commission here, particularly with respect to the
credibility of McMackin, we reject the district’s argument.
       D.     Statutory Grounds for Dismissal
       As noted above, the commission found statutory grounds for termination based
on McMackin’s immoral conduct within the meaning of section 44932,
subdivision (a)(1). Specifically, the commission stated McMackin’s “failure to stop the
drug sale to J.T. is conduct hostile to the welfare of the general public and contrary to
good morals.” The commission evaluated the evidence using the Morrison factors and
agreed with the district that McMackin was unfit to teach. Based upon its independent
review of the evidence, the trial court concluded the weight of the evidence supported
the commission’s findings.
       On appeal, the district devotes a substantial portion of its briefing to the
application of the Morrison factors in this case, even though the commission and the
trial court accepted the district’s contention that McMackin was unfit to teach. Because
the district does not argue the commission or the court erred by finding McMackin unfit
to teach, the Morrison factors present no issue for our consideration. (See, e.g., Marich
v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 431 [party cannot
challenge favorable evidentiary ruling on appeal]; Eisenberg, et al., California Practice

                                              12
Guide: Civil Appeals and Writs, § 8.198, p. 8-156 (2015).) Moreover, McMackin—the
only party prejudiced by the finding of unfitness to teach—does not challenge that
                                        4
predicate factual finding in this appeal. Accordingly, we need not, and therefore do
not, analyze the evidence in this case in relation to the Morrison factors.
       The district also argues the trial court and the commission erred by failing to find
additional statutory grounds for termination existed. Specifically, the district complains
McMackin’s actions constituted not only “immoral” conduct, but also “evident
unfitness for service” within the meaning of section 44932, subdivision (a). We decline
to consider this issue because the existence of additional statutory grounds for
termination would not affect the outcome of our decision. (See Civ. Code, § 3532
[“The law neither does nor requires idle acts”]; Garibaldi v. Daly City (1943)
61 Cal.App.2d 514, 517 [“An appellate court will not determine a question which will
have no effect upon the status of the parties”]; Kaiser Foundation Health Plan, Inc. v.
Superior Court (2012) 203 Cal.App.4th 696, 715-716 [same].) The question at the heart
of this appeal is whether the commission abused its discretion by ordering McMackin’s
reinstatement despite the existence of statutory grounds for her termination. Whether
McMackin’s conduct constitutes one or multiple statutory grounds for termination does
not change our analysis on that issue, nor would it have changed the commission’s
ultimate conclusion that termination was not warranted in this case.
       E.     The Commission’s Decision to Reinstate McMackin
       Although the commission found McMackin unfit to teach, it reversed the
governing board’s decision to terminate her employment and ordered the district to
reinstate her. The selection of a particular penalty by an administrative agency
generally is reviewed under the abuse of discretion standard even where the superior


4
       McMackin did not appeal (or cross-appeal) from the judgment and has therefore
waived the right to challenge the trial court’s finding that the weight of the evidence
supports the commission’s conclusion that she is unfit to teach. (See Estate of Powell
(2000) 83 Cal.App.4th 1434, 1439 [noting that “a respondent who has not appealed
from the judgment may not urge error on appeal”].)

                                            13
court reviews the evidence under the independent judgment standard. (West Valley-
Mission Community College Dist. v. Concepcion (1993) 16 Cal.App.4th 1766, 1779.)
       The district apparently contends the commission was required to terminate
McMackin’s employment once it found McMackin unfit to teach. We disagree.
A commission on professional competence determines not only whether the factual
charges alleged by the district occurred, but whether dismissal is warranted on the basis
of the proven charges. (§ 44944, subd. (c)(1); Fontana, supra, 45 Cal.3d at
pp. 218-220.) As our Supreme Court has noted, “the Legislature intended more of
a commission on professional competence than a simple determination whether cause
exists for disciplinary action, resulting inexorably in the imposition of the sanction
previously selected by the employing school district.” (Id. at p. 221.) Rather, even if
cause for dismissal exists, “a commission on professional competence is empowered to
exercise its collective wisdom and discretion to determine that dismissal is not
appropriate in a given case.” (Id. at p. 222.) In other words, section 44932 provides
that a teacher cannot be dismissed unless certain grounds are found to exist, but “does
not provide that a teacher must be dismissed if one of those grounds is found.” (Id. at
p. 218.)
       The commission plays a particularly important role in the selection of an
appropriate penalty because “ ‘[a] disciplinary discharge often involves complex facts
and may require a sensitive evaluation of the nature and seriousness of the misconduct
and whether it warrants the grave sanction of dismissal.’ [Citation.]” (California
Teachers Assn. v. State of California (1999) 20 Cal.4th 327, 343-344.) Neither a trial
court nor an appellate court can reverse an agency’s determination of the appropriate
disciplinary action unless there has been a manifest abuse of discretion. (Ibid.)
Ordinarily, the superior court and the appellate court may not substitute their discretion
for that of the commission. (Ibid.) “ ‘If reasonable minds may differ as to the propriety
of the discipline imposed, the administrative decision may not be regarded as an abuse
of discretion. [Citation.]’ ” (Ibid.)



                                            14
       Here, the commission acknowledged McMackin’s conduct was “serious” and her
judgment was “poor and misguided,” but nonetheless viewed the October 4, 2012
incident as an isolated one which was not likely to recur. The commission noted
McMackin had previously performed her job in a competent manner and praised
McMackin’s efforts to improve the educational experience for students at the center—
students who by all accounts present more than their fair share of challenges to their
teachers and administrators. The commission also found McMackin’s testimony that
she learned from the experience and would not repeat her mistake to be credible. In
addition, the commission emphasized McMackin came forward shortly after the
incident, admitted her mistake, and then fully cooperated with the district’s
investigation. We find no error in the trial court’s conclusion that the weight of the
evidence supports these findings by the commission.
       From these undisputed facts, the commission inferred it was highly unlikely
McMackin would engage in any similar misconduct in the future and therefore found
dismissal too severe a penalty in this case. The court concluded the commission did not
abuse its discretion, emphasizing McMackin’s unblemished record and difficult
assignment. While we are not unsympathetic to the challenges facing teachers in our
public schools, we also believe the facts of this case are troubling. By permitting a drug
sale on campus between two students—and encouraging the purchaser to mark the
money and act as a “snitch”—McMackin placed both students in some danger at the
time. At a minimum, McMackin’s actions were wholly inconsistent with her role in
loco parentis. While it may be true that McMackin performed her job competently in
the past, it would not be unreasonable to conclude she is no longer able to do so given
her conduct regarding the marijuana sale.
       Nevertheless, as already noted, we are not permitted to substitute our judgment
for that of the trial court or the commission, both of which concluded termination was
too harsh a penalty for McMackin’s substantial but isolated lapse in judgment. While
we do not condone McMackin’s actions, we hold, under the applicable standard of



                                            15
appellate review, the trial court did not err in denying the district’s petition for writ of
mandate.
                                      DISPOSITION
       The judgment is affirmed. The real party in interest and respondent,
Pamela McMackin, shall recover her costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                          LAVIN, J.

WE CONCUR:




       EDMON, P. J.




                   *
       HOGUE, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


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