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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

DISTRICT,

Plaintiff and Appellant,

v.

COMMISSION ON PROFESSIONAL 

COMPETENCE,

Defendant and Respondent;

PAMELA McMACKIN,

Real Party in Interest and 

Respondent.

B262523

(Los Angeles County

Super. Ct. No. BS146618)

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.

_______________________________________
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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
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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

The drug sale at issue in this proceeding involved two students, J.C.G. and J.T.

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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.”
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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.
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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 
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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 

under Education Code

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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.
7

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.
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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 

him or her.” (§ 44932, subd. (a)(1), (2), (6) & (8).)

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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.
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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 
10

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 
11

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 
12

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 
13

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 

predicate factual finding in this appeal.

4

 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”].)
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court reviews the evidence under the independent judgment standard. (West ValleyMission 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.)
15

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 
16

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.