ON WRIT OF MANDAMUS by ecg16852

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									                            COURT THE STATEOF CALIFORNIA
                     SUPERIOR   OF
                                FORTHE COUNTY OF S A N DIEGO
rmomy CLFFE,                                       Case No. 37-2007-00065126-CU-WM-CTL

                       Petitinnm,                  DECISION ON WRIT OF MANDAMUS
       v.
OFFICE OF ADMMISTRATNE
HEARINGS, a California State Agency,
                       Respondent,
                       and
Governing Board of the GKOSSMONT-
CUYAMACA COMMUNITY COLLEGE
DISTRICT,
                       Real Party in Interest.


       The present matter involves the review of an administrative mandamus proceeding pursuant
to Code Civ. Procedure 1094.5. The petition for peremptory wnt of administrativemandamus
was filed by   Community College Professor Tim~thy                 against the Office of
                                                 Cliffe, ~etitioner,

Administrative Hearings, respondent, with the real party in interest the Governing Board of the
Crsossmont-Cuyamaca Community College District. The operative pleading before this court is the
Third amended Petition filed in the Superior court on December 4, 2007. On March 3 1, 2008 the
Administrative Record was filed w ~ t h court and following hearings and argul~icnt cou~sel
                                      this                                        of

thereafter the matter wac taken under suhmission on June 13, 2008.


                                DECISION ON WRIT OF MANDAMUS
       The Coutt has read and considered lh.: pleadings of thc respective parties and the entire
             record. The administrative record consists of transcripts of two days of testimony of
~dministrative
:leven witnesses and one-half day of moment of counsel. In addition, the Court has reviewed the
exhibits received into evidence contained in two volumes including a transcript of a surreptitious
recording and the compact disk recording itself. The C u d has also considcrcd the arguments of
zounsel Ear the respective parties, the decision of the hearing officer and hereby issues the
lollowing findings.
       Section 87682 of the Education Code sets out the procedure for obtainingjudicial review of
a final administrative determination by writ of mandate. This section provides the court, on rcvicw
shall cncrl;isc its indepcndcnt judgment on the evidence. The respondent suggests this Court need

not give substantial weight to the factual findings of the hearing officer, but should exercise its

independent judgment is assessing the evidence and weighing credibility. See California Teachers
Association v. State of California 20 ~ a l . 327 at 344 (1999). The language cited fmm the
                                              4~
decision appears to be dicta and accurhgly the Court finds thc appropriate s t a n d u d is set forth in
the                             20 ~ a l . 4805 (1999).
                                            '~

       In this matter, the Court on review is required to exercise its independent judgment
following a review ofthe entire administrative record. When exercising independent judgment, the
trial court must afford a strong presumption ol'correctness to the administrative findings m l I ~ I G
                                                                                            c

party challenging the administrative decision bears the hnrden n f convincing the court that the

administrative findings are contrary to the weight of the evidence. The presumption provides the
trial court with a starting point for review, but it is only a presumption and it may be overcome.
Since the trial court ultimately must exercise its own independentjudgment, the court is free to
substilule its uwn filldings aftcr fii-stgiving due respcct to the ngenoy's findings. See Fukuda v.
City of Angeles 20 Ca1.4" 805, 818 (1999).
               AAer having given great weight to the findings of the hearing officer regarding the
credibility of the complaining witness and the respondent, the Court in the exercise of its
independent judgment herqby rejects those findings as not supported by the weight of the evidence.
Specifically, the hearings officer's implicit fixling of competency to testify without an interpreter
                                                   -2-
                                 DECISlON ON WRIT OF MANDAMUS
                                                                         reliablc and
and the explicit findmg that the testmony of complainan1 Chm was c~ediblc,
trustworthy is not supported hy the weight of the evidence. Likewise, the hearing officer's
corresponding wholesale rejection of the credibility of Prof. Cliff's testimony was unwarranted and
not supported by the weight of the evidence.
                                                                               judgment finds thc
       For the reasons staied herein the Court in the exercise of its indqu~dout
wcight of the evidence does not support the findings of the hearing officer that Prof Cliffe engaged

in "immoral conduct" within the meaning of the Education code section 87732 on January 3 and 4,
2005. While the language admittedly used by Prof. Cliffe may have been otherwise inappropriate,
the Court findsthe weight of the evidence does not support a finding of immoral conduct.
                                  of
       The Court finds the: w~igllt the cvidcnco does not support a number of the Factual
Findings and Legal Conclusions set forth in the decision. The Court hereby rejects fmdings
described as follows: Finding 4, second paragraph; Finding 9, paragraphs two and three; finding
11, paragraphs two, three and four; findings 14 through 26. The Court also rejects the following
Legal Conclusions as not supported by the weight of the evidence: L g l Curdusion 1, Lcgal
                                                                   ea
Conclusion 2, paragraph two; and Legal Cnnrl~i<inn
                                                 4
       The C u t finds respondent Timothy Cliffe was a full time Community College Professor at
            or
Grossmont Community College in the Deparlmcnt of Earth Science, teaching Physical Geography.
He began teaching at Grossrnont in 1989 and was gsanted tenure in 1995. Proi. Clilie has two
c;hildieu, a son in the fifth p d c and a daughter in the seventh grade. Prof. Cliffe is active in the

educational community in the GATE program and annually serves as a judge of the county science
fair. During Prof. Cliffe's seventeen years at Grossmont, he commonly received administrative and
peer evaluations of Outstanding and has never received a negative evaluation. He was selected
teacher oi the year in or about 2003. During his 17 years at Grossrnunt IIU currlplaint has cvcl- bccu
filed against him, nther than the instant accusation and he has never been reprimanded or counseled

in any area by any school authority or in his pnvate life.
       frof. Cliffe has been described by other professors and school administrators as an
exemplary teacher. He has been referred to as a model teacher for others to come to his classroom
and ~ulluw.Fullrln Dean William Bradley, who maintained personnel filer, on G r o ~ ~ m o n t
                                                   -3-
                                 DECISION ON WRIT OF M A N D A M U S
lrofessors described Prof. Cliffe's file as containing numerous acuuladcs and letters from other
      and students regarding Pmf Cliffe's effectiveness as a teacher. The former President o f
enoher~

3ossmont College, Dr. Ted Martinez, testified that Prof. Cliffe was known to be a very outspoken
ndividual who was always committed to his students.
       Prof. Cliff was primarily outspoken about maintaining academic integrity a Cn-ossn~ont
                                                                                t

Zull~ge.BCand a number of profeseors were outspoken in what they considered inappropriate

gade inflation, i.e., giving students higher grades than were merited. Prof. Cliffe was considered to
ae leader in the area of academic integrity and lead the effort to make sure gades meant something,
so that an "A"really meant an "A" and a "B" really meant a "B." He wanted grades to be given
according to merit and was vocifcruus in his opposition to inflotin~
                                                                   grades so as to ~ossihly

increase enrollment at Grossmont to enhance funding. Grade inflation was a major issue on
campus among students, teachers and administrators.
       Prof. Cliffe was also outspoken on the topic of student cheating. The hearing officer seems
to have found Prof. Cliffe's concerns regarding cheating and specifically chealiug by intclnational
students to reflect some sort of "disturbing" irnpermissihle hiae or prejudice against the
international student community. However, the weight of the evidence is to the contrary. The
Court finds the evidence establishes that the professor's concerns regarding organized international
student cheating were well founded and genuine. Prof. Cliffe had for years been on the forefront of
seeking to maintain Lht; iutegrity of higher education at Crossmont. He was not alone in his
concern about cheating at Grossmont and cheating specifically within the community of
international students. Prof. Cliffe's motivation to curtail cheating was not based upon any bias or
prejudice nor was it based upon race or ethnicity. ProE Cliffe as a fill1 time tenured professor at
                                                                                    of
Grossmont was genuinely concerned about maintaining and enhancing midnrlic i~itagrity thc
college.

       The weight of the evidence establishes that student cheating was considered to be a problem
at Grossrnont by a number of prdessors, including Prof. Cliffe. There was concern among
professors that a number of international students were engaged in organized cheating. Dr. Peter
                                              for
White, former Vice Presidenl u1Sludent Se~viccs eleven ycars at Grosamont, testified t h t in
                                             -4-
                                DECISION ON WRIT OF MANDAMUS
early February 2006 he was asked by school administration lo pull lugether iiifoinlation about
complaints by or ahnut international students relating to cheating. In about February or March of
2006 Dr. White prepared a report for the Vice Chancellor for Human Resources about international
student cheating. Dr. White testified that later in the spring of 2006,documents and lengthy emails
outlined information about particular international students cheating over a period of l i m ~
                                                                                             in

particular courses. While the report and the other documents and emails related to cheating were

not received into evidence at the hearing, the weight oP the testimony establishes there were
concerns among a number of faculty members that a group of students, many of whom were
international students, were involved in organized cheating by means of using stolen exams.
                              that
       Dean Brddlcy L c ~ X c d his rcsponsibilitics at Grossmont College included oversight of
the division of about 200 faculty and staff member, including dealing with faculty and student
complaints. Bean Bradley was aware of Prof. Cliffe's concerns about organized student cheating.
Over the years they had many discussions regarding the issue of student cheating. Dean Bradley
did extensive research concerning the issue and determined they were experiencing a prublcm with
cheating and as a result presided over twn rlivisinn meetings devoted to student cheating at
Grossmont the year prior to January 2006.
       Dean Bradley also testified that several weeks prior to the hearing of this matter he reviewec
test materials h r n Prof. Cliffe's previous class in which Ms. Chen was a student. While Dean
Bi-adloy's duties at G.mssmontwcrc primnrily noademic, he wac fkquently called upon to deal with

complaints of student cheating. In the past he had seen many of these issues brought up by
instructors. In this case Dean Bradley reviewed the tests and answers of Ms. Chen and a friend whc
also took the class. He compared the test questions and the students' answers w t a prior test to
                                                                               ih
which students were not permitted access, a so-called "stolen exam." Among UIG d~1lusl50
students in the ctnss, only Ms. Chen and her &end's examination answers were unique in their
response not to the questions on the current exam, but were responsive to questions on the stolen
exam. Following his review, Dean Bradley was of the opinion that both Ms. Chen and her fiiend
                                                                            f
almost certainly cheated on Professor Cliffe's examination. In the opinion o Dean Bradley there
was about a 99 pcrccnt plobability that Ms. Chcn and hcr fricnd hod cheated using a stolen exam.
                                                  -5-
                                DECISION ON WRIT OF MANDAMUS
       The opinion o f an experienced educalor such as Dean Bradley based upon a review of

testing documentation that Ms. Chen cheated on Prof. Cliffe's exam is consistent with Prof. Cliffe's
belief that Ms. Chen was involved in cheating. It also places into proper context the professor's
attitude toward complainant, a student whom he honestly believed had cheated in his class. It
likewise places in context the complainant's atdnrde roward the professor for when she appeared
unannounced and insisted that he raise her failing grade to a "C."
       During the meeting of January 3rd Prof. Cliffe asked her about stolen exams, the very
method of cheating she employed in his class, and asked her if she knew anythmg about it, to which
she said nothing. Prof. Cliffe did not engage her in a general discussion of cheating but confronted
her with the specifics of using o f a stolen exam to cheat, the very method she had used to cheat in

his class. She knew she had cheated using a stolen exam and would have known Prof. Cliffs
outspoken views about cheating which were commonly known on campus. She h e w an F could
prevent her admission to San Diego State and certainly must have understood the ramifications of
being cnught cheating on her acndemic hturc. At thc moment of Prof. Cliffc's inquiry into chcating
with a stolen exam, assuming some fluency in English, complainant knew that more than her
geography grade was at risk. This had the potential to jeopardize her academic future at Grossmont
and her admission into San Diego State. Since she was in the United States on a studont visa, it
rnigh:hlalso affect on her residency status.

       After the January 3rdmeeting she went to dinner with fiends, including her friend who had
   cheated on Prof. Cliffe's exam. These facts give rise to a motive to bring a complaint against
~lso
FroT. Cliffe, to fabricate or embellish her interaction with him even under the rigorous standard of
Evidence Code 1l Ol(b). Whether based on her inability to understand and communicate in English
>rher motivation to embellish or fabricate because of fear of being found to have cheated in Prof.

Zliff s class, or a combination thereof, Ms. Chen's description of what transpired during the
lanuary 3Id meeting is neither reliable, trustworthy or credible and is rejecled by this Court.
        Evidence that the complainant cheated on Prof. Cliff's exam using a stolen test is important
zvidence bearing on her credibility since she kstified during the hearing Lhal she had never used a
stolen exam to prepare for a test. The hearing officer excluded documentary evidence offered by
                                                  -6-
                                 DECISION O N WRIT OF MANDAMUS
counsel for respondent to prove that Ms. Chen had cheated on Prof. Cliffe's exam. In deciding to
exclude the evidence the hearing officer stating "so assume she cheated. how does that go to her
credibility..   ." and later stated that "I just don't see how it [complainant's cheating] relates to
whether or not the comments made by Mr. Cliff were appropriate in those two meetings, so I will
sustain objection to Exhibit G." Reporter's transcript vol. 1 p. 142-143 (hereaffer R.T.
                                                             1                          vol.). While
the complainant's cheating does not relate to whether the alleged "comments made by Mr. CIiffe

were appropriate," it certainly relates to whether complainant was truthful when she testified Prof.
Cliffe made those comments and her motive for giving such testimony. Further, evidence that
:omplainant cheated is admissible to impeach her testimony at the hearing when she denied
hiuwl~dpe possessiun uf auy stolcn cxans.
        ur
       Notwithstanding the exclusion of documentary evidence of cheating, the Court finds the
weight of the evidence received demonstrates that she and her fiend did cheat on Prof. Cliffe's
:xam by using a stolen exam and that she provided false testimony to the contrary at the hearing.
       Even though a hearing officer's decision is based substantially on credibility of a witness
and the observation of the demeanor, manner, or attitude of the witness,nothing in the
Administrative Procedures Act or the Education Code precludes a court from rejecting and
werturning a credibility determination of the hearing officer. A Cowl that has considered and
given great weight to the observational and non observational elements of the hearing officer's
xcdibility dctcrmination is pcrrnittcd to ncccpt or reject auoh determination. See Government Code

section 11425.50, subd. (b) and Law Revision Commission Comments. As was staled the Chief
lustice in the Fukuda decision, "...obviously, the Legislature sees no inconsistency in having the
h l court first afford ''great weight' to credibility determinations, and then exercise independent
 a
udgment in making its own findings." Fukuda v Citv of the An~eles p.819, supsa.
                                                                at
       While this Court has given great weight to the hearings officer's finding Ms. Chen credible.

h e Court rejects the hearing officer's finding she was a credible witness and finds the weight of the
:videme does not support a finding of credibility. The weight of the evidence establishes that her
testimony was untrue regarding knowledge and use of stolen exams. The testimony of a witness
                                          about something important may be distrusted in othcr
w l has deliberately tcstificd unt~uthfully
     ~
                                                      -7-
                                    DECISION ON WRIT OF MANDAMUS
testimony and the entirety of the testimony m a y bt:~ejectcd. See California Civil Jury Instruction
107, Witnesses.

          Evidence Code section 780 sets forth a number of factors to be considered in determining
the credibility of a witness. Credibility is to be determined by considering any matter that has a
tendency in reason to prove or disprove the truthfulness of the w i l n ~ s s
                                                                            u~cluding witnesses'
                                                                                    the
"capacity to perceive, to recollect, or t n communicate any matter about which he testifies." The
language of section 701(a)(l) dealing with competency similarly provides "a person is disqualified
to be a witness if he or she is incapable of expressing himself or herself concerning the matter so as
to be understood, either directly or through interpretation by one who can understand him."
Whether a wiL11~ss p~rccivc
                 did      accurately and is communicating accurately and tn~thfi~lly
                                                                                  are

questions of credibility to be resolved by the lrier of fact. People v. McCaughan 49 Cal.2d 409
(1957).
           The complainant's language difficulties raise serious questions regarding her competency
to testify without an interpreter that were not meaningfully adhesscd by tho 11taring officcr. Thc
hearing officer's implicit findine nf competency to communicate in English without an interpreter

is contrary to the weight of the evidence.
          The importance of an interpreter when there is any real question of competency is
demonstrated by the instant case. This case requires a determination of whether a full time tenured
community collcgc professor with an unblemished and exemplary record of 17 years of       service

should be terminated for immoral conduct in the form of statements made in English based almost
exclusively on the oral testimony of a single witness who has difficulty speaking and understanding
the English language.
          The weight of the evidence establishes Ms. Chcn's English language deficiency waa scrious
in its affect on her ability to consistently understand and communicate in English. While she had

some understanding of the language sufficient to allow her to respond to many simple questions ant
to leading questions, her responses to questions kequently consisted of short phrases without
meaningful explanation or elaboration. She was largely unable to consistently communicate
meaningrul substantive content in responsc to questions.
                                                  -8-
                                  DECISION ON WRIT OF MANUAMUS:

j                     WNIJ M V l M09801 3 H l                  656bZLL8181       5 1 1   800Z/8Z/80
       Counsel for the District candidly addressed this problem to the hearing officer when the
wring officer raised the issue of whether "it would he helpful to have a translator" aaer the
vitness admitted she was "having trouble [remembering]what happened" and "trouble finding the
ight word in English." See RT p. 25-26.
       Counsel for the District explained that he "thought that the accusation would be that she
                                                  what he [Prof.Cliffe] said so 1 thnllght 1
lidn'i speak English well cnough to have under~tood

vould have to have her examined in English." The hearing officer then left it up to the witness to
Lecide whether an interpreter was needed when she advised the witness that if she was having
rouble thinking of the right word in English to let the hearing officer h o w . NOother inquiry into
he language issue or reference to it occurred during lht: balance of hcr testimony. See R.T. vol. I
p.26
       It was incumbent upon the hearing officer to address the issue of competency more than in
he cursory approach that was taken, particularly in light of some of the testimony recounted below.
Nhether because of a lack of competency in English under Evidence Code section 701 or its
mallcl language dealing with credibility found in section 780, the weight of the evidence

lemonstrates that Ms. Chen could not meaningfully communicate in a matter of this importance
without the services of an interpreter. The Court finds her testimony to be unreliable and
mmshvorthy and it was an abuse of discretion of the hearing officer to base the hearing officer's
lecision on the testimony of the complaining witrl~ssu1rle1 tlicsc ~inumstances.
       Shortly after the above colloquy concerning language, the following series of questions and
lnswers illustrative of the problem are found in the reporter's Wanscript. See R.T. I p. 26
                                                                                   vol.

              Q.      And was there something that he wanted for another day. Did
                      he want you to come back?
               A.     Because I was trying to leaving, I just tried to find my final paper and just
                      find out about my final grade.
       A few questions later the following questions and answers were given by Ms. Chen:

               Q.     What was that word that he wanted you to say?
              A.      Show hra.

                                                 -9-
                               DECISION ON WRIT OF MANDAMUS
               Q.      And did he explain what he meant.
               h.      What does that mean?

       Thc iicxt pagc of tlic rcportcr's Wanscript oontsins h c following testimony central to the

       claim of the complainant regarding immoral conduct. See R.T.vol. I p. 28
~riginal

               Q.      Did he offer to change your grade if you would do something?
               A.      Yeah. In our first day of conversation he said like if want to
                       get a high grade maybe like. The first words were one I play
                       myself.
               TIIE COURT:            I'm sorry. I don't understand that.
               THE WITNESS:           I play myself. I play myself. P-1-a-y myself.
               THE COURT:             He said that?
               WITNESSES:             Yeah.

       Even the hearing officer apparently did not accept his testimony and other rather lurid
e~timony reliable and credible as much of this testimony was not relied upon by the hearing
       as

jfficer nor was it included in the findings of fact or law in her decision.
      Later during examination by counsel for the Disbict, the following question was asked
egarding the recording device used by Ms. Chen in the January 4& meeting with Prof. Cliffe. See
LT.vul. I p. 32.


              Q.       ..does it record on a disk inside the machine'?
              A.      Just like a pencil.
      During the course examination of the complaining witness by counsel for Prof. Cliffe, much
~fthe testimony is similar to the following occurred at page 40-41 of the reporters transcript.

              Q.      Do you normally wear glasses?
              A.      Only in geography.

              Q.      Only in geography. What size are your glasses?
              A.      I don't remember the number or section.
                      *    *    * *

                                                 -10-
                                DECISION O N WRIT OF MANDAMUS
               Q.      Were you wearing eye makeup?
               A.      Yes. I wear contacts.

       13eginning on Page 85 of t h e reporter's transcript Ms. Chen is asked on cross exmination

whether she was admitted to a university afkr receiving a D in Prof. Cliffe's course and the
:allowing occurs.


               Q.      Were you able to get in the University with a D in the class?
               A.      D is apass.
               Q.      So you were able to get in?
               A       But I already have a I .
                                             )

               Q.      So what does that mean?
               A.      What does that mean?
               Q.      Why is that important?
               A.       1 got U. l Goodman's class I got a U.
                                  n
               THE COURT: In Goodman's class you got a D?

               THE WITNESS: Uh-huh. So doesn't matter. I just can't believe I
                    got F. So I just try to ask my final grade is D. So without
                    attendance maybe.1could get a D.
C.T. vol. I p.85-86

       Shortly after the above examination of Ms. Chen the following questions and answers
krther illustrate difficulty caused by her inability to respond to questions in English without the
rssistance of an interpreter.

               Q.      Did the school district tell you that [it was a crime to record
                       the conversation]?
               A.      No.

               Q.      and Jerry's father did not tell you that ?
               A.      No. I think I want to record it because I want to report it. So
                       somebody else how to do it.
               Q.      You want somebody else?

                                                  -1I-
                                IIZCICION ON WRTT OF MANDAMIJS
               A.      No. Nobody tell me.
See3 R.T. vol. 1 p.86-87.


       Particularly persuasive in describing the extent of Ms. Chen's difficulties in understanding
and cununutlicating in tlie Eliglisli language is the tcsti~uony 1-drcd Piof. Michacl Mathci-lywho
                                                               of

taught for over three decades at Grossmont. Prof. Matherly had the complainant in one of his
classes and testified that she would come to the office several times during the year for help but
"she never seemed to understand what I was saying." He testified that her language "difficulty was
really very promment." He stated that dunng laboratory sessions "She always wen1 to the other
Taiwanrar sttidents to find nut what Thad said      the nther students would explain my instructions

to her." The weight of the evidence establishes the complainant's inability understand English and
to effectively communicate without an interpreter. (See R.T.vo1. I1 p.45) Even with the help of
friends to assist in understand~ngschool work she nevertheless apparently seemed to carry no more
than barely paming gadec.
       Given the fact that the accusation in this matter is almost entirely founded on the testimony
of the complaining witness and her perceptions of statements claimed to have been made by Prof.
Cliffe, her ability to understand and to communicate in English are critically important to the
rcl~ability her testimony. Even if the witness wcrc dccmcd technically compctcnt to offcr
          of

testimony, the reliability and trustworthiness of her testimony is significantly impacted by her
apparent inability (1) to understand what Prof. Cliffe said to her, (2) to recall what Prof. Cliffe said
to her and (3) to communicate in any reliable way exactly what he said to her during the meehng of
January 3d and 4".
       L a n g a e o i s at the heart nf this cnntrnver~y This is not a question of an ill advised and
inappropriate joke or harsh remark about an "A" "B",or "C"in terms of bra size. This is a question
of whether a prol?essor with no history of previous misconduct offered to exchange a grade for
sexual favors. On this record and with this witness, who could neilher eEectively speak nor
understand English, thc hcaring officcr'a finding of immoral conduct is rejected by t h i s court as

being inconsistent with the weight of the evidence. The Court finds the complainants teslimony at
                                                   -12-
                                 DECISION ON WRTT OF MANnAMlJS
the hearing without the assistance of an inlerprater is unrclilrblc d unkuslwurhy in hcr
description o f what Prof. ClifFe said during the meetings that occurred on January 3rdand January
4". The finding of the hearing officer that Prof. Cliffe asked the complaining witness to show her

bra in exchange for a passing grade is rejected by this Court as inconsistent with the evidence. The
finding t a Prof. Cliffe offered to exchange a grade for the sight of a bra is entirely inconsistent
         ht
with almost two decades of exemplary conduct and his reputation among his peers as a leader in the
promotion of academic integrity at Grossmont College.
       The Court accepts the testimony of Prof. Cliffe regarding what happened dwing the January
3"' and 4 hmeetings with Ms. Chen as reliable, credible and trustworthy. The evidence is
         1
uncontradicted that Prof. Cliffe's description of what transpired during the meetings has remained
unchanged from the very beginning.
       T i consistency is particularly persuasive since shortly after the meeting on January 4'
        hs
Prof. Cliffe received a call from Jerry Buckley, the new Dean of Math Science, who told him that a
student claimed he wanted to %ado a C gade for a bra and has a tapc to provc it." SGC
                                                                                    R.T. vol. I
p.160 Prof, Cliffe immediately contacted Dean Bradley and was referred to Dr. White. The next
day on January 51h at a time when all Prof. Cliffe knew was that he had been surreptitiously
recorded by a student, he met with Dr. White and told him the whole story. He told Dr. White that
he had met with a student and made inappropriate or unfortunate and sarcaslic slalemmls in
response to a student who failed his class and insisted that he raise her grade to a C. He told Dr.
White that he had sarcastically told the student that she could go to the Ma11 as she planned that day
and buy herself an A or a 13 or a C at a bra store. When the student said "I buy bra and then get a
C?" Prof. Cliffe told Dr. White he responded with "Sure, you go buy a bra and you get a C. Sure.
I don't think so." R.T. vol. I p.139.
       Prof. Cliffe's initial statement was made at a time he thought both meetings had been
recorded by the student. The Court finds his statements are inherently reliable and trustworthy. The
weight ofthe evidence supports the conclusion that he admitted and accurately described the
inappropriate statemwls and h s cunsis~~nlly
                             a            cl~s~ribad statcmcnts to othcrs during the
                                                  those

investigation.
                                                 -13-
                                DECISION ON WRIT OF MANDAMUS
         Ms. Chen's surreptitious recording of the meeting of January 41htook place when the
college was closed and the door to the office building was locked. The only two individuals inside
the building which housed Prof. Cliffe's office were Ms. Chen and Prof. Cliffe. The Court finds the
meeting occurred at a time and place in which both participants reasonably and objectively believed
they were engaging m a coniidential communication as the term is used in Penal Code section 632.
1-Tnderthese cirnimstmces. the recnrding o f the communication is prohibited unless bath parties to

the communication consent and the use of any recording made without the consent of all parties is
prohibited unless otherwise statutorily authorized. The finding of the hearing officer that these
facts do not give rise to a reasonable expectation of privacy is contrary to the evidence and the
recording i s inadmissible unless otherwise statutorily authorized. Thc District's contcntion that thc
recording is authorized under Penal Code section 633.1 and admissible under 633.5 i s not well
taken.    Even assuming section 633.1 provides authorization to permit the recording, section 633.5
does not authorize its admissibility in evidence in this matter, Section 633.5 by its terms limits
admissibility of such recording to criminal prosecutions.
         Further, the recnrrling dnas nnt moot tho widentiary standards nf Crnvemment Cnde section
11513(3) which authorizes admission of evidence that is otherwise reliable and the sort of evidence
upon which,responsiblepersons customarily rely upon in the conduct of their serious affairs. The
recording is unreliable as evidence in that there is no foundation regarding the origins of the
recording and transfer of the recording to a compact disk. The recording also contains extraneous
apparent Asian language conversations that were not transcribed and much of the conversation on
the disk is inaudible, particularly the statements of Ms. Chen. Finally, there appear to be other
unexplained voices on the recording Ulat the transcript attributes to Ms. Chen and Prof. Cliffe that
do not appear to be their voices. Specifically,the recording transcriplquules Ms. Chm saying "T---
--g thing" and Prof. Cliff saying L'silky"which both deny making. Especially the word "silky"

seems to be out of tonal context and the voice of another speaker. The court finds no reasonable
person would rely on such an incomplete, ambiguous and inaudible recording in the conduct of
serious affairs without having resolved these issues.
///
                                                 -14-
                                UEClSlON O N WKL1' OF' MAlYUAMUS
                              GrruriGuus iuLniasiun oCthe ncorchg into evidence, the Cowt has
       NuLwilhsltuiduiy 1 1 1 ~

reviewed the transcript and listened to the recording of the January 4thmeeting copied to a compact
disk. Even if the recording were properly admitted into evidence, the recording does not tend to
prove that Prof. Cliffe engaged in immoral conduct. Much of the recording is unintelligible but the
vast majority of the part of rhe recording that can be understood shows the professor appropriately
discussing the subject of physical geography with Ms. Chen, including a discussion of review
sessions, the importance of taking notes during class, the need to be on time to class and the need
for class attendance among other proper items of discussion between student and teacher. One or
two comments were made regarding the prior days discussion of purchasing a bra at the mall.
Thesc cornmats were obviously made in jest as laughter o m be heard on the recording. It i~ clew
from the recording taken in the context of the prior days meeting that Prof. Cliffe was not
attempting to solicit sexual favors in exchange for a better grade in his class. Prof. Cliffe was not
seriously attempting to trade a better grade for anything. This would be the antithesis of almost two
dctiadcs uCPru1. CliC1~'swurk toward c d ~ u c i n iacademic integrity at G~ossmont.
                                                    ;

       Even though Prof. Cliff on January 31d and 4thaddressed his comments in jest or sarcasm to
an adult student age 25, thare is no reason for a professor, even if he suspects the student has
cheated in his class, to speak in such a manner. Prof. Cliffe himself appreciated the impropriety of
his comments on January 5& when he spoke with Dr. White. While this Court does not condone the

inappropriate comments made during these meetings, the comments do not in any manner
constitute immoral conduct or any wrongful conduct that would warrant termination of a tenured
college professor.
       The hearing officer. also seems to find the offering of a passing grade in exchange for
             rcgm-dingthc gl-oup in uitcr~mtioiial
iiifonliatio~l                                                                          to
                                                 studcnts involvcd in 01-ganizcd cl~~ating
constitute wrongful conduct. While this Court has no expertise in the area of academic practices at
the college level, even if such an exchange were deemed inappropriate, the Court finds the Prof.
Cliffe did not made a serious offer to exchange a grade for information regarding cheating.
Although the written transcript of the recording does not provide any notation of laughter having
occurred at this time during the meeting, laughter is easily discerned by the listener. Laughter is
                                                 -1s-
                                UECISlON WFI WKlT OF MANDAMUS

'd                   W8Ij MVl MOW01 3 H l                       656PZLL8T.81      5    1 800Z/8Z/80
                                                  Court fulds Plvf. Cliffc did not in any rcspcct
       11eiuddulillg the sefcrcmc to a bra. T l ~ c
ik~wist.
~ffqgive the
   to           complainant a higher grade in exchange for information regarding cheating.
      For the foregoing reasons the Court finds in favor of the respondent Timothy Cliffc and
gainst the Grossmont-CuyamacaCommunity College District. The Writ is granted and the
lecision of the hearing officer is reversed with directions to the District to reinstate petitioner
%nothy Cliffe forthwith.
      IT I SO ORDERED
         S


                                                                  R. S
                                                              W ~ E HA-
                                               C W E S R. HAYES
                                               Judge of the Superior Court




                                                  -16-
                                 DECISION ON WRIT OF MANDAMUS
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO
   COUNTY COURTHOUSE, 220 W. BROADWAY, SAN DIEGO, C 92101-3814
                                                         A
O HALL OF JUSTICE, 330 W. BROADWAY, SAN DIEGO. CA 92101-3827
D FAMILY COURT, 1555 6"'AVE.. SAN DIEGO. GA 9~i01-3296
o MADGE BRADLEY BLDG., 1409 41HAVE., SAN DIEGO, C 92101-3105
                                                    A
   KEARNY MESA, 8950 CLAIREMONT MESA BLVD., SAN DIEGU, CA 92123-1187
   NORTH COUNTY DIVISION, 325 S. MELROSE DR.,VISTA, CA 92083-6643
U EAST COUNTY DIVISION. 250 E. MAIN ST., EL W O N . CA 92020-3941
U RAMONA, 1428 MONTECITO RD., RAMONA, CA 92065-5200
P SOUTH COUNTY DIVISION. 500 3RoAVE., CHUM VISTA. C 91910-5649
                                                      A
O JUVENILE COURT. 2851 MEADOW LARK DR , SAN DIEGO. CA 92123-2792
PLAlNTIFF[S)PETlTlONER(S)
TIMOTHY CLIFFE
                                                                            I
'DEFENDANT[S)/RESPONDENT($)                                                     JUDGE      CHARLES R.HAYES
OFFICE OF ADMINISTRATIVE HEARINGS
                                                                                --.
                                                                                  ...
                                                                                WDT.       "-
                                                                                           CiF:
                                                                                CASE NUMBER
               CLERK'S CERTIFICATE OF SERVICE BY MAIL
                                                                                37-2007-00065126-CU-WM-CTL
                           (CCP IOlJa(4))

I, MICHAEL RODDY, certify that: I am not a party to the above-entitled case: that on the date shown below. I
served the following docurnent(s):

                                   DECISION ON WRIT OF MANDAMUS

on the partlss shown below by placing a true copy In a separate envelope, addressed as shown below: each
cnvclope was then sealed and, with postage thereon fully prepaid, deposited In the United States Postal
Service at:
)$3" Dlego         0 Vista )El Cajon            Chula Vista   0   Oceanside           0
                                                                                   Ramona.     California.


     MARTHA A. TORGOW ESQ.                               STATE OF CALIFORNIA
     THE TORGOW FIRM                                     OFFICE OF ADMINISTRATIVE HEARINGS
     9413 DONNA AVENUE                                   1350 FRONT STREET, RM. 6022
     NORTI IRIDGC, CA 01324-2810                         SAN DIEGO, CA 92101

     JACK SLEETH. JR., ESQ.
     STUTZ ARTIANO SHINOFF B HOL-lL
     2488 HISTORIC DECATUR ROAD. STE. 200
     SAN DIEGO. CA 92106




                                                                                      MICHAEL RODDY
                                                                         CLERK OF THE SUPERIOR COURT

     Date:           N
                     A 2 2 2001                              By:                                           . osutv
                                  CLERK'S CERTIFICATE OF SERVICE BY MAIL
              THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
                      IN AND FOR THE COUNTY OF SAN DlEGO


'IMOTHY CLIFFE,                               Case No.: 37-2OO7-OOO65IZG-CU-WM-CTL

              Petitioner,
     VS   .

IFFICE OF ADMINISTRATIVE
IEARINGS, a Calllornla State Agency,          ORDER CORRECTING CLERICAL
                                              ERROR IN DECISION ON WRIT OF
              Respondent,                     MANDAMUS

              and
;overning Board of the GROSSMONT-
NYAMACA COMMUNITY COLLECT
IISTRICT.

              Real Party in Interest.


     The Court upon review of the Decision on Writ of Mandamus obscrves a clerica
mar on Page 3 line 8. The year 2005 should read 2006.
     IT IS SO ORDERED.



                                                       CHARLES R. HAYES


                                               Judge of the Superior Court


                                        Page 1 of 1
-
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DlEGU                                    1
 0 COUNTY COURTHOUSE, 220 W BROADWAY, SAN DIEGO, CA 92101.3814
 O    HALL OF JUSTICE, 330 W BROADWAY. SAN DIEGO. CA 92101-3827                                     F       b        .     D
 D    FAMILY COURl, lbhh b'" HVE, WH DIEGO, CA 92101.3296
                                                                                                      Cloh olblm llupddr twit
 0    MADGE BRADLEY BLDG .14W 4IUAVE, SAN DIEGO, CA92101.3105
 O    KEARNY MESA, 0950 CMIREMONT MESA BLVD SAN DIEGO. CA 92123.1187
 0 NORTH COUNTY DLVlSlON 325 $ MFI ROSE OR VISTA CA 920836643                                           AUG 2 5 Xi08
 U EAST COUNTY DIVLSION. 25C E MAIN ST. EL CAJON. CA 92020.3941
                               .
 0 RAMONA, 1428 MONTECITO RD RAMONA, CA 920655200
 U SOUTH COUNTY DIVISION, 500 3RD AVE .CHUM VISTA. CA 919106649                                      4: 6. TOM, Deputy
 0 JUVENILE COURT. 2851 MEAUUW LAHK DR. SAN DIEGO, CA $2123.2792
 PLnlNTIFF(SIlPETITIONER[S~


 Defendent(s)lR~spondenl(s)                                                               Judge:    CHARLES R. HAYES
 OFFICE OF ADMINISTRATIVE HEARINGS
                                                                                          Dept.:    66
                                                                                          CASE NUMBER
          CLERK'S CERTIFICATE OF SERVICE BY MAIL
                                   (CCF1013a(d))                                          37-2007-65126

I, MICHAEL RQDDY. certify that: I am not a party to the above-entltled case, L l ~ 01-1 the date shown below, I scrvcd
                                                                                     t
the following document(s).

     ORDER CORRECTING CLERICAL ERROR IN DECISION ON WRIT OF MANDAMUS
on the partles shown below by placiny a bus copy in a separate envclopc. addressed as shown below; each
envelope was then sealed and with postage thereon fully prepaid, deposited in the United States Postal Servlce at:
(S m Dieqo         0Vlsta          0
                                El Cajon           n
                                               Chula Vista              0
                                                                  Oceanside          Ramona,      California.

                                                     NAME &        ADDRESS


     MARTHA A. TORGOW ESQ                                              STATE OF CALIFORNIA
     THE TORGOW FIRM                                                   O F F I C E Ok A U M l N l S T R A T l V E HEARINGS
     9413 DONNA AVENUE                                                 1350 FRONT STREET RM 6022
     NORTHRIDGE, CA 91324-2810                                         SAN DIEGO, CA 92101

     JACK SLEETH, JR. ESQ
     STUTZ ARTIANO SHINOFF & HOLTZ
     2688 HISTORIC DFCATlIR ROAD STE 200
     SAN DIEGO, GA 92106




                                                                                             M I C H A E L RODDY
                                                                                  KpERIOR                          COURT

      Date.    AUGUST 25.2008                                           By:                                                     , Deputy
                                                                                                   B. IWM

                                            CLERK'S C E R T I F I C A T E OF SFRVICE BY MAIL

								
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