Very Happy to Hear from You, Mr. Gensler

What’s going on with the Gensler case? 

I’m talking about the district’s own Howard Gensler. You remember him. As you know, over the years, there have been numerous Gensler cases. B

Here, by the “Gensler case,” I mean specifically (a) the district’s relatively recent action (2018) of firing Econ and Poli Sci instructor Howard Gensler and (b) Gensler’s efforts to overturn that action. 

I bring this up now because, less than a month ago (8-22-23), something occurred relative to that case. (A friend clued me in on it last week.) A decision was written regarding an appeal of a court case, going back 4 or 5 years, involving Howard's firing.

I have before me a decision by appellate court (4th district) associate justice Joanne Motoike, which is readily available online (here). I’ll explain that decision as I understand it. You can read it and assess its ramifications on your own. 

In this case, Howard Gensler is both plaintiff and appellant and the SOCCCD Board of Trustees (et al.) are respondents (targets of the suit). Interestingly, one of the District’s attorneys is one Dennis J. Walsh. I remember him well; he was Mathur’s attorney in the notorious Mora v. Mathur (see) case in which, horrifyingly, Mathur prevailed, but not without laying bare for all to see how unprofessional his conduct was/is. (Some of the jury, too, were utter louts. The case was doomed.) 

PART 1: Howard is fired

The particular issue at hand concerns an action taken by the district in 2018. According to Justice Motoike, 

In December 2018, the District placed Gensler on administrative leave and provided notice of its intent to terminate his employment. Gensler attended a Skelly hearing on January 15, 2019, conducted by Dr. Elliot Stern, who had assumed the role of president of Saddleback College just two days earlier. After considering Gensler's oral and documentary evidence, Stern affirmed the decision to terminate Gensler's employment. 

But what’s a Skelly hearing? According to Google, 

A Skelly Hearing is a pre-disciplinary hearing named after a 1975 California Supreme Court case which solidified public employees' rights when faced with disciplinary action. A Skelly Hearing is part of due process to provide public employees with the reason for disciplinary action before that action is taken. 

Motoike continues: 

Dennis Walsh

On January 31, 2019, Stern signed the Statement of Charges and Recommendation for Termination. That same day, Dr. Kathleen Burke, the District's chancellor, signed a concurrence with Stern's recommendation. On February 1, 2019, those documents were forwarded to the Board, as was Gensler's most recent faculty performance evaluation dated November 2, 2015. In February 2019, the Board, in Resolution No. 10-05, voted to give notice to Gensler that his employment with the District would be terminated effective 30 days from the service of the notice unless he requested a hearing. 

Gensler was then informed of his right to request a hearing. 

Sure enough, in March, Gensler “filed a notice of defense/objection and requested a hearing.” Then, in June, Stern 

signed the accusation [an official charge of wrongdoing], alleging as the causes for the employment termination decision Gensler's "evident unfitness for service" … and his "persistent violation of, or refusal to obey, the school laws of the state or [the] reasonable regulations prescribed for the government of the district's board"[.] As factual grounds for dismissal, the accusation specified several instances of misconduct occurring from the Fall 2015 semester through the Spring 2018 semester. …[T]he Board certified the matter to the Office of Administrative Hearings for the appointment of an administrative law judge [ALJ]. 

(According to Justia, “In the United States, an administrative law judge … serves as the judge and trier of fact who presides over administrative hearings. ALJs have the power to administer oaths, make rulings on evidentiary objections, and render legal and factual determinations.” “Whereas court proceedings are overseen by a judge, administrative hearings are conducted by an administrative law judge (ALJ). One of the major differences between a traditional court proceeding and an administrative hearing is that the presiding administrative law judge serves as the trier of fact.”) 

Howard unfurls his mighty cape before the enemy

I should mention that we at DtB have no idea what these “instances of misconduct” are or the nature of the District's grounds for judging that Howard is or was unfit to teach—although we can certainly imagine many grounds, based on our experiences with the curious fellow over the years. 

We’re in the dark about this. Like Bat Man. 

In February of 2020, the ALJ “presided over 10 days of hearing at which the ALJ received testimonial and documentary evidence and heard the parties' arguments.” Then, in a lengthy written opinion dated Oct. 14, 

the ALJ concluded "[c]ause exists to dismiss [Gensler as an employee] pursuant to Section 87732, subdivisions (d) and (f). The district's decision to dismiss [Gensler] from employment is reasonable and supported by a preponderance of the evidence." 

(Here’s Ed Code 87732: 

No regular employee or academic employee shall be dismissed except for one or more of the following causes: (a) Immoral or unprofessional conduct. (b) Dishonesty. (c) Unsatisfactory performance. (d) Evident unfitness for service. (e) Physical or mental condition that makes him or her unfit to instruct or associate with students. (f) Persistent violation of, or refusal to obey, the school laws of the state or reasonable regulations prescribed for the government of the community colleges by the board of governors or by the governing board of the community college district employing him or her. (g) Conviction of a felony or of any crime involving moral turpitude. (h) Conduct specified in Section 1028 of the Government Code. –END) 

And so, in the end, the ALJ affirmed the district’s decision to fire Gensler. Howard was canned and rightly so. 

END OF STORY…. 

PART 2: Genslerian litigiousness 

—BUT NO. Anyone who knows Howard knows that that would never end the matter. Howard is nothing if not litigious. And he’s like the Energizer Bunny (but with a bat suit). 

In January of 2021, Howard filed a petition of writ of mandate, naming the Board and the District as respondents. You’ll recall that such writs are intended as remedies of defects of justice. 

“Writs of Administrative Mandate (Mandamus) are used to ask a Superior Court to review a decision made by an administrative agency of the government, such as for example the Workers' Compensation Appeal Board, or the Department of Motor Vehicles (DMV)” (Google). 

By means of this writ, Howard sought the issuance of a writ "to vacate the termination decision of [the] Administrative Law Judge . . . and order the reinstatement of Gensler with back pay." 

Writs of mandamus ask for extraordinary actions—in this case, Howard was asking that the ALJ’s judgment, owing to some alleged defect(s), be “vacated” and Howard’s standing at the college be restored. 

The petition asserted six causes of action. 

THE SIX “CAUSES” 

In the first cause, Gensler claimed that the District 

provided defective notice and lacked jurisdiction, having violated [Ed Code 87671] … (failure to conduct a current evaluation), … (failure to include a peer review), (failure to include student evaluations), … (failure to allow Gensler to provide written comments to derogatory material placed in his personnel file which was used in the termination process), … (considering and relying upon evidence older than four years), and … (failure to provide notice of the complete and precise decision of the governing board and the reasons for the termination). 

Gosh, some of that sounds familiar! 

In the second cause of action in the petition, Gensler asserted the ALJ erred by concluding Gensler had engaged in unprofessional conduct justifying the termination of his employment. 

In the third cause of action, Gensler asserted the ALJ erred by concluding Gensler's statements were not protected by the First Amendment to the United States Constitution and his right to academic freedom. 

In the fourth cause of action, Gensler asserted he was deprived of a fair trial. He asserted the ALJ abused his discretion by precluding opening statements and closing argument, committing evidentiary error, relying on cases the Board had not cited in its briefing, ignoring pretrial motions and the Board's alleged discovery abuses, and denying Gensler's requests for sanctions and continuances. 

In the fifth and sixth causes of action, Gensler asserted the ALJ's findings of Gensler's "'evident unfitness'" and "'persistent failure to follow rules,'" respectively, should be reversed. 

As it turns out, the case will turn on the 1st cause — essentially, Gensler was not afforded a peer review, to which he is entitled — which is procedural, and not the potentially juicy other ones: is THIS conduct unprofessional?, etc. 

Natch, included in Gensler’s petition was a petition for “prayer and relief.” According to Howard, the Board should 

reinstate Petitioner Howard Gensler as a full-time tenured faculty member of Saddleback College [and] reimburse Howard … for lost wages and benefits arising from this action. 

Bat Man amid darkness

Howard also petitioned for his “costs in this action, including attorneys' fees…” and “For such other relief as the court considers just and proper." 

The District then filed an “answer” to the petition. I don’t have that document but we can imagine what it contains. No doubt the word "nope" figures prominently.

That brings us to October 22 of 2021, nine months later, when the “trial court,” namely, the one in which the Honorable Derek W. Hunt [see this] presides, must decide how to respond to Howard’s writ and the District’s response thereto. Essentially, Hunt, though generally in agreement with the ALJ’s conclusions, decides that something more is needed to go forward: “a statutory peer review process … as specified by ‘the standards and procedures established by the rules and regulations of the governing board [of SOCCCD].’” 

As Motoike explains, 

After having taken the matter under submission…, and after having fully considered the parties' evidence and written and oral arguments, [Hunt] entered a minute order [according to Google, a minute order is “An order of the court recorded in the minutes, which is the official court record of what happened in the case”] dated December 6, 2021, stating: "A copy of the Court's Statement of Decision Re: Petition for Writ of Mandate is attached hereto and incorporated herein by reference." In the court's attached statement of decision, dated December 6, 2021, the court [i.e., Hunt] discussed the parties' respective arguments but ultimately concluded: "[T]he court, although in its independent judgment is content with most of the conclusions of the ALJ, believes those conclusions must be reevaluated following a statutory peer review process conducted under Education Code § 87663(b) and (c) as specified by 'the standards and procedures established by the rules and regulations of the governing board.' [¶] The cause [affording Howard a proper “peer review,” I suppose) is therefore remitted to the respondents to include a peer review in petitioner's employment evaluation."

D'oh! 

Respondents [i.e., the District] filed a motion for reconsideration [again, don’t have that], which the trial court denied. 

On March 21, 2022—four months later—the trial court issued another minute order which identified the event type as "Chambers Work" without any party's appearance. … The minute order essentially reiterated its prior order of December 6…. 

In the March minute order, Hunt writes: 

On December 6, 2021 the court issued its written Statement of Decision thereon remitting the cause to respondents for further proceedings in accordance with the said Statement of Decision and the peer review process required by Education Code § 87663(b) and (c) as specified by 'the standards and procedure established by the rules and regulations of the governing board.’ 

Here are parts (b), (c), and (d) of 87663:

(b) Whenever an evaluation is required of a faculty member by a community college district, the evaluation shall be conducted in accordance with the standards and procedures established by the rules and regulations of the governing board of the employing district. (c) Evaluations shall include, but not be limited to, a peer review process. (d) The peer review process shall be on a departmental or divisional basis, and shall address the forthcoming demographics of California, and the principles of affirmative action. The process shall require that the peers reviewing are both representative of the diversity of California and sensitive to affirmative action concerns, all without compromising quality and excellence in teaching.

The upshot? The court sympathizes with the ALJ’s initial judgments/conclusions according to which the District’s firing action was right and proper, and no judgment has yet been made with regard to the justice of that action; but the court, i.e., Judge Hunt, now wants the district to do a strictly kosher peer review of Howard. Nothing less.

Hunt’s directive implies that “peer review” failed to occur back in 2018. I know that, owing to long-time opposition of the faculty union, the SOCCCD has struggled to establish a peer review process, despite the state mandate for one—an issue going back many years. As a result, as far as I know, the SOCCCD, and thus Saddleback College, has no such process. 

That old unsettled issue seems to have finally come back to bite us in the ass. 

Hunt concludes: “The cause [Howard’s 1st cause? Affording Howard a proper peer review?] is hereby remanded to respondents for further proceedings in accordance herewith.” 

OK, I guess Hunt wants to make sure a proper “peer review” occurs, which seems reasonable given the Ed Code. I have no idea what the District has done with Hunt’s directive, whether they attempted to implement a “peer review” process, or maybe an ad hoc one just for Howard (that likely wouldn’t do). No doubt, establishing a peer review process would entail involvement of the faculty: the Academic Senate, the Faculty Association. But, again, historically, our faculty have taken a very low road about the "peer review" mandate, preventing development of that process, leaving us no choice but to use empirically discredited student evaluations or dean evaluations (does my dean know anything about my field? No). Is our district’s failure to embrace/develop a peer review evaluation process putting the district behind the eight ball here? 

Sure looks like it.

PART 3: HOWARD'S INAPPROPRIATE 2-22 MOTION: NOT SO FAST, BUSTER

This brings us to a somewhat weird episode in our story. Two months later—on February 9, 2022—Howard files a motion for attorney fees, which is odd, since no one has yet prevailed in this case, and it is the winner who is awarded attorney fees. The District responds by filing its opposition. Oddly, “no documents filed in connection with this motion were included in the appellant's appendix on appeal.” 

The hearing on that motion occurred on April 8, 2022. According to Motoike (who is relying mostly on court reporters’ transcripts of the hearing), 

At the hearing, the trial court ...[stated]: "This is the petitioner, Mr. Gensler's motion for attorney fees .... [¶] So this is the case, the writ petition in which I ruled that the cause should be remanded to the respondent for further proceedings in accordance with the Education Code …. [¶] And let me make two points clear right now. [¶] First, it was a remand for further proceedings. It was not a judgment. In other words, at this point we have no idea … who is going to ultimately prevail in this dispute." (Italics added.) 

The trial court continued: "So let me start with a procedural aspect. And that's CCP section 1021.5. [¶] This is a statute that Mr. Gensler has relied on, and it says in its first sentence . . . [¶] 'A successful party' . . . may recover attorney fees . . . 'in any action which has resulted in the enforcement of an important right affecting the public interest.' . . . [¶] I think that's an overstatement at this stage to say that Mr. Gensler's success has been achieved. [¶] His original writ sought two outcomes: [¶] One, his reinstatement as a full-time, tenured faculty member. [¶] And two, reimbursement of the wages that he would have been paid if he were not terminated. [¶] He has not yet achieved any of those two objectives. [¶] The outcome of the hearing before me—or [sic] I simply sent it back to the respondents for consideration of that peer review element. And as far as I know, that's undecided." 

After discussing whether attorney fees might be recoverable in this type of case, the court stated: "I think that those points could be argued at a later stage in the case. [¶] But notice, that third element, that assumes that there is a monetary recovery in the underlying action. Now, that could happen someday. As I say, this case isn't over. Mr. Gensler, if he is successful getting his wages reimbursed again, that might trigger that portion of the statute, but that hasn't happened yet. [¶] So although I'm very happy to hear from you, Mr. Gensler, my tentative ruling is to deny this, at least without prejudice, until we've played out our hand with a remand or if there's an appeal." The trial court later explained to Gensler [that] "what I'm saying is that your dispute has not yet been successfully resolved in your favor." (Italics added.) 

Inexplicably, the appellant's [Gensler’s] appendix contains a document prepared by Gensler entitled "Notice of Entry of Judgment" and dated April 28, 2022 which states: "Please take notice that on March 21, 2022, Orange County Superior Court Judge Derek W. Hunt issued a judgment in the above captioned action…. A true and correct copy of the judgment is attached hereto, together with the December 6, 2021 Statement of Decision…, and a Judicial Comment with a filing date of March 21, 2022…." … The purported "judgment" referenced in Gensler's notice of entry of judgment and identified in the notice as item No. 147 in the register of actions, is a copy of the court's March 21, 2022 minute order, quoted in full ante, which, as explained to Gensler at the April 8 hearing, was not a judgment but an order remanding the matter to respondents to conduct a peer review evaluation for the court's later consideration. 

The appellant's appendix also includes a document that appears to have been created by Gensler that is identified in the appendix's table of contents and in the document's title as "Judgment." That document states [that] three documents—the March 21, 2022 minute order, the court's statement of decision, and also an entry in the register of actions (dated March 21, 2022) stating "'Petition for Writ of Mandate Has Been Granted'"—"constitute the judgment" in this case. 

"[T]he substance and effect of a decision, not the clerk's offered label in the register of actions, is the controlling consideration. [Citation.]" (Natomas Unified School Dist. v. Sacramento County Bd. of Education (2022)….) Here, the cited portion of the register of actions reflects the clerk's understanding that the petition had been granted which is directly in conflict with the trial court's statements regarding the ruling in the matter. 

Gensler filed a notice of appeal from the March 21, 2022 "judgment" [the “minute order”] on June 23, 2022. 

—Appeal of the judgment? Did Howard miss the April 8 hearing in which the absence of a judgment thus far was clearly noted? Why is he so clueless? Is he trying to pull a fast one here or what?

So Howard appeals—what exactly? Hunt’s rejection of Gensler’s motion for fees? Or something broader? As Hunt explains, the larger case has not been decided yet. That awaits implementation of the peer review process. So is the appeal only concerning Hunt’s rejection of Howard’s odd and somewhat inappropriate writ (asking for back pay, attorney fees, etc.)? It seems so. 

PART 4: THE APPEAL (OF THE 2-22 MOTION)

Here’s where Justice Motoike enters the picture. She is tasked with assessing Howard’s March 22 appeal of Hunt’s decision (re the 2-22 motion), not the ALJ’s decision (to find the District’s action of firing Howard faultless). And so this maybe isn’t as big a deal as some might think. 

Motoike identifies the appeal that she is opining upon in this way: “Appeal from an order of the Superior Court of Orange County, No. 30-2021-01177691, Derek W. Hunt, Judge. Dismissed.” 

It seems to me that Hunt “dismissed” only the writ; as he himself explains, he has offered no judgment about the larger case regarding whether the District acted properly in firing Howard. That’s still out there in Law-Law-Land, it seems, awaiting a decision (by Hunt, I assume). 

In her decision, Justice Motoike provides an overview of governing legal principles in this case. “In general,” she writes, "an adverse ruling in a judicial proceeding is appealable once the trial court renders a final judgment.” But no final judgment has been rendered in this case. 

She next cites Dhillon v. John Muir Health. 

The question presented in Dhillon, supra, … was whether the trial court's order on a petition for writ of administrative mandamus was a final judgment. The Supreme Court explained: "We have previously recognized that a judgment is final, and therefore appealable, '"'when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.'"' [Citations.] '"It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory."' [Citations.] 'We long have recognized a "well- established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases 'when such can be accomplished without doing violence to applicable rules.'"' [Citation.]" (Ibid.)

 . . . 

The Supreme Court in Dhillon observed the Court of Appeal's dismissal order "deepened a long-standing conflict concerning the appealability of a trial court's order, on a petition for writ of administrative mandamus, remanding the matter for further proceedings before the administrative body." (Dhillon, supra, 2 Cal.5th at p. 1113.) The Supreme Court concluded: "[F]ocusing on the nature of the particular remand order before us, similar considerations lead us to conclude that the superior court's order partially granting Dr. Dhillon's writ petition was an appealable final judgment." (Id. at p. 1116, fn. omitted.) …. 

Eventually, Justice Motoike presents her reasoning in the Gensler case: 

Applying Dhillon to the …[present] case, we conclude the trial court's order remanding the matter to respondents to conduct a peer review evaluation did not constitute an appealable order. Here, in the petition containing six causes of action, Gensler sought the issuance of a writ under section 1094.5 of the Code of Civil Procedure ordering the Board to reinstate him as a full-time tenured faculty member of Saddleback College and to reimburse him for lost wages and benefits. 

Unlike the trial court in Dhillon, the trial court here did not rule on the merits of the petition. The trial court did not decide whether the petition should be granted or denied and has not yet otherwise granted or denied any item of relief Gensler sought in the petition—e.g., the court has yet to decide whether or not Gensler is entitled to reinstatement and/or backpay. Although Gensler had complained in the petition's first cause of action the respondents had not conducted a peer review evaluation, his position was that such an omission resulted in respondents' lack of jurisdiction to terminate his employment. He did not request a remand for a peer review evaluation to be conducted—that was the trial court's idea, ostensibly to collect more information to confirm what will be its ultimate ruling on the petition. In the conclusion of its statement of decision, the trial court states: "And so the court, although in its independent judgment is content with most of the conclusions of the ALJ, believes those conclusions must be reevaluated following a statutory peer review process ...." (Italics added.) In other words, the trial court stated it had reached some tentative conclusions but still needed to reevaluate those conclusions pending receipt of further information gleaned from the peer review evaluation on remand. 

At the April 8, 2022 hearing on Gensler's motion for attorney fees, the trial court expressly stated its order remanding the matter "was not a judgment" and "at this time we have no idea at this stage who is going to ultimately prevail in this dispute." According to the trial court itself, all issues remained open and undecided until after the peer review evaluation was completed. 

. . . 

In short, the trial court's remand order failed the "'"general test, which must be adapted to the particular circumstances of the individual case"'" as set forth in Dhillon—"'"it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first degree, that decree is final…. [holding trial court's ruling on petition for writ of administrative mandate was not a final judgment under the Dhillon standard and thus not appealable because it "neither ordered the full substantive relief that the District sought—including the District's requested '[j]udgment ordering the [County Board] to set aside the Decision'-nor resolved all issues except the fact of compliance or noncompliance. 

The trial court's order therefore is not appealable. Consequently, we lack jurisdiction, and the appeal must be dismissed. 

DISPOSITION 

The appeal is dismissed. Respondents to recover costs on appeal. 

WE CONCUR: GOETHALS, ACTING P.J. SANCHEZ, J. 

I think we should look carefully at the agendas of the next few meetings of the SOCCCD Board of Trustees. This isn’t over yet.

See also this

UPDATE: 

P.S. [9-19]: one document I came across online seems to suggest that there will be a hearing on the 20th of September. "Remittitur."

P.P.S. [9-24]: the aforementioned document now reads "Remittitur issued." 

According to Google:

["Remittitur" is] Latin for “to send back, to remit.” The purpose of remittitur is to give a trial court the ability, with the plaintiff's consent, to correct an inequitable damage award or verdict without having to order a new trial.

I suppose this means that we're right back to: the ball's in the district's court; provide peer review of Gensler. —After that is accomplished, presumably, the case will be brought back to court for a decision. Am I right? "Chemo brain" makes me doubt myself, but I think I am at least approximately or essentially correct.