TERMINATION OF EMPLOYEES FOR A CRIMINAL “CONVICTION” MAY BE UNTENABLE WHERE BASED UPON A PLEA OF “NOLO CONTENDRE”

On February 23, 2009, a California Court of Appeal upheld a trial court’s order that a classified employee of a K-12 school district be reinstated after the district dismissed the employee for a criminal conviction following a plea of nolo contendre (meaning, “no contest”) to a misdemeanor charge of forging, altering, and/or issuing a prescription for a controlled substance (Health & Safety Code § 11368).  In Cahoon v. Governing Board of Ventura Unified School District (2008) -- Cal.Rptr.3d --, the district sought to dismiss the employee under Education Code 45123(b) which states, “no person shall be employed or retained in employment by a school district, who has been convicted of a controlled substance offense…”  However, the Court pointed to Penal Code section 1016 which states that for crimes other than those punishable as a felony (i.e., misdemeanors or infractions), a plea of nolo contendre “may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.”  Civil suits include administrative hearings. (Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762, 773-774.) Accordingly, as the classified employee pled nolo contendre to a misdemeanor charge, the plea could not be used against him for purpose of termination.

The Court’s holding was based, in part, on a prior court decision regarding the revocation of a professional license following a plea of nolo contendre to a misdemeanor charge. (Cartwright, supra,16 Cal.3d 762, 773-774.)  In response to that court decision, the California Legislature has, by a piecemeal process, attempted to close this loophole created by Penal Code section 1016.  For example, the Legislature amended certain K-12 Education Code sections to provide that “a conviction following a plea of nolo contendre shall be deemed to be a conviction within the meaning of this subdivision.”  (See Educ. Code §45123(a) pertaining to convictions for sex offenses in K-12 districts.) The Court in Cahoon observed that the Legislature explicitly provided that a plea of nolo contendre sufficed as a “conviction” for purposes of a sex offense, but did not state this with regards to a controlled substance offense.  If the Legislature had intended to extend this reasoning to controlled substance offenses, it would have done so.  Thus, the Court reasoned, the district could not presume a nolo contendre plea to a misdemeanor or infraction drug charge was intended to suffice as a “conviction” and override Penal Code section 1016. 

How does this apply to community colleges?  The Legislature has taken measures to address certain situations where K-12 employees plead nolo contendre on a misdemeanor  or infraction charge for specified criminal offenses (e.g. sex offenses).  The Legislature, however, did not extend these same protections to community college districts.

The first thing a community college district should note, is that Penal Code section 1016 provides that only for crimes punishable as something other than a felony (such as a misdemeanor or infraction), the plea of nolo contendre may not be used against the defendant in a civil suit or administrative hearing arising out of the same conviction.  Thus, community colleges may still rely on pleas of nolo contendre to felonies when deciding upon discipline for an employee.

The second thing community college districts should be aware, is that the Education Code sections pertaining to employment of persons convicted of sex and controlled substance offenses and the dismissal of employees do not state that a plea of nolo contendre is considered to be a “conviction” for purposes of these Code sections.  Specifically, Education Code sections 87009, 87010, 87011, 87405, 87732, 88022, and 88123 do not reflect the Legislature’s intention to allow districts to rely on misdemeanor or infraction convictions resulting from pleas of nolo contendre. For this reason, if a district has an employee it seeks to discipline or dismiss because of a plea of nolo contendre to any misdemeanor or infraction, it is likely the decision to discipline or otherwise dismiss the employee will not be upheld.

What can a community college do if an employee pleads nolo contendre to a misdemeanor or infraction?  First, for classified employees, the causes for discipline are typically the subject of collective bargaining, Board policy, administrative regulation, or, in the case of merit system districts, personnel commission rules .  Therefore, a community college may seek to bargain with the exclusive representative (or in the absence of exclusive representative, by Board policy, administrative regulation, or personnel commission rule) that for any ground for discipline pertaining to “convictions,” a plea of nolo contendre will be considered a “conviction” for purposes of that cause for discipline. Some community college districts may already have a similar provision in a classified collective bargaining agreement, Board policy, administrative regulation, or other rule.  If so, the district may be able to rely upon the provision to discipline or dismiss an employee for a misdemeanor or infraction conviction based upon a plea of nolo contendre.

Second, for academic employees, because the grounds for dismissal are codified in Education Code section 87732, community colleges do not have the ability to add additional grounds for dismissal.  Education Code section 87732 provides that one ground for dismissal is “conviction of a felony or of any crime involving moral turpitude.”  A plea of nolo contendre may be used to prove that the academic employee has been convicted of a felony.  However, a plea of nolo contendre may not be used to prove conviction of a misdemeanor involving moral turpitude.

Nonetheless, a community college district should consider if the misconduct which resulted in the conviction qualifies for another ground for dismissal, such as, “immoral or unprofessional conduct” or “evident unfitness for service.”  If so, the district is not seeking to dismiss the employee for the conviction, but for engaging in conduct that is immoral, unprofessional or reflects evident unfitness for duty.  Be mindful, however, that the district will have the burden of proving that the employee engaged in such conduct (i.e., admission of employee, statements of witnesses, documentation, lawful surveillance videos, etc.)  The district will not be able to rely on a court document reflecting the conviction after a plea of nolo contendre to the misdemeanor or infraction.  The district will also have to establish a nexus between the conduct engaged in by the employee and its effect on the learning environment at the district (also known as Morrison factors).

Finally, community college districts may wish to lobby their district’s state legislators to add provisions to these Education Code sections which would provide that a plea of nolo contendre will be considered a “conviction” for purposes of that Code section.  Until the Legislature sees fit to amend these Education Code sections, community college districts will be limited in their ability to rely on convictions of misdemeanors and infractions after a plea of nolo contendre.