Education Matters - Liebert Cassidy Whitmore

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Education Matters
News and Developments in Labor Relations and Education Law for School and Community College District Administration
 RETIREMENT
CONTENTS
RETIREMENT
STRS. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TEACHERS
Temporary Teachers. . . . . . . . . . . . . . . . 2
Discipline. . . . . . . . . . . . . . . . . . . . . . . . . 3
Retaliation. . . . . . . . . . . . . . . . . . . . . . . . 3
PUPILS
Search and Seizure. . . . . . . . . . . . . . . . 4
First Amendment . . . . . . . . . . . . . . . . . . 5
Students with Disabilities. . . . . . . . . . . . 5
EMPLOYMENT
First Amendment Retaliation. . . . . . . . .
Pregnancy Disability Leave. . . . . . . . . .
Work Authorization. . . . . . . . . . . . . . . . .
Privacy . . . . . . . . . . . . . . . . . . . . . . . . . .
Wage and Hour . . . . . . . . . . . . . . . . . . .
April 2013
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7
7
7
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RECORDS
Public Records Act. . . . . . . . . . . . . . . . 11
BUSINESS & FACILITIES
Environmental Quality Act. . . . . . . . . . 12
Parcel Tax. . . . . . . . . . . . . . . . . . . . . . . 13
HEALTH CARE
Affordable Care Act . . . . . . . . . . . . . . . 14
LITIGATION
Anti-SLAPP Statute . . . . . . . . . . . . . . . 15
PUBLIC SAFETY
Discipline. . . . . . . . . . . . . . . . . . . . . . . . 16
Retirement . . . . . . . . . . . . . . . . . . . . . . 18
D E PA R T M E N T S
Train the Traininer . . . . . . . . . . . . . . . . 20
New to the Firm . . . . . . . . . . . . . . . . . . 20
ACA Webinar . . . . . . . . . . . . . . . . . . . . 21
Firm Publications . . . . . . . . . . . . . . . . . 21
Firm Activities. . . . . . . . . . . . . . . . . . . . 22
Education Matters
Education Matters is
published monthly for the
benefit of the clients of Liebert
Cassidy Whitmore. The
information in Education
Matters should not be acted
on without professional advice.
©2013 Liebert Cassidy Whitmore
STRS
CalSTRS Limits Administrative Positions It Will Enroll
On April 23rd our community college clients received a Legal Advisory from the State
Chancellor's Office which should be of concern to all public school and community college
districts. It informed the community college Human Resources Officers about a decision by
CalSTRS after an audit of City College of San Francisco (SFCCD). CalSTRS has determined that it will not allow persons in positions such as Director of Human Resources;
Chief Financial Officer; Chief Information Technology Officer; Director of Payroll,
Director of Building, Grounds, and Maintenance; or Police Chief to be enrolled in STRS.
SFCCD had designated these positions as Educational Administrators. CalSTRS concluded
that these administrators are not performing "creditable service" as that term is defined in
Education Code section 22119.5.
CalSTRS took action to terminate CalSTRS employment benefits for current and retired
employees of SFCCD who it determined should not have been enrolled, including persons
who had occupied the positions listed above. The consequences included removal of
employees and retirees from the system, a demand for collection of all "overpayments" from
each member, former member, or beneficiaries, and adjustment to all impacted members'
creditable compensation. In effect, both the retirees and the still-employed administrators are
to be excluded from the system.
SFCCD has administratively appealed this action and the affected retirees have sued CalSTRS. However, CalSTRS has given no indication that it will change its position. Although
this decision only applies to SFCCD at this point, all community college and school districts
employing academic administrators (or certificated administrators for K-12 districts) in positions not directly involved in instruction should be aware of this development.
CalSTRS has also stated that it does not believe persons in other positions which are commonly designated as educational administrators are performing creditable service, and that
they would be at risk for similar exclusion from the retirement system. These include: Legal
Counsel, Vice Chancellor Research and Policy, Director of Administrative Services, Vice
Chancellor Governmental Relations, and others. It appears that almost any administrative
position in Administrative Services or Human Resources which is designated as an educational administrator or as a certificated administrator would be at risk.
If there are positions in your district which have been designated as educational administrator or certificated administrator in the areas of human resources, business, governmental
relations, legal counsel, or institutional research, you should consult with counsel to review
how these positions have been utilized and how this case might affect them. We believe
there may be many such positions. It will be crucial to watch how the legal proceedings
involving SFCCD unfold, but other solutions should be discussed as well.
This originally was sent as a Special Bulletin. To receive Bulletins on the day they are released
please send your email address to info@lcwlegal.com. To view other Special Bulletins visit
www.lcwlegal.com/special-bulletin?archive=1.
www.lcwlegal.com | www.flsaaudit.com
www.calpublicagencylaboremploymentblog.com
Los Angeles 310.981.2000 | San Francisco 415.512.3000 | Fresno 559.256.7800 | San Diego 619.481.5900
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Education Matters
 TEACHERS
released and (2) does not provide a private right of
action. The Court of Appeal disagreed.
TEMPORARY TEACHERS
The Court of Appeal noted that while the statute is awkwardly worded, it does not explicitly require that the
two consecutive years of temporary teaching follow the
teacher’s release. Therefore, the Court held that when a
school district gives a notice of release to a temporary
teacher, and if it has otherwise acknowledged the teacher’s satisfactory performance by choosing to retain him
or her over the course of two consecutive school years,
it must give that teacher first priority in the event it
elects to fill a vacant position for which that teacher is
qualified in the subsequent school year.
School District That Retains Temporary
Teacher For 75% Of Two Consecutive
Years Must Prefer That Teacher Over
Other Candidates For Vacant Position.
The Newport-Mesa Unified School District hired Gloria
Henderson in 2008 to take over the Advanced Placement English Program at Corona del Mar High School.
The District classified Henderson as a “temporary”
teacher, but told her that she could expect to be reclassified as a probationary teacher after a few months. Prior
to the end of the 2007-2008 school year, she was
rehired for the 2008-2009 school year, but again as a
temporary teacher. At the 2008-2009 school year, the
District “released” Henderson, but again rehired her for
the 2009-2010 school year as a temporary teacher.
Once again, at the end of the 2009-2010 school year,
the District notified Henderson that it was releasing her.
The District also provided Henderson with a layoff
notice, as it decided to eliminate approximately 125
“full time equivalent” positions due to budget cuts. The
District sent layoff notices to 242 probationary and permanent certificated teachers and related notices to 71
temporary teachers. The notices offered the teachers an
opportunity to participate in a hearing to contest the
District’s decision. The administrative law judge (ALJ)
concluded that the District had good cause for its decision to terminate each of the 173 employees who contested the layoff decision. The District’s governing
board approved the ALJ’s decision in May 2010. In the
summer of 2010, the District advertised to fill certain
positions for which Henderson was qualified to teach.
Henderson applied for the positions, but was not hired,
or even interviewed, for any of them.
Henderson filed suit alleging that the District violated
Education Code section 44918 by failing to give her
“first priority” for any vacant positions teaching subjects she had previously taught. The trial court dismissed the complaint. Henderson appealed, and the
Court of Appeal reversed.
Education Code section 44918(c) provides that if a temporary teacher who was released “has nevertheless been
retained as a temporary or substitute teacher by the district” for 75 percent of two consecutive years, “that
employee shall receive first priority if the district fills a
vacant position, at the grade level at which the employee served during either of the two years.” The District
argued that this section (1) only applies if the employee
is retained for two consecutive years after being
The Court also held that section 44918 provides a private right of action to a temporary teacher who has
served at least 75 percent of two consecutive years in
that capacity for the same school district, if the district
fails to accord that teacher the required “first priority”
when it chooses to fill a vacant position in the subsequent school year. The Court clarified that while the
statute does not require a district to give the temporary
teacher a right of first refusal, it requires the district to
do more than simply give the teacher the opportunity to
compete for the job. Thus, the Court directed that the
District is entitled to determine the qualifications necessary for the vacant position and to assess whether Henderson meets them. If she does, the District must give
preference to Henderson for the position over other candidates who had not provided temporary service under
section 44918.
Henderson v. Newport-Mesa Unified School Dist. (2013)
214 Cal.App.4th 478 [2013 WL 952350].
Note:
In holding that a school district that has
retained a temporary teacher over the course
of two consecutive school years must give that
teacher first priority for a vacant position for
which that teacher is qualified, the Court
explained its reasoning: “[T]the Education
Code narrowly defines the circumstances in
which teachers may be classified as temporary,
apparently due to a specific concern school
districts might exploit that designation to the
detriment of the employees, in an attempt to
maintain maximum flexibility in hiring teachers from year to year.” Districts should be
careful not to misclassify teachers, as it can be
a costly and litigious mistake.
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April 2013
DISCIPLINE
District Fails To Establish Teacher’s
Evident Unfitness For Service.
Thad Jesperson began teaching for the San Diego Unified School District (District) in 1998. During the
2002-2003 school year, Jesperson taught third grade for
Toler Elementary School. In January 2003, a guidance
aid reported to Toler’s principal that a student’s mother
complained to her that Jesperson had touched her
daughter. The following day a mother of another student complained that Jesperson had touched her child
on the leg. The District placed Jesperson on leave
while the police conducted an investigation. In April
2003, Jesperson was arrested and charged with several
counts of inappropriate behavior with a minor.
In 2004, Jesperson was convicted of multiple counts of
lewd conduct with a child and was sentenced to seven
concurrent 15-year-to-life prison terms, plus a concurrent 6-year prison term. However, on appeal, the court
reversed the convictions on the basis of a substantial
likelihood of juror bias and because of ineffective assistance of counsel. Following the criminal appeal, the
District notified Jesperson of its intent to terminate him
based on evident unfitness for service, immoral conduct, and refusal to obey reasonable regulations requiring him to maintain a professional relationship with his
students.
Jesperson appealed and the Commission on Professional Competence concluded that the District’s evidence
was insufficient to show that Jesperson touched a
female student, Emily, in the manner in which she testified. The Commission raised concerns about Emily’s
credibility because of inconsistencies between her testimony from the criminal trial and the administrative
hearing. The Commission also noted that it appeared
Emily was not bothered by the touching at the time it
occurred, but only much later when the detective told
her it was bad. Therefore, the Commission concluded
that Jesperson did not touch her in an immoral way and
did not demonstrate evident unfitness to serve.
The District petitioned the trial court to review the
Commission’s determination. The trial court concluded
that Jesperson’s touching Emily constituted immoral
conduct, which made him unfit to teach. Jesperson
appealed and the Court of Appeal reversed the trial
court’s ruling.
The Court of Appeal held that the trial court, in numerous ways, misapplied presumptions and weight given to
the Commission’s findings and decision. First, the
Court held that the trial court failed to account for all of
the relevant evidence before the Commission, but rather
assessed the evidence that supported Emily’s accounts.
As such, the trial court was not able to properly apply a
strong presumption of correctness to the Commission’s
findings. Second, the Court held that the trial court
failed to give “great weight” to the Commission’s credibility findings. Third, it found that there was a large
amount of evidence calling into question Emily’s credibility, which the trial court did not consider.
Lastly, the Court held that the District failed to prove by
a preponderance of evidence that Jesperson was evidently unfit for service by applying the Morrison factors. Specifically, to demonstrate unfitness for service,
the District had to show that Jesperson’s conduct
adversely affected students or fellow teachers to a significant degree and that the conduct had a great likelihood to recur. The Court held that Emily’s accounts of
the first touching incident were neither detailed nor
consistent. Emily also admitted that she did not initially think that Jesperson’s touching was offensive. In
addition, the Court determined that Emily’s account of
the touching—taking place daily in a classroom filled
with others, including an aide—was improbable.
Importantly, the Court also held that the trial court
failed to make express findings based on the Morrison
factors. There was no testimony about any adverse
effect from Jesperson on his fellow teachers, his classroom performance or his overall ability to teach. Further, there was no evidence from Jesperson’s peers
regarding his behavior outside the classroom or medical
or psychological testimony about Jesperson. Based on
these findings, the Court of Appeal reversed the trial
court’s ruling and directed the trial court to enter a judgment denying the District’s petition.
San Diego Unified School Dist. v. Com. on Prof. Competence (2013) 214 Cal.App.4th 1120 [154 Cal.Rptr.3d 751].
RETALIATION
School District Retaliated Against
Teacher On Reemployment List By
Designating Her As Separated After She
Filed Grievances.
Ermine Nelson worked as a teacher for the Jurupa Unified School District. In 2009, she took a medical leave
of absence. In January 2010, the District notified Nelson that it would place her on a 39-month reemployment list, pursuant to Education Code section 44978.1,
if she exhausted her medical leave and could not yet
return to work. The District also notified her that while
she was on the reemployment list, the District would
offer her employment if she became able to return to
work. In March 2010 the District placed Nelson on the
reemployment list.
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In August 2010, Nelson filed several grievances and
complaints with the District. The District responded by
rejecting the grievances and complaints on the basis
that Nelson was no longer an employee of the District.
Nelson responded by filing an unfair practice charge
with the Public Employment Relations Board (PERB).
In April 2011, PERB’s Office of General Counsel
issued a complaint alleging that the District retaliated
against Nelson by informing her after she filed grievances that she was no longer an employee. A few
months later, in July 2011, the District sent a letter to
Nelson stating that she was still on the 39-month reemployment list and that her status had not changed since
March 2010.
After the hearing, the Administrative Law Judge (ALJ)
issued a proposed decision, finding that the District violated the Educational Employment Relations Act
(EERA). The District filed exceptions to the ALJ’s
determination.
First, the District argued that the employment status of
an employee on a 39-month reemployment list is uncertain. PERB disagreed, citing to prior decisions establishing that an employee on a reemployment list pursuant to Education Code section 44978.1 remains
employed. Placement on the reemployment list does
not constitute separation from service, but is similar to
placing an employee on an unpaid leave of absence.
Second, the District argued that informing Nelson that
she had been terminated did not adversely impact her.
PERB held that by depriving Nelson of her status as
employee, the District stripped her of other rights and
benefits accrued by employees under the EERA and the
applicable CBA. This, PERB found, is inherently
adverse.
Third, the District argued that its letter in July 2011 nullified any negative impact of its earlier notification that
Nelson was terminated. PERB recognized that an honest-given retraction can, in limited circumstances, nullify the earlier coercive statement. However, the District’s July 2011 letter was not an effective retraction
because, rather than sending it immediately after the
first letter to Nelson, the District waited until PERB
issued a complaint. Based on this, PERB determined
that the District was motivated solely by a desire to
avoid an adverse ruling on the unfair practice charge.
Accordingly, PERB affirmed the ALJ’s proposed decision.
Jurupa Unified School Dist.(Nelson) (2013) PERB Dec.
No. 2309 (__ PERC __).
Note:
This case reminds school districts that an
employee who is placed on a 39-month reemployment list pursuant to Education Code section 44978.1 remains an employee for purposes of filing grievances.
 PUPILS
SEARCH AND SEIZURE
School’s Drug Dog Sniff Of Classroom
And Students’ Bags While Students Stood
Outside Of Classroom Is Constitutional.
C.M. was a freshman at Central High School in Springfield, Missouri. In the spring of 2010 the school faced
a serious drug problem among its students. The school
had a procedure for drug dogs to sniff student lockers,
desks, backpacks and other similar items not in the possession of students. Once the drug dog completes sniffing an area, the handler and dog leave the area. Only if
a drug dog twice identifies a student’s possession would
that item be searched.
In April 2010, C.M. was notified that drug dogs would
search his science classroom. C.M. and the other students were instructed to leave the classroom, but to
leave behind their backpacks and other personal items.
C.M. left the classroom and could no longer see his
backpack. He claims that when he left the room his
backpack was zipped closed and that after the drug dog
survey it was slightly open.
C.M.’s parents, on behalf of C.M., sued the School District, as well as the Superintendent, Principal and Sheriff. C.M.’s parents sought a declaration from the court
that the search and seizure of the backpack violated
C.M.’s constitutional rights. The federal district court
granted summary judgment in favor of the District and
the parents appealed. The Eighth Circuit Court of
Appeals affirmed.
The Fourth Amendment of the U.S. Constitution
requires that the seizure of property be reasonable. To
determine whether a school’s actions were reasonable, a
court balances the intrusion on the student’s privacy
rights against the promotion of legitimate governmental
interests. Schools present a unique context for determining reasonableness, as a student’s privacy interest is
limited based on the State’s interest in maintaining discipline, health and safety.
Here, the Court of Appeals held that the drug dog’s
“seizure” of C.M.’s backpack was a reasonable proce-
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April 2013
dure to maintain the safety and security of students at
the school. C.M. was separated from his belongings for
a short period of time (approximately five minutes),
during which time the deputy sheriff efficiently completed the drug walkabout. The Court reasoned that
actually separating students from their belongings during the walkabout avoids potential embarrassment,
ensures the dog does not target the students and
decreases possible dangerous incidents between the dog
and the students. The Court also noted that a drug dog
survey is minimally intrusive and is effective in determining any individualized suspicion to search certain
students. Accordingly, the Court held that the School
did not violate C.M.’s constitutional rights.
Burlison v. Springfield Public Schools (8th Cir. 2013) 708
F.3d 1034.
FIRST AMENDMENT
Court Enjoins School District From
Prohibiting Fifth Grader From
Distributing Invitations To A Christmas
Party At Her Church.
K.A. was a fifth-grade student at Barrett Elementary
Center in the Pocono Mountain School District, Pennsylvania. In December 2010 she wanted to hand out
invitations to her classmates for a Christmas party at
her church. The invitations were flyers prepared by her
church and described the party, which was to be held at
the church, as a Christmas party just for kids. In general, the District’s students are allowed to pass out invitations to parties during non-instructional hours. However, Barrett’s principal denied K.A.’s request to distribute
these invitations. K.A. claimed that she wanted to hand
out the invitations so as to share her faith with others.
K.A.’s father sued the District, claiming that the District
violated K.A.’s First and Fourteenth Amendment rights
by denying her the right to distribute the invitations.
The District claimed that its actions were based on safety concerns and the possibility that parents might
believe the party was District-sponsored. The federal
district court held that the District could not articulate
any specific fear of disruption and that the District did
not apply its restrictions neutrally. The district court
therefore issued a preliminary injunction stopping the
District from prohibiting distribution of the invitation.
The District appealed.
The Third Circuit Court of Appeals affirmed the district
court’s ruling. On appeal, the Court primarily
addressed the issue of whether K.A. was reasonably
likely to prevail in the lawsuit. In doing so, the Court
applied the rule set forth in the Supreme Court case Tinker: School regulation of student speech is permissible
only when the school can show that the speech would
be disruptive or would interfere with the rights of other
students. The District argued that Tinker should not be
applicable because (1) it is not appropriate in an elementary school context and (2) a forum analysis is
more appropriate. However, the Court dismissed both
of these arguments. First, the Court concluded that the
Tinker analysis is flexible enough to be applied in the
elementary school context. Second, the Court determined that although the invitation originated from an
outside organization, K.A. was still the speaker. Where
the issue stems from student speech, as opposed to outside speech, Tinker is appropriate.
Applying Tinker, the Court held that the District presented no evidence to show that the invitation would be
disruptive or interfere with students’ rights. While the
District argued that it never punished K.A. or discouraged her from expressing her religious beliefs, the
Court noted that this was not part of the applicable Tinker standard.
In addition, the Court held that the School’s policies
relating to student expression were unconstitutional.
Schools may only regulate student expression if it
causes disruption or interferes with the rights of others,
or falls within a narrow exception. Here, the School
policies limited speech to speech that relates to school
district activities or that contributes to district instructional programs—limitations that were much broader
than constitutionally allowed.
K.A. ex rel. Ayers v. Pocono Mountain School Dist. (3rd
Cir. 2013) 710 F.3d 99.
STUDENTS WITH DISABILITIES
U.S. Department Of Education’s Office
For Civil Rights Enters Into Voluntary
Resolution Agreement With Technical
College System To Ensure That College’s
Website Is Made Accessible To
Individuals With Vision And PrintRelated Disabilities.
The U.S. Department of Education's Office for Civil
Rights (OCR) entered into an agreement with the South
Carolina Technical College System (SCTCS), which
will ensure that the websites of SCTCS and its member
colleges are accessible to people with disabilities. OCR
had conducted a compliance review of SCTCS’ website, as well as the websites of its colleges, to determine
whether they were readily accessible to persons who are
blind, has low vision or other print-related disabilities.
The review determined that the websites were not in
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Education Matters
compliance with Section 504 of the Rehabilitation Act
or Title II of the Americans with Disabilities Act.
SCTCS and its colleges entered into a voluntary resolution agreement to ensure that its websites would be
accessible to students with visual and print-related disabilities. As part of this agreement, SCTCS agreed to
develop a resource guide that provides information
about web accessibility requirements, direct that the
SCTCS website and the websites of its member colleges be made accessible to students with disabilities, and
annually review the websites and monitor the steps
taken to correct any accessibility problems.
For more information, please visit: http://www.ed.gov/
news/press-releases/civil-rights-agreement-reachedsouth-carolina-technical-college-system-accessibi
Note:
This resolution agreement provides helpful
guidance for school districts and community
college districts regarding the accessibility of
their websites. Districts are increasingly using
their websites to provide students, as well as
employees, with access to critical information,
such as campus emergencies, handbooks,
health forms, class schedules, contact with
teachers, etc. Individuals with disabilities
must not be denied the same opportunities to
access and use this online information.
 EMPLOYMENT
FIRST AMENDMENT RETALIATION
Union President Spoke As Private Citizen
On Matter Of Public Concern When
Leading No-Confidence Vote Against
Chief Of Police.
John Ellins, a police officer for the City of Sierra
Madre, served as President of the Sierra Madre Police
Association (SMPA) from late 2006 to early 2010. In
2008, Ellins led the SMPA in a vote of no confidence
against the Chief of Police. The SMPA then released
two press releases, one about the vote, and one criticizing the Chief’s management style. The Chief testified
that she was “disappointed” by the SMPA’s actions and
in Ellins as SMPA President. At the time of the no-confidence vote, Ellins had been the subject of three internal affairs investigations.
In February 2009, Ellins submitted an application to the
Chief for an Advanced Peace Officer Standards and
Training (P.O.S.T.) certificate. The application required
the Chief to affirm that she felt Ellins was of good
moral character. Pursuant to the applicable MOU
between the City and SMPA, Ellins would receive a
five percent pay raise if he received an advanced
P.O.S.T. certificate. The Chief testified that she did not
immediately sign the certificate because she had concerns about Ellins’s moral character.
In June 2009, with his P.O.S.T. application still
unsigned, Ellins filed suit in federal district court alleging retaliation for exercising his First Amendment
rights. While the litigation was ongoing, the Chief
signed the P.O.S.T. application. The City moved for
summary judgment, which the district court granted.
Ellins appealed, and the Court of Appeals for the Ninth
Circuit reversed.
The First Amendment only protects public employees
who speak as private citizens on matters of public concern, not those who make statements pursuant to their
official duties. An employee alleging retaliation for
protected speech must show (1) he spoke on a matter of
public concern; (2) he spoke as a private citizen; and (3)
his protected speech was a substantial or motivating
factor in the adverse employment action.
Ellins disputed the district court’s finding that the noconfidence vote did not involve a matter of public concern. While personal grievances are not matters of public concern, the Ninth Circuit noted that collective
grievances raised by unions may be matters of public
concern. Accordingly, because the no-confidence vote
asserted issues with the Chief’s leadership style and
other department-wide problems, and not private grievances, the Ninth Circuit determined that the speech was
of inherent interest to the public.
Ellins also disputed the district court’s finding that he
did not speak as a private citizen when he led the noconfidence vote. A public employee speaks as a private
citizen if he has no official duty to make the statements,
or if the speech was not the product of performing the
tasks he is paid to perform. The Court noted that
Ellins’s daily professional duties as a police officer did
not include acting as a union representative, or serving
as President of the SMPA. The Ninth Circuit also relied
upon a Seventh Circuit decision in stating that comments made by a police officer acting in his capacity as
a union representative are spoken as a private citizen,
rather than pursuant to the officer’s official duties.
Ellins also disputed the district court’s finding that he
did not suffer an adverse action. The Court noted that
an adverse employment action exists where an employer’s action negatively affects an employee’s compensation. Even the denial of a minor financial benefit may
form the basis of an adverse action. In this case, the
Ninth Circuit held that a jury could find that the Chief’s
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failure to sign Ellins’s P.O.S.T. application was an
adverse action in the form of deprivation of a pay raise.
Finally, Ellins challenged the district court’s determination that his speech was not a substantial or motivating
factor behind the adverse action. Again, the Ninth Circuit agreed with Ellins and determined that a triable
issue of fact existed. The Court pointed to the fact that
Ellins provided evidence of a relatively close temporal
link between his protected speech and the adverse
employment action (3-5 months). The Ninth Circuit
also construed the Chief’s expressions of “disappointment” over the no-confidence vote as opposition to
Ellins’s speech.
The Ninth Circuit also held that the Chief was not entitled to qualified immunity because the law prohibiting
First Amendment retaliation against a union representative is clearly established.
Ellins v. City of Sierra Madre (9th Cir. 2013) 710 F.3d
1049.
Note:
This holding is a significant one. First
Amendment retaliation claims brought by
union members are common in the public sector. In this case, the Ninth Circuit states that
union members who are expressing the collective position of the union are likely engaging in
speech that is a matter of public concern. In
addition, such union members are likely speaking in their capacities as private citizens. It is
important to note that the holding merely stated that triable issues of fact existed that should
be decided by a jury. However, the expansive
wording of the decision can have substantial
repercussions on First Amendment retaliation
claims. In fact, Judge Rawlinson authored a
concurring decision in the case which, though
agreeing with the holding, stated that the
Court should not have conclusively determined
that Ellins established a First Amendment
claim, or that he spoke as a private citizen as
opposed to a public employee. Judge
Rawlinson stated that these issues should have
been determined by the jury. We will continue
to keep our clients apprised of this developing
legal area.
PREGNANCY DISABILITY LEAVE
California Pregnancy Disability Leave
Law Amendment.
In our March Education Matters, we reported on a case
entitled Sanchez v. Swissport, Inc., which held that providing an employee with four months of statutory leave
under California Pregnancy Disability Leave Law does
not relieve an employer of its obligation to offer further
reasonable accommodation under the Fair Employment
and Housing Act. While we used “four months” interchangeably with “16 weeks,” the Pregnancy Disability
Leave regulations were recently amended to define
“four months” as 17 1/3 weeks if the leave is taken continuously. We apologize for any confusion this may
have caused.
WORK AUTHORIZATION
Employers Must Begin Using New Forms
I-9 Immediately.
The U.S. Department of Homeland Security has issued
a newly-revised Form I-9, available at http://www.uscis.
gov/files/form/i-9.pdf. Agencies should begin using
this new form immediately. The Form is now two
pages long and includes additional data fields for an
employee’s phone number and email address, along
with other information. The old Form I-9 will be ineffective as of May 7, 2013.
Federal law requires employers to verify on the Form
I-9 an employee’s identity and authorization to work
within three business days of the employee’s hire date.
Employers must also retain an employee’s Form I-9 for
either three years after the date of an employee’s hire or
one year after the date employment ends, whichever is
later.
It is important to note that this new Form I-9 only
applies prospectively to new hires and to employees for
whom reverification applies. Therefore, agencies
should not complete this new Form I-9 for current
employees.
PRIVACY
Party May Sue For Public Disclosure Of
Private Facts Even When Disclosure Was
Not Made In Writing.
Melissa Ignat worked from 2005 to 2008 in the Real
Estate Title Department of Yum! Brands, the corporate
parent of such fast food franchises as Taco Bell, Pizza
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Hut, and KFC. Ignat suffered from bipolar disorder,
and occasionally missed work due to the side effects of
her medication. In 2008, after returning from an
absence, her immediate supervisor, Mary Shipma,
informed her that she had told everyone in the department that Ignat was bipolar. Ignat alleged that, after
that information was revealed, her coworkers shunned
her and one of them asked if Ignat was likely to “go
postal” at work.
After Ignat was terminated a few months later, she filed
suit against Yum! Brands and Shipma alleging one
cause of action for invasion of privacy by public disclosure of private facts. Yum! Brands and Shipma (Defendants) moved for summary judgment, which the trial
court granted on the basis that Shipma did not disclose
Ignat’s disorder in writing. Ignat appealed, and the
Court of Appeal reversed.
The Court of Appeal held that private facts did not have
to be disclosed in writing in order to maintain a cause
of action for public disclosure of private facts. The
Court reasoned that private facts can be just as widely
disclosed through oral media as through written media.
Because the Defendant’s motion for summary judgment
was only granted on that basis, the Court remanded the
case so that Defendants could renew their motion on
other grounds.
Ignat v. Yum! Brands, Inc. (2013) 214 Cal.App.4th 808 [-Cal.Rptr.3d --].
Note:
The tort involved in this action–public disclosure of private facts–is not a common cause of
action. However, the facts that led to the lawsuit–disclosing a disability to co-workers–does
occur in the workplace. Districts should be
very careful to treat all medical information
confidentially. Supervisors and managers
should only be informed of restrictions on the
work or duties of employees with disabilities
and necessary reasonable accommodations.
Co-workers should not be informed of the
nature of the disability affecting an employee.
Divulging medical information can violate a
number of California and Federal laws,
including the Fair Employment and Housing
Act, the California Family Rights Act, the
Confidentiality of Medical Information Act
(CMIA), and the Health Insurance Portability
and Accountability Act of 1996 (HIPAA).
WAGE AND HOUR
How Much Flexibility Does A Public
Employer Have With Compensatory
Time Policies?
Many employers enter into agreements with employee
associations giving employees the right to earn compensatory time off (CTO) in lieu of cash for overtime.
However, if an employer provides CTO, must employers allow its employees to use CTO at the employees’
option? In 1987, the Department of Labor implemented
regulations to enforce the CTO provision of the FLSA,
Section 7(o). Per the regulation, an employee who
requests to use accumulated CTO is permitted to use
such time “within a reasonable period” after making the
request. If the employer cannot grant the CTO request
within a reasonable period, the denial of the request will
be unlawful unless the employer can demonstrate that
granting the request would “unduly disrupt” its operations.
These terms “within a reasonable period” and “unduly
disrupt” have been the subject of debate. Mere inconvenience to the employer is insufficient to deny an
employee’s request to take CTO on the basis that it
would be unduly disruptive. However, what constitutes
“undue disruption” will likely depend upon the circumstances.
But what does it mean to grant the employee’s CTO
request within a reasonable period? There has been
extensive litigation regarding employers’ obligations to
grant a CTO request. The DOL has interpreted its regulations as requiring that an employee’s request for compensatory time on a specific date be granted unless
doing so would unduly disrupt the agency’s operations.
This interpretation was challenged by the Ninth Circuit
in Mortensen v. County of Sacramento (9th Cir. 2004)
368 F.3d 1082. In Mortensen, the Court held that an
employer does not need to allow an employee to use
accrued CTO on the specific day requested by the
employee, but can instead honor the request by providing alternative dates within a reasonable time period
after the request to use comp time is made. Thus, once
an employee requests the use of CTO, the employer has
a reasonable period of time to grant the request.
On April 5, 2011, the DOL issued regulations that took
effect on May 5, 2011. The final rules did not include a
proposed change to allow public-sector employers to
grant employees compensatory time requested “within a
reasonable period” of the request, instead of on the specific dates requested. Instead, the final rule left the regulations unchanged, “consistent with [DOL’s]
longstanding position that employees are entitled to use
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compensatory time on the date requested absent undue
disruption to the agency.”
Accordingly, there still remains a disparity between the
Ninth Circuit (here in California) and the Department of
Labor. This disparity will only be resolved if the US
Supreme Court decides to review the issue. In the
meantime, although California public employers may
continue to follow the Ninth Circuit’s decision which
permits them to define a reasonable window of time in
which an employee may use CTO instead of permitting
the employee to use CTO on the specific day demanded
by the employee, in light of the DOL comment on its
own regulation, plaintiffs’ lawyers may challenge that
interpretation. Thus, the inconsistency between the 9th
Circuit and the DOL in the interpretation of the same
provision of the law, creates some risk for California
employers in the denial of CTO. An employer’s
improper denial of an employee’s request to use CTO
can result in liquidated (up to double) damages to the
employee. We believe that until the Supreme Court
decides otherwise, following the Mortensen case likely
remains safe, but like so much of the FLSA, it is not
entirely clear.
This originally appeared as a blog post at www.calpublicagencylaboremploymentblog.com.
The Meaning Of “Clothes” To Be
Decided By U.S. Supreme Court.
Section 203(o) of the Fair Labor Standards Act
excludes from the definition of hours worked time spent
“changing clothes or washing at the beginning or end of
each workday” if it has been excluded “by the express
terms of or by custom or practice under a bona fide collective-bargaining agreement.” However, the term
“clothes” is not defined in the FLSA. As a result, courts
and the U.S. Department of Labor have been unable to
agree upon the meaning of “clothes.” Now, the U.S.
Supreme Court is set to resolve this split of opinion by
agreeing to decide the following question: What constitutes “changing clothes” within the meaning of section
203(o)?
This question arises from Sandifer v. United States Steel
Corp. 678 F.3d590 (7th Cir. 2012) which was decided
by the U.S. Court of Appeals for the Seventh Circuit. In
Sandifer, a class of 800 current and former steelworkers
of U.S. Steel’s plant in Indiana filed a lawsuit claiming
that the company violated the FLSA by failing to compensate them for time spent putting on and taking off
their work clothes in the plant’s locker room. The
“clothes” worn by the steelworkers consisted of flameretardant pants and jacket, gloves, boots, a hard hat,
safety glasses, ear plugs and a “snood” or hood that
covers the top of the head, chin and neck.
In response to the steelworkers’ claims, the company
invoked section 203(o) of the FLSA and argued that the
time spent “donning and doffing” their work clothes is
not compensable because the collective bargaining
agreement between U.S. Steel and the steelworkers’
union does not require compensation for such time.
However, the steelworkers argued that section 203(o) is
inapplicable because their work clothes do not fall within the meaning of “changing clothes” because they constitute safety equipment. The Seventh Circuit ultimately
agreed with U.S. Steel’s position in a decision written
by renowned jurist Richard Posner.
In their application to the Supreme Court to review the
case, the steelworkers argued that the high court needed
to hear the case in order to finally resolve the split
among courts over the meaning of “clothes.” The Court
of Appeals for the Fourth, Sixth, Tenth and Eleventh
Circuits adopted a broad definition of “clothes,” holding
that “clothes” includes anything that can be worn
including accessories. On the opposite end of the spectrum, the Court of Appeals for the Ninth Circuit, which
includes California, utilizes a narrow interpretation and
excludes protective gear and equipment from the meaning of “clothes” under section 203(o). While the Seventh Circuit in Sandifer harshly criticized the Ninth Circuit’s position in Alvarez v. IBP, Inc. calling it an “outlier,” it also appears to stop short of completely adopting
the broad definition of “clothes” held by other circuit
courts. For example, the Seventh Circuit acknowledged
that safety glasses and ear plugs “are not clothing in the
ordinary sense.” The Supreme Court is expected to
hand down its final decision in 2014.
While the Supreme Court’s decision might have some
impact on the general question of whether time spent
donning and doffing work clothes is compensable, the
ruling will be most significant to employers who rely
on section 203(o) and collective bargaining agreements
to exclude donning and doffing activities from compensable time. Consequently, the Supreme Court’s decision
may result in the Ninth Circuit’s narrow definition of
“clothes” in Alvarez v. IBP, Inc. being overruled.
However, the Ninth Circuit’s holding in Bamonte v. City
of Mesa that donning and doffing time for police officers is not compensable is unlikely to be affected by the
Sandifer case. In Bamonte, the Ninth Circuit held that
the time police officers spend before and after their paid
shifts donning and doffing their police uniforms and
related protective gear (i.e., body armor and equipment
belts) is not compensable work time under the FLSA so
long as the officers have the option and ability to don
and doff their uniform and gear off of the employer’s
premises. In contrast, Section 203(o) – which was not at
issue in Bamonte - excludes compensation for donning
and doffing activities even when they occur on the
employer’s premises so long as what is being donned
and doffed constitutes “clothes.” Thus, the only impact
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of Sandifer will be on employers who do not give
employees the option or ability to don and doff work
clothes and gear off of the employer’s premises.
This originally appeared as a blog post at www.calpublicagencylaboremploymentblog.com.
Unexplained Discrepancy Between
Employee’s Paycheck And Certified
Payroll Records Provided To State
Agency Was Sufficient To Show That
Company Violated Wage Laws With The
Intent To Defraud.
Pacific Engineering Company, a general engineering
construction company based in Bakersfield, is owned
and managed by Ayodeji A. Ogundare, a licensed contractor. Ninety-nine percent of the projects Pacific
undertakes are public works projects. In 2007 and
2008, the Department of Industrial Relations, Division
of Labor Standards Enforcement (DLSE), conducted
investigations regarding public works projects on which
Pacific was a subcontractor. As a result of the investigations, DLSE began debarment proceedings against
Pacific based on the allegation that Pacific violated prevailing wage laws willfully and with the intent to
defraud. Debarment occurs when an individual or entity is precluded from bidding or contracting on public
works projects for a defined period of time due to
wrongful conduct.
At the hearing, Miguel Ibarra testified that he worked
61 hours during one week and was paid $15 per hour.
He submitted a paycheck corroborating his testimony.
The certified payroll records that Pacific submitted to
DLSE and other contractors listed Ibarra as only working 25 hours for the same week, and listed the hourly
wage that Pacific paid Ibarra as $36.10, the prevailing
wage. The hearing officer found that Pacific willfully
violated the public works laws. The hearing officer also
found that Pacific violated the public works laws with
intent to defraud as evidenced by the fact that Pacific
put the required amount of payment on the certified
payroll records and signed the records under penalty of
perjury despite knowing that it paid a much lower rate.
The hearing officer ordered a one-year debarment.
ding on public works projects is not a fundamental vested right. Because Pacific could bid on other types of
projects, the interest implicated in this case was purely
economic. However, there was no need to remand
because, regardless of what standard the trial court
applies, the Court of Appeal’s standard of review
remained the same.
Intent to defraud means the intent to deceive another
person or entity, and to induce such other person or
entity, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or
power with reference to property of any kind. Intent to
defraud may be shown with circumstantial evidence.
Here, the certified payroll records that Pacific submitted
to DLSE showed that Pacific paid Ibarra $36.10 per
hour for 25 hours of work. While Pacific argued that
Ibarra did not keep a record of his hours, the notation
on his paycheck clearly showed that he was paid $915
for 61 hours of work, which comes out to $15 per hour.
Pacific failed to provide a satisfactory explanation for
the glaring discrepancy between Ibarra’s actual paycheck and the contrary representations that Pacific
made to DLSE. The Court of Appeal held that it was
reasonable to conclude from this evidence that Pacific
violated prevailing wage law with intent to defraud.
Thus, it reversed the trial court’s order and affirmed
DLSE’s administrative decision to impose a one-year
debarment.
Ogundare v. Dept. of Industrial Relations, Div. of Labor
Stds. Enforcement (2013) 214 Cal.App.4th 822 [-- Cal.
Rptr.3d --].
Note:
Under the Fair Labor Standards Act (FLSA),
districts may be severely penalized for their
failure to keep accurate timekeeping and payroll records. If an employer fails to keep accurate payroll records, its employees are only
required to submit a reasonable estimate of the
hours that they worked. A court must accept
the estimate as true unless the employer comes
forward with specific evidence to rebut the
employee’s estimate.
The DLSE adopted the decision, and Pacific filed a
petition for writ of mandate on the grounds that the
order was not supported by the record. The court granted Pacific’s petition, finding that there was no credible
evidence offered by DLSE to support a finding of intent
to defraud, and that willful violations alone do not justify debarment absent a history of prior willful violations.
DLSE appealed, and the Court of Appeal reversed.
The Court of Appeal first held that the trial court erred
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 RECORDS
PUBLIC RECORDS ACT
University Is Not Required To Disclose
Academic Study Research And PrePublication Communications Under The
Public Records Act.
In July 2008, the Humane Society of the United States
(HSUS) requested from the University of California,
Davis, all records regarding funding, preparation,
release and publication of an academic report related to
the economic effects of voters passing Proposition 2.
This Proposition proposed phasing out intensive confinement of egg-laying hens, veal calves and pregnant
pigs.
The Regents of the University (Regents) indicated it
would produce any items not exempt from disclosure
under the Public Records Act (PRA) by October 1,
2008. The HSUS filed a petition in the trial court
requesting that the court direct the Regents to disclose
the documents sooner. The HSUS argued that the
Regents were stalling disclosure of documents until
after the election in which voters would decide on Proposition 2.
In response, the Regents produced 356 pages and withheld 3,100 pages. The withheld pages constituted four
different types of documents: raw financial data, drafts
and prepublication communications among the
researchers, prepublication communications between
researchers and the board of advisors, and communications between researchers and the public. The Regents
withheld these documents arguing primarily that the
public interest in nondisclosure far outweighed the public interest in disclosure. Daniel Sumner, a professor at
UC Davis and coauthor of the report, declared that if
these documents were discloseable, in the future
researchers and collaborators would be less forthcoming
with opinions and hesitant to communicate informally.
The trial court reviewed all of the withheld documents
in private and balanced the public interest in encouraging research and the study of important issues against
the public interest in disclosing improper influence over
a publicly-funded study. The trial court concluded that
28 additional pages should be disclosed and denied disclosure of the others based on the PRA’s “catch all”
exemption. The HSUS filed an extraordinary writ of
mandate with the Court of Appeal.
On appeal, the Court first determined that the HSUS
timely filed its petition and provided an adequate legal
record. The Court then turned to the merits. The PRA
does not provide for an exemption from disclosure for
general academic research. Rather, the PRA contains a
“catch-all” exemption at Government Code section
6255. Applying this exemption, the Regents must demonstrate that the public interest served by not disclosing
the documents clearly outweighs the public interest
served by disclosure.
Here, the Court determined that the disclosure of the
communications would fundamentally impair the academic research process and the quantity and quality of
academic research. In determining the weight to give to
the public’s interest in disclosure of the documents, the
Court examined the gravity of the governmental tasks
that HSUS sought to uncover. While the Court held
that public research is “of vital importance,” the Court
also noted that the report itself states its methodology,
contains testable facts, and was subject to extensive
peer review. The Court reasoned that there is a lesser
need to disclose the communications. Accordingly, the
Court held that the Regents met its burden to show that
the public interest in nondisclosure clearly outweighed
public interest in disclosure. The Court denied the
HSUS’s peremptory writ of mandate.
Humane Society of the U.S. v. Super. Ct. of Yolo County
(2013) --- Cal.Rptr.3d --- [2013 WL 1233270].
Trial Court Order Denying PRA Request
May Only Be Challenged Through
Extraordinary Writ.
MinCal Consumer Law Group made a Public Records
Act request to the Carlsbad Police Department for
records stemming from identify theft incidents. The
Department permitted MinCal to inspect the Department’s publicly available log, which only contained
information for the past 30 days and claimed that information over 30 days old was “historical” and thus not
subject to mandatory disclosure under the Act.
MinCal filed a petition for writ of mandate seeking to
compel the City to make the records available and then
filed an appeal after the trial court denied its petition.
The City argued that the Court of Appeal has no jurisdiction because MinCal’s sole remedy was to file a petition for writ of mandate.
Government Code section 6259 provides that when a
public official refuses to disclose material requested
under the Act, and the trial court issues an order supporting the decision, the court’s order is not a final
judgment that can be appealed. Rather, the objecting
party must file a petition with an appellate court for
issuance of an extraordinary writ. Statutory filing deadlines are mandatory and jurisdictional, meaning that if a
writ petition is not filed within the time limit, the Court
of Appeal lacks the power to review the trial court’s ruling.
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MinCal did not comply with Government Code section
6259 by filing an extraordinary writ petition. Rather, it
filed a notice of appeal. While appellate courts may
treat a notice of appeal as a writ petition under limited
and extraordinary circumstances, MinCal did not provide an extraordinary or compelling reason for the
Court to do so. Further, even if it had, MinCal missed
the applicable filing deadline, and the Court of Appeal
lacked the jurisdiction to hear the matter. On that basis,
the Court of Appeal dismissed the appeal.
MinCal Consumer Law Group v. Carlsbad Police Dept.
(2013) 214 Cal.App.4th 259 [153 Cal.Rptr.3d 577].
Note:
Where a trial court determines that an agency
has rightfully withheld documents or information requested under the Public Records Act,
the requesting party cannot simply appeal the
denial. Rather, the requesting party must file
an “extraordinary writ” with the Court of
Appeal. The chances of the Court of Appeal
granting an extraordinary writ are very low.
 BUSINESS & FACILITIES
ENVIRONMENTAL QUALITY ACT
Environmental Impact Reports Must
Consider Feasible Alternatives.
The City of Santa Cruz (City) prepared an Environment
Impact Report (EIR) to expand its sphere of influence
to permit it to provide water and sewer services to the
University of California, Santa Cruz’s (UCSC) planned
North Campus development. The EIR found a significant and unavoidable direct impact related to the City’s
water supply. The City would be unable to provide an
adequate water supply to the North Campus during
drought conditions, which occur once every ten years.
The EIR set forth other significant secondary impacts
and concluded those could be mitigated to insignificance. Habitat and Watershed Caretakers (Habitat)
challenged the EIR alleging it violated the California
Environmental Quality Act (CEQA). The trial court
denied the challenge and Habitat filed a timely appeal.
The Court of Appeal found no significant inadequacies
in the EIR’s discussion and analysis of the impacts of
the project, description of the project’s objectives, mitigation measures, findings, and statement of overriding
considerations. The Court of Appeal, however, reversed
the denial of Habitat’s petition by concluding the EIR
was inadequate as it failed to consider and discuss any
feasible alternatives that could avoid or lessen the significant environmental impact of the project on the
City’s water supply.
A public agency must consider a reasonable range of
alternatives to a project which (1) offer substantial environmental advantages over the project proposal, and (2)
may be feasibly accomplished in a successful manner
considering the economic, environmental, social, and
technological factors involved. Public agencies should
not approve a project if feasible alternatives or feasible
mitigation measures are available which would substantially lessen the significant environmental effects of
such projects. Moreover, an EIR’s discussion of these
alternatives must contain facts and analysis sufficient to
enable those who did not participate in its preparation
to understand and consider meaningfully the issues
raised by the proposed project.
The City’s draft EIR stated there were no known alternatives to the provision of water to the North Campus
as the City is the sole provider of water to UCSC. The
final EIR discussed altering the legal methods of providing water, but stated these alternatives would not
affect the environmental impacts. Habitat argued the
EIR was inadequate as it failed to consider any alternatives, including an analysis of a “limited-water” alternative. The City claimed it omitted discussion of a limited-water alternative as that would not meet the project’s
objectives and would not avoid the significant impact
on the water supply. The Court of Appeal found a limited-water alternative could not be eliminated from consideration solely because it may, to some extent, impede
attaining a project goal. Additionally, it found no merit
in the City’s argument that there was no need to discuss
this alternative as it would not avoid the significant
impact on the water supply.
The Court of Appeal found the EIR failed to discuss
and analyze a limited-water alternative, removing the
decisions makers’ ability to consider that alternative.
As the EIR failed to discuss any feasible alternative that
could avoid or lessen the significant environmental
impact of the project on the City’s water supply, the
EIR did not comply with CEQA.
Habitat and Watershed Caretakers v. City of Santa Cruz
(2013) 213 Cal.App.4th 1277 [152 Cal.Rptr.3d 888].
Note:
Public agencies must ensure a project’s EIR
includes a meaningful analysis of alternatives
to the project which could potentially lower the
project’s environmental impacts. Failure to
include that analysis could render the EIR
inadequate.
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Environmental Impact Reports Must
Consider Significance Of Environmental
Impacts.
The County of Santa Barbara (County) granted Troesh
Materials, Inc. permission to begin sand and gravel
mining in the often dry bed of the Cuyama River. Save
Cuyama Valley (Save Cuyama) contended the County’s
approved Environmental Impact Report (EIR) violated
the California Environmental Quality Act (CEQA).
The trial court denied Save Cuyama’s challenge to the
petition for a writ of mandate to compel EIR deficiencies. The Court of Appeal affirmed the trial court’s ruling. The Court found that an EIR’s analysis of a project’s effect on the environment is sufficient if it adequately considers the cumulative impacts of the project
on the environment.
Save Cuyama claimed the EIR’s reported hydrological
impacts on the Cuyama River were more significant
than reported. The EIR set forth issues which could
affect river hydraulics, but stated those impacts were
expected to be minor and were less than significant. It
also established a mitigation measure if hydraulic conditions developed which could result in off-site impacts.
Save Cuyama argued the EIR failed to address CEQA’s
thresholds of significance of environmental impacts and
that the mitigating measure was undefined. The Court
of Appeal found that CEQA permits the County to
develop its own threshold of significance related to
potential environmental impacts, rather than relying on
CEQA guidelines, and that the mitigation measure adequately addressed those impacts.
Save Cuyama also challenged the EIR’s findings on the
project’s effect on the local water supply’s usage and
quality. The EIR classified these impacts as “adverse,
but not significant” and imposed a protective measure
to protect the local water supply. The Court of Appeal
found the EIR amply considered the impacts on the
water supply. The EIR, however, failed to provide substantial evidence to support its finding that the project’s
impact on water quality was “not significant.” The
Court of Appeal stated that an EIR’s goal is to provide
information to decision-makers and the public; the correctness of the report’s conclusions is of no concern
unless the conclusion is not prejudicial. Save Cuyama
failed to establish that the EIR’s unsupported conclusion was prejudicial, rendering it of no moment to this
decision. The County adequately considered and
addressed the potential environmental impacts in its
EIR.
Save Cuyama Valley v. County of Santa Barbara (2013)
213 Cal.App.4th 1059 [153 Cal.Rptr.3d 534].
Note:
Public entities should ensure their EIR’s comply with the requirements of CEQA by determining the significance of potential environmental impacts and setting forth adequate mitigating measures if necessary.
PARCEL TAX
Tiered Parcel Tax Invalid, But
Exemptions For Seniors And Disabled
Homeowners Upheld.
In June 2008, Alameda Unified School District (District) voters approved Measure H. Measure H provides
exemptions for some senior and disabled taxpayers. It
also imposes different tax rates on residential and commercial/industrial properties, as well as different rates
on different sized commercial/industrial properties.
George J. Borikas filed suit seeking to have the special
tax authorized by Measure H declared invalid and not a
lien on properties he owns. Borikas alleged Measure H
exceeded the taxing authority given to school districts
under Government Code section 50079 because the tax
does not apply “uniformly” to all parcels in the district.
The case went to trial based on agreed-upon facts. The
trial court ruled in the District’s favor, upholding Measure H. Borikas appealed.
Section 50079 consists of two subdivisions. The first
authorizes school districts to impose “qualified special
taxes.” (section 50079, subd. (a).) The second subdivision states: “As used in this section, ‘qualified special
taxes’ means special taxes that apply uniformly to all
taxpayers or all real property within the district, except
that ‘qualified special taxes’ may include taxes that provide for an exemption from those taxes for taxpayers 65
years of age or older or for persons receiving Supplemental Security Income for a disability, regardless of
age.” (section 50079, subd. (b)(1).) “Qualified special
taxes” do not include special taxes imposed on a particular class of property or taxpayers.” (section 50079,
subd. (b)(2).)
On appeal, Borikas argued that Measure H’s property
classifications, differing tax rates and conditional
exemptions all violate section 50079’s requirement that
special taxes apply “uniformly” to all taxpayers or all
real property within the district. The District argued
this statutory language reflects long-established equal
protection principles that allow a governmental entity to
create reasonable tax classifications, so long as all taxpayers within a classification are treated the same.
The Court of Appeal first considered the Plaintiffs’ contention that differing tax rates violate section 50079.
The Court looked at the plain language and legislative
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history of the statute, and of other related statutes enacted for the same reason and having the same purpose
and employing the same language. The Court concluded that section 50079 does not authorize school districts
to impose special taxes that classify and differentially
tax property within the district.
Having concluded that the bond measure improperly
imposed a tax that classified and differentiated among
property, the Court of Appeal then looked to see if it
could remove the faulty provisions of the bond measure, or whether it must invalidate the bond entirely.
The Court concluded it could remove the language
imposing a different and higher tax rate on non–residential property over 2,000 square feet and the remaining language would be a coherent, functioning tax measure. The Court also found this to be consistent with
the will of the voters. The voters had approved a bond
measure taxing real property. The bond taxed larger,
non-residential parcels at a higher rate. Permitting the
remaining provisions to survive would achieve a substantial portion of their purpose. Voiding the entire tax
would wholly defeat voter expectations. This solution
is consistent with long-established remedies for discriminatory taxes, equalizing the tax by assessing all
taxpayers at the lower rate.
Finally, the Court examined the exemptions for seniors
and disabled residential property owners. The Court
concluded that the exemptions are “exceptions” to the
uniformity requirement and concluded the limited
exemptions provided by Measure H for senior and disabled homeowner residents do not exceed the statutory
authority provided to school districts by section 50079.
Borikas v. Alameda Unified School Dist. (2013) 214 Cal.
App.4th 135 [-- Cal.Rptr.3d --].
Note:
Districts considering placing a parcel tax measure on the ballot should consult with their
legal counsel to ensure the measure is legally
compliant.
 HEALTH CARE
AFFORDABLE CARE ACT
New Anti-Retaliation Provisions Under
The Affordable Care Act.
The Occupational Safety and Health Administration
(“OSHA”), a division of the Department of Labor,
recently published regulations which implement the
anti-retaliation provision of the Patient Protection and
Affordable Care Act. Section 1558 of the Act prohibits
retaliation by an employer against an employee who:
a. Receives health insurance premium tax credits or
a subsidy in the exchange;
b. Reports potential violations of protections afforded under Title I of the Act, which provides guaranteed availability protections among other
things;
c. Testifies in a proceeding concerning such violation;
d. Assists or participates in a proceeding concerning
a violation; or
e. Objects to, or refuses to participate in, any activity, policy, practice, or assigned task that the
employee (or other such person) reasonably
believes to be in violation of any provision of
Title I of the Act.
The regulations set forth the procedures and timeframes
for handling retaliation complaints, including investigations, hearings, and appeals procedures. The regulations also set out the remedies available for an
aggrieved employee.
An aggrieved employee may file a complaint with
OSHA within 180 days of the aggrieved conduct. Upon
receipt of the complaint, the Assistant Secretary for
OSHA will notify the employer of its rights. The
employer will have 20 days after receiving notice of the
complaint to file a written statement, affidavits or documents in support of its position. The employer may
also request a meeting with the Assistant Secretary to
present its position.
In filing a complaint, the employee need only allege a
subjective, good faith, and objectively reasonable belief
that his or her participation in a protected activity was a
contributing factor to an adverse employment action
taken against him. If the employee successfully alleges
that a protected activity was a contributing factor for an
adverse employment action and the employer fails to
show that it would have taken the same adverse action
absent the protected activity, the Secretary will proceed
to investigate the complaint.
After completing its investigation and within 60 days of
the filing of the complaint, the Assistant Secretary will
issue the written findings. Both parties have 30 days
after the written findings are issued to file an objection
and to request a hearing with the Chief Administrative
Law Judge from the United States Department of Labor
(DOL). If no objection is filed, the written findings will
become the final decision of the Secretary and will not
be subject to judicial review. If a hearing is held before
an administrative law judge (ALJ), the ALJ’s order will
be effective 14 days after the date of the decision unless
a timely petition for review is filed with the Administrative Review Board (ARB), DOL. The decision of the
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ALJ becomes final if the ARB does not accept the case
for review within 30 days of the filing of the petition.
If the ARB conducts a review, it will issue its final decision within 120 days of the conclusion of the hearing.
Within 60 days after issuance of a final order, a party
may file a petition for review of the final order with the
United States Court of Appeals.
An employee may file an anti-retaliation complaint
directly in the appropriate district court under two circumstances: (1) Within 90 days of receiving the Assistant Secretary’s written findings (provided that there is
no final decision); or (2) if more than 210 days have
passed since the filing of the complaint and the Secretary has not issued a final decision.
Remedies include reinstatement, affirmative action to
abate the violation, back pay with interest, front pay,
compensatory damages, and up to $1,000 award for
attorneys’ fees.
Note:
Under the new regulations, employers must be
mindful of not only the ACA’s coverage
requirements but also potential retaliation
claims for actions taken against employees
who receive subsidized coverage through the
exchange. Accordingly, employers should
ensure that its management and supervisory
personnel are well trained in employee relations with regard to the ACA.
 LITIGATION
ANTI-SLAPP STATUTE
Party’s Responses To Inquiries During
An Internal Affairs Investigation Arose
From A Protected Activity For Purposes
Of Anti-SLAPP Statute.
Christopher Vivian and Louise Labrucherie divorced in
2008. In February 2010, Labrucherie’s new boyfriend,
Sukhdev Sidhu, obtained a temporary restraining order
(TRO) against Vivian, a Sonoma County deputy sheriff.
Sidhu claimed that, among other things, Vivian threatened his life and physical safety, and followed and
harassed him. In March 2010, after the TRO was granted, Sidhu and Vivian entered into a settlement agreement, in which Sidhu agreed to dismiss with prejudice
his request for a permanent injunction against Vivian,
and both agreed “not to disparage” each other to any
party. Labrucherie also signed the agreement and
agreed to be bound by the terms of it.
In March 2011, Vivian filed suit against Labrucherie,
Labrucherie’s mother and Sidhu for, among other
things, breach of the settlement agreement. The complaint alleged that after execution of the settlement
agreement, Labrucherie voluntarily provided disparaging statements to the Sonoma County Sheriff’s Department during an investigation the Department was conducting relating to the TRO filed by Sidhu. The complaint further alleged that Labrucherie filed papers in
family court in which she repeated some of the allegations made by Sidhu in the TRO application. In April
2011, Labrucherie filed a special motion to dismiss Vivian’s complaint. The court denied the motion with
regard to Vivian’s cause of action for breach of the settlement agreement, and Labrucherie appealed. The
Court of Appeal reversed.
Code of Civil Procedure section 425.16, the “antiSLAPP [strategic lawsuit against public participation]
statute,” provides a procedural remedy to dispose of
lawsuits that are brought to chill the valid exercise of
constitutional rights. When ruling on an anti-SLAPP
motion to strike, the court must decide (1) whether the
defendant (the moving party) has demonstrated that the
challenged cause of action arises from protected activity, and (2) whether the cause of action lacks all merit.
If the plaintiff shows that he has a legally sufficient
claim, the special motion to strike cannot be granted.
In this case, Vivian argued that he filed suit because
Labrucherie breached a contract that prohibited her
from engaging in certain speech-related conduct, not
because she engaged in protected speech. Therefore,
his action did not “arise” from protected conduct. The
Court disagreed. This case did not involve a dispute
regarding the validity or meaning of the settlement
agreement. Rather, Vivian sought to impose liability on
Labrucherie for the statements she made to the investigator and in the family court documents. Because he
sought to impose liability on Labrucherie for engaging
in protected activity, the cause of action arose out of
that activity.
As to the second prong, Labrucherie argued that the
cause of action lacked all merit because her statements
are protected by the litigation privilege, found in Civil
Code section 47(b), and cannot be the basis of a lawsuit. Vivian argued that by entering into the settlement
agreement, Labrucherie waived this defense. The litigation privilege does not necessarily bar liability for
breach of contract claims. Courts must consider whether applying the privilege would further the policies
underlying the privilege.
Here, the Court held that the privilege should be
applied. First, the settlement agreement did not clearly
prohibit Labrucherie’s conduct. For instance, the term
“disparage” was never defined. Second, Labrucherie
responded to inquiries from an internal affairs investi-
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gator. Application of the privilege in these circumstances promotes full and candid responses to a public agency, which is the purpose of the privilege. On that basis,
the Court held that the trial court erred when it failed to
strike Vivian’s cause of action for breach of settlement
agreement.
Vivian v. Labrucherie (2013) 214 Cal.App.4th 267 [153
Cal.Rptr.3d 707].
 PUBLIC SAFETY
DISCIPLINE
Hearing Officer Upholds Termination Of
Police Officer For Misconduct And
Making False Statements.
In a case handled by Scott Tiedemann of our Los
Angeles Office, a hearing officer recently upheld the
termination of a peace officer who was discharged for
using his employer’s vehicle, badge and gun to conduct
a search for his runaway step-daughter, and for lying to
investigators.
The officer received information that his step-daughter
could be found at a house allegedly occupied by gang
members. The officer drove his wife and sister-in-law
in an official vehicle to the residence to look for his
step-daughter. He identified himself to the residents as
a police officer, showed them his badge, pointed his
weapon at them, entered their residence, and threatened
them with arrest after locating his daughter in the residence. The residents, who were not gang members and
had no prior negative contacts with law enforcement,
were confused and scared by the presence of an officer
in their home. The step-daughter had only arrived at
the residence about 15 minutes before the officer
arrived. In fact, she and her friend had just been asked
to leave when the officer showed up. The officer
denied pointing his weapon at the residents and told
investigators that he had been invited into the residence,
as opposed to barging in. The officer was terminated
for his actions and false statements to investigators.
A hearing officer upheld the termination, relying solely
on the evidence presented regarding the officer’s dishonesty. As the civilian witnesses were able to describe
what the officer’s gun looked like, it was clear that the
officer lied to investigators when he denied pointing his
gun at the residents of the house. In light of the officer’s lies, the hearing officer did not find it necessary to
determine whether the officer’s other misconduct warranted termination.
Note:
A finding of dishonesty against a police officer
will usually provide sufficient grounds to terminate the officer. Here, the dishonesty alone
convicted the hearing officer that termination
was appropriate even without the other misconduct.
POBR Statute Of Limitations Tolled
While Police Departments And District
Attorney’s Office Investigated Various
Charges Against Police Inspector.
Marvetia Richardson worked as an inspector for the San
Francisco Police Department (SFPD). In 2007, a citizen claimed Richardson obtained confidential information on him and his wife through improper computer
searches. An investigation found that during a
14-month period, Richardson ran 48 unauthorized
searches on the SFPD’s CLETS computer system and
obtained confidential information about her girlfriend,
her girlfriend’s ex-boyfriend, and her girlfriend’s exhusband. The SFPD’s Special Investigations Division
decided not to pursue the unauthorized computer usage
as a criminal violation.
Around the same time, the Antioch Police Department
began investigating whether Richardson was involved
in a check fraud scheme. The charges were brought to
the attention of the SFPD, though the case was ultimately closed due to insufficient evidence.
While the check fraud investigation was still being conducted, Antioch police officers responded to Richardson’s home regarding a disturbance. The officers testified that Richardson was uncooperative and cursed at
them as she escorted them out of the house. The officers then heard screaming, called for backup, and then
observed the tenant and her daughter running out of the
house, claiming that someone in the house had threatened to kill them. The officers returned to the house
and forced entry. When Richardson refused to come
out of her bedroom with her hands up, and after the
officers were unable to determine if Richardson was
armed, one of the officers used his taser on Richardson.
Richardson was taken into custody and charged with
harboring felons and obstructing a police officer.
The SFPD filed a complaint against Richardson with
the San Francisco Police Commission that included
allegations regarding the Antioch incident, the CLETS
searches, and the check fraud incident. Richardson
filed a lawsuit in San Francisco Superior Court against
the City and County of San Francisco and the SFPD
seeking to enjoin them from pursuing the CLETS and
check fraud charges on the grounds that were barred by
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the one-year statute of limitations set forth in Government Code section 3304.
DA’s office had declined to prosecute Richardson, the
DA’s office was conducting its own investigation.
An eight-day hearing on the charges against Richardson
took place in front of a police commissioner. In addition to seeking to dismiss the check fraud and CLETS
search charges on the basis that they were time-barred,
Richardson sought to exclude all evidence of what happened after the Antioch PD’s second entry into her
home on the basis that the search violated the Fourth
Amendment. Richardson also argued that the City
Attorney’s office had a conflict of interest because it
was advising the Commission in the case against Richardson and representing the SFPD in Richardson’s civil
case. The Commission refused to recuse itself, denied
Richardson’s motion to dismiss the CLETS and check
fraud charges, and denied the motion to exclude evidence of what transpired after the officer’s second entry.
It specifically found that the one-year statute of limitations for discipline of a police officer was tolled while
the SFPD investigated the CLETS charges and while
the Antioch PD, Brentwood PD, and District Attorney’s
office investigated the check fraud charges. The Commission also unanimously voted to terminate Richardson’s employment
Exclusionary Rule in Administrative Proceedings
Richardson filed a petition for a writ of mandate in San
Francisco Superior Court challenging the Commission’s
decision, and raising the issues she previously raised
before the Commission. The trial court denied the petition, and Richardson appealed. The Court of Appeal
affirmed.
Tolling of the Statute of Limitations
Government Code section 3304, part of the Public Safety Officers Procedural Bill of Rights Act (POBR), provides that disciplinary charges against a public safety
officer must be filed within one year after the misconduct is discovered, subject to certain exceptions. One
exception is that the statute of limitations is tolled while
a criminal investigation or prosecution is pending.
The Brentwood PD closed its check fraud investigation
on December 18, 2007. Nearly a year later, the Brentwood PD faxed a document to the SFPD indicating that
the DA’s office had decided not to prosecute Richardson. Richardson argued that there was no evidence that
the DA’s office investigated the charges, and therefore
the investigation was no longer “actually and actively”
pending after Brentwood PD closed the case on December 18, 2007.
The court held that there is no requirement that an
investigation be “actual and active,” and that any such
requirement would be unworkable. Further, even if the
requirement existed, a reasonable inference can be
drawn that from the time the Brentwood PD closed the
case until the time the SFPD received notice that the
The exclusionary rule, which prevents the admission of
evidence obtained through a search conducted in violation of the Fourth Amendment, applies mostly in criminal cases. The purpose is to discourage law enforcement officers from conducting illegal searches. It does
not apply in most administrative proceedings.
The court held that applying the rule in this case would
serve no deterrent purpose because the administrative
hearing arose out of the disciplinary charges filed by the
SFPD, but the alleged illegal search was conducted by
the Antioch PD. Further, excluding the evidence in this
case would undermine the rule that police officers have
an obligation to conduct their personal lives in a manner beyond reproach.
Conflict of Interest
In opposition to Richardson’s petition for writ of mandate, the City Attorney’s Office introduced evidence
that it “screened off” attorneys working on disciplinary
hearings. The deputy city attorney handling this case
testified in her declaration that she was the sole city
attorney advising the Police Commission in Richardson’s case, and that she did not discuss the matter with
any city attorney involved in Richardson’s civil case.
The Court agreed with the trial court that the evidence
demonstrated that proper screens existed and were
maintained.
On that basis, the Court of Appeal affirmed the trial
court’s denial of Richardson’s writ petition.
Richardson v. City and County of San Francisco (2013)
214 Cal.App.4th 671 [154 Cal.Rptr.3d 145].
Note:
This decision raises many issues that arise in
public safety disciplinary cases. First, public
safety departments must always be aware of
the statute of limitations that applies to internal investigations. If the one-year statute is
tolled due to a pending criminal investigation,
the department should keep close tabs on the
status of the concurrent investigation. Second,
sometimes the exclusionary rule is invoked in
an attempt to prevent the department from
using some disputed evidence in the cause of a
disciplinary proceeding. The exclusionary rule
has limited application to administrative hearings, although violations of the Public Safety
Officers Procedural Bill of Rights Act may lead
to arguments that statements made during
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Education Matters
unlawful interrogations should be excluded.
Finally, the Court’s decision regarding conflicts of interest aligns with the California
Supreme Court’s decision in Morongo Band of
Mission Indians v. State Water Resources
Board (2009) 45 Cal.4th 731, in which the
Court held that there is no violation of due
process so long as the attorney never advises
the decision-maker in the same case that the
attorney prosecutes.
RETIREMENT
Peace Officer Who Resigns And Later
Collects Retirement Pension Is Not An
“Honorably Retired” Officer For
Purposes Of Obtaining A CCW
Certificate.
Rick Gore began working as an investigator in the Yolo
County District Attorney’s Office in 1997. As an investigator, Gore was a peace officer as defined by California Penal Code section 830 and therefore was authorized to carry a firearm.
In 2008, Gore disseminated a letter containing false
accusations against the DA, the DA’s Office, and several other individuals. The letter was posted on various
websites and publications which substantially harmed
the reputation of the DA’s Office. The County hired an
independent attorney to investigate Gore’s allegations,
and the investigation concluded that Gore had violated
several County policies. On that basis, the DA’s Office
terminated Gore’s employment in December 2008.
Gore appealed his termination. The arbitrator affirmed
the investigation findings, but reduced the penalty to a
long suspension. The DA’s Office was ordered to reinstate Gore on the condition that he retracted publicly his
false accusations. Gore and the DA’s Office then
entered into a settlement agreement that reduced Gore’s
suspension in exchange for Gore’s retraction of his
untrue statements and his immediate resignation.
In May 2010, Gore began collecting his CalPERS
retirement. He requested a CCW (carry concealed
weapons) identification certificate, but the DA’s Office
denied his request. Gore filed a petition for writ of
mandate in Superior Court, and the court found that
Gore was entitled to a hearing to determine whether
there was good cause to deny him an identification certificate. The DA’s Office appealed, and the Court of
Appeal reversed the trial court’s finding.
Former Penal Code section 12027, which was repealed
in 2010 and replaced with sections 25450 and 25455,
provided that the law making it a crime to carry a concealed firearm does not apply to “any peace officer…
whether active or honorably retired.” The statute
defined “honorably retired” as “all peace officers who
have qualified for, and have accepted, a service or disability retirement.” However, the statute also stated that
the term “honorably retired” does not include an officer
who has agreed to a service retirement in lieu of termination. Finally, former section 12027.1 provided that
an identification certificate could be revoked or denied
by the issuing agency, but only upon a showing of good
cause determined at a hearing.
On appeal, the County argued that Gore is not a retired
police officer under the statute because he resigned his
position as a police officer before he retired. The County argued that former sections 12027 and 12027.1 apply
only to persons who are actively serving as peace officers at the time of their retirement. The Court of
Appeal agreed with the County’s argument. The Court
relied, in part, upon a 1995 Attorney General opinion
which stated that nothing in former sections 12027 or
12027.l suggests that the statute applies to everyone
who has ever been a peace officer.
Accordingly, the Court held that a person must enter
retirement from active service as a peace officer to be
considered a peace officer who is honorably retired.
Someone who is fired or quits, like Gore, before retirement age is not an honorably retired peace officer, even
when they later reach retirement age and are entitled to
collect their pension.
Gore v. Yolo County Dist. Atty’s Office (2013) 213 Cal.
App.4th 1487.
Note:
It is not unusual for an agency to reach settlement agreements with peace officers which
allow the officer to resign in lieu of a termination. In such cases, the former officer may not
be eligible for a CCW and agencies can use
this holding to lawfully deny granting a certificate.
Trial Court Erred By Denying Police
Officer’s Writ Petition Without
Independently Weighing Evidence
Presented At Disability Retirement
Hearing.
Thomas Alberda began working as a deputy sheriff for
the County of Fresno in 1993. Prior to beginning his
employment, he had two surgeries on his right knee. In
1995, Alberda hyper-extended his right leg while on
duty. The injury required him to undergo surgery, but
he returned to full duty without restriction three months
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April 2013
later. In 2003, Alberda, who is six feet seven inches tall, was assigned to a patrol car in which he did not comfortably fit.
After approximately one year, he began having severe knee problems and was in continual pain. He stopped working in
2005 due to the pain, and underwent surgery on both knees.
In 2007, Alberda filed an application for a service-connected disability retirement. After the Board of Retirement of
Fresno County Employee's Retirement Association denied the application, Alberda requested a hearing. Two medical
experts testified at the hearing. While both agreed that Alberda was no longer capable of performing the essential functions of his position, they disagreed as to the cause of Alberda’s knee problems. The hearing officer issued a proposed
decision finding that Alberda did not show the required causal connection between the job and his disability. He recommended that Alberda’s application for service-connected disability retirement be denied, and the Board adopted the recommendation.
Alberda filed a writ petition in superior court challenging the decision, but the court denied it. The trial court found that
substantial evidence supported the hearing officer’s decision that Alberda was not entitled to a service-connected disability retirement. Alberda appealed, and the Court of Appeal remanded, holding that the trial court applied the wrong standard when it reviewed the hearing officer’s findings of fact and recommended decision.
When a trial court reviews an administrative decision that substantially impacts a fundamental vested right, it must exercise its independent judgment upon the evidence. The trial court’s initial review begins with a presumption that the
administrative findings are correct, but it must weigh all of the evidence and make its own decision about which party’s
position is supported by a preponderance of the evidence.
In this case, while the trial court said that it was applying the independent judgment standard, it concluded that substantial evidence supported the hearing officer’s decision. It deferred to the factual findings made by the hearing officer
instead of weighing the evidence presented by both parties. On that basis, the Court of Appeal remanded the case to the
trial court to reconsider Alberda’s writ petition under the appropriate standard.
Alberda v. Bd. of Retirement of Fresno County Employees’ Retirement Assn. (2013) 214 Cal.App.4th 426 [153 Cal.Rptr.3d
823].
Note:
This case highlights the importance of fully developing the record in an administrative hearing. The trial
court has the duty to independently weigh all of the evidence presented by both parties; this includes the
duty to weigh the credibility of the witnesses. Even if the hearing officer finds for the agency, the trial
court could find the appellant’s evidence convincing and reverse. Therefore, the agency must be thorough in its presentation of evidence, taking care to develop the testimony of its witnesses for purposes of
the record.
§
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If you have any questions, call Chris Fondacaro at 310.981.2000.
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Education Matters
Train the Trainer Refresher Sessions
Los Angeles - June 25, 2013
Fresno and San Diego - June 26, 2013
San Francisco - July 24, 2013
Time: Location: Cost: 9:00 a.m. - 12:00 p.m.
Liebert Cassidy Whitmore Offices
$1,000 each or $900 each if ERC Member
Liebert Cassidy Whitmore is offering “Train the Trainer” refresher sessions to provide you with the necessary
tools to continue conducting mandatory AB 1825 (Govt. Code Section 12950.1) training for your agency. As
you know, a key component of AB 1825 compliance is the provision of preventing harassment training to all
supervisory employees every two years and to new supervisors within 6 months of their assumption of a supervisory position.
If you have attended one of LCW’s previous Train the Trainer sessions, you are eligible to attend the Refresher
course..
Attendees Will Receive:
• 3 hours of instruction to be completed in one day
• Guide, PowerPoint slides and case studies (on CD and hard copy) complete with detailed
speakers’ notes for use in their future presentations
• Participant Guide for distribution in their future presentations
• Legal updates, where warranted, through 2015, including updated slides and faciliator / participant guides
• Certificate of Attendance for "Train the Trainer session"
Registration:
Visit www.lcwlegal.com/lcw-seminars for more information and to register online. Please contact Anna
Sanzone-Ortiz at ASanzone-Ortiz@lcwlegal.com or 310.981.2051 for more information on how to bring this
training to your agency.
Liebert Cassidy Whitmore Welcomes New Los Angeles Associates
New to
the Firm
Danny Y. Yoo represents public agency clients in all facets of labor and employment law. He
is an accomplished litigator and has prosecuted cases with the United States Department of
Justice and the California Department of Justice.
Danny can be reached at 310.981.2069 or emailed at dyoo@lcwlegal.com
Michelle K. Meek provides representation to public agency and education clients in all
aspects of labor and employment law. An experienced litigator, Michelle counsels clients in
all types of civil litigation, administrative proceedings, and arbitrations.
Michelle can be reached at 310.981.2000 or emailed at mmeek@lcwlegal.com.
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April 2013
LCW Webinar
Educational Organizations Must Prepare to Comply
With the Affordable Care Act or Risk Penalties
On January 1, 2014, educational organizations with 50 or more full time equivalent
employees will be subject to potential penalties imposed by the IRS if they fail to
offer affordable minimum essential health care coverage to substantially all their
full-time employees (and their dependents). This webinar will provide educational
organizations with an overview of how to calculate employee hours of service,
including how to account for adjunct faculty hours, and how to identify full-time
employees. We will describe how penalties are calculated and provide a step by
step analysis of how an educational organization can assess its potential risk for a
penalty assessment. We will also discuss the safe harbors that employers can
implement for determining who qualifies as a full-time employee and how
employers can determine whether their coverage is affordable.
Presented by:
Heather DeBlanc
Associate
Los Angeles
Who Should Attend?
Managers, Supervisors and Benefits Coordinators.
Cost:
ERC Members: $55; Non-members: $75
www.lcwlegal.com/ACA-Education
Contact
If you have any questions regarding the registration process,
please contact Vladimir Power at vpower@lcwlegal.com or 310.981.2011.
Firm Publications
To view these articles and the most recent attorney-authored articles, please visit:
www.lcwlegal.com/lcw-attorney-authored-articles
Mark Meyerhoff of our Los Angeles office authored the article "5 Topics Public Employers
Should Address,” which appeared in the March/April 2013 issue of the CSDA Magazine. This
article can be viewed by visiting the link listed above and/or searching the keywords “5 Topics.”
The April 2013 edition of Emploment Law360 featured the article "The Meaning of 'Clothes' To Be
Decided by U.S. Supreme Court," that was authored Elizabeth T. Arce of our Los Angeles office.
This article can be viewed by visiting the link listed above and/or searching the keywords “Meaning
of Clothes.”
To view archive articles, please go to: www.lcwlegal.com/lcw-attorney-authored-articles?archive=1
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Education Matters
Management Training Workshops
Firm Activities
Consortium Training
May 2
“Accommodating Bad Behavior: The Limits on Disciplining Disabled Employees”
South Bay ERC | Torrance | Laura Kalty
May 2
“Managing Performance Through Evaluation”
North San Diego County ERC | Carlsbad | Judith S. Islas
May 3
“Terminating the Employment Relationship”
Central CA CCD ERC | Webinar | Frances Rogers
May 8
“Public Service: Understanding the Roles and Responsibilities of Public Servants” and
“Workplace Bullying: A Growing Concern”
Coachella Valley ERC | Indian Wells | Frances Rogers
May 8
“Executive Level Briefing” and “Finding the Facts: Disciplinary and Harassment
Investigations”
San Gabriel Valley ERC | Alhambra | J. Scott Tiedemann
May 8
“Accommodating Bad Behavior: The Limits on Disciplining Disabled Employees”
Bay Area ERC | Fremont | Suzanne Solomon & Charla Welch
May 8
“Public Service: Understanding the Roles and Responsibilities of Public Servants”
Bay Area ERC | Fremont | Suzanne Solomon
May 8
“Exercising Your Management Rights” and “Public Service: Understanding the Roles
and Responsibilities of Public Servants”
Central Valley ERC | Kerman | Gage Dungy & Che I. Johnson
May 8
“Managing Employee Injuries, Disability and Occupational Safety”
Sonoma/Marin ERC | Rohnert Park | Doug Bray & Glenn Olsen
May 9
“Public Service: Understanding the Roles and Responsibilities of Public Servants”
Gateway Public ERC | Norwalk | Mark Meyerhoff
May 9
“Advanced Retirement Issues for California’s Public Employers” and “Public Service:
Understanding the Roles and Responsibilities of Public Servants”
San Diego ERC | Del Mar | Frances Rogers
May 9
“A Guide to Labor Negotiations”
Monterey Bay ERC | Watsonville | Richard Bolanos
May 9
“Executive Level Briefing”
Gold Country ERC | Elk Grove | Suzanne Solomon
May 9
“Workplace Bullying: A Growing Concern”
Gold Country ERC | Elk Grove | Suzanne Solomon & Alison L. Kosinski
May 9
“Accommodating Bad Behavior: The Limits on Disciplining Disabled Employees”
Los Angeles County Human Resources Consortium | Los Angeles | Jennifer Rosner
May 15
“Preventing Workplace Harassment, Discrimination and Retaliation”
Orange County Human Resources Consortium | Buena Park | Jennifer Rosner
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April 2013
May 16
“Preventing Workplace Harassment, Discrimination and Retaliation” and “Workplace
Bullying: A Growing Concern”
Imperial Valley ERC | Imperial | T. Oliver Yee
May 16
“Preventing Workplace Harassment, Discrimination and Retaliation” and “Privacy
Issues in the Workplace”
West Inland Empire ERC | Chino Hills | Jennifer Rosner
May 17
“Disaster Service Workers - If You Call Them, Will They Come?”
Southern CA CCD ERC | Webinar | Mark Meyerhoff
May 21
“Managing Performance Through Evaluation” and “Preventing Workplace Harassment,
Discrimination and Retaliation”
San Mateo County ERC | Redwood City | Alison L. Kosinski
May 22
“Accommodating Bad Behavior: The Limits on Disciplining Disabled Employees” and
“Super Manager or Super Spy: The Use of Technology in Monitoring Employee Conduct”
North State ERC | Red Bluff | Richard Bolanos
May 22
“Workplace Bullying: A Growing Concern”
Humboldt County ERC | Arcata | Gage Dungy
May 23
“Public Service: Understanding the Roles and Responsibilities of Public Servants”
Humboldt County ERC | Arcata | Gage Dungy
May 22
“Accommodating Bad Behavior: The Limits on Disciplining Disabled Employees” and
“Preventing Workplace Harassment, Discrimination and Retaliation”
Ventura/Santa Barbara ERC | Moorpark | Laura Kalty
May 23
“Employees and Driving” and “Public Sector Employment Law Update”
NorCal ERC | San Ramon | Richard Bolanos
May 24
“Prevention and Control of Absenteeism and Abuse of Leave”
Central CA CCD ERC | Webinar | Judith S. Islas
June 4
“Public Service: Understanding the Roles and Responsibilities of Public Servants”
Monterey Bay ERC | Webinar | Laura Kalty
June 4
“Public Service: Understanding the Roles and Responsibilities of Public Servants”
South Bay ERC | Webinar | Laura Kalty
June 5
“Wage and Hour Issues Affecting Independent Schools”
Builders of Jewish Education (BJE) Consortium | Los Angeles | Brian P. Walter
June 6
“Name that Section: Frequently Used Education Code and Title 5 Sections for
Community College Districts”
Southern CA CCD ERC | Webinar | Eileen O’Hare Anderson
June 6
“Preventing Workplace Harassment, Discrimination and Retaliation”
Gateway Public ERC | Long Beach | Jennifer Rosner
June 13
“Public Sector Employment Law Update”
Los Angeles County Human Resources Consortium | Los Angeles | Geoffrey S. Sheldon
Customized Training
May 1
“The Disability Interactive Process and Sick and Disabled Employees”
City of Palo Alto | Kelly Tuffo
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Education Matters
May 1
“FMLA/ADA”
Sierra View District Hospital | Porterville | Gage Dungy
May 2
“Issues and Challenges Regarding Drugs and Alcohol in the Workplace”
City of Baldwin Park | Jennifer Palagi
May 2
“FLSA”
City of Irvine | Peter J. Brown
May 2
“FBOR”
City of Pasadena | Connie C. Almond
May 2
“Policy and Procedures”
Community College League of California (CCLC) | Lake Tahoe | Eileen O’Hare-Anderson
May 6
“Ethics”
Cordova Recreation and Park District | Rancho Cordova | Gage Dungy
May 6
“Public Works Construction Projects: From Bidding Through Completion”
Cordova Recreation and Park District | Rancho Cordova | Randy Parent
May 6
“Legal/Ethical Decision Making for Board Members”
Rancho Santiago Community College District | Santa Ana | Mary Dowell
May 6
“Preventing Harassment, Discrimination and Retaliation in the Workplace”
Orange County Vector Control District | Garden Grove | Laura Kalty
May 7
“Preventing Workplace Harassment, Discrimination and Retaliation”
Pasadena Water and Power | Pasadena | Jennifer Palagi
May 8, 16,
21, 29
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of Glendale | Laura Kalty
May 8
“Performance Evaluations”
La Jolla Country Day School | La Jolla | Judith S. Islas
May 8
“Code of Ethics”
Superior Court of California, County of Orange | Santa Ana | Mark Meyerhoff
May 9
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of Modesto | Che I. Johnson
May 10, 14 “Preventing Workplace Harassment, Discrimination and Retaliation”
Pasadena Water and Power | Pasadena | T. Oliver Yee
May 10
“Title VII - Civil Rights”
USDA Forest Service | Sonora | Jack Hughes
May 10
“Preventing Harassment, Discrimination and Retaliation in the Academic Setting/
Environment”
Santa Barbara County Education Office | Santa Barbara | Mary Dowell
May 13
“Prevention of Sexual Harassment and Title VII - Civil Rights”
USDA Forest Service | Porterville | Jack Hughes
May 15
“Managing Performance Through Evaluation”
City of Stockton | Kelly Tuffo
May 15
“Bullying”
Yuba County Water Agency | Dobbins | Alison Neufeld
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April 2013
May 15
“Front Line Defense”
Employment Risk Management Authority (ERMA) | Shafter | Shelline Bennett
May 15
“Supervisory Skills for the First Line Supervisor/Manager”
City of Glendale | Elizabeth Tom Arce
May 16
“Managing the Marginal Employee”
Long Beach City College | Long Beach | Mary Dowell
May 16
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of Fremont | Kelly Tuffo
May 16
“Preventing Workplace Harassment, Discrimination and Retaliation”
Inyo County | Bishop | Gage Dungy
May 16
“Preventing Workplace Harassment, Discrimination and Retaliation”
Yorba Linda Water District | Placentia | Mark Meyerhoff
May 16
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of San Bruno | Jack Hughes
May 20
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of Fresno | Gage Dungy
May 21
“Legal Issues Regarding Hiring”
City of Glendale | Mark Meyerhoff
May 22
“FMLA”
San Bernardino County Child Support Services | Loma Linda | T. Oliver Yee
May 22, 23 “POBR/FBOR”
City of Stockton | Jack Hughes
May 23
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of Santa Cruz | Kelly Tuffo
May 23
“Brown Act/Ethics and Basics of Conducting a Meeting”
City of Encinitas | Frances Rogers
May 23
“Supervisory Skills for the First Line Supervisor/Manager”
City of Torrance | Mark Meyerhoff
May 29
“Managing the Marginal Employee”
Calaveras County | San Andreas | Gage Dungy
June 3, 10, “FBOR”
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City of Santa Rosa Fire Department | Richard Bolanos
June 4
“Supervisory Skills for the First Line Supervisor/Manager”
Calaveras County | San Andreas | Gage Dungy
June 5
“Accommodating Bad Behavior: We’re Not Going to Take It”
Employment Risk Management Authority (ERMA) | Rancho Cucamonga | Connie C. Almond
June 5
“Mandated Reporting”
Association of Bay Area Governments (ABAG) | Oakland | Kelly Tuffo
June 6
“Supervisory Skills for the First Line Supervisor/Manager”
City of Torrance | Mark Meyerhoff
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Education Matters
June 18
“Supervisory Skills for the First Line Supervisor/Manager”
City of Sunnyvale | Kelly Tuffo
June 19
“Embracing Diversity”
City of Stockton | Kelly Tuffo
June 20
“Preventing Workplace Harassment, Discrimination and Retaliation”
City of Fresno | Shelline Bennett
June 21
“Freedom of Speech and Right to Privacy”
Labor Relations Information System (LRIS) | Las Vegas, NV | Mark Meyerhoff
June 25
“Train the Trainer Refresher: Harassment Prevention”
Liebert Cassidy Whitmore | Los Angeles | Laura Kalty
June 26
“Train the Trainer Refresher: Harassment Prevention”
Liebert Cassidy Whitmore | San Diego | Judith S. Islas
June 26
“Train the Trainer Refresher: Harassment Prevention”
Liebert Cassidy Whitmore | Fresno | Shelline Bennett
June 27
“Preventing Workplace Harassment, Discrimination and Retaliation & Legal Aspects of
Violence in the Workplace”
City of Hesperia | Elizabeth Tom Arce
Speaking Engagements
LCW appreciates the invitation to address professional organizations and associations. To learn how you
can have an LCW presentation at your association meeting, contact info@lcwlegal.com.
May 1
“Guide to Addressing Disability Accommodations: You Can’t Make These Things Up!”
Western Region International Public Management Association for Human Resources (IPMAHR) Annual Conference | Orange | Mark Meyerhoff
May 2
“How to Make the Bully Disappear in the Workplace”
Western Region IPMA-HR Annual Conference | Orange | T. Oliver Yee
May 3
“Fact-finding under the MMBA—Old Wine in a New Bottle?”
The State Bar of California Labor and Employment Law Section Annual Public Sector
Conference | Berkeley | Bruce Barsook, Katherine Thomson, Fern M. Steiner & Jerilou
Cossack
May 3
“Board Ethics/Conflict of Interest Issues and Form 700 – Statement of Economic
Interest”
Community College League of California (CCLC) 2013 Annual Trustees Conference | Truckee
| Eileen O’Hare-Anderson
May 8
“Mandated Reporter Training”
Liebert Cassidy Whitmore | Webinar | Laura Schulkind
May 9
“Role of the Chief Class”
California Police Chief’s Association (CPCA) Role of the Police Chief Class | San Diego |
Laura Kalty
May 9
“The Perils of Punishing Public Employees for Protected Speech: Applying Pickering to
Posts and Pins”
League of California Cities 2013 City Attorneys’ Spring Conference | Napa | J. Scott
Tiedemann & James E. “Jeb” Brown
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April 2013
May 10
“Labor and Employment Litigation Update”
League of California Cities 2013 City Attorneys’ Spring Conference | Napa | Richard S.
Whitmore
May 10
“Legal Issues in Independent Schools”
East Bay Independent Schools Association (EBISA) Heads Group Meeting | Oakland | Donna
Williamson
May 10
“The Affordable Care Act—Everything You Need to Know to Prepare for the 2014
Penalty”
California Council of School Attorneys (CCSA) 2013 Spring Workshop | San Diego | Heather
DeBlanc & Pilar Morin
May 10
“Post-Retirement Employment of PERS and STERS Retirees after PEPRA”
CCSA 2013 Spring Workshop | San Diego | Frances Rogers
May 10
“Things That Go Bump in the Night: When and How to Put District Need before
Seniority in a Layoff”
CCSA 2013 Sping Workshop | San Diego | Laura Schulkind
May 21
“Fire Watch Live”
Liebert Cassidy Whitmore | Webinar | Richard Bolanos
May 22
“Briefing Room Live”
Liebert Cassidy Whitmore | Webinar | Richard Bolanos
May 22
“Successful Disability Leave Management”
Public Agency Risk Management Association (PARMA) Regional Conference | Fresno |
Shelline Bennett
May 22
“Legal Update”
Housing Authority Human Resources Consortium | Fresno | Alison Neufeld
May 29
“Educational Organizations Must Prepare to Comply With the Affordable Care Act or
Risk Penalties”
Liebert Cassidy Whitmore | Webinar | Heather DeBlanc
Register at www.lcwlegal.com/ACA-Education
May 30
“Issues and Challenges Regarding Drugs and Alcohol in the Workplace”
California Special Districts Association (CSDA) | Webinar | Mark Meyerhoff
June 1
“FLSA for Public Sector Agencies”
Orange County Human Resources Consortium | Tustin | T. Oliver Yee
June 18
“Fire Watch Live”
Liebert Cassidy Whitmore | Webinar | Suzanne Solomon
June 19
“Briefing Room Live”
Liebert Cassidy Whitmore | Webinar | Suzanne Solomon
June 27
“Family and Medical Care Leave Acts”
CSDA | Webinar | Connie C. Almond
June 25
“Top 10 Tips for a Trouble Free Construction Project”
Liebert Cassidy Whitmore | Webinar | Heather DeBlanc & Christopher Fallon
To view our current calendar of events, please visit: www.lcwlegal.com/calendar.aspx
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6033 West Century Blvd., 5th Floor
Los Angeles, CA 90045
@lcwlegal
Copyright ©2013,
Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000.
Education Matters is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The
information in Education Matters should not be acted on without professional advice. To contact us,
please call 310.981.2000, 415.512.3000, 559.256.7800, or 619.481.5900 or e-mail info@lcwlegal.com.