Education Matters: February 2023

Education Matters

Dei / title vi

U.S. Department Of Education Releases Fact Sheet Clarifying How Civil Rights Laws Apply To Diversity And Inclusion Activities.

On January 31, 2023, the U.S. Department of Education’s Office for Civil Rights (OCR) released a new fact sheet clarifying that Title VI of the Civil Rights Act of 1964 does not categorically prohibit schools from offering activities intended to further objectives such as diversity, equity, accessibility, and inclusion. OCR provided the fact sheet to assist school communities and postsecondary educational institutions in understanding that diversity, equity, and inclusion training and similar activities in most circumstances are consistent with Title VI.

Title VI prohibits discrimination based on race, color, or national origin in programs or activities receiving federal financial assistance. A school or community college district violates Title VI if it intentionally treats individuals differently or otherwise causes them harm because of their race, or if it creates or is responsible for a racially hostile environment. However, the OCR clarifies that activities intended to further objectives

such as diversity, equity, accessibility, and inclusion are not categorically prohibited under Title VI. In determining whether an activity or program results in prohibited Title VI discrimination, the OCR looks at the “totality of the circumstances” in each particular case. For example, Title VI does not categorically prohibit activities such as DEI training; training on the impact of racism; cultural competency training; school climate surveys; or programs focused on antiharassment or anti-bullying.

The fact sheet notes that Congress has found it is in the best interest of the United States to support public schools and districts “that are voluntarily seeking to foster meaningful interaction among students of different racial and ethnic backgrounds, beginning at the earliest stage of such students’ education. Additionally, President Biden has stated that “diversity, equity, inclusion, and accessibility benefit the Nation” and that “our diversity is one of our country’s greatest strengths.”

A link to the OCR fact sheet is accessible at: https://content.govdelivery.com/accounts/USED/ bulletins/346086f

Join us at LCW’s 2023 In-Person Public Sector Employment Law Conference!

We're thrilled to announce that registration is now open for the 24th Annual LCW Conference taking place March 16 - 17, 2023. After a couple of years of Zoom meetings and virtual hangouts, we're looking forward to seeing you in-person for the 2023 LCW Conference in San Diego!

The LCW Conference is California's premier public sector employment and labor relations educational event. Our speakers are California labor relations and employment law attorneys who have dedicated their careers to representing and supporting California's cities, counties, special districts, public safety agencies and public educational institutions.

When: March 16 - 17, 2023

Where: Hilton San Diego

1 Park Boulevard San Diego, CA 92101

2023 LCW Conference attendees will gain access to:

• Top-notch Employment and Labor Relations Presentations. As always, the LCW Conference will offer the best and most timely information on California employment and labor relations topics available presented by our expert speakers.

• MCLE, HRCI and POST Credit. Do you need MCLE, HRCI, or POST credit? Don't worry, we've got you covered!

• Fun Activities. It wouldn't be the LCW Conference without some fun activities mixed in! We're creating exciting ways for attendees to decompress and have some fun. Stay tuned!

REGISTER HERE.

We are also excited to announce two Pre-Conference Sessions!*

* Please note that you must register for a pre-conference session separately from the LCW Conference.

Costing Labor Contracts March 15, 2023

The keys to successful negotiations include planning and costing. Just like planning a vacation, the amount of time and effort you put into planning and costing can determine the success of the trip. Costing contract proposals is similar to costing excursions on a vacation – they all sound like a good idea but can we afford them? Join us at this workshop to learn the importance of costing and the methods you can use to make costing easy. Participants will not only be provided with the tools to cost proposals, but will engage in interactive exercises where they set up an MOU Master Spreadsheet and proposals to cost. Bring your laptop and your Excel skills.

This workshop is our LCW Conference Pre-Conference session and is also part of our Labor Relations Certificate program.

We’ve added Bonus Content, since it is also our pre-conference session: CompensationSurveys&CollectiveBargaining!

As a bonus to this year’s pre-conference workshop, additional information on the development, impact, and usefulness of compensation surveys in collective bargaining will be highlighted and shared with attendees!

Register on our website here.

Human Resources Bootcamp March 15, 2023

Whether you are new to public sector labor and employment relations, or an experienced practitioner, this pre-conference session ensures that you are up to date on the most significant legal updates and fundamental issues facing public sector Human Resource professionals, including:

Legal Tune up Leaves Disability Discipline Performance Management and Discipline

We hope you will join us for this informative, interactive day designed to help you learn and hone your knowledge and skills so that you can operate at peak efficiency in tackling the HR challenges ahead.

Register on our website here.

title 5

Chancellor’s Memorandum On New Title 5 Regulations Relating To Campus Climate And Public Safety.

On February 1, 2023, the Chancellor’s Office of the California Community Colleges released a memorandum (Memo) providing updates on the development of strategies to implement the Board of Governors’ October 25, 2022 revisions to Title 5 of the California Code of Regulations relating to Campus Climate and Public Safety.

Those revisions, which took effect on November 24, 2022, require application of community-based and evidence-based policing models and apply to all public safety services and public safety personnel, whether provided by district employees, or by contract with private third parties or other public agencies. These regulations establish new minimum conditions for apportionment. Now, the Chancellor’s Office has stated a deadline of May 23, 2023 for districts to update their local authority policies and procedures or potentially face enforcement measures. This summary reviews and explains the newly outlined expectations related to those revisions, set forth by the Chancellor’s Office, so community college campus security offices and police departments can ensure appropriate and timely compliance.

Implementation Expectations for Community Colleges

Section 51028 of the regulations state, “In considering an enforcement action to address a district’s failure to meet a campus climate and public safety minimum condition, the Chancellor shall give due consideration to the time required for faithful implementation… and the resources available to the district.” Pursuant to the Memo, California community college districts and campuses are expected to review the published regulations and recommendations and update their local authority policies and procedures “within 180 days from

the regulatory effective date of November 24, 2022.” The Memo states that the districts will be required to submit and adhere to a plan and timetable to:

1. Align policy and regulations related to on-campus policing with best practices; and

2. Increase transparency of system and campus reporting on campus policing data and incidents to students and the public; and

3. Develop policy on recruitment and hiring to promote diversity among campus police

4. Develop policy for the removal of police officers found to be unsuitable for on-campus employment; and

5. Inform strategies for state-level support and resources that will enhance campus efforts to reform campus and community police practices and police personnel workforce reforms.

Specifically, the regulations require several actions directed at district governing boards, including:

• Creating a “Public Safety Compact” developed with community college stakeholders, including the campus police and safety officers, that establishes the district’s requirements for the delivery of public-safety related services on campus, including the respective roles and responsibilities of administrators, faculty, campus police and security officers, mental health and social services workers, crisis counselors, community non-profits, and other related service providers in responding to the public safety needs of the campus”;

• Creating a public safety advisory committee, composed of campus stakeholder representatives, to make recommendations to the district board of trustees related to district policies governing campus public safety services; and

• Developing and ensuring campus police and security officers participate in regular training related to the conduct and methods of community policing, anti-bias, cultural responsibility, conflict avoidance, and deescalation.

The Chancellor’s Office has established a Workgroup that will develop strategies and provide guidance to community colleges regarding compliance with the regulations. However, the Memo indicates that the Workgroup’s first guidance is not expected until Summer 2023. In the meantime, the Memo indicates Districts are expected to demonstrate “meaningful progress” in implementation of the regulations by the May 23, 2023 deadline. Districts who fail to do so may be subject to the Chancellor’s Office enforcement measures. That said, though implementation should begin now, “districts and campuses may work in alignment to the published strategies as they are made available.” Districts may need, therefore, to amend their policies and procedures twice – once before the Workgroup’s strategies are published, and again after. In light of the rapidly approaching May 23 deadline, districts should begin reviewing their campus security or police manuals and practices and assessing ways to achieve compliance as soon as possible.

Note:

LCW’s public education and public safety experts can assist with these reviews and revisions.

Congratulations to Stephanie J. Lowe from our San Diego office who has recently been elevated to Senior Counsel!

AB

Don’t Miss Our Complimentary Webinar.

1667 and SB 278 – CalPERS and CalSTRS Reporting Errors are Getting More Costly for Districts

March 9, 2023 | 10:00 - 11:15am

SB 278 (CalPERS) and AB 1667 (CalSTRS) are making compensation reporting errors more costly for public agencies, including school and community college districts. CalPERS and CalSTRS have numerous statutory, regulatory, and administrative rules regarding what compensation is reportable for the purposes of including compensation in the calculation of pension benefits. While reporting errors have negatively impacted employee pension benefits, recent legislation shifts liability for pension overpayments resulting from an error in reporting compensation from retirees to public agencies. This presentation will discuss the scope of AB 1667 and SB 278, what risks they present, and how your agency can take proactive steps to mitigate its impact and avoid costly compliance errors.

Who Should Attend?

Agency employees in Human Resources, Payroll, Risk Management, or who participate in labor negotiations should attend this webinar.

Register here.

/ title 5

EEO California Community Colleges Chancellor’s Office Releases Equal Employment Opportunity Model Plan.

Last month, following revisions to Title 5 of the California Code of Regulations related to Equal Employment Opportunity (EEO) Programs, found in Sections 53000 through 53033, which took effect on October 20, 2022, the California Community Colleges Chancellor’s Office released a Model EEO Plan and memorandum discussing the revised EEO regulations and Model EEO Plan, on its website. The Chancellor’s Office developed the Model EEO Plan in collaboration with Liebert Cassidy Whitmore.

The new Model EEO Plan, through Plan Component 13, incorporates the Multiple Methods strategies directly into a district’s EEO plan, rather than requiring districts to separately submit Multiple Methods certification on a yearly basis. An EEO Plan Component 13 template is also available on the Chancellor’s Office’s website. The Chancellor’s Office also updated its EEO Best Practices Handbook to help identify effective EEO practices and is working to develop training modules to assist districts with data analysis, pre-hiring, hiring and post-hiring strategies.

In addition to announcing these resources, the Chancellor’s Office provided deadlines for districts to submit their draft EEO plans.

• Plans Due in 2022 or Earlier: In February 2022, due to the pending regulations, the Chancellor’s Office provided districts with EEO Plans due in 2022, a 9-month extension for the submission of their EEO Plans. Now that the revised regulations are effective, the Chancellor’s Office announced that for districts whose EEO plans were due in 2022, or before, and subject to

the 9-month extension (Group 1), the districts must submit a new EEO Plan no later than May 1, 2023

• Plans Due in 2022 or Later: For districts whose EEO plans are due in 2023 or later (Group 2), such districts must submit a new EEO Plan no later than October 2, 2023.

The May 1 and October 2, 2023 deadlines are not the deadlines by which a district’s governing board must adopt its final EEO Plan pursuant to the revised regulations. Rather, these deadlines are the date by which a district must submit its draft EEO Plan for feedback from the Chancellor’s Office prior to a district’s governing board adopting the EEO Plan. (Section 53003(a)(4).) The Chancellor’s Office will consider extensions for extenuating circumstances on a case-by-case basis.

Given the May 1, 2023 deadline, the State Chancellor communicated an expectation that Group 1 EEO Plans will be in place for the beginning of the 2023-2024 academic year. For Group 2, the State Chancellor expects Group 2 EEO Plans to be in place by January 2024. The Chancellor’s Office will publish a list of districts in Group 1 and Group 2 on its website.

The Chancellor’s Office also set a deadline of 180 days, or April 18, 2023, for districts to implement revised written policies and procedures required by the revised EEO regulations.

For more information on the revisions to Title 5 regulations, visit LCW’s December 19, 2022, update. LCW has a deep bench of experts who can help districts navigate compliance with federal and state laws and regulations governing equal employment opportunity, including providing required training and assisting in the preparation of EEO Plans. If your district needs assistance, please contact one of our five offices statewide.

& Facilities

Obtaining Additional Funding Through Citizen Initiative Parcel Tax Measures.

California K-12 and community college districts have the power to levy special taxes upon approval by voters. However districts are often deterred from putting special tax measures, such as a parcel tax, on the ballot because they require a relatively unreachable 2/3 supermajority vote to pass. Recent California case law has clarified that community members may place parcel tax measures on the ballot to provide additional funding for districts through their own citizen initiatives, which only require a simple majority vote to pass.

Local Funding for Districts

California K-12 and community college districts may receive local funding from several sources. For example, districts may generate additional funding by placing bond measures on the ballot, which if passed would tax local property owners based on the assessed value of their property. Bond measures only require 55% of the majority of voters to approve; however, the funds from these bonds may only be used for the repair, construction, or replacement of facilities.

Districts may also seek local funding through a parcel tax. A parcel tax is a qualified special tax that local governments, including cities, counties, special districts, and school districts, may impose on a parcel of property or land. Parcel taxes

differ from other property taxes because the tax is based on the existence of a property, not the value of the property. Typically, parcel taxes are a flat fee or charge per square footage of the property or land and usually expire after a set period. Parcel tax funds do not have the same usage restrictions as school bonds. Districts may therefore use parcel tax amounts for purposes as designated by the parcel tax measure, which could include funding for educator salaries or general operating expenses. Parcel tax measures put on the ballot by local governments, however, require a 2/3 supermajority vote for approval.

Passing Parcel Tax Measures through Citizen Initiatives

The California Constitution Article II, Section 8(a) gives California citizens the power to propose laws and taxes, including parcel taxes, for voter approval through citizen initiatives. Citizen initiative measures only need a majority vote to pass, even if the measure seeks to impose parcel taxes to support local governments. California Court findings over the past few years help explain the scope and requirements of citizen initiatives.

In 2017, the California Supreme Court found that citizen initiatives were separate from the actions of local governments, and the category of taxes from citizen initiatives did not fall under the same category of taxes imposed by local governments.1 Importantly, the Court found that citizen initiatives were not

1 California Cannabis Coalition v. the City of Upland (2017) 3 Cal.5th 924.

held to the more restrictive standards of local government initiatives.

In 2018, citizens placed a citizen initiative called Proposition C on the ballot to impose a special tax to fund homeless services in the City and County of San Francisco. Proposition C was approved by 61% of voters. The City and County of San Francisco filed an action requesting that the Court validate that Proposition C passed.2 In 2020, the Court found that a 2/3 supermajority vote is needed to pass tax measures put on the ballot by local governments. However, the Court distinguished that this supermajority requirement does not apply to citizen initiatives. The Court reiterated that citizen initiatives and local government action are governed by different standards, and citizen initiatives only need a simple majority of the vote to pass.

In 2018, three citizens placed a citizen initiative called Proposition G on the ballot, which sought to fund San Francisco Unified School District educator’s salaries, staffing, professional development, and other related purposes. Proposition G received approval by 60% of the voters. The City and County of San Francisco filed an action with the Court to validate that Proposition G passed.3 San Francisco Unified School District and the educators’ union were significantly involved in getting Proposition G on the ballot. An attorney for the union drafted Proposition G,

2 City and County of San Francisco v. All Persons Interested in Matter of Proposition C (2020) 51 Cal.App.5th 703.

3 City and County of San Francisco v. All Persons Interested in the Matter of Proposition G (2021) 66 Cal.App.5th 1058.

and District staff reviewed and made edits to the draft. The three citizens who filed for Proposition G to be on the ballot did not participate in its drafting and did not personally pay any filing fees. Opponents argued that Proposition G was not truly a citizen initiative because of the significant involvement of the union and District, and as such should require a supermajority of the vote to pass. However, in 2021 the Court validated Proposition G, finding that it was not subject to the supermajority vote as it was a citizen initiative and was not put on the ballot by a local government. The Court found that there was nothing “inherently sinister” about the union and District’s support of Proposition G.

How Districts Can Support Citizen Initiatives to Receive Additional Local Funding

The law, as it currently stands, holds that so long as citizens properly follow the initiative process to get a citizen initiative parcel tax measure on the ballot, the measure only requires a simple majority vote to pass. A citizen initiative of a new parcel tax, if passed by a simple majority, could therefore result in additional funding for districts to use for the purposes set forth in the parcel tax measure. Districts interested in assisting community

members in proposing a citizen initiative should consult with legal counsel to confirm compliance with local rules and other regulations. Although local rules may differ, the following are some general considerations about how districts can and cannot support citizen initiatives.

How Districts Can Support Citizen Initiatives:

• Provide strictly informational materials to the public about citizen initiatives through communication channels that the District normally uses to relay information to the public.

• The Board can adopt Resolutions supporting or opposing citizen initiatives at regularly scheduled open meetings where the public may express its views. However, Resolutions cannot urge voters to take any action, and the language of Resolutions must be simple, measured, and informative.

• District employees and Board members may volunteer and engage in political activity as private citizens. Such activity cannot be during work hours, and volunteers cannot hold themselves out as representing the district.

How Districts Cannot Support Citizen Initiatives:

• Use public funds or resources to oppose or support any citizen initiatives.

• Produce or distribute anything that advocates or urges voters to vote for or against an initiative.

• Use staff time, materials, equipment, facilities, or district communication channels to attempt to persuade voters to vote for or against an initiative.

Notably, opponents to these Court findings have indicated their intent to add a ballot measure during the 2024 election cycle to require that all citizen initiatives and local government parcel tax measures must pass by a supermajority of the vote. For now, however, citizen initiative parcel tax measures only require a majority vote to pass.

Liebert Cassidy Whitmore’s Business and Facilities practice group has invaluable expertise in public education law and can advise districts interested in receiving parcel tax funding through the appropriate and legally compliant processes.

firm victories

LCW Partner Jennifer Rosner Wins Published POBRA Decision -- Unsubstantiated Rumors Do Not Start The One-Year Period For Completing An Internal Investigation.

LCW Partner Jennifer Rosner secured an appellate victory in a peace officer termination case. A captain in a sheriff’s department challenged his termination by claiming a violation of the Police Officers Bill of Rights Act’s (POBRA) one-year statute of limitations for conducting an investigation. Jennifer’s victory resulted in a published decision of the California Court of Appeal.

The captain had been a county employee for approximately 22 years. In around April of 2016, the chief learned of a rumored intimate relationship involving the captain and a female deputy. In May 20, 2016, the chief learned of another alleged relationship between the captain and a second female deputy. A personnel investigation then revealed the captain had maintained multiple sexual relationships with female employees in violation of department policy and general orders.

On June 3, 2016, the captain received written notice that he was the subject of an administrative internal affairs investigation into allegations that he had inappropriate relationships with other department employees/ subordinates. A detailed report, dated April 10, 2017, sustained allegations of the captain’s improper conduct. That same day, the captain received a notice of intent to terminate, and he was terminated on April 25, 2017. The captain lost his subsequent administrative appeal, and filed a petition for writ in the superior court to overturn his termination. The superior court denied the petition and agreed with the hearing officer’s finding that there was sufficient evidence to substantiate the captain’s misconduct. The court found no POBRA violations.

The captain appealed the superior court’s ruling. On appeal, the captain alleged only that the Department violated his POBRA rights by failing to complete its internal investigation within one year of the discovery of his improper conduct. The POBRA contains a statute of limitations at Government Code section 3304, which states that “no punitive action, nor denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct.”

The captain alleged that the chief should have known of his improper conduct earlier because his sexual relationships with subordinates were the subject of the department’s “rumor mill”. The captain claimed “there were at least a half-dozen supervisors and senior officers who were aware of allegations of misconduct involving [the captain] prior to April 10, 2016, all of whom could have, like [the chief], initiated a complaint inquiry.”

The Court of Appeal rejected this argument and held that the POBRA statute of limitations does not begin based on mere rumors, but only after a department determines that actionable misconduct occurred. Here, the captain failed to: identify a single individual who was “authorized to initiate” an investigation; or demonstrate that the public agency had determined that discipline should be taken prior to May 2016.

The Court of Appeal declined to “promote a policy of launching into the intimidate relationships of public safety officers on the basis of mere rumors.” The Court noted that an internal affairs investigation can have a devastating impact on the career of a public safety officer, and “should only be initiated when the officer authorized to initiate an investigation knows or has reason to know that the conduct involves actionable misconduct” and not “on the basis of unsubstantiated rumors.”

LCW Partner Danny Yoo And Associate Aleena Hashmi Won The Early Dismissal Of A Disability Discrimination Lawsuit.

An LCW team led by Partner Danny Yoo and Associate Aleena Hashmi won the dismissal of a lawsuit against a special district client. When a lawsuit is filed, the entity being sued has options. One option is for the entity to answer the complaint to tell its side of the story and to assert affirmative defenses, which would shield the entity from liability even if some of the facts of the complaint are true. Another option is to file a demurrer, which asserts that even if all the allegations in the lawsuit are true, there is still no cause of action. The latter option is very challenging. Even if a court grants the entity’s demurrer, the court usually gives the person suing an opportunity to try again to file a successful lawsuit.

LCW attorneys Danny and Aleena took the more challenging option and won. First, they met and conferred with the former employee who had been separated from his employment at a special district because of the district’s inability to accommodate his disability. After many communications, the former employee’s legal counsel agreed to drop some discrimination claims and a claim for wrongful termination in violation of public policy.

Second, Danny and Aleena filed a demurrer as to the remaining claims for disability discrimination and failure to prevent discrimination. They argued that the employee pursued an administrative appeal of his separation, but then failed to challenge the special district’s administrative hearing decision upholding the separation. Because the finding in the special district’s administrative decision was that the employee could not perform the essential functions of his job with or without accommodation, the employee’s failure to timely challenge that administrative decision meant that the employee was prevented from litigating these same claims in court.

The court granted the demurrer and dismissed the lawsuit because there was no judicial avenue for the employee to challenge his separation. Our special district client benefitted from this strategy because the litigation ended before the time-consuming discovery or trial could begin.

LCW Partner Jennifer Rosner And Associate La Rita Turner Convinced An Arbitrator To Sustain A Termination Of Peace Officer Who Could Not Carry A Firearm.

Partner Jennifer Rosner and Associate La Rita Turner successfully convinced an arbitrator to sustain the termination of a peace officer. Throughout April and May of 2019, a city police officer had repeated law enforcement contacts arising out of domestic violence involving the mother of the officer’s child. The officer failed to report one of those incidents to the Department as required. The mother of the officer’s child came to the station to file a complaint that alleged the officer harassed her by continuously calling and texting her hateful and abusive messages.

The officer admitted to texting and calling, but claimed his communications were about seeing their daughter. The officer’s supervisor stated excessively texting or calling could be committing a crime under Penal Code 653m, and recommended the officer cease such conduct. He also reminded the officer that peace officers are held to a higher standard, which the officer claimed not to have known. Shortly thereafter, the officer texted his supervisor an explicit photograph of him and the mother of his child having sex.

On June 17, 2019, the woman sought and received a Temporary Restraining Order (TRO) for Domestic Violence against the officer. She sought and received a second TRO on November 19, 2019, after the first had expired. As part of the TRO, the Court ordered the officer to surrender his firearm. Due to the continuous harassment, the Court granted a Permanent Restraining Order against the officer on January 17, 2020. A condition of the permanent restraining order was that the officer could not own or possess a firearm for two years.

The City terminated the officer for: his failure to report one law enforcement contact; the inappropriate sexting exchange with his supervisor; and his inability to meet a primary requirement of his job: owning a firearm.

The arbitrator sustained the termination, noting that in addition to the restriction on the firearm causing obvious just cause for dismissal, “[i]t is very unlikely that any law enforcement agency would hire or retain a person with [the officer’s] history of domestic disturbance and domestic violence. It is obvious that police officers are mandated to enforce the law; and officers cannot violate the same laws that they are required to enforce. That is absolutely unacceptable.”

public employee discipline

California Court Of Appeal Gives District Broad Discretion To Discipline A Fire Captain.

Jesse Griego was a captain in the Barstow Fire Protection District for the City of Barstow. He also coached children’s sports teams, including the girls’ softball team at Barstow High School. In 2007, Barstow issued a memorandum to its captains directing personnel not to attend sporting events while on duty. In March 2017, a fire chief verbally reprimanded Griego for coaching while on duty. Griego expressed no regret and was later seen attending a sporting event while on duty. The fire chief thereafter issued Griego a written reprimand.

Also in early 2017, a safety officer at Barstow High School reported she suspected an inappropriate relationship between Griego and a 15-year-old student, H.S. The officer saw Griego bring H.S. lunch during school hours and H.S. drive Griego’s car. She heard students saying that H.S. was wearing Griego’s shirt, the two had adopted a cat together, and they had visited a theme park together.

The Barstow Police Department opened a criminal investigation into Griego’s actions. The City placed Griego on paid administrative leave, and Barstow High School told him

to end contact with the girls’ softball team. Nonetheless, Griego continued to attend practices and games and to communicate with coaches and players, including H.S.

Barstow launched an investigation into these allegations. The City’s investigator sustained 19 allegations against Griego. These allegations included, among others, that Griego: 1) sought an “intimate dating relationship” with minor H.S.; 2) defied specific directions not to coach while on duty despite multiple warnings; 3) carried a concealed handgun outside his home without a permit; and 4) filed a false court document under penalty of perjury. The handgun allegation referred to November 2017, when Griego carried a concealed gun to investigate suspicious people outside his home. A police officer arrived and asked Griego if he had a gun; Griego said yes and showed it to him. The officer asked if Griego had a concealed carry permit; Griego did not. Penal Code section 25400 prohibits carrying a concealed gun in public without a permit.

As for the perjury, in 2017 Griego’s exwife applied for a domestic violence restraining order against him. A temporary restraining order issued in July 2017 included a direction to store any firearms with the police department or a licensed gun dealer. Yet in August 2017, Griego signed and filed a response that declared, “I do not own or have any guns or

firearms.” Griego later admitted he had owned guns for about two years. Regarding the false court filing, he said, “I probably didn’t even read that and pay attention to that.”

The Fire Chief thereafter issued a notice of intent to terminate. After a Skelly meeting, the Fire Chief issued a notice of termination based on 18 sustained allegations. Griego appealed his termination through advisory arbitration. The arbitrator concluded there was sufficient evidence to sustain six of the 18 allegations against Griego. The arbitrator found insufficient evidence supported the alleged inappropriate relationship, however, as H.S. and her family testified nothing untoward had happened. The arbitrator advised reducing the penalty to a 30-day suspension.

Per City policy, the City Manager received this advisory opinion and exercised his discretion to amend, modify, or revoke the arbitrator’s recommendation. The City Manager disagreed with the arbitrator and concluded the evidence demonstrated Griego indeed had pursued a relationship with H.S. The City Manager also upheld the other charges that the arbitrator had previously upheld and then terminated Griego.

Griego filed a petition for writ of administrative mandate in the superior court. The superior court found there was sufficient evidence

to sustain only three allegations: coaching on duty, carrying a concealed handgun without a permit, and filing a false court document. The superior court held termination was not appropriate based on these three allegations and remanded the matter for reconsideration of Griego’s discipline. The City appealed the trial court’s decisions that: 1) that the City abused its discretion by firing Griego based on the three sustained allegations; and 2) that the case was remanded to the City to redetermine Griego’s discipline.

On appeal, the Court of Appeal reviewed the matter to see if the City, abused its discretion. An agency abuses discretion if it does not proceed as required by law, its decision is not supported by the findings, or its findings are not supported by the evidence.

The Court of Appeal held that termination was “well within the City’s broad discretion.”

The Court of Appeal found that the City Manager had connected her decision to three serious, sustained allegations, namely: refusing to follow an express directive, issued multiple times, not to coach softball while on duty; carrying a concealed handgun without a permit; and lying under penalty of perjury about possessing firearms. The Court of Appeal distinguished Griego’s case from another precedent in that Griego was “an experienced but defiantly insubordinate supervisor [who set] an intolerable example by repeatedly flouting direct commands from his superior.” The Court concluded that the sustained allegations of Griego’s misconduct demonstrated a lack of credibility,

reliability, and trustworthiness, and were therefore a reasonable basis for the City’s decision to sustain termination.

Griego v. City of Barstow, 303 Cal.Rptr.3d 379 (2023).

Note:

This case highlights that supervisory employees must set a good example for their subordinates, and that insubordination is serious misconduct. In assessing whether a disciplinary penalty is within an agency’s discretion, the courts will consider harm to public service, circumstances surrounding the misconduct, and likelihood of its recurrence. The court found that the agency considered all these factors and imposed an appropriate penalty.

Former Employee Could Not Rely On Her Own Declaration To Prove Discriminatory Pretext.

Joan Opara, a 62-year old woman of Nigerian national origin, worked as a Revenue Officer at the Internal Revenue Service (IRS). Opara was investigated for several alleged Unauthorized Access of Taxpayer Data (UNAX) offenses. Pending the investigation, she was reassigned to administrative work which included, among other tasks, washing the office’s government vehicle and cleaning cubicles.

After the investigation, Opara received an opportunity to respond to the charges at a meeting before Paul Alvarado, who was the hearing official. Seven years prior, Opara had successfully brought an EEO complaint against Alvarado’s mentee Rosanna Savala because Savala allegedly quoted Alvarado with phrases such as “if anyone is too old to do this job, she should quit” and “the job was better with young people.” Opara alleged that her superiors exaggerated the nature and severity of her several UNAX offenses. The IRS terminated Opara’s employment.

After unsuccessfully pursuing an EEO complaint, Opara sued the Treasury Secretary in the U.S. District Court alleging that her termination was based on her age and national origin in violation of the Age Discrimination in Employment Act (ADEA), and Title VII, respectively. The district court granted summary judgment to the Treasury Secretary on the grounds that Opara: 1) failed to establish a prima facie case of age discrimination; and 2) failed to show that the IRS’s proffered reasons for her termination were a pretext for age or national origin discrimination.

On appeal, the Ninth Circuit applied the McDonnell Douglas burden-shifting framework, which first requires the employee to establish a prima facie case of discrimination. Upon doing so, the burden then shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse action. If the employer can do so, the burden shifts back to the employee to show that the employer’s proffered reason is a pre-text for discrimination.

An employee may offer direct or circumstantial evidence to establish her prima facie case. Here, Opara offered circumstantial evidence: her uncorroborated testimony about the decision maker’s allegedly biased statements; the alleged exaggeration of the severity of Opara’s UNAX offenses; and the alleged “draconian” punishment of cleaning cubicles and cars.

The Ninth Circuit held that very little evidence of discriminatory animus is necessary to establish a prima facie case of age discrimination on a motion for summary judgment. Opara’s three pieces of evidence were enough to establish a prima facie case. However, once the employer provides sufficient evidence for its actions and the burden of proof shifts back to the employee, the employee’s own, uncorroborated allegations alone are not enough to raise a genuine issue as to pretext.

The Ninth Circuit held that the IRS had met its burden of proving legitimate, non-discriminatory reasons for its decisions. First, once a Revenue Officer is under investigation for a UNAX offense, the Officer cannot access the computer system necessary to perform her usual duties. Second, the assignment to cleaning duties, including cleaning the office and a vehicle, were undisputedly the type of duties that were performed by secretarial staff. Third, the supervisor’s manual stated that termination was the appropriate penalty for a first time UNAX violation.

The Ninth Circuit held that Opara failed to meet her burden to show that the IRS’s reasons for her termination were a pretext for age discrimination. At the pretext stage, Opara could not rely on her testimony about the age-biased statements the decision maker allegedly made to prove that the IRS’s proffered reasons for Opara’s termination were pre-textual. The Ninth Circuit stated that at the pretext stage on a motion for summary judgment, the court has “refused to find a ‘genuine issue’ where the only evidence presented is ‘uncorroborated and self-serving’ testimony.”

Similarly, the Ninth Circuit assumed that even if Opara could establish a prima facie case of national origin discrimination, she would not succeed in using her own testimony to create a genuine issue as to whether the proffered reasons for her termination were “false” or whether her

termination was due in whole or in part to her national origin.

Because Opara had no evidence other than her uncorroborated statements to support her claim of pretext, the Ninth Circuit affirmed the summary judgment against her.

Opara v. Yellen, 57 F.4th 709 (9th Cir. 2023).

Note:

This case highlights how powerful a motion for summary judgement can be in a discrimination case. An employer can avoid a costly trial if the person suing has not produced any corroboration of her allegations of discriminatory animus.

The LCW Labor Relations Certification Program is designed for labor relations and human resources professionals who work in public sector agencies. It is designed for both those new to the field as well as experienced practitioners seeking to hone their skills. Participants may take one or all of the classes, in any order. Take all of the classes to earn your certificate and receive 6 hours of HRCI credit per course!

Benefits of Certification to the Participant:

• Increase knowledge in all areas of Labor Relations

• Increase your value to your agency

• Increase respect and recognition in the field

• Increase opportunity for upward mobility

• Increase marketability and ability to compete in the job market

• Increase professional credibility

Benefits of Certification to the Agency:

• Increase the level of competency of the individual

• Encourage and improve job performance

• Acknowledge an individual who has developed a high level of professionalism

• Use as an aid for retention and recruitment

Join our upcoming HRCI CertifiedLabor Relations Certification Program Workshops: 1. April 20 & 27, 2023

Public Employment Relations Board (PERB) Academy

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The use of this official seal confirms that this Activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.

The Deliberative Process

Privilege Broadly Protects Records That Reveal An Agency’s Collective Bargaining Evaluations, Research, Theories, Or Strategy.

In January and March 2020, an organization called the Freedom Foundation submitted two requests under the California Public Records Act (CPRA). The CPRA generally requires a public agency to disclose public records upon request, unless an exemption or privilege applies.

The Freedom Foundation requested a variety of information on the bargaining unit membership of state employees. For each employee currently employed in certain bargaining units, it requested: full name, month and year of birth, job classification title, job classification code, employee identification number, hire date, current pay rate/salary, work email address, worksite/duty station address, and bargaining unit number.

The California Department of Human Resources (CalHR) had the information requested via a report it purchased on a yearly basis from the database of another department of the state government. CalHR then used this report to inform its decisions about formulating bargaining proposals, evaluate proposals from unions, and inform and direct its negotiators concerning labor relations.

Because CalHR uses the information the Freedom Foundation requested in a strategic manner and to inform its decisions, CalHR contended it did not have to provide the information due to the deliberative process privilege. The Freedom Foundation argued that the privilege did not apply because no decision or strategy was contained in the records requested; the records contained only the information used in making a decision or strategy.

However, the trial court stated that the relevant definition of the deliberative process privilege is not only records that reveal a state agency’s deliberative process, but also records that reveal a state agency’s impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy. The trial

court found that the requested information revealed CalHR’s research and evaluation of information, and therefore, the information was protected by the deliberative process privilege.

The Freedom Foundation appealed to the California Court of Appeal, which promptly affirmed the lower court’s decision.

A related issue in this case dealt with whether CalHR was required to search the database of the other government department to come up with the information requested. As referenced above, that other government department owned, controlled, and operated this database. CalHR did not possess the database or have the power or authority to manage, direct, or oversee the information within it. All CalHR did was view the parts of the database contained in the report it obtained. Because CalHR did not have control over or possess the relevant files, the trial court and Court of Appeal held that CalHR was not required to search the other agency’s database and provide further information.

Freedom Foundation v. Superior Court of Sacramento County, 302 Cal.Rptr.3d 655 (2022).

Note:

This case illustrates the breadth and depth of the deliberative process privilege, and how agencies can use it to protect internal collective bargaining deliberations and strategies. Although this case concerned the deliberative process for state agencies at the newly recodified Public Records Act at Government Code section 7928.405, an identical deliberative process statute for local government agencies is codified at Government Code Section 7928.410.

Did You Know?

• On February 15, 2023, the U.S. Department of Education released updated guidance that online program management companies (OPMs) and any entity that provides recruitment services for a college are considered third-party servicers, subjecting the companies’ contracts with institutions to regular audits. Colleges are required to report details of their agreements with third-party servicers that have not been reported to the U.S. Department of Education by May 1, 2023.

• The California Public Records Act has undergone a complete recodification that became effective on January 1, 2023. The Act is now codified at Government Code section 7920.000-7931.000. Agencies that use preprinted forms for the public to use to request public records should review their forms and update any citations to the Government Code.

• As of July 1, 2022, SB 270 authorizes public employee unions to file a special form of unfair practice charge for an employer’s failure to provide the names and home addresses of newly hired employees, as well as their job titles, departments, work locations, telephone numbers, and personal email addresses, within 30 days of hire or by the first pay period of the month following hire.

For more information on some of our upcoming events and trainings, click on the icons below:

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in labor and employment law.

benefits Corner

The New

Deadline To Furnish Form 1095-C To Employees Is March 2, 2023.

By: Stephanie J. Lowe

The IRS finalized regulations extending the deadline for employers to furnish Form 1095-C to employees. (See 87 Fed. Reg. 76569, December 15, 2022.) Beginning January 1, 2023, the deadline is permanently extended 30 days from January 31 to March 2 of the year following the calendar year to which the statement relates. For minimum essential coverage provided in 2022, the deadline to furnish statements to employees is March 2, 2023. Since the extension is automatic, the regulations removed the option for employers to submit a written request for an extension for good cause and the IRS’s discretion to prescribe any other automatic extension.

Applicable large employers are required to file information returns and furnish written statements with respect to the health insurance, if any, that the employer offers to full-time employees. The IRS uses the information returns to administer the employer shared responsibility provisions of the Affordable Care Act. The IRS has generally designated Form 1095-C to meet the requirement that applicable large employers furnish individual employees with a written statement identifying the offer of employer-sponsored minimum essential coverage.

While the due date to furnish Forms 1095-C has been permanently extended to March 2, applicable large employers are still required to file Forms 1094-C and 1095-C with the IRS on or before February 28th , if filing on paper, or March 31st, if filing electronically. Notably, employers filing 250 or more returns are required to file electronically. Employers that would like an automatic 30-day extension to file Forms 1094-C and 1095-C must submit Form 8809 on or before the due date of the returns.

Employers who fail furnish or file statements by the deadlines are subject to penalties unless the failure is due to reasonable cause and not to willful neglect.

Lawsuit to Watch: David G. Williams v. Amazon.com Services, LLC

Senior software development engineer David G. Williams filed a lawsuit against his employer Amazon to recoup expenses he incurred while working from home. Under California Labor Code Section 2802, employers are required to indemnify employees for all necessary expenditures or losses incurred in direct consequence of the employee discharging his or her duties. Due to California’s Stay-at-Home orders in March 2020, Williams was sent to work from home and claims he incurred expenses for his home internet, equipment, electricity, and home office infrastructure by working remotely.

Williams filed the lawsuit as a proposed class action on behalf of himself and all other California residents who are or were employed by Amazon. Williams alleges that the typical amount of expenses owed is $50 to $100 per class member. There are at least 4,200 members in the proposed class, who worked 110,000 months in the aggregate. The amount in controversy is estimated to be $5,500,000 on the low end.

Amazon filed a motion to dismiss the lawsuit and raised three arguments about why it was not responsible for its employees’ work-from-home expenses. First, Amazon claimed that the government, and not Amazon, imposed the lockdown which necessitated that employees work from home. Amazon claimed that Williams was trying to capitalize on the pandemic by using Labor Code Section 2802 to seek reimbursement for his remote work expenses. The court held that it did not matter if Amazon itself was not the but-for cause for the shift to remote work. The court determined that Amazon expected Williams to continue to work from home after

the Stay-at-Home orders were imposed, which was sufficient for Williams’ Labor Code Section 2802 claim to continue.

Second, Amazon argued that employees had incurred no additional or incremental expenses by working from home. The court disagreed with Amazon and found that the duties of an engineer plausibly require the use of physical space, internet, and electricity.

Third, Amazon claimed that Williams did not take advantage of Amazon’s expense reimbursement policies. Amazon argued that Williams did not ever submit a single reimbursement request and there were no facts showing Amazon knew or had reason to know about the expenses. Amazon’s position was that an employer needs information about the expense before it can reimburse the expense. The court found that as a major tech company, Amazon surely knew or at the very least, had reason to know, that its engineers who worked from home were incurring basic costs related to their duties.

The court denied Amazon’s motion to dismiss, which allows Williams’ proposed class action to move forward.

Williams v. Amazon.com Services, LLC, 2022 WL 1769124 (N.D. Cal., Jun. 1, 2022).

Note:

Public agencies should monitor developments in this proposed class action lawsuit to see how the court interprets an employer’s obligations under Labor Code Section 2802 as it relates to work-from-home expenses.

Reminder: Increase to Health FSA Contribution Limit

The 2023 annual limit for employee salary reductions for contributions to health FSAs is $3,050 (up from $2,750 from 2022). For Section 125 cafeteria plans that permit carryover of unused funds, the maximum health FSA carryover is $610. The annual limit for employee salary reductions for contributions to dependent care assistance programs (DCAPs) remains at $5,000. For more information, see IRS Revenue Procedure 2022-38.

Reminder: The 2023 Standard Mileage Rate

The 2023 standard mileage rate is 65.5 cents per mile driven for business use. This rate is used to calculate the reimbursable and deductible costs of operating

a vehicle for business purposes. The rate applies to electric, hybrid, gasoline, and diesel-powered vehicles. Employers also have the alternative option of calculating the actual costs of using a vehicle rather than using the IRS’s standard mileage rate.

The 2023 standard mileage rate is 3 cents higher than the rate at the end of 2022. In the middle of 2022, the IRS enacted a mid-year increase to the standard mileage rate by 4 cents to account for the increase in fuel prices. LCW will continue to monitor any future changes to the standard mileage rate for this year.

ACA Compliance Question: Look Back Measurement Method Safe Harbor

Does your agency use a Look Back Measurement Method Safe Harbor (LBSH) to calculate who is a fulltime employee for ACA purposes? More importantly, does your agency have a written policy establishing the LBSH? Agencies that are applicable large employers (50 or more full-time equivalent employees) and use the LBSH should have a written policy establishing the terms of the LBSH. Let us know if we can help.

BENEFITS BEST PRACTICES TIMELINE

Each month, LCW will present a monthly benefits timeline of best practices. This timeline is intended to apply to agencies that are applicable large employers for Affordable Care Act (ACA) purposes. LCW encourages public agencies to use the timeline as a guideline.

February

• Forms 1094-C and 1095-C due February 28, 2023 if filing on paper (or March 31, 2023 if filing electronically). Employers filing 250 or more returns must file electronically.

• Prepare to furnish Form 1095-C to each full-time employee by March 2, 2023 for the 2022 calendar year.

March

• Furnish Form 1095-C to each full-time employee by March 2, 2023 for the 2022 calendar year.

• Forms 1094-C and 1095-C due March 31, 2023 if filing electronically (due earlier on February 28, 2023 if filing on paper).

If you would like to receive more information about our Consortium services or would like to join, please contact Megan Leis at mleis@lcwlegal.com.

LCW has four community college district consortiums across the State! Consortium members enjoy access to quality training throughout the year, discounts on other LCW products and events, and unlimited, complimentary telephone consultation with an LCW public education attorney on matters relating to employment and education law questions (including questions involving governance, business, facilities, and student matters!). We’ve outlined a recent consortium call and the provided answer below. Client confidentiality is paramount to us; we change and omit details in the ERC Call of the Month.

Question:

Answer:

Under Education Code Section 87486, a district may employ readers to provide assistance to faculty in grading composition, writing, and math assignments.

Education Code Section 87486 states in part: “The governing board of any community college district may employ or engage as an independent contractor a suitably skilled person to serve as limited-term or parttime reader assistant in connection with instruction in composition and writing, and in mathematics, to faculty. Any person employed as a reader shall not be deemed to be employed in a faculty position. . .It is the intent of the Legislature in enacting this section not to authorize an increase in the number of students who may be assigned to any class, but to provide an opportunity for improvement in the quality of student writing and mathematics abilities through more frequent assignments of compositions and more work in mathematics made possible by the employment of suitably trained persons to assist the instructor in the careful marking and analysis of the students’ work. Furthermore, the means adopted for employing persons as reader assistants is not intended as an encroachment upon the merit system of public employment, but is adopted as the most practical arrangement, since most work of such nature will be done as part-time work and in the home.”

Section 87486 appears to allow readers to assist with checking off required elements from a rubric or something similar. Readers may also assist in determining whether students have the correct answers for math questions. However, readers should not assign grades in a substantive way that would require knowledge as a faculty member/instructor, as faculty should be doing all faculty-level work.

Can a classified instructional technician assist faculty with grading student exams?

Liebert Cassidy Whitmore