Education Matters: January 2023

Education Matters

public records act

University Professor’s PostPublication Correspondence Subject To Disclosure Under Public Records Act.

Plaintiff Constance Iloh (Iloh) was an assistant professor at the University of California, Irvine’s (UCI) School of Education. During her time as a UCI professor, Iloh published four research articles related to education matters in a variety of academic journals. From 2017-2018, four of Iloh’s articles were published in journals unaffiliated with UCI. Iloh used her UCI e-mail address to communicate with the journals about her article submissions, which she submitted on her own behalf. The journals later retracted Iloh’s articles based on Iloh’s alleged failure to credit sources she relied on in the articles. A third party investigating Iloh’s alleged plagiarism sent UCI a request under the California Public Records Act (CPRA) seeking certain communications between Iloh, UCI, and the journals regarding the retracted articles. UCI notified Iloh of the CPRA request and told Iloh it would disclose the responsive communications. Iloh argued that the requested communications fell outside the scope of the CPRA and that the request violated her privacy rights. UCI agreed to remove a few records from its production, but maintained it would disclose the remaining records absent a court order. Iloh disagreed, filed a petition for writ of mandate, and sought a preliminary injunction to prevent disclosure.

Iloh argued the requested correspondence was not subject to disclosure because it was not a “public record” under the CPRA, and that the requested correspondence was exempt from disclosure under the CPRA’s catchall exemption and the exemption for personnel files. Iloh also asserted that academic freedom would be stifled if UCI allowed professors’

informal communications to be broadly available, and the production of her correspondence would reduce her willingness to work for public institutions in the future. The trial court denied Iloh’s motion for preliminary injunction, concluding she had not shown the requested records are not “public records” under the CPRA, and because she had not established the records were otherwise exempt from disclosure. Iloh appealed.

The Court of Appeal for the Fourth District agreed with the trial court. The Court of Appeal found that the requested communications were public records subject to disclosure under the CPRA. The CPRA broadly defines ‘“public records’” to include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency” and states that “every person has [the] right to inspect any public record,” except those records expressly exempted from disclosure.

In reaching its decision, the Court of Appeal stated that the articles at issue did not concern personnel matters unrelated to Iloh’s job as a professor. Rather, the articles discussed topics directly relevant to her field of study at UCI’s School of Education, and were published in journals devoted to that same field of study. Therefore, the personnel exemption did not apply. The Court of Appeal also declined to apply the catchall exemption because it concluded that the public interest in disclosure of those communications outweighed any privacy concerns. It stated that there is a strong public interest in knowing how a public university funded largely by taxpayer dollars handles and resolves quality or integrity problems in its professors’ publications.

Iloh v. Regents of the University of California (2023) G060856.

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 with 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.

student issues/ discipline

Court Upholds Dismissal Of Student Because University Properly Followed Internal Policies And Procedures.

In 2019, Lavanya Vaish (Plaintiff), an undergraduate student at the University of California, Davis (University), was dismissed from the University after a judicial officer in the Office of Student Support and Judicial Affairs (OSSJA) found that she had committed multiple instances of plagiarism. During the first plagiarism instance, OSSJA gave Plaintiff a warning and told her that it would remain on file until she graduated. After the second instance, Plaintiff signed a “Disciplinary Agreement” acknowledging that her behavior constituted academic dishonesty and violated University policy. After the third plagiarism instance, the OSSJA and Plaintiff entering into a deferred separation agreement. The deferred separation agreement stated that Plaintiff would be giving up the right to a formal hearing. However, Plaintiff would still have the right to meet with a judicial officer who would review the evidence, and if she was found in violation again, she would likely be suspended from the University.

At the time Plaintiff entered into the deferred separation agreement, OOSSJA received another report of academic misconduct that Plaintiff had been plagiarizing. The OSSJA judicial officer who investigated the report determined the evidence supported the conclusion that Plaintiff’s behavior violated the University’s code of academic conduct, and dismissed Plaintiff from the University. The judicial officer explained that the University had provided numerous opportunities for Plaintiff to understand and comply with the expectations regarding academic honesty. Plaintiff appealed the decision to the Associate Vice Chancellor of Student Affairs, who denied her appeal. Plaintiff then sued the University claiming that the University denied her fair hearing rights. The trial court denied her petition. Plaintiff appealed.

On appeal, Plaintiff challenged the severity of the sanction imposed on her, arguing that dismissal is punishment too harsh for her misconduct. The California Court of Appeal for the Second District concluded the University did not violate Plaintiff’s due process rights because it complied with its own policies and procedures, and under the deferred separation agreement, Plaintiff was not entitled to a formal factfinding hearing because she waived the right to a formal hearing. The Court reviewed the University’s choice of disciplinary sanction on an abuse of discretion standard and found that the University was well within the scope of their discretion to dismiss Plaintiff due to her extensive and repeated history of academic misconduct.

Vaish v. Regents of the Univ. of Cal. (Cal. App. 2022) WL 15236043.

Court Of Appeal Found University Violated Student’s Due Process Rights Where University Did Not Provide Student With A Fair Hearing.

In 2015, the Title IX compliance officer for the University of California, Davis (University) sent John Doe (John) a letter notifying him of a complaint alleging that he subjected a student, Jane Doe, to threats, verbal abuse, and physical abuse in violation of University policy. Moreover, the letter alleged John forced Jane to be a passenger in his car while he was driving under the influence. The letter stated that the University would investigate the allegation under its sexual harassment and sexual violence policy. The letter also explained that if the investigator substantiated the allegations against John, the University’s Student Judicial Affairs would schedule a formal hearing. If the hearing officer found John had violated university policy, the hearing officer would recommend disciplinary sanctions and Student Judicial Affairs would issue a decision.

The University completed its investigation into the allegations against John and determined that John violated the University’s sexual harassment and sexual violence policy by threatening Jane with physical harm, as well as driving under the influence of alcohol with her as his passenger on multiple occasions. The University sent John a notice of formal hearing, but the notice did not have any reference to any of the University’s sexual harassment or dating violence policies. The University appointed an outside hearing officer to preside over John’s hearing. At the hearing, the hearing officer did not address whether John violated any sexual harassment and dating violence policies, and did not make a recommendation of appropriate sanctions. However, the hearing officer did find Jane to be more credible than John, and that the evidence supported her allegations against John. Based on these findings, the hearing officer found John violated the University’s conduct and discipline policy. The University then imposed disciplinary sanctions and suspended him until the fall of 2017 or after Jane graduated, whichever was later.

John filed a petition against the University in the trial court challenging the University’s disciplinary sanctions. John argued the University’s failure to provide him with notice and a hearing before suspending him in violation of University policy. The trial court denied John’s petition and John appealed.

On appeal, the California Court of Appeal for the Third District concluded that the University failed to provide John with a fair process. The Court of Appeal found the District did not include the policies that prohibited conduct related

to sexual harassment and dating violence in the notice of hearing that John received, and the hearing officer did not address these policies at the hearing either. The Court of Appeal concluded the dating violence charges were essentially adjudicated by the investigation report rather than at John’s hearing. Because there was no hearing on these charges, the University deprived John of a fair hearing. The Court of Appeal also found that the University violated its own policy when it appointed an outside hearing officer to preside over the hearing.

Doe v. Regents of the Univ. of Cal. (2022) Super. Ct. No. CV2016765.

Court Of Appeal Upholds Summary Judgment For University Where Disabled Student Did Not Receive Extension On Paper.

A few hours before the midnight deadline, Natalie Brinkley (Plaintiff), a first year student at California State University, Northridge (CSUN), emailed her professor a request for an extension of time to submit the first three-page essay required in her social science class. Plaintiff’s professor ultimately refused the request, citing a general policy to deny extensions requested close to the deadline. At the time, Plaintiff was receiving special assistance and accommodations from CSUN due to her learning disabilities. Plaintiff accused the professor of being “unethical,” advised the professor that she had “sent a request to civil rights for help,” expressed in an email to her counselor in the Disability Resources and Education Services Center that the professor was being unhelpful, and ultimately made a police

report for what she described as “harassment” by CSUN in responding to these circumstances. Plaintiff claimed that CSUN’s response to her complaints triggered a series of adverse health effects, and eventually withdrew from CSUN due to medical reasons.

Plaintiff argued that CSUN failed to provide adequate accommodations in light of her disability and filed a complaint against CSUN alleging violations of the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, the Unruh Civil Rights Act, as well as for negligence and intentional infliction of emotional distress. CSUN filed a motion for summary judgment for each of Plaintiff’s causes of action, which the trial court granted.

On appeal, the California Court of Appeal for the Third District found that the trial court properly granted summary judgment on each of Plaintiff’s causes of action. As to the ADA claim, the evidence established that Plaintiff was not excluded from CSUN by reason of her disability, and that CSUN attempted to meet her requests for accommodation. The Court of Appeal also found there were no triable disputes of fact as to her Rehabilitation Act claim, since CSUN made accommodations for Plaintiff and did not exclude her from its academic program. Additionally, the trial court properly found that Plaintiff could not maintain an action under the Unruh Civil Rights Act, which bans discrimination by businesses, because CSUN is not a business. The Court of Appeal also concluded that Plaintiff could not have prevailed under a negligence cause of action against CSUN’s individual employees, because there is no relief available to plaintiffs based on personal liability on the part of government employees.

As for the intentional infliction of emotional distress cause of action, the Court of Appeal found that even if Plaintiff suffered extreme anxiety the night her paper was due, the professor’s failure to respond to her extension request before the midnight deadline was not outrageous or extreme enough to constitute intentional infliction of emotional distress. Therefore, the Court of Appeal affirmed the trial court’s order granting summary judgment in favor of CSUN.

Don’t Miss Our Complimentary Webinar.

AB 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.

Brinkley v. Cal. State Univ. Northridge (Cal. App. 2022) B296983.

Of Education

U.S. Department

Releases Fact Sheet Protecting Students From Discrimination Based On Shared Ancestry Or Ethnic Characteristics.

The U.S. Department of Education’s Office for Civil Rights (OCR) recently released a fact sheet titled “Protecting Students from Discrimination Based on Shared Ancestry or Ethnic Characteristics.” OCR enforces Title VI, which prohibits discrimination in any school or education program that receives funding from the federal government. The fact sheet describes ways Title VI protects students who are or are perceived to be Jewish, Christian, Muslim, Sikh, Hindu, Buddhist, or of another religious group.

The OCR recognizes that some students may face discrimination based on their physical appearance, skin color, foreign accent, foreign

names, and other ethnic characteristics. Additionally, because Title VI does not protect students from discrimination based only on religion, such as a school’s denial of a student’s request to miss class for a religious holiday, OCR refers complaints of discrimination based exclusively on religion to the U.S. Department of Justice, which has jurisdiction on this issue. Ultimately, if a student makes a complaint that they were discriminated against because of their ancestry or ethnic characteristics, and the school does not take effective action to address the reports, the school may be in violation of Title VI.

Anyone who believes that a school has discriminated against a student based on race, color, national origin, shared ancestry, or ethnic characteristics has the right to file a complaint against the educational institution. Complaints of discrimination must be filed within 180 days of the alleged discrimination to the U.S. Department of Education’s OCR.

& Facilities

Insurance Policy Defense Provisions

Do Not Automatically Bestow Defense Rights On Third Parties Not Named As Additional Insureds.

Chris LaBarbera hired Knight Construction to remodel a house. Their contract required Knight to defend and indemnify Mr. LaBarbera for all claims arising out of the work. Knight obtained a general liability insurance policy from Security National Insurance Company that covered damages Knight was obligated to pay for third party bodily injury. Knight was the “insured” under the policy. Mr. LaBarbera was not named as an “additional insured” under the policy.

A stucco subcontractor, Nicholas Paz-Ramirez, was electrocuted while working on the house and suffered catastrophic injuries.

Mr. Paz-Ramirez sued both Mr. LaBarbera and Knight. Security National defended Knight in the litigation and Mr. LaBarbera’s personal insurance provider, Underwriters, defended him.

Mr. LaBarbera feared that his liability might exceed the limits of his personal policy; accordingly, his personal counsel sent a letter to Knight’s counsel tendering defense and indemnity based on the indemnity provision of the construction contract. Security National received a copy of this letter and responded that it did not need to provide a defense as Mr. LaBarbera was not an additional insured under the insurance policy.

Mr. LaBarbera ultimately settled with Mr. Paz-Ramirez for an amount of $465,000. In turn, Mr. LaBarbera and Underwriters sued Knight and Security National, but ultimately dismissed their claims against Knight for breach of the construction contract. They pursued claims against Security National for breach of the insurance policy terms by failing to defend and indemnify Mr. LaBarbera. Mr. LaBarbera and Underwriters sought damages to cover the $465,000 settlement amount, $100,000 for attorneys’ fees, and other costs and damages.

Security National argued that Mr. LaBarbera was not an insured, additional insured, or an intended third party beneficiary of the insurance policy. Security National also argued that they had no obligation to defend Mr. LaBarbera as the indemnitee defense clause in the insurance policy only required them to defend Mr. LaBarbera if certain conditions were met, including that there is not conflict between the interests of the insured and the indemnitee. Here, Security National’s defense was to blame the accident on Mr. LaBarbera, which created a conflict between Knight’s and Mr. LaBarbera’s interests. The trial court agreed with Security National and held that there was an apparent conflict in litigation strategies and thus a condition of the indemnity clause was not met. It granted summary judgment in favor of Security National. LaBarbera and Underwriter appealed.

On appeal, the court agreed with Security National that Mr. LaBarbera was not an insured or intended third party beneficiary of the Knight insurance policy and therefore is not a party to

that policy and had no standing to bring claims against Security National. Mr. LaBarbera could only benefit if Security National and Knight intended that Mr. LaBarbera personally obtain the benefits of the indemnitee defense clause in the insurance policy. The court found that Security National and Knight intended the indemnitee defense clause benefit themselves by permitting them to provide a joint defense to any claims. If the indemnitee defense clause conditions were met, meaning Mr. LaBarbera’s and Knight’s interests did not conflict, Mr. LaBarbera would have been an incidental beneficiary to the policy. However the parties did not enter into the policy with the intention to benefit Mr. LaBarbera.

LaBarbera v. Security National Insurance Co. (2022) 86 Cal. App. 5th 1329.

Note:

This case signals the importance of ensuring your vendor’s insurance policy names you as an additional insured under that policy to avoid facing claims that you are not an intended beneficiary of the policy and are not owed any defense under that policy.

firm victories

Parde V. SEIU -- LCW Wins Dismissal Of A First Amendment Claim Regarding Union Dues.

LCW Partner Geoff Sheldon, Senior Counsel Dave Urban, and Associate Daniel Seitz convinced the U.S. District Court to grant a motion to dismiss without leave to amend on behalf of the County of Los Angeles. Typically, when a court grants a motion to dismiss, it provides the entity or person who filed the lawsuit with leave to amend to write a better lawsuit. In this instance, LCW Attorneys presented arguments that persuaded the judge to dismiss the case against Los Angeles County outright, without giving Parde a second chance.

Parde contended that the defendants, including Los Angeles County, violated her First Amendment rights, procedural due process rights, and substantive due process rights by: 1) causing dues deductions from Parde’s pay pursuant to her allegedly forged signature to ensure she stayed a union member despite her resignation from the union; and 2) continuing to deduct union dues from her paycheck following her resignation.

Parde had argued that Los Angeles County, which had contracted with Parde’s employer to handle payroll, was complicit in the withholding the dues without proper authorization. The County generally deducts union dues from employees’ paychecks automatically, so long as the County has a signed authorization.

LCW argued that Los Angeles County was never aware of, and could not have been aware of, any alleged forgery because Parde had never notified the County of any dispute as to the veracity of the signature. Because Parde could not show that Los Angeles County knew or should have known of this alleged malfeasance, the court dismissed her case.

LCW Wins Dismissal Of A First Amendment Retaliation Lawsuit.

LCW Partner Morin Jacob led a team to win the dismissal of a lawsuit against a county before the U.S. Court of Appeals for the Ninth Circuit. In this case, a variety of county employees were disciplined after speaking ill of certain supervisors and co-workers. These employees, once disciplined, alleged that they were being retaliated against for exercising their First Amendment rights. LCW had already won the dismissal of the suit at the trial court level, but the employees appealed the ruling to the Ninth Circuit.

The employees had: 1) disparaged other employees at a training the county had run; 2) disparaged their supervisors at various meetings; and 3) refused to amend a performance review in defiance of their supervisor’s order. It is important to note that the employees’ speech related, to, and occurred because of, their official duties as county employees. The employees “spoke” as public employees, so their speech did not have First Amendment protection.

This victory showcases LCW’s work at the appellate level of the U.S. judicial system and provides a useful reminder of the framework for analyzing First Amendment claims. If employees’ speech is related to or occurred because of their official duties as public employees, then the speech is not protected by the First Amendment.

Did You Know?

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.

• Effective January 1, 2024, most employers cannot discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon any of the following:

◦ The person’s use of cannabis off the job and away from the workplace; or

◦ An employer-required drug-screening test has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

• Under AB 367, all California public schools, including community college districts and California State Universities, are required to stock free menstrual products in restrooms for students in the sixth grade and up.

• Effective January 1, 2023, SB 523 amends the Fair Employment and Housing Act to include “reproductive health decisionmaking” as a protected category. This law prohibits discrimination on the basis of reproductive health decisionmaking. This amendment also makes it unlawful for an employer to require, as a condition of employment, continued employment, or a benefit of employment, the disclosure of information relating to an applicant’s or employee’s reproductive health decisionmaking. Under this new law, “reproductive health decisionmaking” includes, but is not limited to, “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”

Consortium Call Of The Month

Did You Know? 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:

Are community college districts required to post Title IX training materials on their website?

Yes. Under 34 CFR Section 106.45(b)(10), all materials used to train Title IX coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process must be made publicly available on the district’s website. If the district does not maintain a website, then it must make the materials available upon request for inspection by members of the public.

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.

Liebert Cassidy Whitmore