April 1996
School Districts can Replace Certificated Employees with Independent Contractors when Reducing or Discontinuing a Particular Kind of Service In a case that could affect the way school districts reduce services, the California Court of Appeal has upheld a school district's decision to replace three elementary school psychologists with an administrative psychologist and independent contractor psychologists. (Gallup v. Loma School District (January 26, 1996, 96 Daily Journal D.A.R. 908).)
The Court ruled the District could terminate the three psychologist positions under Education Code section 44955, which permits the action "whenever a particular kind of service is to be reduced or discontinued."
In challenging the action, the Plaintiff alleged the District was not reducing or discontinuing "a particular kind of service," but only changing employees. To bolster this claim, the plaintiff showed legally mandated services were provided before and after the employment changes. The trial court agreed.
The Court of Appeal reversed. The Court held that when mandated services are performed in a different manner, the services are of a "different kind." The Court said the independent contractor psychologists were performing mandated services in a different manner; therefore, the contractors were performing work of a different kind. Hence, there was a reduction or discontinuation of the prior kinds of services.
The Court found services of a different kind because:(1) the independent contractors provided services off school grounds,
(2) an administrative psychologist gave referrals to the independent contractors,
(3) the independent contractors typed their own reports,
(4) an administrative psychologist evaluated the work performed the independent contractors,
(5) the independent contractors conducted tests on weekends,
(6) the independent contractors did not always attend individual education programs, and
(7) one independent contractor tested students in Spanish.Gallup is important because it allows school districts to replace certificated employees performing legally mandated services with independent contractors performing the same mandated services. However, school districts must be able to show that services will be provided in a different manner.
There are, of course, additional issues which make the broad application of the case problematic. For example, the case does not address the collective bargaining aspects of such a change. Where the services which are going to be contracted out are provided by members of a bargaining unit, negotiations are required. If agreement cannot be obtained, the district can unilaterally implement the contracting out only after completing the impasse/fact finding procedures. In addition to these collective bargaining hurdles, Education Code issues could be raised if the district attempted to replace fundamental educational services -- such as classroom teaching -- by independent contractors.
If you would like more information about Gallup or layoffs generally, please do not hesitate to call one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
February 1996
School District may be Liable for Recommending Employee Without Disclosing Prior Acts of
Sexual MisconductThe Fifth District Court of Appeals has ruled that a school district can be held liable for recommending a former employee for hiring when the recommendation fails to disclose known or reasonably suspected acts of sexual molestation previously committed by the employee. School districts can also be held liable for not reporting acts of sexual molestation pursuant to the Child Abuse and Neglect Reporting Act, Penal Code section 11164 et seq.
In Randi W. v. Livingston Union School District, et al. (Dec. 19, 1995 Daily Journal D.A.R. 16721, modified by Jan. 16, 1996 Daily Journal D.A.R. 435), plaintiff Randi W. was a student at Livingston Middle School where Robert Gadams was vice principal. Gadams sexually assaulted plaintiff while she was in his office. Gadams had come to Livingston Middle School with positive recommendations by his former school district employers, despite having been forced to resign from these school districts due to sexual misconduct charges and sexual harassment allegations.
Randi W. sued each of the recommending school districts. The school districts challenged the suit, arguing that the school districts owed no legal duty to the plaintiff. The trial court agreed.
The appellate court reversed. California law protects third parties under circumstances such as these. The appellate court held that the school districts failed to comply with a mandatory duty to report known or reasonably suspected incidents of child abuse, and therefore could be liable.
This case highlights the care that a school district must take when offering references for former employees. (See also 1995 Client News Brief No. 23, "New Law Protects Employers Who Divulge Derogatory Information About Their 'Employees' Job History.") School districts may be able to limit their exposure by ensuring that only the superintendent, or a limited number of other designated administrators, be authorized to give recommendations.
Please contact any of our offices if you need assistance in determining how to respond to a specific request for a referral.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
February 1996
Education Code Allows Non-merit School District to Subcontract Certain Services to Non-employees The Fifth District Court of Appeals has held that a non-merit school district can subcontract certain services, such as grounds keeping, to non-employees without violating the Education Code (California School Employees Association, et al. v. Kern Community College District Board of Trustees, January~11, 1996 Daily Journal D.A.R. 344).
In doing so, the court emphasized that the distinction between merit and non-merit school districts is crucial, and noted that classified service for merit and non-merit districts is governed by separate sections of the Education Code. Merit districts, unlike non-merit districts, are subject to additional statutory provisions, such as Education Code section 45256, which expressly limit their ability to utilize the services of individuals who are not classified employees. The court distinguished CSEA v. Del Norte County Unified School District (1992) 2 Cal.App.4th 1396, 1403, which found that the district could not contract with a private company to supervise maintenance and custodial employees, on the grounds that Del Norte was expressly based on the statutes applicable to merit system districts.
The court rejected CSEA's argument that all persons who perform regular functions connected with the operation of schools must be employed by the district and classified. According to the court, section 88003, covering classified service in non-merit districts, merely requires all persons employed in positions not requiring certification to be classified. This statute does not include the further requirement that all district work must be performed by classified employees of the district. (Section 45103 is a parallel statute applicable to K-12 districts.)
The court also noted that the subcontracting at issue is not prohibited or preempted by other sections of the Code and, under the permissive code section (Ed. Code §~35160), school districts may undertake any activity which is not in conflict with, inconsistent with, or preempted by any law and which does not conflict with the purposes for which school districts are enacted. An additional factor was that no classified employees were laid off or had their hours reduced as a result of the subcontracting.
The practical effect of this decision is that non-merit school districts may now subcontract for certain services, such as grounds keeping, with persons who are not employees of the district. The court did not, however, enumerate which services could be subcontracted; nor did it discuss collective bargaining implications. Districts should consult legal counsel before subcontracting services.
If you would like additional information about this case or the Education Code sections cited above, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
August 1996
Higher Standards for Schools in Policing
Sexual HarassmentThe United States District Court for the Northern District of California has ruled that a Petaluma girl may proceed with her sexual harassment suit against a school without claiming that school officials intended to discriminate against her. This ruling was a reconsideration of the Court's 1993 ruling that the girl must show intentional discrimination to win damages.
The Court ruled that reconsideration was justified due to the rapidly developing nature of sexual harassment law. It maintained that the new standard would not apply to sporadic harassment. Instead, plaintiffs will have to show the harassment was long term and pervasive enough to create a hostile environment, and that school officials knew or should have know about it but failed to remedy it. The Court further stated that existing law makes clear a school's obligation to maintain a civil environment.
The girl alleged that she was taunted in a sexual manner for over a year by both male and female students at her junior high school in Petaluma. She reported the harassment to a school counselor whom she alleges neglected to take quick and decisive action. Her case is scheduled for trial in January 1997 in Jane Doe v. Petaluma City School District, C93-00123CW.
As a result of this court's ruling, the standard for bringing suit against school officials for discrimination involving allegations of sexual harassment appears to have been lowered. Plaintiffs need only show there was a pattern of long term or pervasive harassment as to the individual and that school officials know or should have known about it, not that school officials intended to discriminate. The case bears watching for future developments to see if this new standard is adopted by other courts.
If you have any questions concerning this ruling, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
July 1996
Employer's Preferential Treatment of Paramour,
by itself, does not Support Fellow Employee's
Discrimination ClaimIn Proskel v. Gattis (January 26, 1996) 96 Daily Journal D.A.R. 905, a California Court of Appeal held that an employer's preferential treatment of a paramour, by itself, does not support a fellow employee's employment discrimination claim. Plaintiff, Karen Proskel, was employed by defendant Richard Gattis for nearly a year and a half when she began to notice that Gattis was romantically involved with another employee, Sherry Burton. Among other things, Proskel heard Gattis telling Burton she was beautiful and observed Burton blowing kisses at Gattis. Gattis gave Burton a larger year end bonus than any other employee, more valuable Christmas gifts and a private birthday lunch. Proskel reported some of her observations to Gattis' wife; two days later, Gattis terminated Proskel's employment.
Proskel claimed she had suffered sexual discrimination and sexual harassment based on the Fair Employment and Housing Act ("FEHA") and the public policy of the State. However, she did not have any evidence of discrimination or harassment other than the preferential treatment she believed Gattis gave Burton. Proskel did not present evidence that Gattis indicated preferential treatment to employees if they became romantically involved with him, or that Gattis' affair with Burton or other pervasive conduct created a hostile work environment. The court held that while evidence of a romantic relationship between a supervisor and subordinate might be relevant to establishing liability under one of these theories, it was not enough, in and of itself, to sustain a cause of action for sexual discrimination or sexual harassment.
The court noted the statement by the federal Equal Employment Opportunity Commission ("EEOC") that not all types of sexual favoritism violate Title VII, including preferential treatment based on consensual romantic relationships. While it may be unfair, this type of preferential treatment does not discriminate against men or women based on their gender, and thus does not violate Title VII. This court also noted the impracticality of courts policing intimate consensual relationships between co-employees.
Should you have any comments or questions regarding this matter, please contact one of our offices. We would be happy to discuss the subject of employment discrimination or any other employment matter with you.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
July 1996
Financially Stressed School Districts Have Discretion to Slightly Reduce Tenured Teachers' Hours without Hearings A California Court of Appeal has held that a reduction of working hours for tenured adult school teachers without prior notice and hearing does not violate either the Education Code or the teachers' constitutional due process rights under particular circumstances. (Barbara Black v. Board of Trustees of the Compton Unified School District (June 17, 1996) 46 Cal.App.4th 493.)
In 1993, the Compton Unified School District was experiencing severe financial difficulties, and became insolvent. The Legislature responded by providing additional funds to the District and by appointing an administrator to assume operational control of the District. One of the areas affected by the fiscal crisis was the adult school program, which for several years had operational expenses exceeding its income. In response, the District decided in early 1993 to reduce the work hours of nine permanent adult school teachers. The reductions ranged from 6 to 18 percent of each teacher's total hours. However, no teacher suffered a loss of full-time status, and there was no loss of benefits. The teachers incurred only a loss in pay.
In March 1993, the nine affected teachers filed a legal action against the District seeking to compel the District to restore their lost hours and to compensate them for lost wages. The teachers contended that the reduction in hours constituted a "partial termination" of their employment and that they were therefore entitled to notice and a hearing under the provisions of Education Code sections 44949 and 44955. They also argued that the reductions violated their constitutional due process rights.
The Court of Appeal rejected both arguments, holding that a reduction of hours does not constitute a termination of employment within the meaning of sections 44949 and 44955. The court also held that the teachers did not identify a property interest protectible by the due process clause. The court held that it is "well established" that school districts have "broad powers to reassign their permanent employees to different positions, including positions involving a reduction in pay and prestige. . . ." This discretion is subject only to two requirements: 1) reasonableness, and 2) that the new assignment be within the scope of the certificate under which tenure was acquired, or the work assigned is of a rank and grade equivalent to that by which permanent status was acquired.
As a result, the Court upheld the District's decision to reduce the teachers' hours and pay without a hearing. We caution, however, that this case involves a unique factual situation, and remind any school district contemplating reducing teachers' hours or pay to contact counsel beforehand to discuss the particular issues involved. We also remind school districts that such decisions may be subject to negotiations.
We have spoken to the attorneys for Barbara Black and they have informed us that while they do not intend to appeal the case, they do intend to seek depublication from the California Supreme Court. Depublication would mean that the ruling in this particular case would stand, but no other court could rely on the ruling as precedent.
Please feel free to contact one of our offices if you have any questions regarding this case or similar labor law issues.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
May 1996
Liability for Age Discrimination does not
Require Workers to be Replaced by Someone
Outside Protected ClassThe United States Supreme Court has ruled that a terminated employee may sue for age discrimination under the Age Discrimination in Employment Act of 1967 ("ADEA") even though the employee was replaced by a 40 year-old person also protected by the ADEA (O'Connor v. Consolidated Coin Caterers Corp., April 2, 1996 Daily Journal D.A.R. 3716).
The Supreme Court overturned a ruling by the Fourth Circuit Court of Appeals which had applied a four-part test for establishing a prima facie case of age discrimination. The Fourth Circuit court held that a petitioner must show that he or she was: (1) in the age group protected by the ADEA; (2) discharged or demoted; (3) performing his or her job at a level that met the employer's legitimate expectations at the time of the discharge or demotion; and (4) replaced by someone of comparable qualifications outside the protected class. The protected class under the ADEA is persons who are at least 40 years of age. Since in this case the petitioner's replacement was 40 years old, and therefore within the class of persons protected by the ADEA, the Fourth Circuit Court of Appeal found that the last element of the prima facie case had not been met, and that the employer therefore could not be liable.
In overturning the lower court ruling, the Supreme Court held that, "the fact that one person in the protected class has lost out to another person in the protected class is . . . irrelevant, so long as he has lost out because of his age." The fact that a replacement is substantially younger than the plaintiff was held to be a far more reliable indicator of age discrimination than whether or not the replacement is outside the protected class.
The impact of this case is that an employer is not immune from being sued for age discrimination even if a person within the protected class (40 years old and older) is replaced by someone who is also within the protected class if the employer's personnel decision is impermissibly based on age.
Please call one of our offices if you would like more information on age discrimination or other employment issues.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
May, 1995
Discharging or Disciplining Employees who
Collectively Refuse to Work Extra Hours may
Constitute an Unfair Labor PracticeThe Ninth Circuit Court of Appeals recently held that a private employer had violated the National Labor Relations Act by discharging four employees who refused to work an hour in addition to their established work schedule. (National Labor Relations Board v. Mike Yurosek & Son, Inc. (April 21, 1995, 95 Daily Journal D.A.R. 5110).)
The decision was based on the National Labor Relations Act, which, like the Rodda Act (Gov. Code §3543.5(a)), states that employers commit an unfair labor practice if they "interfere with, restrain, or coerce" employees in the exercise of their rights. (29 U.S.C. §§157, 158(a)(1).) In this case, the issue was whether the employees, by simultaneously refusing to work the extra hour, were engaging in a "concerted" activity intended to protect their rights as employees. The court concluded that it was, since all four employees asserted their rights at the same time, and they were treated as a group when they were each questioned and then discharged the next morning. Furthermore, refusal to work or departure from an employer's premises in protest over wages, hours or other working conditions was found to constitute a protected activity.
We have contacted the employer's attorneys in this case and learned that they are seriously considering appealing the Court's decision to the United States Supreme Court.
Particularly in light of this decision, employers should take caution in disciplining multiple employees who refuse to work hours not identified in their work schedules, or who otherwise protest the imposition of additional duties by refusing to work or by leaving the premises. Employers should be sensitive to whether more than one employee is raising an objection or refusing to undertake the task, even if those employees do not make reference to one another or approach the employer collectively, as the employees may nevertheless be seen as undertaking a "concerted" protest.
If you find yourself in a situation where you are uncertain as to whether multiple employees should be disciplined, please feel free to contact any of our offices for assistance.
Errata: Page 210 was inadvertently left off Client News Brief No. 30 entitled "Standard Government Tort Claim Rejection Letter May Waive Federal Statute of Limitation. We have included the page in this mailing.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
June, 1995
Contract Termination Notice Given to Assistant Superintendent is Invalid if not Previously
Authorized by BoardThe California Court of Appeal has held that a contract termination notice to an assistant superintendent is invalid under Education Code section 35031 if, prior to giving the notice, the governing board has not determined either to terminate the contract or to authorize a termination notice. (Jenkins v. Inglewood Unified School District, 95 D.A.R. 6260 (May 15, 1995).)
In Jenkins, the superintendent served the assistant superintendent with a letter providing notice that her contract with the school district would expire on June 30, 1991. Section 35031 requires that the governing board give at least 45 days advance written notice of its decision not to reelect or reemploy a superintendent or assistant superintendent. In the absence of giving such notice, the employee is "deemed reelected for a term of the same length as the one completed, and under the same terms and conditions...." (Id.)
The board did not discuss the matter of terminating the assistant superintendent's contract until after the superintendent served the contract termination letter on May 13, 1991. In an apparent attempt to comply after the fact with the section 35031 requirement that notice come from the board, the board acted on June 19, 1991, to ratify the superintendent's termination letter and notified the assistant superintendent of its action by written memorandum on June 26, 1991.
In the assistant superintendent's action for breach of contract and other legal causes, the Court of Appeal rejected the school district's argument that the board's ratification confirmed that the superintendent had acted with proper authority. The court reasoned that the purpose of section 35031 is to give an administrator timely, adequate notice of an upcoming change in duties. Without prior board determination either to terminate the contract or to give a termination notice, the letter given by the superintendent had no legal effect and, therefore, did not provide the requisite notice under section 35031.
In sum, board action is required prior to termination of a superintendent or assistant
superintendent's contract pursuant to section 35031. Post-notice attempts to ratify the giving of a termination notice will not satisfy the requirements of section 35031.
If you would like more information, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
June, 1995
Reversal of Sex Offense Conviction May Entitle Terminated Teacher to Hearing on Dismissal When a teacher's conviction of a sex offense is later overturned on appeal, and the teacher was automatically dismissed based on the conviction, what are the district's duties? In an unpublished decision not legal precedent, the Fourth District Court of Appeal held the teacher was entitled to a full hearing by the Commission on Professional Competence ("CPC") to determine if dismissal is warranted. (Tuffli v. Governing Board of the San Diego Unified School District, et al., (Dec. 15. 1994) Superior Court, San Diego County, No. D018764.)
A tenured special education teacher was charged with committing sex offenses against one of his students, an 18-year-old female with Down's Syndrome. He was convicted of a single sex offense. Following the conviction, the district terminated the teacher's employment as required under Education Code section 44836.
Upon appeal, the conviction was reversed on a technicality. The teacher then filed suit demanding the district reinstate him with back pay.
The Court held that the district's dismissal of the teacher was valid until his conviction was reversed. However, after the reversal, the teacher became eligible again for continued employment. Because Tuffli was a permanent employee, he was entitled to a full hearing before the CPC on two questions: the validity of his discharge for cause and his right to back pay after the reversal.
Although this decision is unpublished and nonprecedential, it is based on sound reasoning. Public school employers should take heed and carefully monitor the status of legal proceedings involving teachers who have been dismissed without a hearing under Education Code section 44836. If a conviction is overturned, the employer should immediately begin the process for hearing before the Commission on Professional Competence.
If you would like additional information, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained hereinGenerously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
April, 1995
Employer's Duty Goes Beyond Ending Sexual Harassment; Remedial Measures must also be Taken The United States Court of Appeals recently decided the case of Fuller v. City of Oakland (February 14, 1995), 95 D.A.R. 1963). In Fuller, an employee of the City of Oakland had been sexually harassed by another employee. The City conducted an investigation, but when it determined that the conduct had stopped, it took no further action.
The Court held that under Title VII of the Civil Rights Act, 42 U.S.C. section 2000e, et seq., an employer has a duty to not only stop [ongoing] sexual harassment, but also to take remedial action to deter future harassment by the same offender or others. An employer deters future harassment by taking whatever remedial actions are necessary to ensure that it does not happen again. Since the City failed to take any remedial measures to prevent a recurrence of the harassment, the Court held that the City had violated Title VII.
The Fuller case demonstrates that an employer can be held liable for sexual harassment, even if the harassment has stopped, unless the employer has taken appropriate steps to prevent a recurrence of the harassment. What actions are appropriate will vary from situation to situation.
If you have any questions or need further advice regarding this case, please do not hesitate to call our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
October, 1996
"Unsatisfactory Performance" Replaces "Incompetency" as Cause for Discharge of Permanent Certificated Employee In an arena which has changed little since SB 813 in 1983, the gridlock in Sacramento opened for legislation which could revolutionize the evaluation and dismissal of tenured certificated employees. (Ch. 392, Stats. 1995.) Effective January 1, 1996, the term "unsatisfactory performance" replaces "incompetency" in sections on certificated evaluation and dismissal, creating a new standard for the evaluation and dismissal of permanent teachers. (Education Code sections 44662, 44932, 44934, and 44938.)
The substitution of the more concrete concept "performance" for the elusive "competency" should demystify the evaluation and dismissal process. The full impact of these changes will take some time to materialize. Certainly the legislation clarifies that dismissal of a tenured employee should be based on actual performance, rather than on analysis of the individual's ability to perform. Also, all aspects of an employee's performance, as assessed by evaluation, may be the subject of a dismissal proceeding.
The amendment places the evaluation process in the spotlight. We anticipate that the definition of "unsatisfactory performance," as used in evaluations, will again become the subject of spirited debate, as it was after the passage of SB 813.
School employers should be cautious about narrowly defining or otherwise limiting the circumstances when an evaluator may assess all or part of an employee's performance as unsatisfactory. It is our opinion, based on the wording of section 44664, that an evaluator may rate individually each component of an employee's performance. For example, an evaluation may include a satisfactory rating for adherence to curricular objectives, but unsatisfactory for teaching methods or strategies.
Section 44664 also requires that employees who receive partial or overall unsatisfactory evaluations be given recommendations for improvement, and evaluated the following year. It is our opinion that this may be applied even in situations where the teacher's overall evaluation is satisfactory. However, nothing in the Stull Act requires an overall performance evaluation.
We believe it is in the employer's interest to retain broad discretion in evaluating employees. While evaluation "procedures" are within the scope of bargaining (Govt. code sec 3543.3 (a)), the substance of the evaluation is not. This is a fine distinction which we expect to become the subject of considerable controversy in light of this new legislation.
School employers should review their existing evaluation procedures and consult with counsel to determine whether to propose modifications to your current evaluation procedures and forms. The new legislation highlights the importance of strictly adhering to your evaluation procedures. While courts have held that "nonsubstantive" violations such as failure to meet timelines do not invalidate an otherwise proper dismissal, procedural violations may be the subject of grievances or unfair labor practice charges which can, and do, derail the strongest dismissal cases.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
August, 1995
Attorney General Issues Opinion that 24-hour Notice need not be Given When Governing Board Considers Nonreelection of Probationary Teacher The Office of the California Attorney General recently issued a published opinion about the scope of the 24-hour notice rule found in the "personnel exception" section of the Brown Act (Gov. Code §54957). In Opinion Number 95-207, the Attorney General stated that a school district governing board does not have to give a second-year probationary teacher advance notice of its intent to discuss whether to nonreelect the teacher for the next school year.
The Attorney General's Office relied primarily upon an opinion it issued in 1978, in which it held that the words "complaints or charges" in section 54957 refer to "specific complaints or specific charges," and not to general discussions of employees' performance. The opinion also noted that "performance evaluations conducted in the due course of district business are not in the nature of an accusation and are not normally thought of as being 'brought against the employee,'" the phrase used in section 54957.
Other factors in the Attorney General's decision were the possibility that if probationary teachers must be given notice of such discussions, governing boards might not receive frank and thorough performance evaluations, that the necessary delay in establishing meetings to discuss the issue might make it impossible to meet the March 15 deadline for nonreelections, and that school districts are permitted to nonreelect probationary employees without any hearing or appeal.
Although opinions of the Attorney General do not have binding force, California courts have repeatedly held that they are persuasive, particularly in the absence of judicial decisions on the subject. We believe that this opinion is sufficient authority upon which to rely in deciding not to give prior notice of discussions to nonreelect second-year probationary teachers, as well as discussions relating to nonreelection of other probationary and temporary certificated employees and termination of probationary classified employees, for general performance-based reasons.
If you have any questions about the issues raised by this decision, please call any of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
February, 1995
New Law Protects Employers who Divulge Derogatory
Information about their Employees' Job History or Qualifications to Potential Employers who AskCivil Code section 47(c) was amended effective January 1, 1995, to provide some protection for employers who pass on derogatory information regarding their employees (or former employees) who are seeking a job elsewhere. When a potential employer asks for information on a job applicant, the dilemma in the past has been whether it was worth being truthful about bad employees who might strike back with a lawsuit for libel or slander.
Caution about such litigation has contributed to the practice by some employers of furnishing little or no information to prospective employers who ask about job history/qualifications of an employee.
The recent amendment to Civil Code section 47(c) reduces the risks in giving out such information. It does not eliminate all risk because it furnishes only a qualified defense - not an absolute one. This means that an employer who gives a negative job reference will have a defense if:1) the employer communicates the information in good faith (i.e., no malice); and
2) the statements made about the employee are based on credible evidence.The statute only applies if there is a request from the prospective employer. Volunteered information may not be protected. Also note that the defense will not apply if the information given out about the employee relates to constitutionally protected speech or activities, i.e. union activities, picketing, political expression, etc.
This new law should encourage more candor regarding job references; however, there is still some risk and you might wish to contact our office for advice before you give out any information that is derogatory about a problem employee.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
February, 1995
Release of Administrative Employees New Notice, Agenda and Reporting out Requirements Education Code section 44951 requires districts to provide notice by March 15th to administrators, including principals, who may be released from their administrative positions at the end of the year.
The notice may be given by the superintendent and does not require board action if it states the administrator "may" be reassigned. If the notice states the administrator "shall" be reassigned, then board approval of the notice is required. In either case, the board must take action regarding the final assignment on or before June 30 and notify the employee.
Districts must send the release notice either by registered mail to the last known address or deliver it in person. If delivered in person, the employee must sign on the notice that he/she received it by March 15th.
The notice should read:Notice is hereby given pursuant to Education Code section 44951 that you may ["shall"] be released from your position as ___________ at the end of the 1994-95 school year. [You will be reassigned to (the classroom) (another position).]
We recommend you state no reasons for the action. However, if the administrator is being reassigned to a teaching position, the district must, if requested, provide a written statement of the reasons. If the reasons "include incompetency," then a Stull Act evaluation must have been completed "not more than 60 days prior to the giving of the notice of the transfer." (Ed. Code §44896).
The above is a discussion of the Education Code requirements. As always, it is important that you review district policies and administrative employment agreements to see if they impose deadlines and requirements more restrictive than existing law.
If the superintendent sends the reassignment/release notice and the board does not consider the matter, no agendizing or reporting out is required. However, if the board considers the matter in closed session, whether or not action is taken, districts need to comply with new procedural requirements under the April 1, 1994 Brown Act Amendments.
NOTICE TO EMPLOYEE: The employee must be notified in writing personally or by mail at least 24 hours before the closed session that he/she has a right to have complaints or charges against him/her heard in open session. While, in the district's view, the release may not be based on complaints or charges a court reviewing this matter might not agree. If the employee is not given the notice, any action taken "based on complaints and charges" is null and void. This provision does not allow the employee to attend closed session but only to request an open one. If the employee requests an open session, any board action should be in open session also.
The notice should read:At its closed session of [date] the Board of Education will consider your release from your administrative position at the end of the 1994-95 school year.
This is to notify you that you may have a right to have this matter heard in open rather than closed session.
If you wish to have this matter heard in open session, please contact ____________ by ______________.
This notice shall not confer any status or rights beyond those already provided by statute.
Please contact ________________ if you have questions.Until further guidance is available regarding these new Brown Act provisions, we believe this cautious approach is warranted since noncompliance may void the release and subject the district to costly litigation.
AGENDA: The closed session agenda should state "PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE (may be held in open session at option of employee)." There is no need to identify the position or provide any additional information. (Gov. Code §54954.5(e)).
REPORTING: If the board acts in closed session on the release, the action must be reported at the public meeting during which the closed session is held and must identify the title of the position. The report may be oral or written. (Gov. Code §54957.1(a)(5)).
Please contact one of our offices if you have any questions about any of these procedures.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |
February, 1995
Release of Probationary Employees (Ed. Code §44929.21)
Districts may release probationary certificated employees from employment at the end of the first or second year without cause. There is no statutory deadline for giving notice of termination at the end of the first year but case law indicates that notice should be given by May 1. Notice of release at the end of the second year must be given on or before March 15. Board action is required prior to giving the notice in accord with the discussion below. While the employee is not entitled to a statement of reasons, districts should follow their evaluation procedures and complete the evaluation of all probationary employees to avoid claims that employees were released for improper reasons.
Release of Temporary Employees (Ed. Code §44954)
Districts may release temporary employees from employment at any time prior to completion of 75% of the school year. Districts may release temporary employees from employment after completion of 75% of the school year by giving notice before the end of the school year that he/she will not be re-elected for the coming school year. Board action is required in either circumstance and notices must be hand-delivered or mailed. Any closed session of the board must comply with the Brown Act which is discussed below.
New Notice to Employee, Agenda and Reporting out Requirements
The Board may act to release probationary and temporary employees in open or closed session. If all discussion and action takes place in open session, the matter may be agendized and conducted in accord with normal open meeting practices. If the board wishes to discuss the matter, or take action, in closed session, districts need to comply with the new procedural requirements under the April 1, 1994 Brown Act Amendments. (See also Client News Brief No. 20 on Administrative Release.)
NOTICE TO EMPLOYEE: The employee must be notified in writing personally or by mail at least 24 hours before the closed session that he/she has a right to have complaints or charges against him/her heard in open session. While, in the district's view, the release may not be based on complaints or charges a court reviewing this matter might not agree. If the employee is not given the notice, any action taken "based on complaints and charges" is null and void. This provision does not allow the employee to attend closed session but only to request an open one. If the employee requests an open session, any board action should be in open session also.
The notice should read:At its closed session of ___________ the Board of Education will consider your release as a probationary [temporary] employee at the end of the 1994-95 school year.
This is to notify you that you may have a right to have this matter heard in open rather than closed session.
If you wish to have this matter heard in open session, please contact ____________ by _______________.
This notice shall not confer any status or rights beyond those already provided by statute.
Please contact ________________ if you have questions.
Until further guidance is available regarding these new Brown Act provisions, we believe this cautious approach is warranted since noncompliance may void the release and subject the district to costly litigation.AGENDA: The closed session agenda should state "PUBLIC EMPLOYEE DISCIPLINE/DISMISSAL/RELEASE (may be held in open session at option of employee)." There is no need to identify the position or provide any additional information. (Gov. Code §54954.5(e)).
REPORTING: If the board acts in closed session on the release, the action must be reported at the public meeting during which the closed session is held and must identify the title of the position. The report may be oral or written. (Gov. Code §54957.1(a)(5)).
Please contact one of our offices if you have any questions about any of these procedures.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.Generously provided by: Lozano Smith Smith Woliver & Behrens
| Back to Legal Index | FCMAT On-line Resources |