eacher Complaints About School District’s Special Education Program Are Not Protected by First Amendment

April 2016
Number 27

Are a special education teacher’s complaints about her district’s special education program constitutionally protected speech? In Coomes v. Edmonds School District No. 15 (2016) 2016 U.S. App. Lexis 5372, the United States Ninth Circuit Court of Appeals held that a public school teacher’s complaints to her supervisors and parents regarding her employer school district’s special education program were not protected by the First Amendment.

Plaintiff Tristan Coomes worked as the manager and primary instructor for the defendant school district’s emotional and behavioral disorders program. Ms. Coomes complained to her supervisors, fellow teachers, parents and union representative that her special education students were not being placed in mainstream classes as their needs demanded, or conversely, that their transitions were being delayed due to improper fiscal considerations. Ms. Coomes’ complaints made their way up the chain of command to the District’s superintendent and resulted in her transfer to another school within the District.

Ms. Coomes sued the school district, alleging it retaliated against her for her statements regarding the District’s special education program, in violation of her free speech rights under the First Amendment of the United States Constitution.

The Ninth Circuit upheld the trial court’s ruling that Ms. Coomes failed to show that she spoke as a private citizen rather than an as a public employee, and her employer could therefore take an adverse employment action against her in relation to her speech. The court of appeals first reviewed the United States Supreme Court’s opinion regarding government employee speech protections in Garcetti v. Ceballos (2006) 547 U.S. 410. In Garcetti, the U.S. Supreme Court ruled that while “public employees do not surrender all their First Amendment rights by reason of their employment,” the First Amendment does not empower employees to “constitutionalize” their grievances. The Court ruled that the First Amendment protects a public employee’s right to speak as a citizen only when the individual can show that “(1) s/he spoke on a matter of public concern; (2) s/he spoke as a private citizen rather than a public employee; and (3) that the relevant speech was a substantial or motivating factor in the adverse employment action.”

The Ninth Circuit also considered whether Ms. Coomes’ concerns were expressed in her capacity as a private citizen or as a public employee by comparing her speech to her job description. The court noted that when a public employee raises complaints or concerns up the chain of command, generally, the employee’s speech is made in the course of job performance. Because Ms. Coomes focused her complaints on incidents that happened in her classroom, the court held her speech “owed its existence to her position as a teacher.”

Although Ms. Coomes also spoke to parents who were clearly outside her chain of command, her communications pertained to students’ Individualized Education Programs and their academic progress, as required by her job duties. The court of appeals found that Ms. Coomes failed to show that her speech was made in her capacity as a private citizen, holding that it was instead made in her capacity as a District employee and was not protected by the First Amendment.

If you have questions regarding this decision or the First Amendment free speech rights of employees generally, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written by:

Sloan Simmons
Partner

Dr. Carey Hawkins Ash
Associate

©2016 Lozano Smith

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.

The Required Employer “Intent” Element in Disability Discrimination Claims Under FEHA

April 2016
Number 26

To prove a claim for disability discrimination under the California Fair Employment and Housing Act (FEHA), an employee must establish intent on the part of the employer. Recently, the Court of Appeal for the Fifth District held that the “intent” requirement is satisfied if the employee proves (1) the employer knew the employee had a disability or the employer perceived the employee as disabled, and (2) the employee’s actual or perceived disability was a “substantial motivating reason” for the adverse employment action (e.g., termination, reassignment, demotion, unpaid leave etc.). (Wallace v. County of Stanislaus (Feb. 25, 2016, No. F068068) ___Cal.App.4th___ [2016 Cal. App. LEXIS 148].)

In Wallace, the plaintiff, Sheriff’s Deputy Dennis Wallace, sued the County and the Sheriff’s Department for disability discrimination, failure to prevent discrimination, failure to accommodate, and failure to engage in the interactive process. While working as a Sheriff’s Deputy, Mr. Wallace suffered work related injuries and was assigned to a bailiff position to accommodate his work restrictions. Later that year, Mr. Wallace was seen by a doctor. The doctor’s report listed various different or additional work restrictions. On receiving the doctor’s report, the County removed Mr. Wallace from his bailiff position because they believed he could not perform the essential functions of that position with or without accommodation. The County told Mr. Wallace there were no positions that could accommodate Mr. Wallace’s work restrictions. They placed Mr. Wallace on unpaid leave.

Mr. Wallace sued the County. The jury ruled in the County’s favor, finding that Mr. Wallace had not suffered disability discrimination. Mr. Wallace appealed, claiming the jury had not been properly instructed about the “intent” an employee needed to prove to support a disability discrimination claim against the employer.

On appeal, the Court held that an employee could satisfy the “intent” requirement, without proving the employer acted with “ill will” or “animus.” The Court found the “intent” requirement was satisfied if the employee proved that his actual or perceived disability was a “substantial motivating” reason for an adverse employment action. In Wallace, the Court found that removing Mr. Wallace from his bailiff position following receipt of the new medical restrictions was improper.

The Court focused on the fact that the County removed Mr. Wallace from his bailiff position without thoroughly evaluating whether he could be reassigned to other positions. The Court expressed that the employer should have consulted with Mr. Wallace’s supervisors to determine if he could indeed perform the functions of the bailiff position, instead of only relying solely on the doctor’s report. This case is a reminder to employers about the importance of engaging in the interactive process and thoroughly evaluating all available accommodation options.

Should you have questions about the effect of this decision, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written by:

Dulcinea Grantham
Partner

Meera Bhatt
Associate

©2016 Lozano Smith

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.

Another California Appellate Court Opines On Lease-Leaseback Construction

April 2016
Number 25

An appellate court has ruled that a lease-leaseback (LLB) contract without competitive bidding was legally enforceable. In McGee v. Balfour Beatty Construction, LLC, et al. (Apr. 12, 2016) 2016 Cal.App.Unpub. Lexis 2626, a California appellate court rejected the holding of Davis v. Fresno Unified School District (2015) 237 Cal.App.4th 261, that competitive bidding was required for an LLB contract unless additional non-statutory contract terms were included. However, the McGee decision agreed with Davis that a third party had standing to sue regarding the LLB contractor’s potential conflict of interest. Unfortunately, the McGee court elected not to publish its decision, meaning that it cannot be cited by other courts as legal precedent. Lozano Smith filed an amicus curiae brief with the McGee appellate court on behalf of the California Association of School Business Officials (CASBO).

As in Davis, the plaintiffs in McGee alleged that the LLB contract documents were not genuine leases, but instead were a “subterfuge” to avoid competitive bidding. However, unlike Davis, the appellate court in McGee held that the plain language of the LLB statute (Education Code §17406) only required that the school district own the land, that the lease be for purposes of construction, and that the title vest in the school district at the end of the school term. The court held that the plaintiffs’ “efforts to engraft additional requirements – such as the timing of the lease payments, the duration of the lease, and the financing – are not based on the plain language of the statute.” This in effect repudiates the Davis case.

In short, the McGee court declined to “rewrite the [LLB] statute.” It relied heavily on Los Alamitos Unified School District v. Howard Contracting, Inc. (2014) 229 Cal.App.4th 1222, which held that Education Code section 17406’s exception from competitive bidding was valid.

McGee also focused on whether the taxpayer plaintiff had standing as a third party to allege a cause of action for conflict of interest under Government Code section 1090 (as held in Davis), or did not have such standing (as held in another recent case, San Bernardino County v. Superior Court (2015) 239 Cal.App.4th 679). The appellate court held that the plaintiffs had standing since the present case was a validation action like Davis, and since a prior Supreme Court case (on which Davis relied) implicitly gave standing to third parties. In addition, the appellate court held that the plaintiffs’ allegations that the LLB contractor acted as an officer or employee of the District when performing pre-construction services were sufficient to let the cause of action proceed to trial.

What does the McGee decision mean for school districts? Since it is not binding precedent, it merely provides additional perspective on certain LLB issues, but this perspective highlights the ongoing uncertainty surrounding LLB. The appellate courts have not agreed on LLB and what contract terms are required, or on the standing of third parties to sue regarding an LLB contractor’s conflict of interest and the application of conflict of interest laws to private contractors. The California Supreme Court dodged this issue by denying review of the Davis case. There is yet another LLB case pending in another appellate court (California Taxpayers Action Network v. Taber Construction Inc., et al.), in which Lozano Smith also filed an amicus brief on behalf of CASBO. The hope remains that clarity will yet come out of these divergent cases.

One or more parties may request reconsideration, publication, or Supreme Court review of the McGee decision. If not reconsidered by the appellate court or reviewed by the Supreme Court, the McGee action would move forward in the trial court solely on the conflict of interest cause of action. However, the final judgment cannot be predicted, and may yet be appealed.

If you have any questions about the legality of LLB and which appellate court decisions may apply to your project, or about other project delivery methods, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written by:
Harold Freiman
Partner

Arne Sandberg
Senior Counsel

Travis Cochran
Associate

©2016 Lozano Smith

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.

Court of Appeal Reverses Trial Court Decision in Vergara; Upholds Certificated Dismissal, Tenure, and Layoff Statutes

April 2016
Number 24

Earlier today, the California Court of Appeal issued its decision in the closely watched case of Vergara v. State of California (April 14, 2016) 2016 Cal.App.Lexis 285, reversing a 2014 trial court’s ruling that certain teacher employment laws are unconstitutional under the equal protection clause of the California Constitution.

In June 2014, Los Angeles Superior Court Judge Rolf M. Treu invalidated state laws governing the two-year track to permanent certificated employment status, the certificated dismissal process, and the requirement that certificated employees be laid off in reverse seniority order, also known as the “last-in, first-out” statute. In his ruling, Judge Treu determined that these laws resulted in a “significant number of grossly ineffective teachers currently active in California classrooms,” and that “[s]ubstantial evidence presented makes it clear…that the [c]hallenged [s]tatutes disproportionately affect poor and/or minority students.”

In reversing Judge Treu’s decision, the Court of Appeal determined that the plaintiffs-nine California public school students-“failed to establish that the challenged statutes violate equal protection, primarily because they did not show that the statutes inevitably cause a certain group of students to receive an education inferior to the education received by other students.” The court held that while the statutes “may lead to the hiring and retention of more ineffective teachers,” it is administrators, not the statutes, who “ultimately determine where teachers within a district are assigned to teach…With no proper showing of a constitutional violation, the court is without power to strike down the challenged statutes.”

The plaintiffs have already announced their plans to appeal the case to the California Supreme Court. We will continue to monitor the case and provide updates. For now, however, the current state laws governing teacher tenure, dismissal, and layoff remain unchanged. Keep in mind that the California Legislature passed significant changes to the statutes governing certificated dismissal following the trial court decision in 2014.

If you have any questions regarding the Vergara case, its impact on your school district, or the recent changes to the laws regarding certificated dismissal, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

 

©2016 Lozano Smith

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.

The Public Private Partnership (P3) Project Delivery Method: What Is It and Is It an Option for Your Project?

April 2016
Number 23

Local public agencies have several options when it comes to choosing a delivery method for a construction project. The public-private partnership method, or P3, is one option that is receiving increased attention. P3 involves a long term partnership between a public agency and private entity, where typically the private entity finances, designs, builds, operates, and/or maintains a fee-producing public project. In exchange, the private entity will be repaid over an extended period of time through the fees generated by the public project or as otherwise permitted by statute. This can involve the private entity’s lease or ownership of the project for an extended period of time during the repayment period.

In order to utilize the P3 method for a public agency’s project, there must be authorizing legislation. The primary P3 law is the California Infrastructure Finance Act (Gov. Code §§ 5956 et seq.), which allows P3 for specific types of fee-producing local government projects through a “competitive negotiation” process. This Act applies to cities, counties, school districts, community college districts, county boards of education, public districts, joint powers authorities, transportation commissions or authorities, and any other public or municipal corporations. The Act covers specified types of projects: irrigation; drainage; energy or power production; water supply, treatment, and distribution; flood control; inland waterways; harbors; municipal improvements; commuter and light rail; highways or bridges; tunnels; airports and runways; purification of water; sewage treatment, disposal, and water recycling; refuse disposal; and structures or buildings, except structures or buildings to be primarily used for sporting or entertainment events.

Other California statutes allow P3 but apply less generally to local public entities. For instance, Government Code section 70371.5 permits public-private partnerships whereby the private entity shares some of the risk of financing, design, construction, or operation of court facilities. Section 143 of the Streets and Highways Code permits CalTrans and regional transportation agencies to partner with private entities for transportation projects.

One notable P3 project that has garnered attention recently is the new city hall, library, park, and port headquarters being built in the City of Long Beach. The City benefited from specific legislation that established its right to utilize the P3 method for these projects. (Gov. Code §§ 5975 et seq.) Since these projects were not fee-producing, existing legislation did not permit use of P3.

A major benefit of the P3 method is the ability to obtain private financing. Additionally, risks and responsibilities of the project design and construction are shifted to the private entity. Of course, the public agency also gives up some control of the project design. Each project is unique and each public agency’s needs are different, so the use of P3 should be evaluated on a case-by-case basis. For additional information about other project delivery methods, read the following: Client News Brief No. 8, February 2015 and Client News Brief No. 71, November 2015.

If you have any questions regarding P3 or other delivery methods for your project, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

David Wolfe
Partner

Arne Sandberg
Senior Counsel


Maryn Oyoung
Associate

 

©2016 Lozano Smith

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.

California Supreme Court Refuses to Review Court of Appeal Decision Barring Parcel Tax Challenge Filed after Expiration of Period for Reverse Validation Action

April 2016
Number 22

The California Supreme Court recently denied a petition for review of the Court of Appeal’s decision in Golden Gate Development Company, Inc. v. County of Alameda, et al. (2015) 242 Cal.App.4th 760. As a result, the holdings in Golden Gate Development remain undisturbed, including that: (1) a reverse validation action is the proper procedure for challenging a parcel tax; and (2) such action must be brought within 60 days of passage of the parcel tax measure.

In February 2014, real estate developer Golden Gate Development Company, Inc. (Golden Gate), filed suit seeking a refund of taxes paid under parcel tax measures of the Albany Unified School District (District) passed in 2009. Golden Gate’s complaint, which referenced the recent decision in Borikas v. Alameda Unified School District (2013) 214 Cal.App.4th 135, alleged that the tax rates Albany’s measures were improper because different rates were imposed on residential and nonresidential properties, as well as nonresidential properties of different sizes. In Borikas, the Court of Appeal held that a tiered-rate parcel tax exceeded the school district’s taxing authority and was invalid because the rate structure was not uniform for all taxpayers and parcels.

The County and District demurred to Golden Gate’s complaint, contending that Golden Gate failed to present its claims in a reverse validation action within 60 days of passage of Albany’s measures pursuant to Code of Civil Procedure section 860 et seq. Generally, the validation statutes provide an expedited process by which certain public agency actions may be determined legally valid and not subject to subsequent legal challenge. The trial court sustained the demurrer without leave to amend. Golden Gate appealed the trial court’s decision.

The Court of Appeal upheld the trial court’s ruling, finding that the exclusive procedure for challenging the validity of the parcel tax measures was a reverse validation action. In reaching its decision, the court reasoned that Golden Gate’s claim, while styled as a refund of taxes, was based on the alleged illegality of the tax scheme of the parcel tax measures, which can only be challenged under the validation statutes. Since Golden Gate did not timely bring a reverse validation action against the measures, it had missed its opportunity to challenge their legality.

On February 17, the California Supreme Court refused to disturb the ruling, denying Golden Gate’s petition for review; therefore, this decision is now settled law.

Lozano Smith prepared the amicus curiae brief of the California School Boards Association’s Educational Legal Alliance in support of the District before the Court of Appeal.

If you have questions regarding this decision, or parcel taxes generally, or would like assistance preparing a parcel tax measure, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

 

©2016 Lozano Smith

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.

Governor Brown Signs Landmark Minimum Wage Legislation

April 2016
Number 21

On April 4, 2016, Governor Jerry Brown signed into law Senate Bill (SB) 3, which amends California Labor Code section 1182.12 to increase California’s minimum wage to $15 per hour by the year 2022. The legislation was approved by the State Assembly and Senate on party line votes. The bill ultimately gained the Governor’s support after a compromise was reached to gradually phase in increases to the minimum wage over a five year period. The new law explicitly includes public employers, such as school districts, county offices of education, cities, and other municipal bodies.

Under SB 3, the minimum wage will first increase by $.50, to $10.50 per hour, on January 1, 2017. A second $.50 increase will occur on January 1, 2018, and subsequent increases of one dollar will occur on January 1 each year thereafter until the $15 target is reached in 2022. For employers with 25 or fewer employees, the first wage increase will occur on January 1, 2018, and the $15 target will be reached in 2023. However, until the $15 minimum wage is reached, the Governor may suspend the scheduled annual wage increases if certain findings showing poor economic conditions are made. Should that occur, the timetable for reaching the $15 minimum wage will be delayed by a year each time that the Governor suspends a planned wage increase. After the $15 minimum wage is reached, it will be annually increased for inflation by an amount not to exceed 3.5%.

Given the scheduled annual increases, possibility of suspending the annual increases, and future adjustments for inflation, employers will need to adopt new levels of vigilance to ensure that they comply with the law. In addition, a variety of new considerations will arise for employers. For public employers operating under collective bargaining agreements, collaboration with bargaining units will be necessary to timely phase in the required wage increases for affected employees. Employers may also need to examine the impact that the planned wage increases will have on personnel budgeting for future years. Addressing these questions, and others that may arise, will require advance planning by an employer’s executives and budget officers, and collaboration with key stakeholders prior to the first planned wage increase on January 1, 2017.

If you have any questions about California’s new minimum wage law and how it impacts public employers, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Eric Barba
Associate

 

©2016 Lozano Smith

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.