Supreme Court Rules Public Sector Union Agency Fees Are Unlawful

June 2018
Number 27

This news brief is intended for public school districts, including community colleges. For the Janus news brief intended for municipalities and special districts, click here.

Overturning a longstanding precedent, the United States Supreme Court has held in Janus v. AFSCME that public employees may not be compelled to pay mandatory agency fees, or “fair share” fees, to public-sector unions, because such fees violate the First Amendment.

The Janus decision will have a sweeping, nationwide impact on public sector labor unions. The Court’s 5-4 decision immediately affects laws in at least 22 states, including California, that currently allow public sector unions to charge and collect agency or fair share fees.

Background

Mark Janus is an Illinois public sector employee who sued the American Federation of State, County and Municipal Employees (AFSCME), arguing that a state law allowing the union to charge and collect fees from non-members violated his and other workers’ First Amendment rights.

The Supreme Court previously decided this issue in 1977 in the case of Abood v. Detroit Board of Education, then holding it was constitutional for public sector unions to collect agency fees from nonunion members to defray the cost of collective bargaining and other activities, provided nonunion members were not required to pay for a union’s political or ideological activities. The Court now holds in Janus that states and public-sector unions may no longer collect agency fees from nonconsenting employees.

The Court held that compelling employees to subsidize the speech of private speakers, including public-sector unions, violates the First Amendment, noting that “[c]ompelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”

Critically, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” In anticipation of the ruling, California’s newly adopted Senate Bill (SB) 866, signed into law by the Governor on June 27, makes several changes regarding public employers’ deduction of union dues and fees. Among these is a requirement for public employers to rely on the representations of the union regarding an employee’s deduction authorizations. Given the Supreme Court’s holding, this provision of SB 866 potentially runs afoul of the First Amendment, as interpreted and applied in Janus.

Additional notable statements made by the Court in Janus include:

  • Unions can be effective even without agency fees, without which designation of a public-sector union as the exclusive representative still confers many benefits.
  • Representation of nonmembers, even without agency fees, furthers the union’s interest in keeping control of the administration of the collective bargaining agreement, since the resolution of one employee’s grievance can affect others.
  • Going forward, it would likely be unconstitutional for a public sector employer to adopt a collective bargaining agreement that discriminates against nonmember employees.
  • Individual employees who are not members of a union may potentially be required to pay for certain services of a union, such as representation at disciplinary proceedings.

Next Steps and Considerations for Public Agency Employers

1. Stop Agency Fee Deductions

The Court’s decision in Janus is effective immediately, meaning employees who are non-members cannot be charged agency fees. Accordingly, employers must stop deducting agency fees from the paychecks of public employees. Going forward, an employer may not deduct fees unless an employee clearly and affirmatively consents to the deduction before it is implemented.

SB 866 creates a layer of potential complication because it modifies the law to require public employers to rely on the representations of the union regarding an employee’s deduction authorizations. This likely leaves public agency employers with at least three potential options: (1) stop agency fee deductions immediately without communication with union leadership; (2) stop the agency fee deductions after providing a notice to union leadership as to the employees who the public agency believes to be agency fee payers and whose deductions will be halted with the July paycheck; or (3) stop the fee deductions after the union and public employer agree to the list of employees whose fee deductions will be halted, and rely on the new provisions of SB 866 requiring the union to defend and indemnify the employer in the event a fee payer brings suit to recover fees deducted subsequent to the issuance of the Janus decision.

To avoid future lawsuits, public agencies are encouraged to have their human resources and payroll departments work collaboratively with union leadership to identify employees who are agency fee payers and develop a strategy to ensure prompt compliance with Janus. For many public school district employers, working closely with their county office of education will be critical to accurately updating payroll records to ensure employees are no longer charged agency fees going forward.

2. Implement a Communication Plan

Public agency employers who have agency fee provisions in their union agreements should develop a communication plan to address the likely questions that will come from employees and unions in the days and weeks following this decision. Specifically, taking steps to identify a single point person to respond to questions regarding the impacts of theJanus decision will ensure cohesive and clear messaging and avoid the potential for managers and supervisors to inadvertently run afoul of laws prohibiting discouraging or deterring union membership. In developing these communication strategies regarding whether, and how, to communicate the Janus decision to employees, employers should remain neutral and mindful of applicable law, including SB 285, which prohibits employers from deterring or discouraging public employees from becoming or remaining members of a union, and SB 866, which restricts a public employer’s ability to communicate with employees about the Janus decision.

Specifically, under SB 866, any “mass communication” sent to employees or applicants concerning their rights to join or support or refrain from joining or supporting their union requires a meet and confer process with the applicable union. Any mass communication concerning the Janus decision will likely fall within this provision and requires the parties to attempt to craft a mutually agreeable content, or follow the alternate process of distributing two sets of mass communication: one from the employer and one from the union.

Public agency employers are further encouraged to provide an update on the case to their unrepresented managers and supervisors, along with governing board members, and to provide talking points in the event they are faced with questions about the Janus decision.

To assist our clients, we are developing a communication template. If you are interested in receiving this, please contact one of our offices.

3. Examine Collective Bargaining Agreements

After these immediate next steps are in place, in consultation with legal counsel, public agency employers should review their collective bargaining agreements to determine how the Court’s decision impacts current contract language, assess what articles are impacted by Janus, and determine whether any immediate action or negotiation is required.

While the Court’s decision may not immediately impact current dues-paying union members, some members could choose to opt out of union membership in the future as a result of the Court’s decision, in accordance with applicable collective bargaining agreements and membership agreement. To the extent membership in a union and attendant dues deductions are premised on an opt-out article or practice, wherein the employee is automatically in the union and automatically charged union dues unless he or she ops out, such provisions will need to be negotiated with the union to comply with Janus so that an employee clearly and affirmatively consents to union membership.

Related Bills

In addition to SB 866, please be aware that there are other bills pending in the California Legislature that address union dues and labor relations. Lozano Smith is tracking all of these pending bills and will provide updates if any are adopted by the Legislature and signed by the Governor.

Guidance Measures – Full Suite of Resources

Lozano Smith has partnered with leading associations and has also developed several training opportunities and resources to assist public agency employers in addressing new requirements and obligations. We invite you to download and register for any of the following:

  • Webinar: Join a panel of Lozano Smith attorneys for a live webinar on Friday, June 29. This interactive podcast will break down the Janus decision and SB 866 and offer a guide for implementation. Registration is open here.
  • Toolkit: Lozano Smith will be soon publishing an in-depth resource with answers to frequently asked questions, an implementation checklist, templates for communication, and more.
  • CASBO Workshop: The Northern Section Human Resources Professional Development Workshop Series will feature Dulcinea Grantham presenting a legal update exploring the impact of Janus. Registration is open here.
  • ACSA FAQ: Lozano Smith helped lead the development of a comprehensive overview specific to Janus and SB 866. This FAQ is available for download here.

For assistance responding to the immediate and long-term impacts of Janus, please contact the authors of this Client News Brief or an attorney at one of our eight 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

Gabriela D. Flowers

Senior Counsel

Erin M. Hamor

Associate

©2017 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.

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Supreme Court Opinion on Wedding Cake for Same-Sex Couples Provides Cautionary Tale for Public Entities

June 2018
Number 24

On June 4, 2018, the United States Supreme Court decided theMasterpiece Cakeshop v. Colorado Civil Rights Commission case in a 7-2 decision. While this case had the potential to provide new guidance on the complex intersection between the rights of LGBTQ+ individuals and the rights of individuals to religious freedom, Justice Anthony Kennedy’s opinion is narrow and leaves many questions unanswered. The Court’s limited ruling is largely based upon the underlying facts of the case and, more specifically, the comments made by two members of a hearing panel/adjudicatory body, which provides a cautionary tale for all public agencies that conduct adjudicatory proceedings.

Background

In 2012, the owner of a Colorado bakery, Masterpiece Cakeshop, informed a same-sex couple that he would not prepare a wedding cake for them due to his religious opposition to same-sex marriages. The couple filed a charge with the Colorado Civil Rights Commission that the owner had discriminated against them based on their sexual orientation. The Commission ultimately ruled in the couple’s favor, which the Colorado state courts affirmed.

The bakery owner petitioned the United States Supreme Court to overturn the Commission’s decision, arguing that if anti-discrimination laws are interpreted to require him to create a same-sex wedding cake against his religious views or face a penalty, then the government is compelling him to make speech supporting same-sex marriages. The owner viewed this as a violation of his rights of free speech and free exercise of religion.

On the other hand, the same-sex couple was seeking goods and services for their wedding reception the same way other soon-to-be-wed heterosexual couples typically do. The bakery owner’s refusal raised significant, controversial issues, such as: What rights do individuals have to assert their views over an individual’s religious beliefs? When does expressing a religious viewpoint become discriminatory or unlawful? These are questions public entities from around the country have grappled with during recent periods of social change.

The Supreme Court reaffirmed that religious and philosophical objections to gay marriage are protected views and at times, protected speech. The Court also ruled that anti-discrimination laws protect the rights of gay people to acquire goods and services on the same terms and conditions as other members of the public. However, the Supreme Court did not address the free speech issue because it concluded that the Commission had violated the bakery owner’s free exercise of religion by not considering his arguments for refusing to serve the same-sex couple in a “neutral and respectful manner.”

Adjudicatory proceedings must be fair and treat individuals equally. The Court found that the Commission failed to do this because a commissioner told the owner during a public hearing, on the record, that if he wants to do business in the state and his religious views conflict with anti-discrimination laws, then he needs to compromise, and another commissioner compared the owner’s argument to justifications for slavery and the Holocaust. Read together, and without any verbal or written objections from the other commissioners, the Court found the Commission was not fair and impartial in adjudicating the case.

The government must be neutral with respect to religion. Justice Kennedy’s opinion holds that even a slight suspicion of animosity or distrust of religion, including that which stems from verbal comments made by a minority of members of a decision-making body during an adjudicatory proceeding about religion, may result in a violation of an individual’s right to free exercise of religion. To what extent other board members, council members or other adjudicatory decision-makers must publicly disavow opinionated comments from another member during the decision-making or adjudicatory process is unclear and will require further clarification from the courts. The Supreme Court’s anticipated ruling later this month inTrump v. Hawaii may provide some instruction on this issue, and specifically, the impacts of decisions made by public office holders or employees when they are alleged to have made statements evidencing discriminatory animus in relation to the decisions at issue.

Takeaways

The Court’s opinion serves as a reminder for public entities that civil discourse, perhaps now more than ever, should be a fundamental standard in an adjudicatory setting-a neutral space where individuals will be treated fairly and equally, regardless of their cultural, sexual, or religious differences. Public bodies that deviate from this standard risk losing their credibility and their decisions may be subject to successful legal challenge.

If you have any questions about this case; how to approach conflicts between religion and LGBTQ+ issues with your constituents, employees, or students; or about how your public agency can promote civil discourse in this time of social change, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Michael E. Smith

Partner

Sloan R. Simmons

Partner

Joshua Whiteside

Associate

©2017 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 Rules that Trump’s Viewpoint-Based Twitter Blocking Violates the First Amendment

June 2018
Number 22

In Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al., the United States District Court for the Southern District of New York ruled that President Donald J. Trump’s act of blocking Twitter users who criticized his policies from the @realDonaldTrump Twitter account violated the users’ right to free speech. The court recognized Twitter’s “interactive space” as a “designated public forum” based on the President’s use of the forum as a means to communicate official business with the public.

Background

Twitter users blocked by Trump sued Trump and other members of his cabinet, alleging the Administration violated their right to free speech by blocking them for criticizing Trump. The Twitter users sought, and the court issued,
a declaration affirming the users’ view that blocking users based on their viewpoints is unconstitutional. The plaintiffs also sought an injunction prohibiting Trump from blocking followers from his @realDonaldTrump account, but the court declined to provide this relief.

In reaching its decision, the court came to several important conclusions regarding the President’s use of Twitter. First, the court noted the government “owned or controlled” the public forum because the government controls the content of the tweets sent from the account. The government also holds the ability to block users, preventing them from accessing the account timeline and participating in the interactive space associated with the account.

The court also found the tweets from the @realDonaldTrump Twitter account constituted “government speech,” noting that the President uses the account “to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; [and] to challenge media organizations whose coverage of his Administration he believes to be unfair.”

Additionally, the court found the “interactive space” where Twitter users can reply to Trump’s tweets or reply to other Twitter users’ replies to Trump’s tweets is a “designated public forum.” Generally speaking, a “designated public forum” is a forum set aside by the government for expressive activities. In determining that the “interactive space” associated with the @realDonaldTrump Twitter account is a “designated public forum,” the court noted the government’s intent is the determinative factor. In this case, the court was influenced by the fact that the account is generally available to the public, is held out as a place where the President can communicate directly with the public, and that Twitter is a platform intended for expressive activity.

Finally, the court held that the individual Twitter users who brought the lawsuit were discriminated against based on their viewpoints, noting that the plaintiffs were blocked because they posted comments that were critical of the President-an assertion that was not contested by the Trump administration. In this context, “[v]iewpoint discrimination . . . is presumed impermissible when directed against speech otherwise within the forum’s limitations.'”

Takeaways

This decision is a significant development for public agencies because it acknowledges that Twitter, when used by a government official to discuss government business, can be a “designated public forum.” Once a forum is determined to be a “designated public forum,” any viewpoint-based restrictions must be narrowly drawn to achieve a compelling state interest. Restrictions must not be over- or under-inclusive, must not prohibit more speech than necessary, and must be the least restrictive means possible for satisfying a crucial governmental need. It is very difficult for viewpoint-based restrictions on speech to satisfy this test.

While this case was decided by the United States District Court for the Southern District of New York and is therefore not binding law in California, California courts often look to other jurisdictions for guidance when deciding novel issues of law such as this. In addition, a notice of appeal was recently filed with the United States Court of Appeals for the Second Circuit. Subsequent review by the Second Circuit could render a different decision.

It is important for local governments and public agencies that utilize Twitter and other social media platforms to communicate official government business to keep in mind that citizens have a right to express their points of view with regard to governmental action. According to this ruling, blocking social media users or otherwise preventing the public from commenting based on their viewpoints could be considered a violation of their Constitutional rights. This does not mean public comment must be allowed. It does mean, however, that when public comment is allowed and is consistent with the intent of the forum, restrictions on speech must not be made on the basis of the speaker’s viewpoint. This decision will likely require local governments and public agencies to address their policies on the official use of social media, as well as whether the restriction of particular viewpoints is ever appropriate.

If you have any questions about this decision or about recommended policies or practices regarding the use of social media platforms, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Penelope R. Glover

Senior Counsel

Cory R. Lacy

Associate

©2017 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 Court Rules that Consultant Contracts May be Void Due to Conflict of Interest

June 2018
Number 21

A school district consultant’s services agreements may be void under Government Code section 1090, even though the consultant is not an officer or employee of the school district. Section 1090 prohibits conflicts of interest in the making of public contracts. InStrategic Concepts, LLC v. Beverly Hills Unified School District, the court ruled that a consultant’s status as an independent contractor rather than an employee did not exempt her from the law’s reach. The trial court will now consider whether section 1090 was in fact violated.

Background

This case is the latest chapter in the saga involving this school district and consultant. The consultant was originally an employee who became an independent contractor, performing essentially the same work for more pay. She was criminally prosecuted after using her independent contractor-consultant position to obtain millions of dollars in school district contracts for her company. The consultant was criminally convicted of violating section 1090, but in 2013 her conviction was overturned by an appellate court in People v. Christiansen because she was not an employee of the school district when the misconduct took place. A later California Supreme Court case, People v. Superior Court (Sahlolbei), overruled the reasoning for the holding inChristiansen and extended section 1090 criminal liability to independent contractors. (See 2017 Client News Brief No. 40.) However, no further criminal action was taken against the consultant because her conviction was overturned prior to Sahlolbei.

After her conviction was overturned, the consultant sued the school district on behalf of her company, Strategic Concepts, for breach of contract because the district declared the contracts void under section 1090 and refused to honor them. The district countersued to recoup the money that had been paid to Strategic Concepts under the allegedly void contracts. The trial court instructed the jury that section 1090 was not violated and the contracts between the school district and Strategic Concepts were not void. The jury awarded the previously convicted consultant $13,710,509 in damages, and the trial court added interest and attorney’s fees to bring the total judgment against the district to more than $20 million.

In reversing the trial court’s ruling, the appellate court noted that the trial court relied on the Christiansen decision to find that section 1090 did not apply to an independent contractor. However, Sahlolbei expressly overruled Christiansen and the basis for the trial court’s decision. Based on the Supreme Court’s ruling and reasoning, the appellate court reversed the trial court decision and adopted the reasoning of Sahlolbei that section 1090 did not exclude independent contractors for civil cases.

Section 1090 Casts a Wide Net

The scope of section 1090 is extremely broad. Strategic Concepts follows other recent California decisions that apply section 1090 to non-employees who inappropriately influence public entities to enter into contracts in which they have a financial interest. (See 2015 Client News Brief No. 30, 2016 Client News Brief No. 29, and 2017 Client News Brief No. 23.) As the California Supreme Court stated in Sahlolbei, section 1090 was intended to “include outside advisors with responsibilities for public contracting similar to those belonging to formal employees.” The law is now clear that section 1090 can apply to independent contractors, and not just elected officials, officers, and employees, in both criminal and civil contexts.

The Strategic Concepts court relied on the California Supreme Court’s recent ruling that a violation of section 1090 does not require actual dishonesty or fraud or an actual loss to the public agency. The key factor is the financial interest of the official, employee, or independent contractor.

Takeaways

  • Section 1090 applies to employees and non-employees, such as independent contractors, consultants and vendors.
  • Violations of section 1090 can result in a contract being void.
  • A contractor will have to return any money or benefits received under a void contract in the event of a section 1090 violation.
  • Public agencies must be mindful of section 1090 when entering into contracts with an individual or business where the individual or business is serving in a role similar to an agency employee and where the individual or business has influenced the making of the contract, particularly where a prior or ongoing relationship exists between the individual or business and the agency.

If you are interested in more information about the Strategic Concepts ruling or have any questions regarding conflicts of interest and section 1090, please contact the authors of this Client News Brief or an attorney at one of our eight 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 M. Freiman

Partner

Wesley L. Carlson

Associate

©2017 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 Confirms That Calculation of Level 1 Developer Fees for Apartment Buildings Includes Interior Common Areas

April 2018
Number 16

A California court has confirmed that school districts are authorized to assess Level 1 developer fees against interior common areas of apartment buildings, including hallways and walkways.

School districts have received pushback from developers regarding whether “assessable space” includes interior common areas. With its decision in 1901 First Street Owner, LLC v. Tustin Unified School District, the court has provided districts with legal authority for imposing fees on such space. The court expressly concluded that its analysis is specific to Level 1 developer fees, and not Level 2 or 3 developer fees, which receive separate statutory treatment in the Government Code.

Developer Fees in California Law

School districts are authorized to levy developer fees against residential construction within their boundaries to fund school facilities. Level 1 fees are charged per square foot of “assessable space,” including “all of the square footage within the perimeter of a residential structure.” (Gov. Code, § 65995.) The building department of the city or county issuing the building permit for residential construction is required to calculate Level 1 fees.

Background

In 1901 First Street Owner, LLC v. Tustin Unified School District, a developer of a residential apartment building challenged the city’s calculation of Level 1 developer fees to be paid to the Tustin Unified School District. The city excluded interior common areas from its initial fee calculation, but recalculated the fees when the District objected. The developer objected to this later fee calculation and filed suit.

The developer argued that only individual apartment units, and not interior common areas-including hallways, storage rooms, mechanical rooms, fitness centers, and lounges-could constitute “assessable space . . . within the perimeter of a residential structure” within the meaning of Government Code section 65995(b)(1). The developer relied on section 65995’s indication that a city or county should calculate the space within the perimeter of a structure based on the city’s or county’s “standard practice” for calculating perimeters, and claimed that the city was correct in excluding interior common areas in its calculation. Thus, the developer contended that the calculation of Level 1 fees should exclude interior common areas. The district disputed such exclusion, taking the position that that the city’s calculation correctly assessed the interior common areas along with the individual apartment units.

The court agreed with the district and confirmed that “assessable space” includes interior common areas. The court noted that the statute explicitly lists examples of exterior areas and notably excludes interior common areas from the list. Aside from walkways, the exterior areas listed were typically located at or near the periphery of a residential structure. Therefore, a “walkway” under the statute means an internal walkway and not an interior hallway.

Additionally, the court distinguished the meaning of “standard practice” under Government Code section 65995(b)(1) from the developer’s argument that the city’s “standard practice” was to exclude interior common areas from the calculation. The court stated that, under the statute, “standard practice” meant the city’s calculation of square footage “within the perimeter of a residential structure,” including interior common areas.

Takeaways

In an environment where courts have issued several developer-friendly decisions in recent years, this case can be viewed as good news for school districts. The results of 1901 First Street confirm the position taken by many of our school district clients that interior common areas are properly included in the calculation of Level 1 fees.

As of January 24, 2018, school districts may charge up to $3.79 per square foot of residential development. School districts should ensure that cities calculate Level 1 fees based on the square footage of both individual apartment units and interior common areas.

Lozano Smith’s Developer Fee Handbook addresses imposition of developer fees and related procedures. School districts that have not previously ordered the Handbook or need replacement or additional copies can order the Handbook here or by contacting Client Services at clientservices@lozanosmith.comor (800) 445-9430.

If you have any questions about the court’s ruling or about developer fees in general, please contact the authors of this Client News brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Kelly M. Rem

Partner

Lauren Kawano

Associate

©2017 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.

Local Agencies May Enact Presentation Requirements for Childhood Sexual Abuse Claims, Court Rules

April 2018
Number 15

The Fifth District Court of Appeal’s opinion in Big Oak Flat-Groveland Unified School District v. Superior Court holds, for the first time, that local agencies may enact local claims procedures under the Government Claims Act which require the submission of claims regarding childhood sexual abuse, despite the general exemption of such claims from the Government Claims Act’s claim presentation requirements and the more forgiving statute of limitations which apply to such claims under the Code of Civil Procedure.

Lozano Smith Litigation Practice GroupCo-Chair Sloan Simmons represented the California School Boards Association (CSBA) and CSBA’s Education Legal Alliance as amicus curiae in this case.

Background

The case involved an alleged childhood sexual abuse victim, Jane Doe, who attempted to sue a school district without first presenting a claim for damages. Childhood sexual abuse claims are exempt from the Government Claims Act’s claim presentation requirements, and based on this exemption, the plaintiff did not present a claim to the district before commencing her lawsuit. The district claimed the lawsuit was barred by the plaintiff’s failure to follow its local claim presentation policy, which the district said it was permitted to establish under a separate provision of the Act. The district argued that despite the Act’s exceptions under Government Code section 905, the plaintiff was still required to present a claim to the district due to the local policy adopted by the district under Government Code section 935.

The appellate court sided with the district, holding that local entities can prescribe their own presentation requirements for exempt claims as long as the local claim presentation period is no shorter than six months. Since the district maintained a local policy prescribing a presentation period of six months after accrual of the cause of action for all exempt claims and the plaintiff did not present her claim to the district within that time period, her suit was barred for failing to comply with the local requirements.

Takeaways

The court’s opinion affirms the underlying purpose for the Government Claims Act: allowing public entities to investigate and remedy harm before litigation ensues and to create internal protections that will prevent future harm. The opinion also serves the public policy that limited public resources should not be spent on litigation that could be avoided, and that public agencies make the best use of their limited resources when they can plan their budgets in advance.

Local public agencies should consider adopting local policies that address exempt claims. For school districts and county offices of education, CSBA’s model Board Policy and Administrative Regulation 3320 contain optional policy language on point. Lozano Smith’s Litigation Practice Group also offers its Government Claims Handbook as a resource for addressing claims under the Act.

The plaintiff in the case recently petitioned the California Supreme Court to review the appellate court’s opinion. The Supreme Court will determine whether to grant review in the coming months.

If you have any questions regarding theBig Oak Flat-Groveland Unified School District opinion, the Government Claims Act, or the adoption of local claim presentation requirements, please contact the authors of this Client News brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

©2017 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.

Colleges Have a Duty to Warn or Protect Students from Foreseeable Violence

April 2018
Number 14

Colleges have a legal duty, under certain circumstances, to protect their students from or warn them about foreseeable violence in the classroom or during curricular activities, the California Supreme Court has ruled.

In The Regents of the University of California, et al., v. Superior Court of Los Angeles County, the Court considered whether colleges owe a duty of care to their students to protect them from or warn them about foreseeable violence. This question is critical to determining whether a college acted in a negligent manner when it failed to warn or protect students from foreseeable violence.

Negligence claims require the existence of an underlying duty of care owed the injured party. Where there is no duty of care on the college’s part, a college cannot be held liable for negligence.

Background

A student who displayed increasingly hallucinatory, erratic, and threatening behavior stabbed a fellow student during a chemistry lab. Over the course of that year, the university, which was aware of the student’s psychological issues, had moved him to a different dormitory and then a single room before expelling him from student housing. The university also provided counseling services, urged the student to submit to voluntary hospitalization, concluded he did not meet the criteria for an involuntary hold, and ordered him to return to counseling services. The members of the university’s consultation and response team monitored the student’s behavior and became increasingly concerned when he identified particular students as threats. The day before the stabbing the team scheduled a meeting with the student, but he failed to attend. The university did not otherwise protect or warn students regarding the potential threats.

The Court concluded that colleges have a duty to their students to warn or protect them from foreseeable harm, which arises from the special relationship that exists between the college and its students. The Court opined the college environment is unique. A college provides educational services and community, often at a point in students’ lives when they are learning to navigate the world as adults and are vulnerable and dependent on the college for a safe environment. Colleges have superior control over the environment and also, the ability to protect students by imposing rules, disciplining students, and employing resident advisers, mental health counselors, and campus police. There is also a limited community to whom the duty is owed, namely students and not the public at large. These characteristics all fit within the paradigm of a special relationship between the parties which establishes a duty to warn or protect from foreseeable harm.

A college’s duty to warn and protect students is limited, however, and extends only to activities where the college has some control. The Supreme Court concluded it is reasonable for students to expect that a college will provide some measure of safety in the classroom, and more broadly, in curricular activities.

The Court emphasized that the existence of a duty of care is not equivalent to liability, and that not all violence on campuses can be prevented. Colleges do have a duty to act with reasonable care, however, when aware of a foreseeable threat of violence in a curricular setting.

The Court did not provide any guidance regarding what a college must do to meet this duty of care. Having settled that colleges generally owe a limited duty of care to their students, the case was remanded to the Court of Appeal to determine whether the university had breached its duty of care in this case or was otherwise immune from liability. Thus, whether the university’s response failed to meet its duty to warn or protect, and guidance on what the university should have done and when, remains to be determined by the Court of Appeal.

Takeaways

If community college employees acting within the scope of their employment become aware of student behavioral issues that could rise to the level of foreseeable harm, there is a duty of care which may result in liability if the community college fails to warn or protect students. Community colleges should ensure there are communication channels in place to alert employees responsible for assessing and responding to threatening behavior, and should also review their behavioral intervention protocols.

Though Regents is specific to the college environment, a court could adopt a similar viewpoint toward a school district and its minor students. For more specific analysis in the school district context, contact legal counsel.

If you have any questions about this case or about community colleges’ or school districts’ duty of care to students in general, please contact the authors of this Client News brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Michelle C. Cannon

Partner

Carrie M. Rasmussen

Senior Counsel

©2017 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.