Court Clarifies Interplay Between Education Code Discipline And The Brown Act’s 24-Hour Notice Requirement

February 2019
Number 14

In Ricasa v. Office of Administrative Hearings, certified for publication on January 14, 2019, the California Court of Appeal attempted to harmonize an apparent dissonance between the Ralph M. Brown Act’s personnel exception, and the disciplinary procedures of the Education Code. The opinion constitutes the first time an appellate court has ruled on the Brown Act’s personnel exception in the context of community college districts, and the opinion’s implications reach to all public entities that discipline employees under the Education Code. Lozano Smith attorneys, including Mark Waterman (one of the authors of this news brief), successfully represented the community college on this appeal.


Appellant Arlie Ricasa (Ricasa) served as the Director of Student Development for the Southwestern Community College District (Southwestern), while at the same time serving as an elected board member of a separate, but closely tied, entity, the Sweetwater Union High School District (Sweetwater). Ricasa was implicated in the Sweetwater scandal, which received substantial media coverage, and had criminal charges filed against her for counts that included bribery and corruption. As a Sweetwater board member, Ricasa voted on million-dollar vendor contracts while also receiving gifts from the contractors, including dinners and a scholarship for her daughter. She did not disclose the gifts on her required Economic Interest Form 700, and ultimately pled guilty to violating the Political Reform Act. Her guilty plea admitted she accepted gifts and failed to disclose them, and that the gifts were provided with the intent to influence her vote on business awarded to the contractor.

After Southwestern demoted Ricasa in compliance with the Education Code, Ricasa exercised her right to appeal the demotion to the Office of Administrative Hearings (OAH), but lost her appeal on the merits. Ricasa also filed petitions in trial court to challenge the demotion, including on the ground that Southwestern’s Board violated the Brown Act by meeting in closed session without first providing Ricasa 24-hour notice under Government Code section 54957. The Superior Court denied Ricasa’s petitions generally, but ruled that the Brown Act required the college to give her 24-hour notice of the Board’s closed session discussion. Both sides appealed, and the Court confirmed that the Brown Act must be interpreted consistently with the Education Code when determining whether 24-hour notice is required.

Education Code Discipline and 24-Hour Notice under the Brown Act

The Education Code governs discipline of community college district employees, which may occur under section 87732 for immoral or unprofessional conduct, or for conviction of a felony or any crime involving moral turpitude. The Education Code imposes specific procedural requirements for such discipline, including the board’s receipt of recommendations from the district’s superintendent/president, the receipt and consideration of certain information, the preparation of charges, and notice to the employee of the right to appeal the discipline via a full evidentiary hearing before an administrative law judge.

The Brown Act generally requires that board meetings be open to the public. Closed sessions may be conducted only if authorized by statute. The relevant statutory authorization, often referred to as the personnel exception, is found in Government Code section 54957. The personnel exception allows a board in closed session to “consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests an open public session.” [Emphasis added.] For the latter category of actions, the employee must be given 24-hour advance written notice of his or her right to have the complaints or charges heard in an open session.

Ricasa argued, and the Superior Court held, that the Education Code’s disciplinary requirements transformed the closed session into a “hearing” for which 24-hour notice was required. The Court of Appeal rejected Ricasa’s theory and clarified the interplay between the Education Code and the Brown Act. The Court of Appeal held that the presentation of charges and a recommendation by the district president (who was not a percipient witness) did not transform the closed session into a “hearing” requiring 24-hour notice, nor did the length of the closed session, the lack of a post-session announcement, or the closed session debate as to whether the facts in the guilty plea sufficed to impose discipline. The Court ruled that Ricasa’s contrary “interpretation would eviscerate the personnel exception by preventing the governing boards of community colleges from engaging in the type of ‘free and candid’ discussions that the Legislature has deemed necessary for them to manage their personnel.”


Disciplining employees without violating the Brown Act’s 24-hour notice rule involves complex, nuanced legal evaluations for which counsel should be consulted. The Ricasa opinion confirms that for educational agencies the Brown Act must be interpreted in light of the Education Code and that compliance with the mandatory Education Code disciplinary requirements does not necessarily transform a board’s closed session into a “hearing” requiring 24-hour notice. While the Court did not rule that Education Code compliance forecloses 24-hour notice in all Education Code disciplinary matters, it provided substantial clarification for how the Education Code and the Brown Act must be interpreted together so as not to “eviscerate” the personnel exception.

For additional information regarding the Ricasa opinion and how it may impact disciplinary matters in your district, please contact the author 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:

Mark W. Waterman


Marisa Montenegro


©2019 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.


New Laws Increase State Control of Addiction Treatment Facilities, Require Student Athlete Opioid Warning

October 2018
Number 58

On September 26, Governor Jerry Brown signed a package of bills designed to enhance state regulation of licensed alcohol and drug abuse recovery or treatment facilities (RTFs). Governor Brown also signed Senate Bill (SB) 1109, which aims to better inform the public of the risks associated with the use of opioids. These bills take effect January 1, 2019 unless otherwise noted.

Senate Bill (SB) 992: Disclosure of Business Relationships; Developing Plans to Address Resident Relapse

SB 992 expands the types of facilities subject to licensing and regulatory requirements by broadening the definition of “alcoholism or drug abuse recovery or treatment facility” to include facilities that provide residential nonmedical services for less than 24 hours per day. Additionally, SB 992 requires all RTFs and certified outpatient programs to publicly disclose ownership of, financial interest in, or control over recovery residences, which include residential dwellings commonly referred to as “sober living homes,” “sober living environments,” or “unlicensed alcohol and drug free residences.” RTFs must develop plans to address resident relapses, including details regarding how the resident’s treatment stay and treatment plan will be adjusted to address the relapse episode and how the resident will be treated and supervised while under the influence. It is unclear where the plans will be kept or who will enforce use of the plans.

Assembly Bill (AB) 3162: Facility Licenses and Increased Penalties for Unlicensed Operations

AB 3162 makes initial licenses to operate a new RTF provisional for one year and revocable by the Department of Health Care Services for good cause. It also requires licensed services offered or provided by an RTF to be specified on the license and provided exclusively within either the licensed facility or any facility identified on a single license by street address. AB 3162 also increases the civil penalty assessed by the Department of Health Care Services for providing recovery, treatment, or detoxification services without a license from $200 per day to $2,000 per day, and increases the penalties for a violation of the licensing and regulatory provisions from $25 to $50 per day for each violation to $250 to $500 per day for each violation.

SB 823: Evidence-Based Standard of Care for Licensed Facilities

RTFs currently vary in their level of service provided. SB 823 requires the Department of Health Care Services to adopt the American Society of Addiction Medicine’s treatment criteria, or an equivalent evidence-based standard, as the minimum standard of care for RTFs by January 1, 2023. The Department of Health Care Services will require RTFs to maintain those standards with respect to the level of care to be provided by the facilities.

SB 1228: Ban on Patient Brokering

SB 1228 prohibits RTFs and other alcohol or drug programs certified by the Department of Health Care Services and their employees from patient brokering, a practice in which patients are recruited to go to a treatment facility in exchange for cash payments, drugs, or other items of value. The Department of Health Care Services may investigate allegations of patient brokering and may, upon finding a violation, assess a penalty or impose other enforcement mechanisms. RTFs or other programs that engage in patient brokering may be fined or have their license or certification suspended or revoked. RTF or program employees who engage in patient brokering may be recommended for disciplinary action, such as termination of employment and suspension and revocation of licensure or certification.

SB 1109: Opioid Factsheet to Youth Athletes

SB 1109 requires school districts, charter schools, private schools, and youth sports organizations offering an athletic program, other than as part of the regular school day or as part of physical education, to annually give the Opioid Factsheet for Patients published by the Centers for Disease Control and Prevention to each athlete. The athlete and, if the athlete is under 17, the athlete’s parent or guardian, must sign and return a document acknowledging receipt of the factsheet before the athlete begins practice or competition. Youth sports organizations include local government agencies that sponsor or conduct amateur sports competitions, training, camps, or clubs in which persons 17 years of age or younger participate.

If you have any questions about these new laws, 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:

William P. Curley, III


Jose Montoya


©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.

New Laws will Require Charter Schools to Provide Meals, Sexual Health Education

October 2018
Number 57

The Legislature has expanded requirements for charter schools in 2019. Assembly Bill (AB) 1871 will require charter schools to provide meals to needy students, while AB 2601 will require charters to provide sexual health education to students in grades 7-12.

Assembly Bill 1871

Starting on July 1, 2019, AB 1871 will require California charter schools to provide needy students with one nutritionally adequate free or reduced price meal each day. Charter schools were previously exempt from this state mandate. This change will be reflected by adding Education Code section 47613.5. Non-classroom based charter schools will be required to provide free and reduced price meals to eligible students on days when the students are scheduled for two or more hours of educational activities at a charter school facility.

For charter schools that become operational July 1, 2019, implementation of this requirement must occur no later than July 1 of the following school year.

Assembly Bill 2601

Starting on July 1, 2019, charter schools will be required to provide sexual health education and human immunodeficiency virus (HIV) prevention education to students in grades 7-12. Current law mandates that this sexual health education and HIV prevention education be provided to students in grades 7-12 in traditional schools. Charter schools, however, were exempt from this curriculum requirement. Again, the Legislature has now decided that providing sexual health and HIV prevention education to students in California schools outweighs the objective to provide freedom and flexibility to charter schools in developing their curriculums. This change will be reflected in Education Code section 51931.


Charter authorizers may want to explore the planned strategies of the charter schools they oversee to implement these two new mandates.

If you have any questions about AB 1871 or AB 2601 or about laws applicable to charter schools 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.

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.


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


Gabriela D. Flowers

Senior Counsel

Erin M. Hamor


©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.

California Supreme Court says Minors’ Claims against Public Agencies Must Adhere to Government Claims Act Timelines

April 2017
Number 14

In J.M. v. Huntington Beach Union High School District (Mar. 6, 2017, No. S230510) ___ Cal.5th ___ 2017 [Cal. LEXIS 1609] < opinions/documents/S230510.PDF >, the California Supreme Court determined a high school football player was not entitled to court relief for his personal injury claim against a school district because he failed to strictly comply with the timelines spelled out in the California Government Claims Act (Act), often referred to as the Tort Claims Act.

This holding illustrates the consequences of failing to strictly comply with the procedural requirements for bringing claims against government entities. As the Court held, no additional recourse is available to a minor who does not petition for superior court relief within the six-month timeframe set by the Act.

J.M., a minor who attended the Huntington Beach Union High School District, received concussion injuries while playing in a high school football game. J.M. did not file a government claim against the District within the six month statute of limitations period on his tort claim. After almost a year had passed since the date of his injury, J.M. retained counsel who submitted an application with the District to file a late claim. The District did not take action on the late claim application, and the claim was denied by operation of law 45 days after it was presented.

After nearly one year had passed, J.M.’s attorney petitioned the superior court for relief from the Act’s claim filing requirements. Both the trial court and the Court of Appeal rejected the claim, holding that J.M. did not file his petition for court relief within six months from the date the claim was deemed denied by the District, as required by the Act. In affirming the decision, the California Supreme Court also disapproved a contrary appellate court ruling in E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4th 736.

The Act, as set forth in Government Code sections 810 et seq., generally requires that claims for money or damages against a public entity must be presented in writing to the public entity prior to filing a lawsuit in court. A tort claim must be filed with the public entity within six months of the accrual of the claim. However, the Act permits a minor to submit an application for permission to file a late claim up to one year after expiration of the claims period. If a public entity does not take affirmative action to respond to the late claim within 45 days, the application is denied by operation of law, and the applicant may seek relief by filing a petition in court within six months.

In J.M., the plaintiff claimed that he was not obligated to comply with the Act’s requirement that he petition the court within six months from the date the District was deemed to have denied his late claim application, arguing that the Act required the District to grant late applications if the applicant was a minor during the entire claims period, and that he was therefore entitled to relief. The Court rejected this argument, finding that it was J.M.’s responsibility to timely seek relief in court from the District’s denial of his late claim application, even if the District was required to grant it.

In finding that J.M.’s claim was time barred, the Court reversed a contrary holding in E.M., under which J.M. would have been entitled to relief. The minor in that case did not file a petition for relief in court
until more than six months had passed since her late claim application was rejected. The appellate court in E.M. found the plaintiff’s untimely petition for relief was irrelevant because plaintiff had satisfied the technical requirements of the Act when she made a timely application to file a late claim with the entity. The Supreme Court in J.M. rejected this holding, finding that strict adherence to the Act’s timelines for filing a petition for relief was required, and no additional recourse was available to a plaintiff who failed to petition the court within six months of a denial of a late claim application.

The Court also dismissed J.M.’s claim that he was entitled to relief based upon the District’s failure to provide him with written notice of its deemed denial of his late claim application. The Court found that while the Act required written notice of a claim that is deemed denied by an entity’s inaction, the Legislature did not include the same notice requirement for an agency’s failure to act upon a late claim application.

For more information on the Supreme Court’s decision or on application of the Government Claims Act in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download our Client News Brief App.

Written by:

Penelope R. Glover

Senior Counsel

Niki Nabavi Nouri


©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.

Proposed Amendments to FEHA Regulations Regarding Transgender Identity and Expression

June 2016
Number 38

California’s Fair Employment and Housing Council (Council) is set to consider amendments to the Fair Employment and Housing Act (FEHA or Act) that the Council says will more explicitly spell out existing protections for transgender workers and bring those protections in line with federal guidance and state law.

The Council will discuss the proposed amendments at its June 27 meeting and is now accepting public comment. A date to consider approval of the proposed amendments – or some version of them – has not yet been announced.

The Act, which is spelled out in Government Code sections 12900 et. seq. and implemented by the California Code of Regulations title 2, division 4.1, subchapter 2, article 5, already bars employers from discriminating against employees and applicants on the basis of gender identity or expression. In its initial statement of reasons for the proposed changes, the Council said its goals are to clarify an “often misunderstood and increasingly prominent facet of the law” and to better align FEHA with state law and federal guidance.

The list of proposed changes includes:

  • Gender-neutral language. Overall, the Council proposes to use gender-neutral language and eliminate dichotomous references to gender in the Act, substituting “individual” for “male” or “female” and “opposite sex” with “different sex.” In addition, the term “transitioning” is proposed to be included within the definitions found in section 11030 as “the process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth,” which “may or may not include changes in name and pronoun, bathroom, facility usage, participation in activities like sports teams, hormone therapy, sex reassignment surgery, or other medical procedures.”
  • Working Conditions. The Council proposes to expand employees’ equal access to workplace facilities to include locker rooms, dressing rooms, dormitories and restrooms and to establish employers’ obligations to make such facilities available. The proposed amendments provide that employees must be permitted to use facilities that correspond to their gender identity or expression, regardless of the employee’s assigned sex at birth. If individual facilities are not available, employers are to provide alternatives to ensure privacy, such as locking toilet stalls and shower curtains. The proposed amendments also prohibit an employer from requiring an employee to use a particular facility and from requiring transitioning employees to undergo, or provide proof of, any particular medical treatment in order to use facilities designated for a particular gender. Employers with single-occupancy facilities under their control will have to use gender-neutral signage, such as “Restroom,” “Unisex,” “Gender Neutral,” or “All Gender Restroom.”
  • Physical Appearance, Grooming and Dress Standards. Clarifying employers’ existing obligations under FEHA, the proposed amendment would only permit employers to impose physical appearance, grooming or dress standards if they serve a legitimate business purpose and do not discriminate based on an individual’s sex, gender, gender identity or gender expression. The proposed amendment also adds that employers may not require individuals to “dress or groom themselves in a manner inconsistent with their gender identity or gender expression.”
  • Recording of Gender and Name. The Council proposes provisions that will make it unlawful to require an applicant or employee to disclose whether the individual is transgender, on a job application or otherwise. In situations where a job application requires an individual to identify as male or female, an employer cannot consider fraudulent or a misrepresentation, an applicant’s designation of a gender inconsistent with the applicant’s assigned sex at birth or presumed gender.

    Under the proposed amendments, employers will also be required to honor employees’ requests to be identified with a preferred gender, name and/or pronoun, except under limited circumstances. Acknowledging that the severe or pervasive misuse of an employee’s name could be sufficient to create a hostile or abusive work environment, the Council deemed this amendment necessary to prevent the occurrence of sexual harassment.

  • Additional Rights. Finally, the proposed amendments prohibit the denial of employment based wholly or in part on an individual’s gender identity or gender expression, as well as discrimination against an individual who is transitioning or has transitioned. If adopted, it will be unlawful for employers to inquire or request documentation or proof of an individual’s sex, gender, gender identity or gender expression as a condition of employment, except under limited circumstances.

If adopted as currently written, the amendments will require employers to review and potentially revise their existing policies and standards, and to make changes to facility access, signage and privacy considerations. FEHA defines an employer as “any person regularly employing five or more persons; any person acting as an agent of an employer, directly or indirectly; the state or any political subdivision thereof.”

Prior to adopting its proposed amendments, the Council will consider comments submitted in writing or presented at the June 27 public hearing. Written comments may be submitted via e-mail to until 5 p.m. June 27.

If you would like additional information about the proposed FEHA changes or your responsibilities with respect to transgender workers, please contact the authors of this Client News Brief or an attorney in 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:
Darren Kameya

Joanne Kim

©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.

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

Dr. Carey Hawkins Ash

©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.