Sunday, May 13, 2012

Bad news for SDCOE's Diane Crosier and Rick Rinear from the California Court of Appeals

Rodger Hartnett has won an important decision in the California Court of Appeal regarding his lawsuit against Diance Crosier and Rick Rinear of the San Diego County Office of Education. See the article by law firm Dannis Woliver Kelley about the April 26, 2012 decision.

California Court of Appeal Determines Supervisory or Management Employees May Be Held Liable for Retaliation under the Reporting by School Employees of Improper Governmental Activities Act
Vol. 2012, Client Bulletin No. 12
Dannis Woliver Kelley
May 2, 2012

On April 26, 2012, the Fourth District California Court of Appeal issued its decision in Hartnett v. Crosier (D058914), a case in which a former employee of the San Diego County Office of Education (“SDCOE”) sued several SDCOE employees, alleging that they retaliated against him in violation of the Reporting by School Employees of Improper Governmental Activities Act (Ed. Code, § 44110 et seq.). The Court of Appeal reversed the trial court in part, holding that management employees may be liable for retaliation under the Education Code.

The California Legislature enacted the Reporting by School Employees of Improper Governmental Activities Act (“Act”) in 2000, so that public school employees, particularly classified school employees and teachers, may “bring forward to their supervisors or management improper activities without having to fear they are endangering their jobs.” Education Code section 44113 prohibits employees from using or attempting to use official authority or influence to interfere with protected disclosures under the Act.

A protected disclosure is a good faith communication that discloses or demonstrates an intention to disclose information that may evidence either an improper governmental activity or a condition threatening health or safety of public employees for purposes of remedying the condition.

The Act’s prohibition on use of official authority or influence to interfere with a protected disclosure includes “promising to confer or conferring any benefit; affecting or threatening to affect any reprisal; or taking, directing others to take, recommending, processing, or approving any personnel action, including but not limited to appointment, promotion, transfer, assignment, performance evaluation, or other disciplinary action.” (Ed. Code, § 44113, subd. (b).) An employee who violates the prohibition may be liable in an action for civil damages brought against the employee by the offended party. ''

Education Code section 44114, subdivisions (b) and (c) provide also that a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a public school employee or applicant for having made a protected disclosure is subject to a fine not to exceed $10,000 and imprisonment in jail for up to one year as well as liability for civil damages, including punitive damages for malicious acts.

Rodger Hartnett’s complaint stated that he was a claims coordinator in SDCOE’s risk management department. He alleged that he was discharged in 2007 not for incompetency, insubordination, and dishonesty as contended, but in retaliation by several SDCOE employees for reporting that some SDCOE employees referred legal business to friends and family members in exchange for gifts, gratuities, and discounted personal legal services. He claimed his discharge violated the Act and entitled him to punative damages and attorney fees among other relief.

The trial court granted summary judgment for the individual employee defendants... Hartnett appealed, contending the trial court erred in these determinations.

Decision The Court of Appeal held that management employees who are also supervisory employees with authority over personnel actions are not exempt from liability under the Act...The Court agreed with the Third District Court of Appeal’s conclusion in Conn v. Western Placer Unified School Dist. (2010) 186 Cal.App.4th 1163, that Education Code section 44113 does not exempt management employees from liability for retaliation if the employees were acting as supervisory employees when they committed the allegedly offending acts. In Hartnett, the Court of Appeal reasoned that to exempt management employees exercising supervisory authority in personnel actions would exempt those most likely and able to retaliate against employees making protected disclosures and thwart the Act’s very purpose...

Management employees may be held liable for claims of retaliation under the Reporting by School Employees of Improper Governmental Activities Act if such employees are acting as supervisory employees with authority over personnel actions when they commit the allegedly offending acts.