On April 26, 2021, the First District Court of Appeal published its decision in Oakland Police Officers Association v. City of Oakland (2021) — Cal.App.5th — (“Oakland POA”).  The case provides critical guidance regarding what information a law enforcement agency must provide to a peace officer before conducting a second or subsequent interrogation of the officer in an administrative investigation under the Public Safety Officers Procedural Bill of Rights Act (“POBRA”). Liebert Cassidy Whitmore attorneys J. Scott Tiedemann and Alex Wong submitted an amicus brief for the League of California Cities and the Los Angeles County Police Chiefs Association on behalf of the City of Oakland, which prevailed in the case.

Government Code section 3303, subsection (g) provides:

The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer’s personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.

Previously, in Santa Ana Police Officers Association v. City of Santa Ana (2017) 13 Cal.App.5th 317 (“Santa Ana POA”) the Fourth District Court of Appeal held that under Section 3303, subdivision (g), officers under investigation were not only entitled to access a recording of their own interrogation prior to a subsequent interrogation but were also entitled to stenographer notes, reports and complaints.  Prior to the Santa Ana POA decision, based on the California Supreme Court’s decision in Pasadena Police Officers Association v. City of Pasadena (1990) 51 Cal.3d 564 (“Pasadena POA”), most agencies had understood that officers were only entitled to access a recording of their prior interrogation before a subsequent interrogation.  The Santa Ana POA holding created significant administrative and substantive concerns for effectively investigating peace officer misconduct.  For example, if a police chief reviewed an investigation report and ordered investigators to conduct a follow-up interrogation of the officer, then the Santa Ana POA case suggested that investigators would have to provide the officer under investigation with a copy of the report, including statements by witnesses and investigator conclusions, prior to conducting the subsequent investigation.  Agencies were reasonably concerned that, among other things, providing such extensive discovery before an interrogation may influence an officer’s recollection and undermine the integrity of an investigation.

In Oakland Police Officers Association v. City of Oakland, the First District Court of Appeal expressly disagreed with the Santa Ana POA Court’s interpretation of Government Code section 3303.  Reminiscent of the Supreme Court’s decision in Pasadena POA, the First District determined that mandating complaints and reports be disclosed prior to a subsequent interrogation is, “inconsistent with the plain language of the statute and undermines a core objective under POBRA—maintaining the public’s confidence in the effectiveness and integrity of law enforcement agencies by ensuring that internal investigations into officer misconduct are conducted promptly, thoroughly, and fairly.”

In Oakland POA, the Oakland Police Department had conducted an internal affairs investigation into several officers’ handling of a mental health welfare check that resulted in a citizen complaint alleging unlawful search and seizure, excessive force, harassment, discrimination and property damage.  Following the investigation, which involved separate interrogations of each of the involved officers, the Department cleared the officers of wrongdoing.  Subsequently, the Oakland Community Police Review Agency (“CPRA”), a civilian oversight agency with independent authority to investigate claims of police misconduct, conducted its own investigation.  Prior to the CPRA’s interrogation of the officers, counsel for the officers demanded copies of all “reports and complaints” pursuant to Government Code section 3303, subdivision (g).  The CPRA denied the request and refused to disclose the materials.  The CPRA thereafter determined that officers knowingly violated the complainant’s civil rights and then actively concealed the violation from investigators.

The officers and their union filed a petition for writ of mandate alleging the City violated their rights under Government Code section 3303, subdivision (g), by refusing to disclose reports and complaints prior to the officers’ supplemental interrogations.  The trial court, constrained by the Santa Ana POA decision, granted the petition and precluded the use of the officers’ interrogation testimony for disciplinary purposes.  The City appealed.

In reversing the trial court’s decision and finding no mandatory obligation to disclose reports and complaints prior to a second interrogation of an officer, the Court of Appeal looked at both the statutory construction as well as the legislative history of the Government Code section 3303, subdivision (g).  First, the Oakland POA Court noted that under the plain language of the statute, the only investigation materials an officer was entitled to “prior to” any further interrogation was a “tape recording” of the earlier interrogation.  As the Legislature did not use similar language for reports or complaints, the Court concluded the Legislature did not intend to establish a post-interrogation deadline for disclosing those materials.  Rather than adopt the City’s position that materials need only be disclosed at the commencement of disciplinary proceedings, the Court instead concluded that an agency has the statutory right to withhold materials it deems confidential.  The Court further held that an agency may deem materials confidential if it finds doing so satisfies Evidence Code section 1040-1041, “or if disclosure would otherwise interfere with an ongoing investigation.”  Importantly, the Court also held that nothing in Government Code section 3303 prohibits an agency from “de-designating” records previously deemed confidential when the basis for confidentiality no longer exists, such as the completion of the investigation.

The Oakland POA Court held that if punitive action is contemplated at the conclusion of an investigation, the agency will need to determine whether to de-designate the materials and disclose them, or decline to bring charges on the basis of any materials that are withheld.  The Court also harmonized its interpretation of Government Code section 3303, subdivision (g), with an officer’s right to review and comment on adverse entries in personnel files pursuant to Government Code sections 3305 and 3306, by holding that those rights do not extend to review of materials temporarily deemed confidential under section 3303 for purposes of an active investigation.  However, those rights would still attach at the conclusion of an investigation.

The Court also considered the legislative history of Government Code section 3303 and noted that the bill as originally introduced did not provide any basis for agencies to protect the integrity of investigations by withholding sensitive information.  However, the Court noted that by granting agencies the authority to withhold confidential materials, the Legislature intended to strike a balance between a police officer’s entitlement to relevant discovery and the agency’s ability to supervise employees effectively and to safeguard the integrity of internal investigations.  Accordingly, the Court noted the timing of disclosure of notes, complaints and reports is guided by an investigating agency’s exercise of its discretion to designate materials confidential in furtherance of its investigative objectives and to release nonconfidential materials upon request of the officer under investigation.

Under the Oakland POA decision, unless your agency is within the jurisdiction of the Fourth District Court of Appeals (i.e., Orange, San Diego, Imperial, Riverside, Inyo, and San Bernardino Counties), your agency has the discretion to temporarily designate reports and complaints and other investigative materials confidential in order to protect the integrity of an ongoing administrative investigation, and then de-designate those materials at the conclusion of the investigation so that they may be used for disciplinary or other personnel purposes.  Agencies within the Fourth District still have to contend with the Santa POA decision, but may have some more confidence in defending a decision to withhold information prior to conducting a subsequent interrogation.

This decision establishes a clear split in authority between California’s First and Fourth Appellate Districts, potentially making the issue ripe for the California Supreme Court to weigh in.

On September 16, 2020, the California Supreme Court granted review of Boermeester v. Carry, a case involving the expulsion of student Matthew Boermeester from the University of Southern California (“USC”) for intimate partner violence in violation of USC policy after an investigation and a hearing.  The California Supreme Court’s review of the case is expected to provide long-awaited clarity on a key issue involving the student disciplinary process — namely, the extent of an accused student’s right to receive the opportunity to cross-examine critical witnesses at an in-person hearing when facing disciplinary action.

It is well established that public educational institutions, as state actors, must afford due process to students who are accused of misconduct and facing disciplinary action.  While due process requirements do not apply to private educational institutions because they are not state actors, private schools must provide a fair process (i.e., fundamental fairness) to students who are accused of misconduct and facing disciplinary action.  Due process and/or fair process, at minimum, entitle students facing serious disciplinary action to some kind of notice of the accusations against them and the basis for those accusations, and some kind of hearing in which they receive the opportunity to explain their version of the facts.  Additionally, educational institutions that receive federal funds must also comply with the detailed investigation, hearing, and disciplinary process requirements under the implementing regulations of Title IX of the Education Amendments of 1972 (“Title IX”).

With regard to student discipline at educational institutions, courts have applied the principles of “due process” and “fair process” interchangeably to apply cases involving due process at public schools to cases involving fair process at private schools, and vice versa.  As such, cases addressing these topics are equally important to both public and private educational institutions, and the California Supreme Court’s upcoming review of Boermeester v. Carry will be no exception.

Background on Boermeester v. Carry

Boermeester was a student at USC and a member of USC’s football and tennis teams.  After two USC students observed Boermeester put his hand on Jane Roe’s neck and push her against a wall, the two students reported the incident to the USC men’s tennis coach.  USC’s Title IX office began an investigation into the alleged incident.  During Roe’s interview, she described the following: Boermeester had grabbed the back of her hair hard, which “hurt,” and then grabbed her “tight” by the neck, which caused her to cough.  Boermeester then laughed and let go.  Thereafter, Boermeester grabbed Roe by the neck twice more and pushed her hard against a concrete wall, which caused her head to hurt.  Following her interview, Roe accepted the interim protective measures offered by the Title IX Coordinator.

Thereafter, Boermeester was notified of the charges against him, of the interim protective measures in place, which prohibited him from contacting Roe, and that he was placed on an interim suspension.  Roe then asked USC to lift the interim protective measures, recanted her statement, and asked the Title IX Coordinator to dispose of her statement.  When Boermeester was interviewed by the investigator, he generally confirmed the events as Roe described them, but denied intending to hurt her.  The investigator also interviewed students who heard and/or saw the incident between Roe and Boermeester, friends of Roe and Boermeester, and Boermeester’s ex-girlfriend.  Grainy surveillance camera footage of the incident showed Boermeester grabbing Roe by the neck and pushing her against the wall.

The investigator determined that Boermeester violated USC’s misconduct policy by engaging in intimate partner violence.  The Title IX Coordinator held separate hearings for the parties, known at USC as an “Evidence Hearing,” where each party receives the opportunity to present a statement or evidence and to submit questions for the Title IX Coordinator to ask the other party.  The Title IX coordinator has discretion to exclude inflammatory, argumentative, or irrelevant questions.  The parties could also present “new information,” which would be shared with the other party for a response.

USC’s Misconduct Sanctioning Panel, which was composed of two staff or faculty members and undergraduate students, reviewed the investigator’s findings and decided upon expulsion.  Boermeester appealed to the Vice President of Student Affairs, but the decision to expel him was ultimately upheld.

Proceedings in the Superior Court and Court of Appeal

Boermeester filed a petition for writ of mandate in the Superior Court, which the Superior Court denied.  Boermeester then appealed, and the California Court of Appeal for the Second District reversed, remanding the matter back to the trial court.  Although the appellate court agreed with the trial court on many points, as described below, it took issue with how the trial court treated the issue of Boermeester’s rights of cross-examination at the disciplinary hearing.

Boermeester’s basis for seeking relief from the courts was the contention that he did not receive sufficient notice of the allegations against him, that his interim suspension was unfair because it was imposed without a hearing and the evidence was insufficient to support it, and that the disciplinary proceedings against him were unfair.

First, the court held that Boermeester received sufficient notice of the factual basis of the allegations against him, and a meaningful opportunity to respond to those allegations.  USC provided Boermeester notice of the allegations against him, the alleged policy violation, and the specific acts, date/time, and location where the alleged conduct occurred.  USC also provided Boermeester the evidence compiled by the investigator and the opportunity to provide written statements regarding the evidence.

Second, the court held that Boermeester was informed of the evidentiary basis for the interim suspension and there was sufficient evidence to support the interim suspension.  USC policy allows for interim protective measures to be imposed when there is information that the accused student poses a substantial threat to the safety or well-being of anyone in the university community, which is determined by weighing specific factors.  USC policy also provides the accused student 15 days to request that the Vice President of Student Affairs review the interim measure.  Boermeester requested that the interim suspension be discontinued or modified, but the Vice President of Student Affairs denied the request.  Also, the court held that students are not entitled to a hearing before interim measures are imposed.

Finally, the court held that nevertheless Boermeester’s hearing did not meet the requirements of fair process.  The court explained that “where a student faces a severe sanction in a disciplinary proceeding and the university’s decision depends on witness credibility, the accused student must be afforded an in-person hearing in which he may cross-examine critical witnesses to ensure the adjudicator has the ability to observe the witnesses’ demeanor and properly decide credibility.”  To facilitate the assessment of credibility, the cross-examination of witnesses may be conducted directly by the accused student or his representative, or indirectly by the adjudicator or by someone else, and that witnesses may appear in person, by videoconference, or by another method.  The court also explained that the cross-examiner has discretion to omit questions posed by the parties that are irrelevant, inflammatory, or argumentative.

The court reversed the matter and remanded it to the superior court with directions to grant Boermeester’s petition for writ of administrative mandate.  The court further noted that “[s]hould USC choose to proceed with a new disciplinary hearing, it should afford Boermeester the opportunity to directly or indirectly cross-examine witnesses at an in-person hearing.”

California Supreme Court’s Upcoming Review

USC filed a petition for review in the California Supreme Court and the Court granted the petition, agreeing to decide certain issues in the case.  It has de-published the Court of Appeal opinion in light of this grant of review, so that the opinion no longer has precedential effect.

The California Supreme Court will weigh in on certain questions regarding the cross-examination issue, including:

  1. Under what circumstances, if any, does the common law right to fair procedure require a private university to afford a student who is the subject of a disciplinary proceeding with the opportunity to utilize certain procedural processes, such as cross-examination of witnesses at a live hearing?
  2. Did the student who was the subject of the disciplinary proceeding in this matter waive or forfeit any right he may have had to cross-examine witnesses at a live hearing?
  3. Assuming it was error for the university to fail to provide the accused student with the opportunity to cross-examine witnesses at a live hearing in this matter, was the error harmless?

The Supreme Court’s findings on these questions will be significant for public and private educational institutions alike.

 

Boermeester v. Carry (2020) 49 Cal.App.5th 682, as modified (June 4, 2020), reh’g denied (June 18, 2020), review granted and ordered not to be published (Cal. 2020) 268 Cal.Rptr.3d 688.

California’s Computer Data Access and Fraud Act (CDAFA) (also referred to as the “Anti-Hacking Statute”) prohibits access to computers, computer systems, and networks without permission in order to do harm or engage in unauthorized use. (See California Penal Code § 502). Violation of the CDAFA may range from a misdemeanor to a felony offense, and the Act also provides for a civil remedy in the form of compensatory damages, injunctive relief, and other equitable relief. The intent of the CDAFA is to protect individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems.

The Act specifically prohibits the disruption of government computer services and public safety computer systems without permission.

Prosecution for violation of Penal Code section 502 is not limited to outsiders of an organization. Employees who misuse their access to employer computer systems may be held criminally liable for taking, copying, or making use of any data from a computer, computer system, or computer network. According to the U.S. Court of Appeals for the Ninth Circuit, the term “access” as defined in the state statute includes logging into a database with a valid password and subsequently taking, copying, or using the information in the database improperly.

Many employers are ill prepared to defend against insider hacking jobs. Information Technology (“IT”) employees and others with unfettered access to computer systems, data, and employee email accounts may be tempted to eavesdrop and appropriate data beyond what is required in their scope of employment.

Public agencies must protect their electronic information just as private companies must.  Indeed, while numerous local government records are public documents, improper access and/or misuse of public data, such as employee emails, without a business purpose, can create significant disruption within an agency. Also, many local government documents are exempt from public disclosure, including documents pertaining to pending litigation, private personal information, and library circulation records, to name a few. Local government agencies have an obligation to protect such exempt documents from disclosure.

While improper access can be difficult to detect and control, employers can take several important steps to deter unmitigated employee access.

  1. Adopt personnel policies prohibiting employees from gaining access without permission in order to alter, damage, delete, destroy, or otherwise improperly use any data, computer, computer system, or computer network. Such policies should also prohibit making copies of data without permission, and gaining access in order to disrupt services.Community colleges should also note that they are required by Penal Code Section 502(e)(3) to include computer-related crimes as a specific violation of college or university student conduct policies.
  2. Establish in job descriptions and terms of service that access to employer computers, systems, networks, and data are only permitted for legitimate business purposes that fall within the employee’s scope of employment, and that the employer does not consent to access for non-business purposes or for purposes that fall outside of an employee’s scope of employment.
  3. Require employees to acknowledge and agree in writing that access is restricted to designated business purposes, and that they are not permitted to access or misuse employer computers, systems, networks, and data for any other reason. Employees should also be required to acknowledge that unauthorized access or access/use for a non-business purpose may result in discipline up to and including termination, and may result in prosecution under the law. Such acknowledgements should be renewed on a regular basis. User agreements are particularly important for IT employees.
  4. For IT employees, establish a “service” or “trouble” ticket system to define when access to certain systems is appropriate, and when such access is no longer necessary once each ticket is resolved.
  5. In order to discourage misappropriation of agency data, prohibit employees from bringing their own computer equipment, including computers, laptops, hard drives, USB drives and other personal devices, into the workplace.
  6. Finally, in the event that employers need to investigate an employee’s alleged improper access or misuse, advise and regularly remind employees in writing that they have no expectation of privacy regarding their activity on employer-owned devices and systems.

Data theft and computer system disruption can have serious effects on an organization. These steps can help ensure that employees are aware of the rules and expectations related to computer and data access, and will help protect employer data from misuse.

This article was reviewed March 2021 and is up-to-date.

Many times, parties to a lawsuit receive trial court rulings in the midst of the litigation that are unfavorable, oppressive, and seem to them to be demonstrably wrong.  The parties want to appeal immediately, but their counsel will say that cannot happen, citing the “Final Judgment Rule.”  The rule certainly sounds dark and fateful.  Perhaps courts intend it to be, because the rule serves to deter disgruntled litigants from appealing while the trial court case is ongoing, and typically requires those litigants to wait months, or even years, to appeal.  So what is this rule?  And perhaps more importantly, what are ways to gain access to an appellate court early without offending it?

The Final Judgment Rule (sometimes called the “One Final Judgment Rule”) is the legal principle that appellate courts will only hear appeals from the “final” judgment in a case.  A plaintiff or defendant cannot appeal rulings of the trial court while the case is still ongoing.  For example, a party that loses its motion to compel discovery, motion for summary judgment, or demurrer cannot appeal these decisions, at least not until a final judgment has been entered in the case, concluding the lawsuit in the trial court.  The Final Judgment Rule has existed for hundreds of years, and serves the purpose of promoting judicial efficiency – cases would practically never end if the party who lost a motion while the case was pending could appeal it, wait for a decision from the court of appeal, and then continue with the trial court case.

Moreover, the Final Judgment Rule greatly reduces appellate court workloads by tending to make it so that only very important issues are ultimately presented to those courts.  If a party loses a motion early in the trial court case, they may certainly feel wronged.  But in the weeks or months afterward, the case may settle, the issue may fade in importance, or the trial court might actually decide to change the ruling, making appellate review unnecessary.  Postponing review conserves appellate court resources, and those of the parties as well.  In addition, postponing appellate review allows the appellate court to rule on all the challenges to the trial court’s decisions at the same time, thereby further promoting efficiency.  The appellate court will not have to consider “piecemeal” appeals.

The Final Judgment Rule may make sound policy sense.  But it is not much comfort to a litigant who has lost an important motion in court many months before the actual trial will start and cannot immediately appeal the bad ruling.

There are, however, some ways around the Final Judgment Rule.  Here are examples of four significant ways, and the circumstance under which each is available.

  1. Petition for Writ of Mandamus:

This is the classic method for obtaining relief while a litigation matter is still ongoing.  This type of petition to an appellate court seeks a “writ of mandamus” (sometimes also called a “writ of mandate”), essentially an order from the appellate court to the trial court directing it the trial court to change its decision or take some other action.  This type of writ is available in both federal and state courts.

The advantage of a petition for writ of mandamus is that it is available to overturn essentially any ruling or order made by a trial court, even though the lawsuit is still ongoing.  The disadvantage of this type of petition, however, is that it is entirely discretionary in the court of appeal.  The court of appeal is free to turn down any writ petition, even one that clearly has merit, and the court of appeal denies the overwhelming majority of petitions for writ of mandamus seeking review of trial court orders.  The state court percentage of accepted petitions is low and the number is even lower in federal court.  The reason these writs are so often denied on this summary basis (i.e., without even considering whether they raise a valid legal point) is that courts of appeal rarely see any reason to depart from the underlying principles of the Final Judgment Rule.

There are particular types of scenarios in which appellate courts are more likely to decide a writ on the merits.  One is when issues of privilege or confidentiality are concerned.  For example, when a trial court orders a litigant to disclose sensitive personnel records of individuals or information in which the litigant claims attorney-client privilege, the need for appellate review is immediate.  If the litigant obeys the trial court’s order, then the disclosure will be made, and the alleged harm done, before any appellate court can determine whether the trial court’s ruling in fact was correct.  It is widely understood that in these scenarios, appellate courts will more likely choose to intervene in the midst of litigation.

Another example is when the issue raised by the writ petition is one of great public importance, and when the party who files the petition can persuade the court that the public would be well served by the appellate court immediately reviewing and providing guidance on that particular issue without waiting for the case to conclude.

  1. A Preliminary Injunction Ruling:

The parties can also immediately appeal a trial court’s ruling granting or denying injunctive relief.  Trial courts have the power to issue preliminary injunctions at the beginning of a case that can operate to preserve the status quo.  For example, a trial court can order that a public college must stop enforcing a rule that supposedly stifles student First Amendment free speech rights.  Trial courts can make these orders based on an initial showing by the plaintiff, at the beginning of the case, that they are likely to succeed on the merits of their claim, that they are likely to suffer irreparable harm if the preliminary injunction is not granted, and that general equities and the public interest support issuance of the injunction.

Not only are these types of orders for injunctive relief by trial courts (either granting or denying) immediately appealable, but in the federal appellate courts, appeals of injunctions are given priority over other types of cases.

  1. Rulings on Anti-SLAPP Motions:

An immediate appeal is also available from a state trial court’s ruling on what is known as an “anti-SLAPP motion.”  This type of motion can be used by a defendant, including a public entity, in response to a lawsuit that challenges conduct by the defendant in furtherance of the defendant’s right of petition or free speech as defined by the anti-SLAPP statute.  (SLAPP stands for “Strategic Lawsuit Against Public Participation,” and is meant to refer essentially to meritless lawsuits brought against persons or organizations to punish them for and/or deter them from speaking out on important issues or petitioning the government for redress.)  The statute defines protected activities very broadly.  Indeed, courts have interpreted the definition to include government statements in various types of proceedings, including internal investigations conducted by public entities as to their employees.  (Hansen v. California Dept. of Corrections and Rehabilitation.)

If the anti-SLAPP statute applies in a given context, then the defendant can make a motion at the outset of the case to have a trial court determine if there is any “probability” of success on the claim.  If the plaintiff cannot present evidence making this showing of a “probability,” then the trial court rules in favor of the defendant.  If the defendant wins the motion, the trial court will require the plaintiff to pay the defendant’s attorneys’ fees and costs.  Thus, another very important way to have an appeal heard early in state court is to bring an anti-SLAPP motion.

  1. Qualified Immunity Decisions:

Another judicial determination that is often immediately appealable, in the midst of litigation, is a federal trial court’s decision on the defense of qualified immunity.  This is a defense available to individuals who are officials or employees of government agencies and are named personally in federal civil rights lawsuits.  In general, the defense of qualified immunity applies when the individual defendant is challenged for actions he or she took relating to an area of law that is unclear or unsettled.  If it is sufficiently difficult for the individual to tell what is constitutionally prohibited in the situation in question, then this defense will apply.  Qualified immunity will not provide a defense to claims for declaratory or injunctive relief against the individual, but it will serve as a defense to a monetary damages claim.

If the trial court either grants or denies a motion based on qualified immunity in the middle of the case, then either side respectively can appeal the determination, if the appeal involves essentially legal questions such as whether the plaintiff’s alleged rights at issue were sufficiently unclear to merit applying the defense.  The defense applies in a wide variety of cases brought against government officials and employees.  Significantly, individual defendants can claim the qualified immunity defense in wrongful termination cases in which the former employee claims violation of his or her constitutional free speech or due process rights.

Each of these four ways to obtain appellate review on an interlocutory basis — i.e., in the middle of the case — are available to public entity defendants.  This gives public entities a unique ability in many cases to structure the defense to obtain immediate access to an appellate court, and thus have important matters resolved before the case concludes.

For other litigation posts on related issues, see prior LCW posts: “Anti-Slapp Motions As A Litigation Resource For Public Employers,” “Extending Qualified Immunity To Private Individuals,” and “Appellate Law — What Are Amicus Curiae Briefs?”

The COVID-19 pandemic has changed the work environment in many ways, including a significant impact on employer-sponsored health benefits.  The past year has resulted in changes to how frequently individuals visit the doctor (or do not visit the doctor), purchase eligible medical expenses, and need dependent care.  In response to the pandemic, the IRS, Congress, the Department of Labor (“DOL”), and the Department of Treasury have provided options for employers to adopt flexible changes and extensions for employer-sponsored health coverage, health flexible spending accounts (“health FSAs”), dependent care assistance programs (“DCAPs”), and COBRA coverage.  (See IRS Notice 2020-29; IRS Notice 2021-15; H.R. 1319 – American Rescue Plan Act of 2021; Employee Benefits Security Administration Disaster Relief Notice 2021-01.)

In order to help your agency track the available options and changes, here is a list of the top 9 ways COVID-19 can affect your public agency’s health benefits.

#1 Mid-Year Election Changes to Employer-Sponsored Health Coverage

An employer may amend a Section 125 cafeteria plan to allow employees to make mid-year election changes to their contributions to employer-sponsored health coverage for plan years 2020 and 2021.  This is a big departure from the IRS’ typical rule of irrevocability, which does not allow mid-year changes unless the employee experiences a change in status or unless there is a significant change in the cost of coverage.  A public agency may permit employees to make the following types of mid-year election changes:

  1. Employees may make a new election on a prospective basis, if the employee initially declined to elect health coverage;
  2. Employees may revoke an existing election and make a new election to enroll in different employer-sponsored health coverage on a prospective basis; and/or
  3. Employees may revoke an existing election on a prospective basis if the employee attests in writing that the employee is enrolled (or will immediately enroll) in other health coverage not sponsored by the employer.

#2 Mid-Year Election Changes to Health FSAs and DCAPs

Employers may also permit employees to make mid-year election changes to health FSAs and DCAPs for plan years ending in 2020 or 2021, including revoking elections, increasing or decreasing salary reduction contributions, and making new elections.  This deviates from the pre-pandemic rule of irrevocability for health FSAs and DCAPs.  Although salary reduction changes only apply prospectively, a plan amendment may allow employees to use amounts contributed after the mid-year election for eligible expense incurred from the beginning of the plan year.

#3 Flexibility for Health FSA and DCAP Carryovers and Increase to Carryover Amounts

There are new options that allow employees who have unused health FSA or DCAP contributions at the end of a 2020 or 2021 plan year to carryover and use those amounts in a subsequent plan year instead of losing or wasting them.  Section 214 of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (the “Act”) temporarily allows employees to carryover unused health FSA or DCAP contributions to pay for eligible expenses.  This change permits employees to carryover their unused amounts from a plan year ending in 2020 to a plan year ending in 2021.  It also permits employees to carryover unused contributions from a plan year ending in 2021 to a plan year ending in 2022.

This flexibility includes a big change from standard DCAP requirements which generally do not allow DCAPS to have carryovers.  The IRS temporarily allows employers to establish a carryover for DCAPs for plan years ending in 2020 or 2021.

This change also allows for carryovers beyond the maximum amount previously allowed.  Typically, a health FSA with a carryover only allowed an employee to carry over 20% of the annual maximum contribution amount.  The maximum carryover from a 2020 plan year to a 2021 plan year is $550 (20% of the maximum contribution of $2,750).  However, employers may temporarily allow employees to carryover all or a part of the unused amounts remaining in a health FSA or DCAP, even if that amount exceeds $550.

#4 Extended Grace Periods

A “grace period” is an extended period of time when an employee can apply unused and remaining health FSA or DCAP contributions to pay for or reimburse eligible expenses after the end of the current plan year.  Under non-pandemic circumstances, a grace period can be no longer than two (2) months and 15 days following the end of the plan year.

In light of the pandemic, the Act allows employers to adopt an extended grace period of up to 12 months for plan years ending in 2020 or 2021.  This will give employees more time to pay for or obtain reimbursement for eligible expenses.  For example, an employer can permit employees to use their entire unused health FSA benefits remaining as of December 31, 2020, to pay for eligible medical expenses incurred through December 31, 2021.

Please note that an employer may not permit both a carryover and an extended grace period for a particular health FSA or DCAP in a single plan year under these new flexible rules.

#5 Employees Who Cease Participation in a Health FSA May Continue to Spend Down Funds

Section 214(c)(2) of the Act allows employees who stop participation in a health FSA during calendar year 2020 or 2021 to continue to receive reimbursements from unused contributions through the end of the plan year (including any extended grace period).  This flexibility is available to an employee who ceases to be a participant as the result of termination of employment, change in employment status, or a new election during calendar year 2020 or 2021.

#6 Increase to Dependent’s Maximum Age

The Act also increases the maximum age of dependents from age 13 to age 14, which provides an extra year of DCAP fund coverage for children who “aged out” during the pandemic.  This allows employees to continue to use DCAP balances for qualified expenses for dependent children who turned age 13 during the 2020 plan year.  Further, participants may also use remaining DCAP balances at the end of the 2020 plan year for the dependent’s expenses in 2021, until the dependent reaches age 14.

#7 Increase to Maximum DCAP Contribution

On March 11, 2021, the President signed the H.R. 1319, the American Rescue Plan Act of 2021 (“ARPA”) into law.  The ARPA temporarily increases the maximum amount of DCAP benefits from $5,000 to $10,500 (and from $2,500 to $5,250 for taxpayers who are married filing separately).  If an employer amends its DCAP to allow for this increase, employees will have the option to make tax-exempt salary reduction contributions of up to $10,500 for 2021.

Important Point: The Flexible Changes Are Not Automatic

The changes in #1-7 above are not automatic and employer-action is required to take advantage of any of the flexible options.  Employers who are interested in establishing the flexible changes must affirmatively amend their plan documents.  Employers are allowed to pick and choose which changes they want to allow for their employer-sponsored health coverage, health FSAs, and DCAPs.

Employers who offer these changes may adopt a plan amendment retroactively but it must be adopted no later than the last day of the first calendar year that follows the end of the plan year in which the amendment is effective and the employer must operate such plan in accordance with the amendment’s effective date.  This means that any amendment should be adopted by December 31, 2021 in order it to apply retroactively to 2020 and by December 31, 2022 in order for it to apply retroactively to 2021.

Employers are not required to permit any or all of the changes.  If an employer does not adopt any of the changes, then the usual pre-pandemic rules will remain in place.

Public agencies that are considering adopting any of these flexible options should review the IRS guidance carefully and consult with legal counsel on how to properly adopt plan amendments.

#8 Subsidized COBRA Coverage

The ARPA also makes big changes to who pays for COBRA coverage.  Prior to the ARPA, individuals were required to pay their own premiums and up to a 2% administrative fee for COBRA coverage.  From April 1 to September 30, 2021, the ARPA requires employers to provide COBRA coverage to eligible individuals at no cost to the individual.  Employers will then be eligible for a federal tax credit equal to the cost of coverage.  The COBRA subsidy will be available to employees and dependents who have lost employer-sponsored health coverage due to an involuntary separation of employment or involuntary reduction in hours worked.

Employers must notify eligible individuals of their right to receive the COBRA subsidy by May 31, 2021.  Employers will also have to update their COBRA notices and send out notices informing eligible individuals when their subsidies are about to expire.  The Department of Labor will issue model notices for employer use.

#9 Extended Deadline to Apply for COBRA

Pre-pandemic, a covered employer had 44 days from the loss of group health plan coverage to provide a COBRA election notice to employees.  Employees then had 60 days to elect continued coverage. 

In 2020, the DOL and the IRS issued a notice that extended the COBRA deadlines during the COVID-19 “outbreak period”, from March 1, 2020 until 60 days after the announced end of the “Coronavirus National Emergency”.  However, since the pandemic has lasted more than one year, the DOL, Department of Treasury, and IRS have issued updated guidance on the timeline extension.  (Employee Benefits Security Administration Disaster Relief Notice 2021- 01.)  The recent guidance clarifies that the extended COBRA deadline will now last until the earlier of:

(1) one year from the date the action would otherwise have been required or permitted; or

(2) 60 days after the announced end of the Coronavirus National Emergency (the end of the “outbreak period”).

For example, if an employee lost health coverage and would have been required to make a COBRA election by March 1, 2020, the employee’s extended deadline to elect COBRA was February 28, 2021, which is the earlier of one year from March 1, 2020 or the end of the outbreak period (which remains ongoing).  If an employee loses health coverage and would have been required to make a COBRA election by March 1, 2021, the employee’s extended deadline to elect COBRA ends on the earlier of February 28, 2022 or the end of the outbreak period.  It is yet to be seen which date will come sooner.

CalPERS previously indicated that it would apply the DOL and IRS’s COVID-19 Relief Rule and extend COBRA elections for PEMHCA.  (CalPERS Circular Letter 600-039-20.)

One year after the public health emergency caused by COVID-19 began, hope is on the horizon as vaccine production and distribution increases and eligibility criteria for vaccinations expands.  With many employees teleworking during the pandemic, employers are starting to consider post-pandemic working arrangements, including the return of employees to the workplace.  As employers think about this critical issue, there are a number of questions employers must consider: How do employers respond to employees that are eligible for vaccination, but decline to be vaccinated?  Can unvaccinated employees return to the workplace, and, if so, under what conditions?  Should teleworking employees who refuse vaccination be permitted to continue teleworking?  While there are no simple answers to these questions, this blog explores the issues implicated by these questions and provides guidance for employers considering these subjects.

Eligible Employees Who Decline Vaccinations 

There are three statutory bases under which an individual may be legally entitled to refuse vaccination: (1) a disability/medical condition; (2) sincere religious belief; and (3) on the basis that the vaccine is being distributed under the Emergency Use Authorization.  The first two bases arise from the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the California Fair Employment and Housing Act (FEHA).  The third basis arises from the Food, Drug & Cosmetic Act (FD&C Act), and the protections afforded thereunder.

Under the ADA, Title VII, and FEHA, employers may require all employees to be vaccinated, but with important limitations.  For example, employers must provide reasonable accommodations to employees who because of a disability/medical reason cannot be safely vaccinated, or if vaccination conflicts with a sincerely held religious belief.  When an employee presents documentation establishing a disability or describes a sincerely held religious belief, the employer should engage in the interactive process to determine how the employee can be reasonably accommodated to minimize the employee’s risk of exposure –and spread – of COVID-19 in the workplace.  Accommodations to consider are remote work, additional personal protective equipment, moving the employee’s workspace to be more isolated, and unpaid leave.

The third basis upon which an individual may refuse vaccination is based on the vaccines being distributed under an Emergency Use Authorization (EUA) under to the FD&C Act.  Under the EUA, individuals must be informed they have the right to refuse vaccination and the consequences of refusal, which is typically presented in an accompanying fact sheet.  It is unclear what is meant by “consequences,” but it is likely referring to health consequences, not termination from employment.  While there is no law indicating an employer is legally required to accommodate employees who refuse vaccination based on EUA, it would be risky for the employer to terminate or take adverse action against employees who exercise their rights under the FC&C Act to decline vaccination.  At least one lawsuit has been filed by a public first responder employee in New Mexico seeking an injunction to prevent his termination on the basis that the county’s mandatory COVID-19 vaccination policy violates his rights under the FD&C Act.  (Legaretta v. Macias, No. 21-CV-179 MV/GBW, 2021 WL 833390, at *1 (D.N.M. Mar. 4, 2021).)  Guidance from the EEOC explains employers’ obligations to reasonably accommodate employees who cannot be vaccinated because of a disability or religious belief, but is silent on refusals based on the EUA.  But is it safe for those employees to return to the workplace?  Does the employer need to accommodate them, including allowing telework?  These are difficult questions, with many considerations and no easy answers. 

The Return to Work of Unvaccinated Employees

The ADA permits employers to exclude from the workplace employees who pose a direct threat to the health and safety of other employees or members of the public.  This standard presents two threshold questions:  (1) does a non-vaccinated employee pose a direct threat to the health and safety of the workplace sufficient to exclude them from returning to work; and (2) if so, what, if any measures could an employer adopt in order to reduce the threat to allow the employee to return to work?

On one hand, the employer may be able to claim that employees who have not been vaccinated present a health and safety risk to other employees and/or members of the public, if the unvaccinated employees will come into contact them.  The employer can use this as a basis to require the unvaccinated employees to telework or take leave.  On the other hand, if that employer had unvaccinated employees in the workplace during the pandemic (such as before the vaccines were available) while following COVID-19 safety protocols, it may be hard to explain why now it was suddenly unsafe for unvaccinated employees to be in the workplace.

In addition, as more individuals become vaccinated, the risks from having unvaccinated employees in the workplace should diminish.  For example, if only one employee is unvaccinated, and everyone else is vaccinated, the risk from one unvaccinated employee to the vaccinated employees should be relatively low.  Employers, however, need also to consider morale.  Even if employees have been vaccinated, they may feel nervous working in the same workspace as a non-vaccinated employee, especially if they have children or others in their household who have not been vaccinated, or have been vaccinated but are high risk for developing serious illness from COVID-19.  It is unclear if unvaccinated employees would pose a direct threat to justify separating them from employment, and doing so could risk discrimination and retaliation claims.  In addition, the direct threat assessment should be individualized to each unvaccinated employee; for example, a first responder that comes into contact with numerous members of the public and other first responders would likely pose a higher threat than an employee who works at a desk all day in their own office.

In order to minimize the risks to unvaccinated employees – and to others from having unvaccinated employees in the workplace — the employer should consider providing the same COVID-19 safety measures and reasonable workplace accommodations it has had in place, to reduce the threat level.  The employer should discuss concerns related to COVID-19, and see if there are ways to allow the employee to work while minimizing risk to the employee and other employees/members of the public from the spread of COVID-19.  These include providing additional personal protective equipment, moving the employee’s workspace to be more isolated, partitions between work areas, and even schedule changes to reduce the amount of employees in the work area at once or entering and exiting together.  The employer is not required to adopt accommodations imposing an undue burden; the focus is accommodations allowing the employee to perform job duties safely for them and others.

Allowing Unvaccinated Employees Who Refuse Vaccinations to Continue Teleworking

Employees who decline to be vaccinated because of the Emergency Use Authorization or personal views about the vaccination who had been teleworking during the pandemic may request to continue teleworking.  On one hand, employees do not have a right to their most desired accommodation, and there may be other accommodations that allow the employee to return to the workplace while ensuring everyone’s safety.  If the employee is at high-risk for serious illness from COVID-19, there may not be any accommodations that allow that employee to return to the workplace.  Employers will also need to consider how successful teleworking was during the pandemic; for example, if the employee was successfully performing their job duties and meeting their job expectations, it may be hard to justify refusing continued telework.

While things are now looking more hopeful, the reality is that COVID-19 will still be here for a while, and the COVID legal landscape concerning vaccinations, accommodations, and best practices is evolving.  While there may not be clear answers to all questions relating to vaccinations and the workplace, the considerations described above should help employers assess risk and develop policies and practices best suited for their workplace.

In 2017, a police officer with the City of Huntington Beach (“Officer Esparza”) saw a man standing on a sidewalk who caught his attention (“Mr. Tabares”).  Officer Esparza noticed Mr. Tabares wore a sweater on a warm day, walked abnormally, made flinching movements with his hands, and looked in his direction several times.  A former police officer who also saw Mr. Tabares thought he had mental health issues but was not dangerous.  Officer Esparza asked Mr. Tabares to stop walking so they could talk, but Mr. Tabares responded “no,” told Officer Esparza to leave him alone, and walked away.

Officer Esparza instructed Mr. Tabares to stop walking away multiple times.  Mr. Tabares turned and walked towards Officer Esparza in a confrontational manner with clenched fists.  Officer Esparza backed up, instructed Mr. Tabares to stop, and then used a taser.  Mr. Tabares approached Officer Esparza and punched him in the face.

Officer Esparza and Mr. Tabares fought and ended up on the ground, with Officer Esparza on top.  Officer Esparza struck Mr. Tabares several times and Mr. Tabares grabbed at Officer Esparza’s belt.  Officer Esparza said “let go of the gun,” but Mr. Tabares had instead taken Officer Esparza’s flashlight.  Officer Esparza stood up, drew his gun, and stepped back about 15 feet.  Officer Esparza then shot Mr. Tabares six times, shouted “get down” twice, and then shot Mr. Tabares a seventh time.  Mr. Tabares died.

Mr. Tabares’ mother filed a civil lawsuit in federal court and the district court granted summary judgment on all claims in favor of Officer Esparza and the City of Huntington Beach.  Ms. Tabares appealed the district court’s ruling on only one claim – her negligence claim under California law.

On February 17, 2021, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded, holding that Ms. Tabares’ negligence claim survived summary judgment.  See Tabares v. City of Huntington Beach (9th Cir., Feb. 17, 2021, No. 19-56035) 2021 WL 609854 (“Tabares”).

The court in Tabares explained that California negligence law is broader than federal Fourth Amendment law in excessive force cases.  It explained that under California law, an officer’s pre-shooting decisions can render his behavior unreasonable under the totality of the circumstances, even if his use of deadly force at the moment of shooting might be reasonable in isolation.  Under federal law, courts generally focus on the tactical conduct at the time of the shooting.  The difference was particularly relevant in Tabares, where the court stated a juror could find Officer Esparza unreasonably failed to follow police protocol dealing with potentially mentally ill persons before using force.  It noted there was ample evidence that Officer Esparza potentially failed to de-escalate the situation as taught by California’s Peace Officer Standards and Training (“P.O.S.T.”) when dealing with a potentially mentally ill individual.

In addition to civil liability, the holding in Tabares provides additional support for imposing discipline where inappropriate tactical actions lead to the use of deadly force.  The Ninth Circuit Court of Appeals noted the district court did not consider that a jury could have found Officer Esparza’s pre-shooting conduct unreasonable given Mr. Tabares’ potential mental illness.  In California, police departments must look at the totality of the circumstances (including all actions leading up to the use of force) when deciding whether to impose discipline and, if so, the level.

All California peace officers must meet initial standards set by the Commission on Police Officer Standards and Training (POST).  Those standards have recently been expanded, and more change may be coming.

AB 846, effective January 1, 2021, modified Government Code section 1031 to require that a peace officer be free of bias against race or ethnicity, gender, nationality, religion, disability, or sexual orientation, in addition to the preexisting requirement that he or she be free of any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.

Government Code section 1029 currently disqualifies any person who has been convicted of a felony, or any offense in another state that would have been a felony if committed in California, from becoming a peace officer.  Two pieces of proposed legislation, introduced by Assemblymember Jim Cooper and AB 60, introduced by Assemblymember Rudy Salas on December 7, 2020, would also disqualify individuals discharged by military tribunals for offenses that would constitute felonies in California.

AB 89, introduced on December 7, 2020, would increase the minimum qualifying age for a peace officer from 18 to 25 for individuals without a college degree.  Individuals between 18 and 24 years of age would only be eligible to serve as peace officers with a bachelor’s degree or advanced degree from an accredited college or university.

Federal legislation introduced on January 4, 2021 by Rep. Bobby Rush (D-Ill.), titled the Providing Officer Licensing to Increase Confidence for Everyone (POLICE) Act, would require the U.S. Attorney General to develop and issue standards for federal law enforcement officers, including licensing and continuing education.  This legislation would also provide incentives for states to implement a comparable system.

Meanwhile, California is currently one of only four states without a process for decertifying officers who do not meet standards during their careers, along with Hawaii, New Jersey, and Rhode Island.  That may soon change.

Last year, SB 731 died on the floor of the Assembly on November 30, 2020, the last day of the legislative session, without a vote.  That legislation would have established a statewide process to decertify officers who were terminated for specified acts of misconduct, including excessive force and dishonesty.  Further, in addition to other changes in law, SB 731 would have given authority to other government agencies to investigate allegations of misconduct where the accused officer resigned during his or her agency’s investigations.

However, this was not the end of the line for the movement toward a statewide decertification process.  On December 7, 2020, Senators Toni Atkins and Steven Bradford introduced Senate Bill 2, which would confirm the Legislature’s intent to “provide a decertification for peace officers.”  In addition, two separate bills, were introduced in the Assembly the same day that would create peace officer decertification procedures.  AB 17 and AB 60 both propose to disqualify any person who has had his or her POST certification revoked from future employment as a peace officer.

AB 17 and 60 would require that a peace officer have his or her certification suspended or revoked upon a determination that he or she has become ineligible pursuant to Government Code section 1029 or has been subject to a sustained termination for serious misconduct on or after January 1, 2022.

Both of these bills would require POST to create a Peace Officer Standards and Training Accountability Advisory Board to review reports of serious misconduct by peace officers and to make a recommendation to the Commission regarding what action, if any, should be taken against the subject peace officer’s certification.  Both statues would require the Commission to create a regulation defining “serious misconduct,” to include at least dishonesty, abuse of power, physical abuse or excessive force, sexual assault, and bias in the performance of an officer’s duties.  AB 60 would also require that participation in organized criminal operations be included in the definition of serious misconduct.

Under both statutes, if the recommendation of the Board was supported by clear and convincing evidence, action would be taken against the officer’s certification in formal proceedings consistent with the Administrative Procedures Act.

Individual agencies would be responsible for investigating the allegations of serious misconduct, but the Commission would have access to review the investigative file and administrative appeal record of the agency, for the purposes of disqualification.   The Commission would also conduct an investigation into any officer who was the subject of three allegations of serious misconduct in five years.

High-profile cases have thrust peace officer standards into the national spotlight.  It is unknown at this time whether these bills, either in their current form or containing modifications, will become law.  What appears certain is that the public, and therefore the Legislature, will remain interested in regulating peace officer standards.  Agencies should consult with legal counsel to stay on top of the changing landscape.