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

 

Prevention of liability starts with auditing your agency’s personnel rules.  Indeed, in an employment-related lawsuit, the applicable personnel rule is often “Exhibit A.”  Each year, public agencies face changes to employment laws and regulations, best management practices, and internal changes to procedures.  Thus, the outcome of a lawsuit may just depend on whether the agency has audited and updated their personnel rules to reflect these changes.

A personnel rules audit is often a detailed, methodical and lengthy process.  As with most challenging projects, a personnel rules audit requires ample preparation and thoughtful strategy.  Here are some key questions to consider in preparation for a personnel rules audit.

When was the last time your agency conducted a personnel rules audit?

If your agency’s personnel rules hail from the typewriter age, it’s probably been too long since the last personnel rules audit.  Laws change, best management practices change, and internal procedures change.  Accordingly, your agency’s personnel rules will also need to change.  During this past year, many agencies quickly adopted remote work protocols and practices in an effort to efficiently adapt to the challenges surrounding the COVID-19 pandemic. As remote work practices continue into the future, it is important to have a corresponding formal remote work policy to ensure that key expectations and requirements are met.

Do your agency’s personnel rules cover the essentials?

Sure, policies on leaves and discipline are often easy to find in most agency personnel rules.  But there are many other essential policies that are often left out of personnel rules.  Some employees work two or more jobs in addition to their agency employment.  But do the agency’s personnel rules have an outside employment policy?  Employees are issued IPhones, laptops, email addresses, or vehicles.  But does the agency have an equipment use policy that regulates use?  And even more specifically, does the agency equipment policy even reference email?  Most public sector employees in California have due process rights to their employment.  But do the agency’s personnel rules provide clear definitions of categories of employees such as “for-cause employee” and “at-will employee?”  Finally, with disability discrimination claims on the rise, it’s no wonder that agencies are including a comprehensive interactive process policy in their personnel rules so that managers and human resources professionals have guidance on navigating the oftentimes choppy waters of the interactive process.

Do your agency’s personnel rules “make sense?”

Personnel rules should be well organized and easy to read.  Because personnel rules are often lengthy documents, a table of contents is a must.  Headings and subheadings are also essential so that the reader has a roadmap and policies may be more easily referenced.  Personnel rules typically cover numerous categories of policies.  The breakdown of these categories should be based on similarity in personnel topics.  For example, leave provisions should be grouped together.  So if the policy on overtime is tucked away and hidden somewhere in the grievance procedure, it’s definitely time to take a closer look at how your agency’s personnel rules are organized.

Do you know the “why” behind your personnel rules?

In order to effectively audit your agency’s personnel rules, it is essential to know the context behind the policies.  Do you know why a policy in the personnel rules requires what it requires?  Oftentimes, personnel rules are carried over into revised versions through the years.  But little is known as to why.  Is it because the law requires it?  Best management practice?  Neither?  For example, although state and federal law requires an employer to grant an employee leave for jury service, the law does not require that agencies pay overtime-eligible employees for time spent on jury service.  Nevertheless, agencies often pay overtime-eligible employees for time spent on jury service as an additional benefit pursuant to policy in order to treat exempt and overtime-eligible employees equally.

An audit of your agency’s personnel rules can seem like a daunting endeavor.  But regularly auditing your agency’s personnel rules is critical, and can mean the difference between liability and prevention of liability.

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

Many public employers utilize 9/80 work schedules for non-exempt employees.  A 9/80 work schedule is essentially a two-workweek schedule of eight 9-hour days, one 8-hour day, and one day off.  However, once the 9/80 work schedule is implemented, there are a number of mistakes unsuspecting employers often make which can inadvertently trigger overtime liability. These pitfalls, which can also apply to a 3/12 work schedule, and how to avoid them are described below.

Pitfall #1 – Not Designating the Workweek Properly.  Although employers are required to designate a workweek for each non-exempt employee, they often fail to do so.  The problem this creates with respect to a 9/80 schedule is that the employee will end up working 36 hours in the first workweek and 44 hours in the second workweek because the employer uses an FLSA workweek which ends on a Saturday or Sunday night at midnight.  Thus, the employer will likely incur 4 hours of overtime liability in the second workweek.  This problem can be avoided by designating an employee’s workweek to begin four hours after the start time of the employee’s eight hour day, and designating the employee’s day off on the same day of the week in the following week.  The Department of Labor regulations implementing the FLSA specifically permit an employer to designate FLSA workweeks for individual employees.  29 CFR section 778.105.  Thus, if you have employees with different start times on their alternating work day, their FLSA workweek can be different – four hours after the start time of their shift.

Pitfall #2 – Allowing Employees to Change or Switch Their Regular Day Off.  Employers should be cautious of employee requests to change their regular day off because moving it will likely cause the employer to incur four hours of overtime liability.  For example, if an employee who is off-duty every other Friday is scheduled to work this Friday, he/she might ask to take this Friday off and work the following Friday (the day he is ordinarily scheduled to be off duty).  Because each 40 hour workweek is examined on its own, this scenario will result in more hours being worked in one of the two workweeks in the two week pay period.  The best way to avoid this problem is to prohibit employees from changing or switching their regular day off.

Pitfall #3 – Allowing Employees to Come In and Leave Early.  In addition to coming in and leaving early, employees who are permitted to come in and leave late on the alternating work day could also trigger overtime.  Because the workweek in a 9/80 schedule begins four hours into their eight hour shift on the day of the week which constitutes their alternating work day, permitting an employee to work more or less hours before the four hour cutoff will cause overtime to accrue.  For example, if an employee whose workweek starts at noon (because his regular Friday hours are from 8:00 a.m. to 5:00 p.m.) came to work at 6:30 a.m. on Friday and worked until 3:30 p.m., the employee would be owed 1.5 hours of overtime because the hours worked between 6:30 a.m. and noon would be in the first workweek of the two week pay period.  Like the solution to Pitfall #2, employers can avoid overtime liability under this scenario by not allowing employees to adjust the start and end times of their shifts.

Pitfall #4 – Failing to Monitor When Lunch Is Taken.  Failure to monitor lunches on the alternating day worked (e.g., Friday) could also inadvertently trigger an overtime obligation.  For example, if an employee is scheduled to work between 8:00 a.m. and 5:00 p.m. on the alternating Friday and has an unpaid one hour lunch, the employee should work the first four hours (until noon), then take lunch, and return to work the last four hours (until 5:00 p.m.).  However, if the employee decided to take lunch at 11:00 a.m., this would result in the employee working the last five hours after 12:00 p.m. thereby triggering one hour of overtime liability in the second workweek of the two week pay period.  Thus, employers should emphasize to employees the importance of taking lunch after the first four hours of the alternating work day and periodically audit employee lunch breaks to make sure they are being taken at the appropriate time.

Public employers are encouraged to scrutinize their use of the 9/80 work schedule to see if any of the common mistakes are being made.  This may require employers to separately examine each department, division or unit as there may be variations in each group’s practices.

As public agencies head into the end of the 2020-2021 fiscal year and prepare for the 2021-2022 fiscal year, it is the perfect time of year for agencies that contract with the California Public Employees’ Retirement System (“CalPERS”) to refresh their knowledge about upcoming deadlines and requirements.  Below are the key CalPERS deadlines and requirements agencies should know.

End of Year Payroll Reporting Deadlines

Public agencies must ensure that they meet CalPERS’ closing deadlines for accounts and records for the fiscal year ending June 30, 2021.  Reporting on time allows CalPERS to timely process the payroll earned period and adjustment reports and enables CalPERS to provide the proper service, contributions, and interest to member accounts.  All payroll reports for the last complete earning period ending in June 2021 must be created and posted in myCalPERS by the original due date or before 5:00 p.m. on July 29, 2021, whichever due date is earlier.  Inaccurate reporting may lead to inaccurate member information.  (See CalPERS Circular Letter: 200-024-21.)

July 30, 2021 Reporting Deadline for Out-of-Class Assignments 

CalPERS agencies must report the number of hours worked by employees in “out-of-class appointments” to CalPERS no later than July 30, 2021.  Government Code section 20480 expressly defines “out-of-class appointment” as “an appointment of an employee to an upgraded position or higher classification by the employer or governing board or body in a vacant position for a limited duration.”  A “vacant position” is defined as “a position that is vacant during recruitment for a permanent appointment.”  The definition of “vacant position” excludes a “position that is temporarily available due to another employee’s leave of absence.”  The compensation for the appointment must also be stated in a collective bargaining agreement or a publicly available pay schedule.

CalPERS requires agencies to certify “out-of-class appointments” for each member through myCalPERS no later than 30 days following the end of each fiscal year.  The information requested by CalPERS includes: the member’s name, permanent position title and “out of class” position title; beginning and end date of the out-of-class appointment; pay rates of both the permanent and out-of-class positions; and special compensation and total earnings.

Failure to report the information may result in penalties under Section 20480 and notification to CalPERS Office of Audit Services to initiate an audit of the employer’s records.

Please see CalPERS Out-of-Class Reporting Frequently Asked Questions for more information about reporting out-of-class assignments.

CalPERS’ Suspension of Work Hour Limitation for Retired Annuitants Performing Services to Ensure Adequate Staffing During the COVID-19 Emergency Remains in Effect 

In response to Governor Gavin Newsom’s March 2020 Executive Order N-25-20 at the beginning of the COVID-19 pandemic, CalPERS issued Circular Letter 200-015-20.  The letter explains that any hours worked by a retired annuitant to “ensure adequate staffing during the state of emergency will not count toward the 960-hour per fiscal year limit.”  In addition, the 180-day wait period between retirement and returning to post-retirement employment is suspended.  Most other retired annuitant restrictions, including the limitations on permissible compensation and the prohibition of any benefits in addition to the hourly rate, remain in effect.  However, the exception only applies to the extent that the retired annuitants are working to “ensure adequate staffing during the state of emergency.”  The exception does not automatically cover all retired annuitant appointments and a case-by-case assessment is necessary.

The suspension of the retired annuitant work hour limitation and wait period exceptions remains in effect until the state of emergency has been lifted.  Agencies should be aware that they must continue to notify the director of the California Department of Human Resources of any individual employed pursuant to these waivers by emailing CAStateofEmergency@calhr.ca.gov.

Track Hours Worked for Out-of-Class Appointments, Retired Annuitants, and Part-Time/Temporary Employees

Looking ahead to the next fiscal year, agencies should ensure that they have a system in place to track hours worked for certain groups of employees.  Accurate and timely tracking of hours will cut down on potential liability if an employee inadvertently meets or exceeds their work hours limitation.  Agencies should track work hours for out-of-class appointments, which are limited to 960 hours per fiscal year.  Agencies should also track the work hours for retired annuitants, which is limited to 960 hours per fiscal year if the retired annuitant is not hired to ensure adequate staffing during the COVID-19 state of emergency (otherwise CalPERS has suspended the work hour limitation as described above).  Agencies should record the hours worked by part-time/temporary employees, including those hired on a seasonal, intermittent, on-call, limited-term, or irregular basis who must be monitored for enrollment in CalPERS membership.  These employees will generally be eligible for CalPERS membership after 1,000 hours of paid service (including paid leaves) or 125 days (if paid on a daily or per diem basis) in a fiscal year.

2022 Minimum Employer Contribution for PEMHCA (CalPERS Medical)

For employers that provide benefits under the Public Employees’ Medical and Hospital Care Act (“PEMHCA” or “CalPERS medical”) CalPERS recently announced that the new 2022 minimum employer contribution for members is $149.  (See CalPERS Circular Letter: 600-026-21.)  This is a 4.1% increase from the 2021 minimum employer contribution ($143).  Although the increase does not go into effect until January 1, 2022, public agencies should be aware of this increase and take it into account for budgeting purposes as they prepare for the new fiscal year.  Beginning January 1, 2022, CalPERS will automatically update billing to reflect the new $149 amount for contracting agencies that have designated the PEMHCA minimum as their monthly employer health contribution.

The National Football League just completed its annual draft, in which the 32 NFL teams select collegiate players from around the country to compete for a spot on their rosters.  Prior to the draft, the teams spend time scouting, evaluating, and assessing these players.  Soon, the newly drafted players will have a chance to practice with the team and demonstrate whether they have the skills and talent actually to make the team.  Unfortunately for some, they may eventually be cut.

While it is probably not as high-profile or large in scale, public employers also go through a hiring process, in which they conduct interviews and background checks.  If an individual is lucky enough to be hired at a public agency, then they may also have to go through a probationary period in order to avoid being “cut from the team.”  Generally, a probationary period is the initial period of time after the employee begins employment.  There is no required period of time, but we typically see them as little as six months and as long as 18 months.

For public employers, probationary employees are usually classified as “at-will,” which means that they could be released from probation without cause.  However, even though an agency does not need a reason, the agency should be prepared to defend its decision.  The decision to release any employee clearly should never be discriminatory or retaliatory, or for any other unlawful reason.  The decision should still be based on legitimate business reasons, such as poor performance, operational needs, or economic concerns.

Regular Evaluations During the Probationary Period

A useful tool for public employers are regular evaluations within the probationary period.  For example, if your agency has a 12-month probationary period, your agency may want to have probationary evaluations every three months.  Regular evaluations allow the employer to provide feedback and describe areas for improvement so that probationary employees know where they stand throughout the probationary period.  This will help both the employer and the probationary employee work together to understand what is expected of the employee and provide any support, if necessary, to the employee.   Having regular evaluations also creates a record of any poor performance if the agency decides to release the employee.  An early negative evaluation may even justify the release of an employee earlier on in the probationary period.

Extending the Probationary Period

Agencies may have rules or policies to extend a probationary period.  Typically, employers will extend a period for the time that an employee is on a leave of absence.  Also, some agencies may have the discretion to extend the period.  If your agency finds itself regularly extending probationary periods, then you may want to consider alternatives.  First, perhaps your agency may want to consider a longer probationary period to give yourself sufficient time to evaluate the employee’s performance.  Second, perhaps your agency may want to train your supervisors to make the difficult decision to release an employee from probation.  If the reason for the extension is to give probationary employees more time to “prove” themselves, then the agency may want to discuss why the employee was unable to do so in the initial probationary period.

Consequences of Allowing a Poorly Performing Employee to Pass Probation

Typically, if a public employee passes probation, then they may have due process rights to continued employment, which will not only affect the public employer’s ability to separate the employee but also to discipline them.  So, if a public agency allows employee who has poor performance during the probationary period to pass probation and the poor performance continues, then the agency will potentially have to spend significant time and resources to address these performance issues.  This highlights the importance of taking the probationary period seriously and evaluating employees as best as you can.

* * *

If your agency is faced with the decision of releasing a probationary employee, it can be helpful to seek legal advice.

On Monday, May 10, the Treasury Department issued the Interim Final Rule (Rule) concerning the operation of the Coronavirus Local Fiscal Recovery (CLFR) Fund[1] and opened the portal through which qualified governmental entities, including metropolitan cities[2] and counties[3], may apply to Treasury for the direct payment of such funds.

Note: In our April 16 Special Bulletin, we discussed pre-award requirements that governmental entities must complete before applying to the Treasury Department for payments from the CLFR Fund and, in our March 8 Special Bulletin, we provided the eligible uses for CLFR Fund payments. In our April 16 Special Bulletin, we indicated that governmental entities, such as special districts and joint powers authorities, may qualify as “consolidated governments” and for receipt of CLFR funding directly from Treasury. While Treasury has not issued regulations concerning the CLFR or defined the term “consolidated government”, the Frequently Asked Questions provides that such entities are “special-purpose units of government” and not qualified to receive such direct payments.[4]

The Rule provides extensive information on the four (4) uses of CLFR funds[5] for which qualified governmental entities may apply, including:

  1. To respond to the public health emergency or its negative economic impacts[6];
  2. To respond to workers performing essential work during the COVID-19 public health emergency by providing premium pay to eligible workers[7];
  3. For the provision of government services to the extent of the reduction in revenue due to the COVID–19 public health emergency[8]; and
  4. To make necessary investments in water, sewer, or broadband infrastructure[9].

Each of the relevant sections describes the eligible uses of payments from the CLFR Fund, provides a non-exclusive list of programs or services that may be funded under that section, identifies uses outside the scope of the specific category, and provides questions and answers concerning the application of that section.

LCW recommends that, before applying for CLFR Fund payments, qualified governmental entities familiarize themselves with the scope of coverage under each of the applicable sections. We further recommend that applications be tailored to request funding for uses within the scope of the section and, to the extent possible, based on specific examples provided by Treasury.

LCW will be monitoring additional information provided by Treasury concerning the operation of the CLFR Fund and will be providing additional updates as circumstances require. LCW will also be monitoring information from the State concerning the allocation of funds from the Coronavirus State Fiscal Recovery Fund and how qualified entities may apply for such funding.

 

[1] See American Rescue Plan Act (ARPA), Sec. 9901, amending 42 U.S.C. 801, et seq., to add Section 603 creating the CLFR Fund (hereinafter referred to as “Section 603”).

[2] “Metropolitan cities” are entitled to approximately $45.6 billion in CLFR Fund payments that the Treasury Department will directly allocate and pay to such entities. (See Sec. 603(b)(1).)

[3] Counties are entitled to approximately $65.1 billion in CLFR Fund payments that the Treasury Department will directly allocate and pay to such entities. (See Sec. 603(b)(3).)

[4] The ARPA provides that “consolidated governments” may receive direct payment from Treasury, but does not clearly define the term. (See Sec. 603(b)(4))  The Rule also does not define the term, and only provides that “consolidated governments” include “city-county consolidated governments” (e.g., the City and County of San Francisco) (See Rule, p. 110). However, the Frequently Asked Questions state that “special-purpose districts perform specific functions in the community, such as fire, water, sewer or mosquito abatement” and such districts “will not receive funding allocations” directly from Treasury. (See Treasury, Frequently Asked Questions, No. 3). Therefore, governmental entities that are neither cities nor counties (e.g., special districts and joint powers authorities) may consider requesting the transfer of CLFR funds from governmental entities with transfer authority (i.e., the state, cities, and counties) (See Secs. 602(c)(3); 603(c)(3).)

[5] See Sec. 603(c)(1).

[6] Sec. 603(c)(1)(A); Rule, pp. 10-45.

[7] Sec. 603(c)(1)(B); Rule, pp. 45-51.

[8] Sec. 603(c)(1)(C); Rule, pp. 51-61.

[9] Sec. 603(c)(1)(D); Rule, pp. 62-78.

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.