Originally published on the website of legal firm
Dannis, Woliver and Kelly -DWK.
On April 26, 2012, the Fourth District California Court
of Appeal reversed the trial court in part, holding that management employees
may be liable for retaliation under the Education Code. The Court of Appeal issued
its decision in Hartnett v. Crosier (D058914), a case in which
a former employee of the San Diego County Office of Education (“SDCOE”) sued
several SDCOE employees, alleging that they retaliated against him in violation
of the Reporting by School Employees of Improper Governmental Activities Act
(Ed. Code, § 44110 et seq.).
Background
The California Legislature enacted the Reporting by
School Employees of Improper Governmental Activities Act (“Act”) in 2000, so
that public school employees, particularly classified school employees and
teachers, may “bring forward to their supervisors or management improper
activities without having to fear they are endangering their
jobs.” Education Code section 44113 prohibits employees from using or
attempting to use official authority or influence to interfere with protected
disclosures under the Act. A protected disclosure is a good faith
communication that discloses or demonstrates an intention to disclose
information that may evidence either an improper governmental activity or a
condition threatening health or safety of public employees for purposes of
remedying the condition.
The Act’s prohibition on use of official authority or
influence to interfere with a protected disclosure includes “promising to
confer or conferring any benefit; affecting or threatening to affect any
reprisal; or taking, directing others to take, recommending, processing, or
approving any personnel action, including but not limited to appointment,
promotion, transfer, assignment, performance evaluation, or other disciplinary
action.” (Ed. Code, § 44113, subd. (b).) An employee who violates the
prohibition may be liable in an action for civil damages brought against the
employee by the offended party. Education Code section 44114, subdivisions
(b) and (c) provide also that a person who intentionally engages in acts of
reprisal, retaliation, threats, coercion, or similar acts against a public
school employee or applicant for having made a protected disclosure is subject
to a fine not to exceed $10,000 and imprisonment in jail for up to one year as
well as liability for civil damages, including punitive damages for malicious
acts.
Rodger Hartnett’s complaint stated that he was a claims
coordinator in SDCOE’s risk management department. He alleged that he was
discharged in 2007 not for incompetency, insubordination, and dishonesty as
the school district contended, but in retaliation by several SDCOE
employees for reporting that some SDCOE employees referred legal business to
friends and family members in exchange for gifts, gratuities, and discounted
personal legal services. He claimed his discharge violated the Act and
entitled him to punative damages and attorney fees among other relief.
The trial court granted summary judgment for the
individual employee defendants, finding that Education Code section 44113,
subdivision (a) did not impose liability because the defendants were management
employees as defined in the Educational Employment Relations Act (“EERA”) and
that Education Code section 44114, subdivision (d) did not provide punitive
damages and attorney fees for Hartnett because he was also a management
employee. Hartnett appealed, contending the trial court erred in these
determinations
.
Decision
The Court of Appeal held that management
employees who are also supervisory employees with authority over personnel
actions are not exempt from liability under the Act. The
Act references the EERA to define “employee,” which excludes management
employees, but the EERA also separately defines supervisory
employees. The Court agreed with the Third District Court of
Appeal’s conclusion in Conn v. Western Placer Unified School Dist. (2010)
186 Cal.App.4th 1163, that Education Code section 44113 does
not exempt management employees from liability for retaliation if the employees
were acting as supervisory employees when they committed the allegedly
offending acts. In Hartnett, the Court of Appeal reasoned that
to exempt management employees exercising supervisory authority in personnel
actions would exempt those most likely and able to retaliate against employees
making protected disclosures and thwart the Act’s very purpose. The Court
did uphold the trial court’s determination that Hartnett was not entitled to
claim the additional remedies of punitive damages and attorney fees because he
was a management employee.
Impact
Management employees may be held liable for claims of
retaliation under the Reporting by School Employees of Improper Governmental
Activities Act if such employees are acting as supervisory employees with
authority over personnel actions when they commit the allegedly offending acts.
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