Wednesday, July 21, 2010
C.A. Clarifies Liability Under Teachers Whistleblower Law
By STEVEN M. ELLIS, Staff Writer
School officials who use their supervisory authority to interfere with a teacher’s right to disclose improper government activities are not automatically shielded from liability by being in management, the Third District Court of Appeal held yesterday.
The court reversed a decision by a Placer Superior Court judge that management employees are exempt from liability under the Reporting by School Employees of Improper Governmental Activities Act. It also said that officials who exercise their authority in such a manner are not entitled to immunity under the Government Code for discretionary acts.
However, the justices ruled that the trial court properly dismissed former Western Placer Unified School District teacher Christina Conn’s suit alleging she was denied tenure in order to stifle her allegations that students were not being properly evaluated, assessed and assigned appropriate special education services. Writing for the court, Justice Coleman Blease said Conn’s claims were not “protected disclosures” because she “was attempting to secure special education services for her own children and certain students in her class, not ‘blow the whistle.’ ”
Conn filed suit against the district and school officials in 2006 when she was not reelected to a third year of employment after a two-year probationary term. Hired in 2003 as a first-grade teacher, Conn and district officials responsible for special education services came into conflict over how services were to be provided to students in general, as well as to Conn’s son.
Conn’s termination followed concerns over her use of a cell phone during class and an incident in which she left her class with another teacher without obtaining prior authorization while leaving school grounds, as well as claims that she sometimes exhibited “irrational behaviors.” The district, however, declined to give her a reason for denying reelection.
Conn brought suit for violations of Government Code Sec. 44113, but Placer Superior Court Judge Charles D. Wachob entered a directed verdict. He reasoned that the individual defendants were not “employees” to which the statute applied because the statute excluded management employees from the term’s definition.
Wachob also ruled that the individual plaintiffs were entitled to immunity for discretionary acts, and that the district was not liable because a Sec. 44113 action only applies to employees, not a district.
Conn appealed, arguing that the trial court erred when it directed a verdict as to all defendants and held that they were immune. She also challenged Wachob’s determination that she failed to present sufficient evidence to prevail on her Sec. 44113 claim, but the justices agreed only as to the former contention.
Explaining that the term “employee” does not exclude “supervisory employees,” Blease wrote that the statute consequently “makes persons who exercise supervisory authority over personnel actions liable when that authority is used to interfere with a school teacher’s rights under the Act.”
Applying that standard, he said Wachob erred in finding that three individual defendants who did exercise “official authority” over Conn could potentially be liable insofar as they exercised that authority to recommend she not be reelected to a third year of employment.
Blease also agreed with Conn that Sec. 44113 superseded Government Code Sec. 820.2’s grant of discretionary immunity to public employees.
But he said Conn’s suit failed because Conn failed to show any “improper governmental activity,” explaining:
“Conn’s complaints were akin to internal personnel or administrative disclosures that were, at their core, disagreements about the provision of special education services to several children, including her own. Such complaints do not rise to the level of protected disclosures under the Act.”
The justice also concluded that Conn forfeited any claim against the district itself by failing to bring a Sec. 44114 claim necessary to hold the district liable.
Justices Vance W. Raye and Ronald B. Robie joined Blease in his opinion.
The case is Conn v. Western Placer Unified School District, C059754.
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