STAYING LEGALPARTS I and II

ACSA 2014 Personnel InstituteOctober 8, 2014

Gregory J. Dannis, AttorneyDannis Woliver KelleyTel | 415.543.4111Email | gdannis@DWKesq.com

Jonathan A. Pearl, AttorneyDannis Woliver KelleyTel | 619.595.0202Email | jpearl@DWKesq.com

STAYING LEGAL

PARTS I AND II

ACSA PERSONNEL INSTITUTE

OCTOBER 8, 2014

TABLE OF CONTENTS

PAGE

DISCRIMINATION, HARASSMENT, RETALIATION

New Law Amends Government Code Section 12950.1 Relating to “Abusive Conduct”Education And TrainingAssembly Bill No. 2053 (Gonzales) ..............................................................................1

Did Police Officer’s ADHD Constitute Disability Under ADA?Weaving v. City of Hillsboro (D.C. Oregon, 2014) .........................................................2

Is “Historical Practice” Enough To Establish Essential Functions?Dunlap v. Liberty Natural Products, Inc. (D.Or. 2013) ...................................................3

Employee Denied Personal Leave After FMLA Leave – Is That Legal?Scorsone v. Wal-Mart Stores, Inc. (Mich. 2014) ...........................................................4

Did Fitting In Comments Revive State Trooper’s Claims?Abrams v. Department of Public Safety (2d Cir. 2014) ..................................................5

EMPLOYMENT/PERSONNEL

New Law Amends Certificated Discipline ProceduresAssembly Bill No. 215 (Buchanan) ..............................................................................6

New Law Requires Employer-Provided Annual Training to Employees on Child Abuse andNeglect Mandated Reporting RequirementsAssembly Bill No. 1432 (Gatto) ..................................................................................7

A Defender Of The Status Quo In EducationHearst Communications, Inc. (September 1, 2014) ......................................................8

District Pays $33k For Disparaging Former SuperintendentInland Valley Daily Bulletin (July 19, 2014) ...............................................................10

Is Public Employee Testimony Constitutionally Protected?SIA Cabinet Report (July 18, 2014) Lane v. Franks (2014) 134 S.Ct. 2369 ....................12

ii

Will Commission Uphold Dismissal Of Tenured Teacher, Who Hit Student, AlthoughSchool District Failed To Prepare Written Charges Before Terminating Him?DeYoung v. Hueneme Elementary School District (2014) .............................................14

Time To Clear The Air, Managing Marijuana And The WorkplaceCalifornia Employer Advisor (July 2014, Vol. 23, No. 4) ...............................................15

Did Employee’s Refusal To Sign Disciplinary Notice Constitute Insubordination,And Grounds To Deny Unemployment Benefits?Paratransit, Inc. v. Unemployment Insurance Appeals Board (2014) .............................16

LABOR RELATIONS

New Law Amends Scope of RepresentationAssembly Bill No. 1611 (Bonta/Skinner) ....................................................................17

Court Affirms That School Districts Do Not Have A Statutory Right To UnilaterallyReduce Hours Or Work Year Of Classified PositionsAnaheim Union High School District v. American Federation of State, County andMunicipal Employees, Local 3112, AFL-CIO, __ Cal.App.4th __ [2013 WL6906431] .........18

Did Trustee’s Comments Concerning Increases In Class Size Violate EERA?Ocean View Teachers Ass’n v. Ocean View School District (2014) 38 PERC ¶ 175 ...........20

Layoff Of School Nurses Constitutes Retaliation For Protected Concerted ActivitiesRocklin Teachers Professional Association v. Rocklin Unified School District(2014) PERB Dec. No. 2376 [39 PERC ¶ 3] ................................................................21

District Must Bargain, On Request, Regarding Effects Of Possible LayoffsCSEA, Chapter 32 v. Bellflower Unified School District(2014) PERB Dec. No. 2385 [39 PERC ¶ 17] ..............................................................22

Lawsuit Challenges Teachers’ Compulsory DuesFriedrichs v. California Teachers Association (9th Cir. 2014) .........................................23

PUBLIC RECORDS ACT

Student Scores Linked To Individual Teachers Are Not Subject ToDisclosure As Public RecordsLos Angeles Unified School District v. Superior Court of Los Angeles County(Cal.App.4th ___ [2014 WL 3615855]) ......................................................................27

Electronic Communications Through Private Accounts/Devices Are Not Public Records(Appeal Pending)City of San Jose v. Superior Court of Santa Clara County, Ted Smith,Real Party in Interest (225 Cal. App.4th 75 (Ct. App. 2014), review granted, 326 P.3d 976(2014) ..................................................................................................................29

iii

SCENARIOS AND WORKSHEETS

Investigative Issues for Discussion, Julie and Mr. Best ................................................31

First Amendment Select Summary ............................................................................32

Communications Plan Worksheet ..............................................................................34

About Our Firm

For more than 35 years, Dannis Woliver Kelley has provided trusted counsel and forward-thinking legal solutions to school and community college districts, county offices ofeducation, and other educational entities throughout California in all areas of education law.We currently represent hundreds of school districts and community colleges throughoutCalifornia. We are a diverse, women-owned law firm with offices located in: San Francisco,Long Beach, San Diego and Novato.

As California’s thought leaders in education law, we are at the forefront on legal issues ourclients face. Most importantly, we know how to work with our clients to resolve these issues.We build long-standing partnerships with our clients by acting as more than just lawyers—we are strategic advisors that are dedicated to helping future generations enjoy the right topublic education.

Our range of experience at Dannis Woliver Kelley and the communication between ourpractice groups provide an unmatched resource. Since we have hundreds of clientsthroughout the state, we are aware of trends that impact your interests. We recognizeissues that others may fail to spot, and work in close collaboration with clients to devisepractical strategies for resolution.

We were one of the first law firms in California to dedicate its practice exclusively toeducation law. We advise boards and district leadership with passionate conviction andinsight. We find our work enormously rewarding. For more than 35 years, we have stoodshoulder-to-shoulder with our clients—working together for the betterment of California’seducational system.

We offer high-quality, effective, and prompt legal services in all areas of education law. Ourpractice groups are comprised of experienced attorneys who possess thorough knowledge ofthe issues and challenges facing our clients. We are thought leaders in the following areas:

Labor, Employment and Personnel (LEAP)

Board Ethics, Transparency andAccountability (BETA)

Business, Property and Finance

Construction

Charter Schools

Special Education and Student Issues

Litigation

Community Colleges/HigherEducation

Our team approach to client service means that while specific attorneys represent a client,several others will remain informed of the client’s issues so that they may assist if needed.We pride ourselves on the in-depth experience within the firm and on the promptness withwhich we respond to a client’s inquiry. We regard ourselves as members of our client’steam. Our objective is to work with our clients to help them carry out their goals andmission!

Shareholder

San Francisco

gdannis@dwkesq.com

Tel: 415.543.4111

Fax: 415.543.4384

Gregory J. Dannis is a Shareholder in the San Francisco office, President of Dannis Woliver Kelley, and a

member of the Labor, Employment and Personnel (LEAP) Practice Group. He is also a board member

and immediate past board president of the Hillsborough City School District.

Greg has expertise in all aspects of public sector employer/employee relations and is experienced in the

full range of personnel-related issues, including hiring and termination, effective evaluation practices,

and documentation of employee performance. He has represented districts in numerous administrative

hearings as well as in state and federal courts. Greg also has more than 33 years experience in

collective bargaining, including negotiating hundreds of agreements for certificated and classified

employees throughout California. He was among the first group of employer representatives to be

trained in the CTA/Management Model of Interest-Based Bargaining (IBB). He has trained approximately

100 districts in California, and utilizes the IBB process where it has been mutually embraced, and

interest-based principles and techniques even at so-called “traditional” bargaining tables. As the creator

of the “Core Values” approach to negotiations, Greg has helped many districts focus on their primary

educational mission even in times of fiscal crisis. He is also experienced in coping with employee

concerted activities and has been called into districts to manage and ultimately resolve the fundamental

differences between unions and employers which lead to these events. Greg has extensive experience in

all aspects of personnel practice, from certificated and classified employee evaluation, dismissal and

discipline, to the varied categories of discrimination, such as Title VII, the Americans With Disabilities

Act, and the Family Medical Leave Act. He regularly advises governing boards regarding their rights,

duties and responsibilities under the Brown Act, the Public Records Act and other laws regulating the

business of doing the public’s business in the schools. Greg has provided in-services statewide and to

individual boards on how to meet the ever-changing requirements of the Brown Act in a manner which

allows a board to conduct meetings efficiently and effectively. He has also assisted boards on matters

such as board member duties and obligations, individual board member rights and responsibilities, and

has been asked to assist in situations in which internal board relationships were at risk.

Greg is a regular and prominent speaker at the annual California School Boards Association (CSBA)

Conference each December, as well as at the Association of California School Administrators (ACSA). He

has authored numerous articles and has been published extensively in the California Public Employee

Relations Journal (CPER) including How to Negotiate Using Core Values, The Evolution of a Negotiator,

Public School Negotiations: After the Gold Rush, The Negotiator: Like a Rolling Stone, and Labor’s

Lessons. Greg was named one of the Best Lawyers in the Bay Area, Bay Area Magazine, Vol. I, Issue I

and was honored with the 2014 California Lawyer Attorney of the Year Award in Education Law.

Education

California State University, East Bay (B.A.)

University of San Francisco School of Law (J.D.)

© 2014 Dannis Woliver Kelley. All rights reserved.

Gregory J. Dannis

Practice Areas

Labor, Employment and Personnel

Governing Boards

Community Colleges/Higher Education

Board Ethics, Transparency and Accountability (BETA)

Admission

State Bar of California

Media/Publications

Greg Dannis Gives Keynote Speech at ACSA's 2014 Symposium for Negotiators

Greg Dannis Is Part of Groundbreaking Agreement at SJUSD!

Experience counts in local election. Trustee Gregory Dannis is Re-Elected to the Hillsborough

School Board.

Read Gregory Dannis' Article, "Labor's Lessons," in the June 2011 CPER Journal

Gregory Dannis Gives Keynote Speech at ACSA's 2011 Symposium for Negotiators

Read Gregory Dannis' Article in the Recent CPER Journal

"Negotiations In California Public Schools: A Call For A Return To Core Values"

"The Face of California Education"

"California Public Education: The Greatest Show on Earth?"

"Education: The Circle Game"

"In Legis Parentis"

"The Negotiator: Like a Rolling Stone" CPER Journal

"Public School Negotiations: After the Gold Rush" CPER Journal

Certificated "Summer" Layoffs Special Q+A Session on the Web, A Free Webinar

Certificated “Summer” Layoffs Under Education Code §44955.5, A Free Webinar

"Collaboration, Communication and Core Values Versus Contradiction, Cacophony and Chaos"

"The Evolution of a Negotiator"

"AB 729: An Opportunity to Improve Teaching Staffs"

"Education: A Civil Right"

"How to Negotiate Using Core Values"

"Finding the Center of California Education"

"The View From the Trenches: Collective Bargaining in the Public Schools"

"Turning the Tables: When Schools Enact Legislation"

"An Exclusive Interview With California K-12 Education" CPER Journal

"The Fruits of Our Labor"

"The Promise of Education"

"Strike or Settlement: A Tale of Two School Districts"

© 2014 Dannis Woliver Kelley. All rights reserved.

Gregory J. Dannis

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