The Political Reform Act imposes limits on gifts and payments received by local elected officers and designated employees of local government agencies—individuals who are required to file statements of economic interests (aka Form 700) under a local agency’s conflict of interest code.
A “gift” is a payment or other benefit that confers a personal benefit for which the official or employee did not provide payment or services of equal or greater value. A gift includes a rebate or discount in the price of anything of value unless the rebate or discount is made in the regular course of business to members of the public. (Government Code § 82028.)
A local elected official or designated public employee may not accept gifts from any single source that total a certain value in a calendar year. For calendar years 2015 and 2016, the gift limit is $460. (Government Code § 89503; 2 C.C.R. § 18940.2.)
At the end of each year, these officials and employees must report gifts received from various sources. Gifts from a single source aggregating to $50 or more must be disclosed. If gifts from one source in 12 months exceed the $460 limit for calendar year 2015 or 2016 limit, the Political Reform Act imposes restrictions including disqualification of an official from participating in any action or decision involving the source of the gifts. (Government Code § 87103(e).)
The gift limit is adjusted every two years to reflect changes in the Consumer Price Index. The Fair Political Practices Commission has just increased the limit to $470 for calendar years 2017 and 2018. The $460 limit applies for the rest of 2016 and should be used when filing annual Form 700s for this year, which are due in March or April 2017 (depending on the nature of the filer). The $50 reporting threshold has not changed.
Filing an accurate Form 700 and avoiding disqualification by staying under the gift limit are critical legal and ethical obligations of local agency officials. The reporting requirements can be complicated. The FPPC’s website (click here) offers a host of resources for Form 700 filers, and the FPPC provides confidential email and telephone advice. Any remaining questions or uncertainties about these obligations should be addressed to legal and financial advisers.With much media fanfare, in July, 2015 the advocacy group Students Matter filed a lawsuit against 13 large school districts, alleging these districts are failing to comply with the provision of state law regarding the use of scores on state-mandated assessments in teacher evaluations. AALRR represented five of the districts. Yesterday Superior Court Judge Barry Goode ruled in favor of school districts in Doe v. Antioch Unified School District, et al. The lawsuit sought to compel the districts (and, by implication, every other district in the state) to evaluate each of their teachers using state-mandated test data in the final, “summative” rating, and in a way that would have professional consequences for teachers. The Court roundly rejected the contention that all school districts in the state are required to utilize this data in a particular manner, concluded that under current law local districts have discretion in determining how this data is incorporated into teacher evaluation and assessment, and confirmed that all 13 districts are, in fact, complying with the law.
Upon filing of this lawsuit, several districts removed certain language from their collective bargaining agreements suggesting that teacher evaluations would not be based on students’ state standardized scores, and also presented evidence that the use by all 13 of the California Standards for the teaching Profession (CSTP) did involve student testing data in evaluation and assessment of performance. The amendments and evidence did not quell petitioners’ contention that student performance on the California Assessment of Student Performance and Progress (“CAASPP”) had to part of the “summative” evaluation.
At issue was the interpretation of Education Code section 44662(b)(1), as modified in 1999, stating school districts must “evaluate and assess certificated employee performance as it reasonably relates to: (1) The progress of pupils toward the standards established pursuant to subdivision (a) and, if applicable, the state adopted academic content standards as measured by state adopted criterion referenced assessments ….” (Emphasis added.) The court concluded the legislative history of the amendment included nothing to support petitioners’ argument that quality of education would be improved if a school district were required to evaluate a teacher “with consequences” based on student state testing performance. In addition, petitioners “pointed to nothing” in the legislation adopting the CAASPP that directed school districts to use CAASPP results for individual teacher evaluations. Judge Goode also found it relevant that if the 1999 amendments made the “major change in teacher evaluations” urged by the petitioners, it is entirely likely that one or more teachers unions would have opposed that legislation – but none did.
The respondent school districts submitted evidence bearing on “the practical application of the statute to the real world of elementary and secondary education.” Gleaning from the declarations provided by school administrators, Judge Goode recognized, “There seems little disagreement that … the key criterion is not a student’s score on a test, but how the teacher has helped to change that student’s score from prior years.” Ultimately, Judge Goode concluded the law does not compel districts to perform teacher evaluations in the manner petitioners asserted, because the phrase “reasonably relates” in the statute, along with other factors, gives school districts discretion to determine what is reasonable in light of the complex factors bearing on whether and how student test scores reasonably relate to a teacher’s performance. He also noted that each district used the CSTP, and he gave considerable weight to the undisputed facts that the CSTP: 1) were developed with the involvement of the Commission on Teacher Credentialing; 2) were explicitly endorsed by the Legislature shortly after the statutory amendments described above (through the enactment of Education Code section 44661.5); and 3) are endorsed and recommended evaluation criteria by the Superintendent of Public Instruction. Judge Goode concluded, based on the evidence, that “[n]o district appears to ignore the standardized test results of any particular teacher’s pupils.”
The decision serves as a reminder that current law requires the incorporation of CAASPP data in teacher evaluations, but is a victory for local discretion and decision-making by reinforcing that how the data is used is a local decision and not a state mandate.On August 29, 2016, a California Court of Appeal backed away from an earlier a decision that employers must accommodate employees based on their association with individuals with a disability. (Castro-Ramirez v. Dependable Highway Express (Aug. 29, 2016) 2016 WL 45066089.) Before the court’s groundbreaking holding in April 2016, as reported in this post, no court had held that the Fair Employment and Housing Act (FEHA) requires an employer to provide a reasonable accommodation for an employee who is associated with a disabled individual. After partially granting the employer’s petition for rehearing, the court stated it was not deciding the issue; however, it noted that the FEHA “may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person.”
Facts
In Castro-Ramirez, Dependable Highway Express (DHE) terminated Luis Castro-Ramirez after he refused to work an assigned shift because he needed to be home by a certain time to administer his son’s dialysis. For approximately three years, Castro-Ramirez’s supervisors accommodated his scheduling needs by assigning him to earlier shifts. However, Castro-Ramirez’s new supervisor, Junior, changed his schedule, making it difficult for Castro-Ramirez to be home to care for his son. Castro-Ramirez repeatedly requested to work his old schedule, but Junior denied those requests.
Eventually, Castro-Ramirez was scheduled to work during a time that prevented him from returning home to administer his son’s dialysis treatment. Castro-Ramirez complained to Junior he would not be able to administer his son’s dialysis treatment if he worked that shift. Junior responded that Castro-Ramirez would be fired if he did not take the later shift. Castro-Ramirez did not work the scheduled shift, but he returned to work the following three days, and each day he was not scheduled. On the third day, another manager informed Castro-Ramirez that he was terminated because he had not worked the past three days. DHE processed Castro-Ramirez’s paperwork as “voluntary resignation” for refusing an assignment.
Disability Discrimination in Violation of the FEHA
Castro-Ramirez sued DHE for disability discrimination, failure to prevent discrimination, and retaliation under the FEHA, as well as wrongful termination in violation of public policy. DHE moved for summary judgment, and the trial court granted DHE’s motion. Castro-Ramirez appealed. In April 2016, the Court of Appeal held, while no previously published California case had determined whether employers have a duty under FEHA to provide reasonable accommodation to an applicant or employee who is associated with a disabled person, “FEHA creates such a duty according to the plain language of the Act.”
DHE petitioned for a rehearing, and the court issued a new decision, vacating its previous decision. On rehearing, the court stated that since Castro-Ramirez abandoned the reasonable accommodation cause of action, the court was not deciding whether the FEHA imposes a separate duty to reasonably accommodate employees associated with a disabled person. However, the court still discussed at length how the Government Code definition of physical disability encompasses associational disability, and distinguished the FEHA from the Americans with Disabilities Act and federal cases that held an employer was not required to provide a reasonable accommodation to employees who are relatives or associates of the disabled.
Despite its retreat from the initial holding, the court found evidence that Castro-Ramirez’s association with his disabled son was a substantial motivating factor for terminating him, and DHE’s stated reason for terminating him was pretextual. The court determined associational disability discrimination may occur when an employer acts proactively to avoid the nuisance of an employee’s association with a disabled individual. Thus, a jury could reasonably infer the supervisor, Junior, wanted to avoid the inconvenience and distraction of Castro-Ramirez’s need to care for his disabled son, so Junior engineered a situation wherein the employee would refuse to work and Junior could terminate him. Although DHE argued Castro-Ramirez did not have a set schedule, the court noted the three years where DHE provided him with the requested schedule and Castro-Ramirez was able to perform satisfactorily.
Dissenting Opinion
As with the first Court of Appeal decision, Justice Elizabeth Grimes dissented and argued the decision still went too far by determining a jury could reasonably infer DHE discriminated against Castro-Ramirez because the decision hinges on DHE’s failure to accommodate Castro-Ramirez’s request for a different shift. The dissent argued that unless DHE had a duty to provide Castro-Ramirez with a certain schedule to care for his disabled son, there is no evidence to infer that DHE was motivated by Castro-Ramirez’s association with his disabled son or DHE’s stated reason for terminating him was pretext. The dissent noted there is no obligation under the FEHA or the ADA to accommodate Castro-Ramirez’s scheduling requests, nor has law supported this position until now.
Conclusion
Although the court did not expressly recognize an employer’s separate duty under FEHA to provide a reasonable accommodation to employees associated with disabled individuals, the majority’s decision hinged on DHE’s refusal to accommodate Castro-Ramirez’s scheduling request and teed up the issue for other courts to decide. Despite the retreat from the initial holding, the decision on rehearing does little to assure employers that the duty to accommodate will not be extended to employees associated with individuals with disabilities in the near future. Unless this case is appealed to the California Supreme Court, the groundwork for such claims has been established. Accordingly, employers should proceed with caution when faced with requests from employees for accommodations tied to caring for an individual with a disability who is associated with the employee. We will continue to monitor developments in this case, and provide updates as this issue develops.
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