Employment News Alert: Severance Agreements, Due Process for Probationary Teachers & Public Employees' Free Speech Rights

A Confidentiality Provision in a Severance Agreement Was A Valid Balance of the Policy in Favor of Open Government and the General Public Right of Privacy

In a case that highlights the unsavory aspects of the press’s investigation into the resignation of a County Labor Negotiator, the Court refused to set aside the plaintiff’s severance agreement.  The agreement provided for a four month paid leave followed by resignation.  The payment provisions were conditioned upon the parties’ maintenance of the confidentiality of all the facts and circumstances of the agreement.

When the plaintiff’s supervisor revealed the details and circumstances of the agreement to the local newspapers shortly after it was signed, the County took the opportunity to reconsider the agreement’s monetary terms, and attempted to void them based upon the breach.  In concluding that the agreement’s confidentiality provision should be upheld, the County concluded that the plaintiff’s interest in keeping private her romantic relationship with the President of a Union, with whom she had previously negotiated a Union contract, trumped the public’s right to know why particular high profile employees severed their employment with a county government.  Accordingly, the County was forced to honor the severance agreement.   As long as the confidentiality provision does not relate to a Public Records Act issue, it will be upheld.  See Sanchez v. County of San Bernardino, 176 Cal. App. 4^th 516 (2009).

Probationary Teachers May Have the Same Statutory Rights to Due Process As Permanent Teachers When Faced with Termination For Poor Performance

Although probationary teachers may be terminated for poor performance at the conclusion of either their first or second year by utilizing a process known as “non-election,” the case of Achene v. Pierce Joint Unified School Dist., 176 Cal. App. 4^th 757 (2009) unequivocally states that probationary teachers who are terminated during the course of a school year are entitled to the same due process considerations as permanent teachers under Education Code Section 44948.3.  Under the terms of that provision, a probationary teacher terminated mid-term is entitled to both written notice that identifies with particularity the deficiencies ninety days before termination is effected and an opportunity to correct the problems before termination.  Under the rule of this case, school districts should be very wary of terminating probationary teachers in the middle of a year, unless they are prepared to give them additional rights.  Where possible, it is advisable to wait until a “non-election” option is available.

The Ninth Circuit Weighs in on Public Employees’ Free Speech Rights

Within the past month, the Ninth Circuit issued two separate decisions that upheld disciplinary actions against police officers who claimed retaliation after engaging in non-protected speech or actions.  In Derochers v. City of San Bernardino, 572 F.3d 703 (9^th Cir. 2009), the Court found that the police officers’ grievances pertaining to their supervisor’s management style were not matters of public concern, and, therefore, could not be subject to claims of retaliation.  Similarly, the Court in Huppert v. City of Pittsburg, 574 F.3d 696 (9^th Cir. 2009) declined to protect the officers’ speech from retaliation.  In that case, two officers were recruited by the District Attorney’s office to assist in investigating the conduct of fellow officers in the department.  After they began working with the District Attorney, the officers allegedly were subject to retaliation.  One of the officers shortly thereafter was terminated for filing false police reports.

In both cases, the Court refused to sustain the charges of retaliation, although the Huppert case is the more significant of the two.  In Huppert, supra, the Ninth Circuit noted that the officers in question could have pursued other remedies for exposing misconduct within the department, including resort to the “whistleblower statutes” set forth in Government Code Sections 8547-8547.12.  In Derochers, supra, the Court was hard-pressed to find that police officers who had a “running spat” with their supervisor engaged in any type of public speech which could protect them from retaliatory action.

Both of these cases illustrate that the Ninth Circuit is loathe to find retaliation against public employees unless the purported speech or action is about a matter of a public concern and the person making the statements is acting in a public, rather than a private capacity.  Where the public employee is speaking out on a matter of private concern, and the matter is important to the outspoken individual as a private citizen, the Court is less likely to sustain a claim of retaliation.

This document is intended to provide you with general information about employment related issues.  The contents of this document are not intended to provide specific legal advice.  If you have questions about the contents of this alert, please contact Ann Liroff at 415-546-7500 or aliroff@hbblaw.com or contact your regular Haight Brown & Bonesteel, LLP attorney.  This communication may be considered advertising in some jurisdictions.