SCHOOLS AND SOCIAL MEDIA— MANAGING THE GREAT ENABLER ACSA...

SCHOOLS AND SOCIAL MEDIA—MANAGING THE GREAT ENABLER

ACSA 2015 Personnel InstituteOctober 8, 2015

Jonathan A. Pearl, AttorneyDannis Woliver KelleyTel | 619.595.0202Email | [email protected]

Candace M. BandoianDannis Woliver KelleyTel | 562.366.8500Email | [email protected]

About Our Firm

For more than 35 years, Dannis Woliver Kelley (DWK) has provided trusted counsel and

forward-thinking legal solutions to school and community college districts, county offices of

education, and other educational entities throughout California in all areas of education law.

We are a diverse, women-owned law firm with offices located in: San Francisco, Long Beach,

San Diego, Novato and Chico.

DWK is at the forefront on legal issues our clients 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 to public education.

Our range of experience and the communication between our practice groups provide an

unmatched resource. Since we have hundreds of clients throughout the state, we are aware of

trends that impact your interests. We recognize issues that others may fail to spot, and work in

close collaboration with clients to devise practical strategies for resolution.

We were one of the first law firms in California to dedicate its practice exclusively to education

law. We advise boards and district leadership with passionate conviction and insight. We find

our work enormously rewarding. For more than 35 years, we have stood shoulder-to-shoulder

with our clients—working together for the betterment of California’s educational system.

DWK offers high-quality, effective, and prompt legal services in all areas of education law. Our

practice groups are comprised of experienced attorneys who possess thorough knowledge of

the issues and challenges facing our clients in the following areas:

» Labor, Employment and Personnel

(LEAP)

» Board Ethics, Transparency and

Accountability (BETA)

» Business, Property and Finance

» Construction

» Charter Schools

» Student Issues and Special

Education

» Litigation

» Community Colleges/Higher

Education

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 with which

we respond to a client’s inquiry. We regard ourselves as members of our client’s team. Our

objective is to work with our clients to help them carry out their goals and mission!

Shareholder

San Diego

[email protected]

Tel: 619.595.0202

Fax: 619.702.6202

Jonathan A. Pearl counsels and represents public school and community college district clients in

employment matters related to best practices for hiring, remediation, progressive discipline,

harassment/discrimination prevention, accommodation issues, technology-in-the-workplace concerns

and board policy/procedure development. He is a well-known trainer on sexual harassment prevention,

documentation, employee remediation and discipline. Jon also serves education clients in all aspects of

labor relations including certificated and classified labor contract negotiations and contract

administration. He represents clients in arbitrations and PERB proceedings and has trained governing

boards, district bargaining teams and union bargaining teams on negotiations techniques including

Interest Based Bargaining. Jon is also a member of the firm's Students and Special Education Group,

and represents school districts in student matters involving discipline, constitutional issues, pupil

records, residency and technology issues.

He is a frequent presenter at Dannis Woliver Kelley seminars, including the firm's Education, Labor and

Employment Law (Ed Lab) Series, and state and regional CSBA, CASBO and ACSA conferences on topics

including "Principled Ethical Negotiations," "Collective Bargaining 101," "New Negotiations for the New

Decade," "Bargaining Benefits," "HR Adventures in Cyberspace," "Students' Constitutional Rights in

Cyberspace," and "Student Discipline Hearings, How Much Due Process is Due." Having worked closely

with governing boards, superintendents and administrators, Jon believes that ongoing and interactive

training greatly enhances educators' abilities to effectively address the dynamic legal issues that impact

schools each day. Before joining Dannis Woliver Kelley in 2001, Jon practiced education, labor and

employment law for public and private sector clients in Chicago.

Education

University of Wisconsin-Madison (B.A.)

Chicago Kent College of Law (J.D.)

Practice Areas

Labor, Employment and Personnel

Students and Special Education

Governing Boards

Community Colleges/Higher Education

Independent Schools and Nonprofit Corporations

Board Ethics, Transparency and Accountability (BETA)

Admissions

State Bar of California

Illinois State Bar

Media/Publications

© 2015 Dannis Woliver Kelley. All rights reserved.

Jonathan A. Pearl

Media/Publications

How Schools Win Dismissal Cases - A Student-Centered Strategy From Beginning to End

2014-15 Legislative Update for District HR/LR Team - The Good, The Bad and The Ugly

Staying Legal Parts I and II

What's New in 2014? Select Student Laws and Trends for Discussion

Layoff Clinic: Certificated Layoffs


Jonathan A. Pearl

Shareholder

Long Beach

[email protected]

Tel: 562.366.8500

Fax: 562.366.8505

Candace M. Bandoian is a Shareholder in the Long Beach office and is the Chairperson of the Labor,

Employment, and Personnel (LEAP) practice group. For more than ten years, she has worked with K-12

and community college districts in labor and personnel matters including hiring, discipline, negotiations,

and contract administration. Ms. Bandoian regularly appears before state and federal agencies such as

the Public Employment Relations Board, Department of Fair Employment and Housing, Equal

Employment Opportunity Commission, and the Office of Administrative Hearings. She also represents

school districts at arbitrations and disciplinary hearings. Ms. Bandoian conducts trainings in the areas of

sexual harassment prevention, evaluation and documentation of school district employees, labor

relations, and disability and family care and medical leave laws. She co-chairs DWK’s Southern

California Ed Labs, and regularly presents at ACSA’s Negotiators’ Symposium and Personnel Institute,

and the Association of Chief Human Resource Officers/Equal Employment Opportunity Officers. Ms.

Bandoian graduated from University of San Francisco School of Law (J.D.) and from University of

California, San Diego (B.A.).

Education

University of California, San Diego (B.A.)

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

Practice Areas

Independent Schools and Nonprofit Corporations

Community Colleges/Higher Education

Governing Boards

Labor, Employment and Personnel, Practice Area Leader

Board Ethics, Transparency and Accountability (BETA)

Admission

State Bar of California

Memberships & Associations

Los Angeles County Bar Association

Media/Publications

Equity and Human Resources: Recognizing, Respecting and Protecting the Diverse

Workforce

"Implementation of the No Child Left Behind Act: Employment and Hiring Practices,”

School Law Review, 2003"


Candace M. Bandoian

1© 2015 Dannis Woliver Kelley

This training is provided for educational, compliance and loss-prevention purposes only and, absent the express, prior agreement of DWK, does notcreate or establish an attorney-client relationship. The training is not itself intended to convey or constitute legal advice for particular issues orcircumstances. Contact a DWK attorney for answers to specific questions.

© 2015 Dannis Woliver Kelley

ACSA 2015 Personnel Institute

Presented by:

Jonathan A. Pearl, Attorney

Candace M. Bandoian, Attorney

Dannis Woliver Kelley

Schools and Social Media--Managing the Great Enabler

© 2015 Dannis Woliver Kelley 2

Technology: the Great Enabler



Employee Expression


Employee Expression onDistrict Forums

Does your district have a policy that says somethinglike?

“The content of all official district or district-sponsored online platform presences shall be limitedto current and useful information regarding thedistrict’s official and/or sponsored educationalprograms, activities and operations. Such contentshall support the educational mission of the districtand be appropriate for all audiences. Official districtand district-sponsored online platform presencesshall not post, display, or otherwise communicatecontent not expressly authorized by theseguidelines.”



Employee Expression onDistrict Forums

Is there an “open mic” at your district?

Where are your district’s forums?

What is the purpose of the forum?

How is the forum accessed?

Who may access the forum?

What’s the worst that could happen?


The 1st Amendment

“Congress shall make no law…abridging thefreedom of speech, or of the press; or theright of the people peaceably to assemble, andto petition the Government for a redress ofgrievances.”



Employee Expressionon District Forums

Garcetti v. Ceballos (2006) 547 U.S. 410

Deputy D.A. Richard Ceballos investigated acomplaint regarding an affidavit for a searchwarrant made by a deputy sheriff

Ceballos wrote a memorandum questioning theveracity of the affidavit. Ceballos furthertestified at a hearing regarding his concernsabout the affidavit

Subsequent to his testimony, Ceballos wasdemoted and transferred to less desirableduties



Garcetti (cont'd.)

Ceballos sued, claiming retaliation for protectedFirst Amendment activities

Under Connick v. Meyers (1983) 461 U.S. 138,an employee’s comments about matters of publicconcern are protected from adverse employmentaction unless the statement is so disruptive ofthe public employer’s mission the employer musttake action in order to carry out itsresponsibilities




Garcetti (cont'd.)

The Court held that Connick would not apply tospeech arising from the specific assigned duties ofa public employee In other words, a derogatory comment made by a public

employee arising from the course of his or her actualduties is not protected by the Connick rule, and anyadverse action taken against the employee will not qualifyas retaliation against protected speech.

The Court based its ruling on the important needof the public agency for flexibility in performing itsimportant public functions



Garcetti (cont'd.)

“[W]hen public employees make statementspursuant to their official duties, the employeesare not speaking as citizens for First Amendmentpurposes, and the Constitution does not insulatetheir communications from employer discipline.”

In its decision the Court did reserve the questionof “whether the analysis we conduct today wouldapply in the same manner to a case involvingspeech related to scholarship or teaching.”



Teacher SpeechDemers v. Austin (9th Cir., 11-35558, 9/4/13)

Held that Garcetti does not apply to teachingand academic writing that are performed“pursuant to the official duties” of a teacher andprofessor.

Note: It is unclear whether this decision applies to K-12.Demers is a higher education case.

In Demers, the Court held that such teachingand writing by publicly employed teachers isgoverned by the two-part test in Pickering v.Board of Education (1968) 391 U.S. 563.


Teacher SpeechDemers v. Austin (cont’d.)

The employee speech addresses “matters ofpublic concern”; and

The employee’s interest “in commentingupon matters of public concern” outweighs“the interest of the State, as an employer, inpromoting the efficiency of the publicservices it performs through its employees.”

(Pickering v. Board of Education (1968) 391 U.S. 563;Demers v. Austin (9th Cir., 11-35558, 9/4/13).)



Pickering TestPickering v. Board of Education

(1968) 391 U.S. 563

Pickering Test

A public employee's speech is protected when he orshe (1) speaks as a private citizen upon (2) amatter of public concern, and (3) the employee'sinterest in exercising his or her First Amendmentrights is greater than the employer's interest in theefficient operation of the public agency


Outside Employee ExpressionLand v. L’Anse Creuse Public Sch. Bd. of Educ. (Mich.App. 2010) (Unpublished decision), appeal denied,

789 N.W.2d 458 (2010)

A tenured middle school teacher in Michiganterminated in 2007

Students discovered photographs of herengaging in a simulated act of fellatio with amale mannequin at a bachelor/bacheloretteparty

District alleged that lewd behavior underminedmoral authority to teach students



Outside Employee ExpressionLand v. L’Anse Creuse Public Sch. Bd. of Educ.

(cont’d.)

Michigan’s Tenure Commission reinstatedteacher: conduct was not illegal; occurredoff school grounds; No students present; Didnot advocate for conduct she engaged in

On appeal Court affirmed the Commission--insufficient nexus or “link between out–of–school acts and in–school behavior”


Morrison Factors

In Morrison v. State Board of Education (1969) 1Cal.3d 214, the California Supreme Courtarticulated factors relevant to a determination of ateacher's unfitness to teach:

(1) “the likelihood that the conduct may have adverselyaffected students or fellow teachers [and] the degree of suchadversity anticipated”(2) “the proximity or remoteness in time of the conduct”(3) “the type of teaching certificate held by the partyinvolved”(4) “the extenuating or aggravating circumstances, if any,surrounding the conduct”



Morrison Factors(cont’d.)

(5) “the praiseworthiness or blameworthiness of the

motives resulting in the conduct”

(6) “the likelihood of the recurrence of the questionedconduct” and

(7) “the extent to which disciplinary action may inflict anadverse impact or chilling effect upon the constitutionalrights of the teacher involved or other teachers”


Morrison Factors(cont’d.)

For unfitness cases, Morrison also requires“nexus”–

“[n]o person can be denied governmentemployment because of factorsunconnected with the responsibilities of thatemployment.”



Immoral Conduct

“Immoral” has been defined generally as that which ishostile to the welfare of the general public and contrary togood morals

Immorality not confined to sexual matters, includesconduct inconsistent with rectitude, or indicative ofcorruption, indecency, depravity, dissoluteness; or aswillful, flagrant, or shameless conduct showing moralindifference to the opinions of respectable members of thecommunity, and as an inconsiderate attitude toward goodorder and the public welfare

Must be considered in conjunction with the unique positionof public school teachers, upon whom are imposed“responsibilities and limitations on freedom of action whichdo not exist in regard to other callings”


Social Media



Hypo 1


Hypo 1

Teacher’s private blog has only 9 subscribers

Posts once or twice a week – film reviews,favorite restaurants, camping trips, etc.

Some posts complain about students “I used to devote a lot of time and effort to grading

when I first started”

“But now, here are some things I wish I could say”

• “You’re a complete and utter jerk in all ways”

• “Though academically ok, your kid has no redeemingqualities”

• “You’re utterly loathsome in all imaginable ways”

Discipline? Public concern?



Munroe v. Central BucksSchool District

(E.D. Pa. 2014) 34 F.Supp.3d 532

Teacher maintained private blog

Mostly about personal matters (e.g., food andfilms, her yoga classes, etc.)

Some posts touched upon her school

Called students frightfully dim; and whiny,simpering grade-grubbers with unrealistically highperceptions of their own ability level

Said parents were “breeding a disgusting brood ofinsolent, unappreciative, selfish brats.”



(E.D. Pa. 2014) 34 F.Supp.3d 532

District learned of the blog

Drew media attention

District terminated teacher

Teacher filed a § 1983 claim against theDistrict alleging unlawful retaliation forlegitimate exercise of her First Amendmentrights




(E.D. Pa. 2014) 34 F.Supp.3d 532

District Court ruled for the school district

“Context is crucial” including “manner, time, andplace” in which message is delivered

“Blog contains gratuitously demeaning andinsulting language inextricably intertwined withher occasional discussions of public issues.”

Court considered blog’s “speech and tone” to besufficiently disruptive so as to diminish anylegitimate interest in its expression


Hypo 2



Hypo 2

Teacher posts on Facebook that her students arecriminals and that she feels like a “warden”; andsuggests that some of her students attend“Scared Straight”

A week before the post, some students hit andstole from the teacher

School also held a “Scared Straight” program theday of the posting

School has high minority population

Media coverage of the posting

Discipline? Public concern?


In re O'Brien(N.J. Super. Ct. App. Div., Jan. 11, 2013)

163 Lab.Cas. P 61317 (Unpublished)

Teacher’s school almost entirely comprisedof minority students

On Facebook, teacher posted:

“I’m not a teacher, I’m a warden for futurecriminals! They had a scared straight programin school – why couldn’t I bring first graders?”

ALJ ordered teacher to be dismissed

Teacher argued that her Facebook postswere protected by the First Amendment





ALJ: “An internet social-networking site such asFacebook is a questionable place to begin anearnest conversation about an important schoolissue such as classroom discipline. More to thepoint, a description of first-grade children ascriminals with their teacher as their warden isintemperate and vituperative. It becomesimpossible for parents to cooperate with or havefaith in a teacher who insults their children andtrivializes legitimate educational concerns on theinternet”




ALJ: While First Amendment protections donot generally rise or fall on the publicreactions to a person's statements, “in apublic school setting thoughtless words candestroy the partnership between home andschool that is essential to the mission of theschools”





Court applied the Pickering test

Court found unconvincing teacher’s claim thather posts were about “public concern” regardingstudent behavior in classroom.

Teacher was making a “personal statementdriven by her dissatisfaction with her job.”

Even if posts were of public concern, they wereoutweighed by district’s interest in efficientoperation of the schools


Hypo 3



Hypo 3

A parent posts a page on Facebook entitled,“Fire Principal Matthews”

The page details the reasons calling for thePrincipal’s firing, such as dropping testscores; mishandling of student discipline;and inaccessibility to the community

Teacher sees the page on Facebook and“likes” the page

Protected speech?


Bland v. Roberts(4th Cir. 2013) 730 F.3d 368, 373

Sheriff Roberts ran for reelection againstLieutenant Adams

Plaintiff Carter (sworn sheriff’s deputy) “liked”Adams’ campaign page on Facebook and posteda message of encouragement

Sheriff Roberts won reelection

Carter, among others, was not reappointed

Carter and others sued Roberts for violating hisFirst Amendment rights




4th Circuit Court of Appeal addressed issue ofwhether “liking” a Facebook page constitutesspeech and held that it does

Liking something on Facebook “is an easy way tolet someone know that you enjoy it.”

Carter's clicking on the “like” button also causedan announcement that Carter liked theCampaign Page to appear in the news feeds ofCarter's friends



“Once one understands the nature of what Carter did byliking the Campaign Page, it becomes apparent that hisconduct qualifies as speech. On the most basic level,clicking on the “like” button literally causes to be publishedthe statement that the User “likes” something, which isitself a substantive statement…That a user may use asingle mouse click to produce that message that he likesthe page instead of typing the same message with severalindividual key strokes is of no constitutional significance”




“In sum, liking a political candidate's campaignpage communicates the user's approval of thecandidate and supports the campaign byassociating the user with it. In this way, it is theInternet equivalent of displaying a political signin one's front yard, which the Supreme Courthas held is substantive speech”


Take Aways

Review Acceptable Use Policies

Nexus, Impact, Disruption

Need for Teacher Training re Technology

Balancing of Interests

Education Code section 44932



Security and Confidentiality


Security and Confidentiality

Does your district policy say something like?

“Users of the District electronic networkshould not expect confidentiality or privacywhen using District technology resources. TheDistrict regularly monitors email and electronicfiles on the District electronic network”



Security and Confidentiality(cont’d.)

Public employees may have limited,reasonable expectations of privacy in theworkplace

However, public employer may searchemployees’ offices, communications, andprivate property as long as the search is notoverly intrusive


Security and Confidentiality(cont’d.)

Is there a definition of limited, reasonableexpectation of privacy in your workplace?

Office

Classroom

Email

Computer

Is there a rational work-related justificationfor the search? Is the search limited inscope to that work-related justification?



The 4th Amendment

“The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures,shall not be violated, and no warrants shallissue, but upon probable cause...”


Exception for Public EmployersO’Connor v. Ortega (1987) 480 U.S. 709

Plurality of O’Connor Supreme Court held that awarrantless search by a government employer isreasonable:

If conducted for a “non-investigatory, work-relatedpurpose,” or for the “investigation of work-relatedmisconduct”; and

If reason for search is “justified at its inception”;and

If “the measures adopted are reasonably relatedto the objectives of the search and not excessivelyintrusive in light of the circumstances giving riseto the search”



Hypo


Hypo

School principal notices slow internet speedsover the school network

District IT surmises that internet may beslowing due to high bandwidth use

Principal reviews internet use logs during thework day and discovers a teacher’s access tovideo porn was slowing down the network

Reasonable search?



Hypo

What if:

The principal never knew about the slowingbandwidth and conducted a random search?

The principal checked internet use logs coveringthe whole day, rather than the work day?

The principal not only checked the internet uselogs but then subsequently checked theteacher’s district issued laptop, iPad, andphone?


City of Ontario v. Quon(2010) 560 U.S. 746

Officers provided with text-receiving pagers

Officers told that the city’s email policy, whichpermitted auditing emails, applied to texts, andthat they would be charged if they went overtheir allotted messages

Officer Quon sent personal texts – some sexual– and often exceeded his limit

City reviewed texts and disciplined Quon

Quon sued for violation of 4th Amendment




The Supreme Court held that the city’s searchwas reasonable

Court assumed that Quon had a right to expectprivacy in his texts

Court found that the city had no obligation toconduct the least invasive possible search, butthat it did have to conduct a search based on a“legitimate work-related rationale”



Court reasoned the search was reasonable and“justified at inception” because it wasconducted to determine whether the characterlimit on texts should be changed.

Court reasoned that the scope of the searchwas reasonable because it was limited to onlytwo months’ of texts, and the only texts sentduring work hours were reviewed

Also, Quon was told texts were subject to audit



Avoiding Searches?


Cyber Dust

Phone app developed by Mark Cuban, DallasMavericks owner

According to the Cyber Dust website, “Messagesdelete based on their length, ranging from 20 to100 seconds. If for some reason the recipientdoes not view the message within 24 hours, itwill expire and be deleted forever. Messages onour servers are never saved to disk, and are onlystored in memory until they are delivered orexpire.”



California Public Records ActGov. Code § 6250, et seq.

Public records are open to inspection at all timesduring the office hours of the state or local agencyand every person has a right to inspect any publicrecord, except as hereafter provided (Gov. Code §6253(a).)

“Public records” includes any writing containinginformation relating to the conduct of the public'sbusiness prepared, owned, used, or retained by anystate or local agency regardless of physical formor characteristics (Gov. Code § 6252(e).)


California Public Records ActGov. Code § 6250, et seq.

“Writing” means any handwriting, typewriting,printing, photostating, photographing,photocopying, transmitting by electronic mail orfacsimile, and every other means of recordingupon any tangible thing any form ofcommunication or representation, includingletters, words, pictures, sounds, or symbols, orcombinations thereof, and any record therebycreated, regardless of the manner in whichthe record has been stored. (Gov. Code §6252(g).)



City of San Jose v. Superior CourtPreviously published at 225 Cal.App.4th 75

Court of Appeal held that written communications(including text messages) sent or received by publicofficials and employees on their private electronicdevices, and using their private accounts were not“public records”

Court focused on the “public records” definition –that a record must be “prepared, owned, used, orretained” by the agency – and held that an agencycannot “use or retain” a text message transmitted onan official’s device that is not linked to the city’sserver or account


City of San Jose v. Superior CourtPreviously published at 225 Cal.App.4th 75

HOWEVER,

On June 25, 2014, the California SupremeCourt vacated the decision and decided toreview the case itself

Thus, the Court of Appeal’s opinion is nolonger in effect

Does not necessarily mean that SupremeCourt will disagree with the Court of Appeal’sopinion

No timetable for a decision




Jonathan A. Pearl Candace M. Bandoian

Tel | 619.595.0202 Tel | 562.366.8500

Email | [email protected] Email | [email protected]

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