Keith Bray Portrait

legal insights

by Keith Bray

Limiting LEA liability during the pandemic


hese are trying times to be a school district and county office of education board member. Charged during the pandemic with making critical decisions that will affect students, staff and their families, and for others who live and work in the community, board members have a lot on their plate. Since schools closed in March, questions about the potential liability for those decisions have dominated chat rooms and social media.

Prompted by each new advisory guidance issued by regulators, another round of questions envelop CSBA-produced webinars and the regional forums organized by CSBA’s PACERs. Clearly, there have been more questions than answers.

One thing is for sure: governing boards have broad discretionary authority to act on behalf of their constituents to plan for the reopening of schools. How much that planning involves parents and local public health officers will be reflected in the new Learning Continuity and Attendance Plan to be completed by Sept. 30. How much that planning involves employees will be reflected in memorandums of understanding negotiated with each bargaining unit. And how much the plan to safely reopen schools depends on additional state and federal funding will be reflected in interim budget reports.

Are governing boards acting without a net during the pandemic? No, but there are risks. Clearly, the lawful exercise of the authority of boards to act, especially during a state of emergency, will be presumed when the board is engaged in a deliberative decision-making process, which involves publicly documenting its consideration of reliable and credible information. Courts have historically given great deference to governing boards to act without judicial intervention when exercising their discretionary authority in a reasonable and transparent manner. Further, there is statutory protection from liability for such decisions. California law provides board members a broad level immunity for their discretionary decision making. (Government Code § 820.2.) Additionally, state law grants immunity for decisions related to preventing the spread of disease within the community. (Government Code § 855.4.) In sum, the California Supreme Court, when exploring the extent of discretionary immunity for public officials, stated that “[I]t is not a tort for government to govern.” (Caldwell v. Montoya (1995) 10 Cal 4th 972, 981.)

Teacher Measuring Spacing Between Desks for Covid

Ever-changing guidance

So, where’s the rub? For one, there has been inconsistent guidance from state and federal authorities about how boards should safely operate their schools during the pandemic. From the first executive order issued by Gov. Gavin Newsom in March, to the guidance issued by the California Department of Public Health in August about elementary school waivers, board members and staff have had to wade through a multitude of ever-changing “orders,” “recommendations” and “considerations” to decide if there is a mandate that must be followed, a guidance that should be considered, or if the ball is totally in their court.

A good example of what “local control” means during the pandemic is that, until CDPH in mid-July prescribed face masks to be worn at school for grades 3-12, guidance on wearing masks ran the gamut from the Centers for Disease Control and Prevention recommendation in May that “masks should be encouraged in students (particularly older students) if feasible,” to its release of a chart two months later with 13 scenarios listing when wearing a cloth face covering was either “recommended” or needed to be “considered.” Another example of having to read between the lines is the CDC’s change from its interim guidance in May stating affirmatively that classroom desks “be at least 6 feet apart,” to recommending in July that when “maintaining 6 feet of distance is not feasible, try keeping [student desks] as close to 6 feet apart as possible.” Clear as a bell?

The constant churn of guidance issued without mandates has put the decisions on how, and in some counties, when to reopen schools in the hands of local district and county office boards and superintendents. Without mandates, many issues related to reopening require negotiation with labor partners, active engagement with parents and community members, and collaboration with local health officials. But absent a binding order to the contrary, how to safely reopen schools fits squarely within the discretionary authority of school boards to decide. So why is the concern about potential liability so prevalent? Because mandates during this state of emergency have been hard to identify and failing to discharge a mandatory duty can subject an LEA to liability. (Government Code § 815.6.) Additionally, the faulty execution by employees of the reopening plan can expose local educational agencies to potential liability.

State law permits public entities to be sued only if expressly provided for in statute. (Government Code § 815.) Government Code § 815.2 expressly permits LEAs to be sued for the negligent acts of their employees acting within the scope of their duties. This theory of “vicarious liability” is one reason why LEAs join insurance joint power authority’s so their pooled resources can work to limit the financial impact of this exposure to liability. Recently, some insurance companies have declared that they will not defend or pay damages resulting from debilitating medical conditions or death, when a plaintiff may be able to prove negligence including that the harm was proximately caused by attending school or by working at a district or county office facility during the pandemic. Arguably, even if there is an exemption in general liability policies inoculating insurance companies against the harm caused by an “organic pathogen,” insurers should still be responsible for covering public employers for any harm caused by the negligence of their employees during a pandemic. This uncertainty about insurance coverage adds to the list of questions facing LEAs.

Little Girl Sitting in Classroom with a Mask On

Legislation can help

To address the potential costs of exposure to negligence and wrongful death lawsuits, CSBA along with a coalition of education groups, co-sponsored Assembly Bill 1384 (O’Donnell, D–Long Beach), which prohibits the recovery of monetary damages for any injury or death resulting from the negligent conduct by LEA employees related to the pandemic. In addition, federal Senate Bill 4317 (Cornyn, R–Texas) aims to limit financial awards for personal injuries arising at a school site from COVID-19 to acts by employees to only grossly negligent or intentional misconduct. Though these bills are being opposed by powerful special interest groups, CSBA will be active in fighting the good fight in support of this legislation and in advocating for the additional funding necessary to safely provide students an education during this state of emergency.

Yes, these are trying times: kids are concerned for the health of their parents, parents are concerned for the health of their kids, employers are concerned for the safety of their employees, and employees are concerned for the fiscal health of their employers. Most are concerned for the health and safety of others, and too many have suffered alone. To prevail against this virus, board members are being called upon to exercise unprecedented leadership at the local level. And from the results thus far, it is not too early to opine that California governing boards have been up to the challenge.

Keith Bray is General Counsel and Chief of Staff for CSBA.
The information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.