CEO’s note
by Vernon M. Billy
he old saying, “an ounce of prevention is worth a pound of cure,” can apply to politics just as well as medicine. Yet, frequently, our elected state officials seem to wait until a social ill has reached epidemic proportions before addressing it in a decisive manner. This is evident even when organizations such as CSBA have cautioned them about the potential dangers of a particular piece of legislation, but action is deferred until an issue has devolved into a full-blown crisis. This approach often leads to negative consequences.
To fully understand the story, we need to turn back the clock to 2019, when Assembly Bill 218 was introduced to extend the statute of limitations for filing claims of childhood sexual assault to 40 years of age. The bill also allowed for claims made on or after a person’s 40th birthday if the local educational agency “knew or had reason to know, or was otherwise on notice, of any misconduct that created a risk of childhood sexual assault by an employee or volunteer, or if the school district or county superintendent failed to take reasonable steps or to implement reasonable safeguards to avoid acts of childhood sexual assault.” Additionally, the legislation provided for treble damages in the event of a “cover up” and opened a three-year window for victims of any age to sue on previously expired claims that had not been “litigated to finality,” a phrase that is not defined and may include previously settled cases.
Given what’s at stake, you might assume this took the legislators who voted for AB 218 completely by surprise — but you’d be wrong. When AB 218 was making its way through the Legislature, CSBA sounded the alarm, warning of the existential threat it presented to LEAs. CSBA was willing to have challenging conversations around AB 218 from the very beginning, when others shied away. Now, as settlements and judgments start to roll in — with many more cases still making their way through the courts — people are awakening to the truth of our predictions.
On April 4, Los Angeles County announced it had reached a $4 billion settlement on claims of sexual abuse dating back to 1959, a development that opened eyes and dropped jaws across the state. The expansive provisions of AB 218, combined with the distant nature of the claims and difficulty of insuring long-past events, has resulted in judgments and settlements that could threaten the financial stability of some school districts, COEs and other public agencies. Because AB 218 extended the statute of limitations for filing claims related to long-ago sexual abuse, it is difficult to investigate these claims due to departures or death of staff, missing or incomplete records, or general lack of available evidence from decades before. In addition, judgments and settlements for AB 218-related claims are often uninsurable, and perhaps most importantly, there is no available insurance coverage if proof of insurance is lost or the insurance company covering the LEA for the time period in question is no longer in business.
CSBA has pushed for legislation to correct the excesses of AB 218 and protect public agencies from insolvency while preserving victims’ rights. Specifically, CSBA has advocated for legislation requiring damages caps (compensation limits) to strike a balance between redress for victims and the public interest in maintaining the financial stability of school districts and COEs. In the absence of damages caps, there must be a more reasonable evidentiary standard for older claims exceeding 20 years and the removal of excessive “had reason to know” culpability standards when there is insufficient evidence to make that judgment due to the time lapsed since the events in question.
CSBA has also argued for provisions that would offer LEAs more financial flexibility by extending the timelines public entities have to pay damages. Allowing school districts and COEs increased financial options to pay damages, including greater flexibility and longer payment terms, would free cash flow to pay for settlements and judgments. In addition, CSBA wants to eliminate barriers that prevent schools from using other financial strategies to pay for large judgments or settlements. In legalese, we are seeking to create a “rebuttal presumption of validity for the judicial obligation bond validation process.” What that means in layman’s terms is we want to remove restrictions for LEAs that want to use bonds to pay settlements and allow the bond process to start earlier. This is important since many LEAs may not have reserves large enough to pay settlements or judgments, particularly small school districts.
California must compensate victims of long-ago sexual abuse; that is clear and CSBA is supportive of this. But we must do so without depriving today’s students of needed resources because of incidents that occurred before they were born, or in many cases, before their parents were born. Sensible reform of well-intended but poorly drafted laws such as AB 218 is a difficult but necessary step in that direction.
