The State of COVID-19 Requirements in California: Five Developments to Keep in Mind

Almost three years into the COVID-19 pandemic, federal and state regulators are taking steps to prepare for a longer term response to COVID-19. Here are five developments to keep in mind:

1. The Definitions of “Close Contact” and “Infectious Period” Have Changed.

California Department of Public Health (“CDPH”) Director Tomás J. Aragón issued a State Public Health Officer order that changed the definitions of both “close contact” and “infectious period” as of October 14, 2022. The new “close contact” definition means that everyone in a smaller space (400,000 cubic feet or less) who shares indoor airspace for a cumulative total of 15 minutes during an infectious period is considered a “close contact,” even if they were not within six feet of the infected employee. For spaces greater than 400,000 cubic feet, the old definition of being within 6 feet for a cumulative total of 15 minutes or more in a 24-hour period still applies. The new “infectious period” definition is less stringent, and may end after five days, in some circumstances. The new definitions are here.

2. Employers Must Continue to Provide COVID-19 Supplemental Paid Sick Leave through December 31, 2022.

A new wave of infections may be coming in late fall, due to low booster rates and following the wave of infection in Europe. Employers should keep in mind that pursuant to AB-152, public and private employers of 26 or more employees must provide COVID-19 supplemental paid sick leave through December 31, 2022. Previously, the expiration date was September 30, 2022. The new law does not increase the number of hours of leave that are available. Details of the COVID-19 Supplemental Paid Sick Leave requirements are located here.

AB-152 also established establishes the California Small Business and Nonprofit COVID-19 Relief Grant Program to provide small businesses and nonprofits with 26 to 49 employees with grants of up to $50,000 for actual costs incurred for COVID-19 Supplemental Paid Sick Leave.

3. COVID-19 General Exposure Notification Requirements Continue Through January 1, 2024.

Currently, California public and private employers must notify employees within one business day if they have been exposed to COVID-19. Under recently enacted AB-2693, the end of this requirement was extended from January 1, 2023 to January 1, 2024. In addition, the new law makes it easier to notify employees of exposure, by permitting an employer to instead post the information in a prominent place and on any existing employee portal for notices.

The notice must remain posted for at least 15 calendar days and include information including (1) the dates the employee or subcontracted employee was on the worksite; (2) the location of the exposures; (3) contact information for employees to receive information on COVID-19 related benefits to which exposed employees may be entitled; and (4) contact information to receive the cleaning and disinfection plan. The notice must be in English and the language understood by the majority of employees. Employers must retain for three years a log of the dates the notice was posted at each worksite.

4. The COVID-19 Emergency Temporary Standards Will Likely Be Replaced by a “Non-Emergency” COVID-19 Prevention Regulation.

Since November 2020, California’s Division of Occupational Safety and Health (“Cal/OSHA”) has issued a series of COVID-19 Emergency Temporary Standards (“ETS”), the latest which is expected to expire on December 31, 2022.

Cal/OSHA has proposed new Non-Emergency COVID-19 Prevention Standards here. However, even if the Cal/OSHA Standards Board approves the new nonemergency standard on their next meeting, the Office of Administrative Law (OAL) will still need to review the standard and file it with the Secretary of State before it can take effect. This means the current ETS could remain in effect past the December 31st expiration date while the OAL reviews and adopts the new standard.

5. Federal and State COVID-19 State of Emergency Orders Are Ending.

With low reported COVID-19 infection rates, on October 17, 2022, Governor Newsom declared that California’s COVID-19 state of emergency will end on February 28, 2023. The federal COVID-19 emergency orders are currently set to expire January 11, 2023. These changes, and decreased federal funding, will likely mean increased costs for employees for vaccinations, testing, and treatment in 2023.

As always, please reach out to your employment counsel at Meyers Nave if you have any questions, concerns, needs for clarification or if you would like further assistance.

CEQA Findings of Exemptions Must be Included on Public Meeting Agendas

The Court of Appeal (Second District) recently issued a decision clarifying that the Brown Act requires that CEQA decisions (including discussing or voting on CEQA exemptions) must be listed as an item of business on the meeting agenda at least 72 hours prior to the meeting.  (See G.I. Industries v. City of Thousand Oaks, 2d Civ. No. B317201, October 26, 2022 (G.I. Industries).)

The issue in G.I. Industries was that the City of Thousand Oaks had agendized for its regular City Council meeting consideration of an award of a new exclusive solid waste management franchise agreement.  The posted agenda for the meeting did not indicate that the City would be considering whether the franchise agreement was exempt from CEQA.  At the meeting, the motion was amended to not only approve the franchise agreement, but to also include a finding that the franchise agreement was exempt from CEQA.  The meeting minutes indicated these were two separate actions.  The City voted to adopt the exemption findings and filed a Notice of Exemption.

G.I. Industries, the City’s prior waste management provider, filed a writ of mandate alleging the City violated the Brown Act because it failed to provide notice through its posted agenda that CEQA exemptions would be considered at the City Council meeting.  The trial court ruled in favor of the City, concluding that because CEQA does not require a public hearing for an exemption determination, the Brown Act does not require that an exemption be agendized.  The Court of Appeal reversed.

The Court of Appeal determined that the City violated the Brown Act because “the CEQA exemption involved a separate action or determination by the City and concerned discrete significant issues of CEQA compliance.”  Under the Brown Act, meeting agendas for local agencies must include a description of each item of business to be considered at a meeting at least 72 hours prior to that meeting.  The Court found the fact that CEQA exemption determinations need not be made at a public meeting was irrelevant, and that if the matter is discussed at all during such meeting, the Brown Act’s agenda requirements apply. The Court relied on the earlier decision in San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167, which determined that the City’s adoption of a Mitigated Negative Declaration was improper when not included on the agenda as a separate action from the project approval, holding “the Brown Act clearly and unambiguously states that an agenda shall describe ‘each item of business to be transacted or discussed’ at the meeting.  (§ 54954.2, subd. (a)(1).”  As explained in G.I. Industries, an agenda can merely state “the local agency is considering a project subject to staff determination of CEQA [compliance].”

This case expands both the requirements under the Brown Act and procedural requirements of CEQA.  Public agencies must now post distinct CEQA-related decisions discussed at public meetings on meeting agendas to avoid a Brown Act violation.

 

New Pay Transparency Law Requires Private and Public Employers to Include a Pay Scale in Job Postings and Increased Pay Data Reporting

California public and private employers should begin preparing for significant new requirements for job postings and pay data reporting. On September 27, 2022 Governor Newsom signed Senate Bill 1162 (“SB 1162”), a “wage transparency law” that among other things, requires employers of 15 or more employees to include a pay scale in job postings, and for all employers to provide this information upon request. Large private employers also have new pay data reporting requirements.

The following changes will go into effect on January 1, 2023 under SB1162:

Pay Scale Information — for public and private employers:

  • Employers with more than 15 employees will be required to include a pay scale in salary and hourly job postings, including third-party postings.
  • All employers must provide current employees with a pay scale for their position upon request. Applicants are also entitled to this information upon reasonable request.
  • All employers must maintain a record of each employee’s job title and wage history during their employment period and for three years thereafter. If the employer fails to keep these records, it creates a rebuttable presumption favoring employee claims.
  • There is a new private right of action for injunctive relief or other relief.
  • New civil penalties of $100 to $10,000 are authorized for any violation of the requirements for disclosure, recordkeeping, and other requirements of Labor Code section 432.3.

Annual Pay Data Report – for private employers only:

  • Private employers with 100 or more employees must now submit an annual pay data report with new information on median and mean hourly rates by race, ethnicity, and sex within each job category, regardless of whether a federal EEO-1 form is required.
  • Private employers with 100 or more employees hired through labor contractors must now submit a separate pay data report for those employees.
  • Failure to provide the report can lead to civil penalties as high as $200 per employee.
  • This information must now be submitted on or before the second Wednesday of May, including May 2023.

Takeaways for Employers:

  • Pay Scale
    • Employers should prepare pay scales for each position, as this information may be requested by current employees and applicants.
    • For employers of 15 or more employees, establish policies and revise hiring processes to ensure compliance with new job posting requirements. Still to be clarified is whether employers seeking remote employees (who may or not work in California) must post pay scale information.
    • There may be more litigation because technical violations of the new pay scale requirements could lead to additional claims under the California Private Attorneys General Act (“PAGA”).
  • Pay Data Report
    • Private employers of 100 or more employees (or contracted workers), should establish practices to collect and analyze the information for the pay data reports.
    • Consider whether your pay scale and pay data suggests adjustments are needed to increase pay equity.

Additional updates and information regarding these new requirements will follow. As always, please reach out to your employment counsel at Meyers Nave if you have any questions, concerns, needs for clarification or if you would like further assistance.

CPUC Cannot Use Exhaustion of Administrative Remedies to Delay Litigation Under the CPRA

In the recent ruling of Rittiman v. Public Utilities Commission, the First District Court of Appeal held that the petitioner was not required to exhaust the administrative remedies of the California Public Utilities Commission (“CPUC”) prior to filing suit on his Public Records Act (“PRA”) request. The petitioner, Brandon Rittiman, argued that his appeal was constructively denied due to the CPUC’s lengthy delay in holding his appeals hearing.

In mid-November 2020, Brandon Rittiman submitted several PRA requests to the CPUC seeking “all documents, emails, or texts” between the CPUC president and her staff and the Governor’s staff. On November 30, 2020 the CPUC determined this communication was exempt under the Governor’s correspondence exemption and no records were produced. Rittiman appealed the decision and initiated its internal appeal process as prescribed by General Order 66-D. This multi-step administrative appeal process took over seven months. The Court found that the CPUC’s seven-month delay was “egregious by any measure.”

This case highlights that while agencies, including the CPUC, can adopt their own regulations that outline their process when responding to PRA requests, their regulations must correspond with the PRA. This includes making “records promptly available” and acting “with all due haste” in handling requests. The Court’s ruling ultimately upheld the CPUC’s denial of the petitioner’s PRA request but public agencies should take note of the fact that a prolonged administrative remedy process cannot be used to delay litigation over an agency’s decision to withhold public records.

Meyers Nave Achieves Major Appellate Court Victory for the San Diego Association of Governments Protecting Housing Allocation Process From Judicial Review

The Regional Housing Needs Assessment (“RHNA”) statutory process enacted by the State Legislature is one of the critical tools needed to address the severe housing crisis facing California. Taking note of both prior precedent and the current historic pressure on housing stock, on June 20, 2022, the Court of Appeal for the Fourth Appellate District issued its published decision holding that the RHNA allocation process for new housing units is immune from judicial review.

The case involves a writ action brought by four cities in the San Diego region challenging their share of new housing units allotted to them under the most recent RHNA cycle. The cities brought suit against Meyers Nave client, the San Diego Association of Governments (“SANDAG”), demanding a new hearing and a do over of the final RHNA allocation numbers for the entire region. In rejecting the cities appeal, the Court explained that the RHNA program is immune from judicial review by legislative design so as to prevent gridlock and delay in the housing allocation process. The case is City of Coronado et al. v. SANDAG, Case No. D079013, and the ruling can be found here.

The new City of Coronado decision draws heavily from a prior appellate court decision in City of Irvine v. Southern California Assn. of Governments, which rejected a challenge to the RHNA allocation process for the Southern California region based on lack of jurisdiction.

The City of Irvine opinion explains that the administrative process established under the RHNA statute to calculate a local government’s allocation of housing units is intended to be the exclusive remedy for a municipality to challenge the allocation thereby precluding judicial review of the decision.

The City of Irvine Court found that the length and intricacy of the process created to determine a municipality’s RHNA allocation reflects a clear intent on the part of the legislature to render the process immune from judicial intervention. Moreover, the City of Irvine ruling highlighted that allowing judicial review would delay the housing allocation for an entire region and essentially bottleneck the process and create gridlock while a particular city’s case winds its way through the courts.

In City of Coronado, the cities attempted to distinguish their case from City of Irvine based on an argument that their challenge was procedural in nature rather than a substantive challenge to the RHNA allocation and thus was not immune from judicial review. The City of Coronado Court rejected this position explaining that such a distinction only appeared in the cities’ briefing and that neither the City of Irvine opinion nor the RHNA statutory framework itself made such a distinction.

The City of Coronado opinion again reiterated that the same reasoning enumerated in City of Irvine applies with equal force here—namely allowing judicial review would create gridlock and delay the housing allocation for an entire region, bottlenecking the much needed process to increase housing stock throughout the state. The detailed nature of the recent ruling in City of Coronado, its extensive discussion and reliance on the prior City of Irvine opinion and the fact that the ruling is a published decision, all highlight that the courts are highly deferential to the RHNA legislative programs designed to help alleviate the ongoing housing crunch.

The Meyers Nave team representing SANDAG included Deborah J. Fox, Amrit S. Kulkarni and Margaret W. Rosequist.

Ninth Circuit Clarifies Mootness Exceptions for Covid-19 Litigation

The Ninth Circuit on June 15, 2022 issued its long-awaited en banc decision in Brach v. Newsom, holding that the challenge to the California’s Covid-19 restrictions on in-person schooling is now moot.  The appeal arose from a challenge by parents to the State’s orders closing schools for in-person learning at the beginning of the pandemic.  The challenge was brought by several parents, including those with kids in public and private schools.  After the District Court had granted the State’s summary judgment on the merits, schools were allowed to reopen and the original restrictions were rescinded altogether.  In the initial appeal, the Court ruled that this did not render the matter moot, affirmed summary judgment as to the public school parents’ claims, and reversed summary judgment with respect to the private school parents’ claims.  On rehearing the matter en banc, the Ninth Circuit has now ruled that the challenge is moot and the appeal was dismissed on that basis.

The panel first explained that the case was moot because none of the challenged restrictions were still in effect.  The only question was whether two exceptions to the mootness doctrine could apply: (1) the voluntary cessation doctrine or (2) the capable of repetition yet evading review exception.  The Court explained that neither exception applied for the same reason: the State adequately established the challenged restrictions were not reasonably expected to recur—the State had passed emergency legislation for online schooling that had already automatically expired; the State never closed any schools after they reopened; and the State continued to allow in-person schooling even when later Covid-19 case waves (such as Omicron) skyrocketed.

While this will prove to be a key decision in addressing the mootness of other litigation over expired Covid-19 restrictions, the Brach decision does not provide any bright line rules.  Instead, the Court was focused on a very fact-specific determination of whether the restrictions at issue were likely to recur.  Whether other plaintiffs may be able to establish one of the exceptions to mootness in their cases will therefore depend on the specific facts about whether the challenged restrictions may be re-imposed.

Employer Cruises to Victory with Supreme Court Arbitration Ruling

On June 15, 2022, the U.S. Supreme Court resolved the long-awaited question whether individual claims brought under California’s Private Attorneys General Act (PAGA) can be compelled to arbitration. The Court ruled in favor of employers, holding that arbitration agreements can require employees to resolve individual PAGA claims in arbitration, even if they cannot do the same with the employee’s representative PAGA claims. While the Supreme Court left intact the California Supreme Court’s holding that employers cannot compel an entire PAGA claim into arbitration, employers in California may now compel arbitration on an employee’s individual PAGA claim (assuming the parties have entered an otherwise valid arbitration agreement). Most importantly, the Supreme Court held that compelling that individual claim into arbitration removes a plaintiff’s standing to bring her representative claims in court, meaning the court must dismiss the remaining representative claims.

What does this mean for California employers?

  1. Although employers still cannot compel an entire PAGA claim into arbitration, actions can be divided into individual claims (i.e., claims based on violations the plaintiff suffered personally) and non-individual claims (i.e., representative claims on behalf of the state). An employer can compel the individual claim into arbitration, which removes those claims from the court action.
  2. Most notably, the Court held that without those individual PAGA claims, a plaintiff cannot continue in court to raise the representative claims on behalf of other workers. As the Court put it, “PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding.”
  3. An employer may only take advantage of this approach if the employee has agreed to a valid arbitration clause, including severability language that preserves the employer’s ability to enforce arbitration on the individual claims even if the employer could not compel the representative claims into arbitration. Meyers Nave recommends you contact one of our labor and employment attorneys to assess your specific situation and determine if your current agreements meet these requirements.

New COVID-19 Emergency Temporary Standard Takes Effect May 5: Employers Should Update their COVID-19 Prevention Plans

An updated COVID-19 Emergency Temporary Standard (ETS) took effect on Thursday, May 5, 2022, and will remain in effect through the rest of 2022. You can find a redline version of the ETS here, and the final version will eventually be located here. Some restrictions have been relaxed and employers may want to prepare accordingly.

What Stayed The Same?

The revised ETS still requires employers to perform contact tracing, notify employees of a potential exposure, screen employees for symptoms, provide exclusion pay to positive cases, and provide testing at no cost to symptomatic employees and close contacts. The definition of a “close contact” remains unchanged.

The ETS never had requirements regarding mandatory vaccination. Employers can continue to have policies that require employees to be vaccinated, with exceptions for reasonable accommodations. Employers may also maintain masking and testing policies that are more restrictive than the ETS.

What Is New?

This fourth version of the ETS aligns with California Department of Public Health (CDPH) regulations. Some highlights in the update include:

Vaccination Status No Longer Determinative: The ETS now treats all employees the same, regardless of their vaccination status.

Testing Obligations: When testing is required, employees may self-test (including at-home antigen tests) if the employee can provide “another means of independent verification of the results,” for example, using a time-stamped photograph.

Elimination of Cleaning Requirements: Employers are no longer required to implement cleaning and disinfecting procedures. Additionally, fixed partitions are no longer required when social distancing is impossible.

Relaxed Mask Regulations: Unless the CDPH indicates otherwise, employers need not require masks indoors, regardless of vaccination status.

Positive Cases: Upon testing positive, an employee must stay at home for at least five days from the onset of symptoms or five days from the date of the first positive test if there are no symptoms. If the employee tests negative and at least 24 hours have elapsed since the employee experienced fever or other symptoms, they may return to work. Employers must provide exclusion pay for the entire time the employee is isolated due to work-related exposure.

Symptomatic Employees: Current CDPH guidance encourages symptomatic employees, regardless of vaccination status or whether they previously had COVID-19, to both self-isolate and test as quickly as possible, isolating until testing results are in.

Takeaways for Employers

Employers may relax some of their COVID-19 protocols, and if they do, should update their COVID-19 Prevention Plans accordingly. For more detailed information about the ETS, visit Cal/OSHA’s ETS FAQ here. As always, please reach out to your employment counsel at Meyers Nave with any questions, concerns, needs for clarification, or emergencies you may have.

Ninth Circuit Vacates Injunction Delaying Caltrans Eviction of Homeless Persons Encamped Along Freeway Exit Ramp

The recent Ninth Circuit holding in Where Do We Go Berkeley et. al v. California Department of Transportation (CALTRANS) (9th Circuit No. 21-16790, April 27, 2022), provides insight into how courts may adjudicate claims brought under the Americans with Disabilities Act (ADA) against public entities attempting to clear homeless encampments. In the case, the Ninth Circuit vacated an injunction delaying the eviction of homeless persons following Caltrans attempt to clear its property. In particular, the Ninth Circuit ruled that the district court erred in its merits analysis in finding that a serious question existed as to whether Caltrans violated the ADA merely because it found the Plaintiffs’ claim to be plausible. In addition, the district court erred when balancing the equities by inappropriately mitigating the harm to Caltrans on the basis of availability of a separate Caltrans property for relocation.

In Where Do We Go Berkeley et al. v. CALTRANS (U.S. District Court, N.D. Cal., Sept. 27, 2021), the Plaintiffs argued that Caltrans violated the ADA through evictions associated with clearing outdoor encampments situated along an exit ramp for Interstate 80.  The district court granted an injunction, which was overturned upon Ninth Circuit review, that required Caltrans to give Plaintiffs six months to relocate and find housing before clearing the encampments.  The district court’s injunction was based on its finding that the ADA required the program to give “reasonable accommodation” to disabled homeless persons, who need more time before being evicted.

In reviewing the district court’s six-month injunction, the Ninth Circuit examined the Caltrans “programs” subject to the ADA and whether the district court’s remedy was a “reasonable modification” of those programs or a more major change that “fundamentally alters” their nature. The Ninth Circuit found that Caltrans’s programs include clearing the encampments. Caltrans, under its authority to “do any act necessary, convenient or proper for the . . . maintenance or use of all highways,” clears its properties of homeless encampments according to its assessment of the risks posed by each encampment. Here, Caltrans categorized the encampment as a level 1 camp that posed a critical safety concern requiring urgent relocation. As a general rule, Caltrans provides 72 hours’ notice to vacate level 1 encampments, but notice is not required. Therefore, the Ninth Circuit found a six-month delay to be a fundamental alteration of Caltrans’s programs.

In addition, Plaintiffs had not established serious questions on the merits as to whether they were entitled to relief as disabled persons subject to discrimination. The district court was required to analyze the merits despite finding a lack of precedent regarding Title II applicability and should not have entered an injunction on a merely plausible claim. Moreover, the district court’s holding contradicted precedent found by the Ninth Circuit that had established that Title II’s second clause regarding discrimination is meant to prohibit intentional discrimination in an entity’s programs, rendering plaintiffs’ claim implausible.

In evaluating the balance of equities, consideration of reopening a separate, previously cleared Caltrans property called Seabreeze for the campers’ use was found improper. The Ninth Circuit ruled that the district court cannot require Caltrans to allow the campers to live on another Caltrans property because such an order goes beyond preserving the status quo. According to the Ninth Circuit, the reopening of Seabreeze should not have been considered a mitigating factor.

This case is the latest in an ongoing series between governmental agencies attempting to clear public spaces of homeless encampments and homeless advocates seeking to protect the rights of homeless persons. It is clear that the opinion was influenced by Caltrans need to protect public safety, including that of the homeless persons. Caltrans’s tiered program focuses on clearing areas where it is most dangerous to allow homeless encampments to remain, while taking a more hands-off approach to less dangerous Caltrans properties. Nevertheless, the Ninth Circuit’s ruling in Where Do We Go Berkeley suggests that homeless advocates may have a more difficult time making a case for ADA protection for homeless persons in cases involving the clearing of homeless encampments.

Ninth Circuit Offers Some Guidance On When An Elected Official’s Speech Can Form The Basis For A First Amendment Retaliation Claim

Part of an elected official’s job entails speaking out on hot button issues including responding to statements from other elected officials.  While the courts have made clear that their doors are not open to settling political disagreements amongst elected officials, the Ninth Circuit has recently identified action taken in response to the disfavored speech of an elected official that may form the basis for a First Amendment retaliation claim.  The case is Boquist v. Courtney, No. 20-35080 (9th Cir. April 21, 2022).

Brian Bouqist was an Oregon minority party state senator who filed a First Amendment retaliation claim against majority party state senators for allegedly retaliating against him for engaging in protected speech.  Specifically, Boquist, along with other minority party senators, walked out of the senate to prevent a quorum and in response, majority party members threatened to send the state police to arrest them and return them to the capital.  Boquist then made statements on the senate floor, and to reporters, saying that he would resist any attempt to arrest him, including saying to the senate president that if state police were sent “Hell’s coming to visit you personally” and saying that state police would need to “Send bachelors and come heavily armed.  I’m not going to be a political prisoner in the state of Oregon.”  In response to these statements, senate majority members ordered Boquist not to enter the state capital without giving them 12 hours advance notice so that the Oregon state police could increase their presence at the state capital.  Boquist claimed that this response constituted retaliation for his First Amendment protected speech.

The Ninth Circuit found that the district court erred in dismissing  Boquist’s First Amendment retaliation claim at the initial pleading stage.  Rather, the Court concluded that Boquist had adequately alleged that he engaged in constitutionally protected speech and was subject to a materially adverse retaliatory action on account of that speech.  First, the Court explained that there was no doubt that Boquist’s complaint raised a plausible inference that he was engaging in protected speech to express his views over a political dispute.  The Ninth Circuit went on to find that the contention that Boquist’s statements were unprotected “fighting words” that could be perceived as a true threat were issues of fact that could not be decided at the pleading stage.  Next, the Ninth Circuit found that the 12-hour notice rule was a materially adverse action.  The Ninth Circuit distinguished this from censure actions or actions stripping an elected official of their titular roles which do not rise to the level of a materially adverse action.  Specifically, the Ninth Circuit distinguished the Boquist case from its prior decision in Blair v. Bethel School Dist., 608 F.3d 540, 544 (9th Cir. 2010) and the Supreme Court’s recent ruling in Houston Cmty. Coll. Sys. v. Wilson 2022 WL 867307 (March 24, 2022).

In Blair, the Ninth Circuit found that action taken in the political arena to remove an elected official colleague from an internal leadership position did not as a matter of law state a claim for First Amendment retaliation.  Specifically, stripping a school board member of his titular vice president role because of his criticism of the superintendent was part of the political process and removal from the titular role was not a materially adverse action.  The Ninth Circuit explained that “more is fair in electoral politics than in other contexts” and that while the plaintiff board member had the First Amendment right to his critical speech, the other board members had the corresponding First Amendment right to vote him out of a leadership position.  Likewise, in Wilson, the Supreme Court explained that a public censure of a fellow board member because of his disfavored speech did not form the basis for a First Amendment retaliation claim as elected bodies have long exercised the power to censure their members and a purely verbal censure does not offend the First Amendment.  By contrast, in Boquist, the Ninth Circuit found that the 12-hour rule was a materially adverse action.  Unlike censure, the Court explained that the 12-hour rule was not a well-established historical practice considered consistent with the First Amendment.  The Ninth Circuit also explained that the defendants’ arguments that the 12-hour rule was a reasonable response to Boquist’s perceived threats (and thus that they had a non-retaliatory motive for their actions) was a factual issue that could not be decided on the pleadings.

The framework provided in the Ninth Circuit’s Boquist ruling, in conjunction with its prior ruling in Blair and the Supreme Court’s recent ruling in Wilson, should be considered by elected officials and their advisors when considering taking action in response to an elected official colleague’s disfavored speech.