Challenging our public school district’s obedience of county ‘health’ ‘orders’: district + teachers’ union declare grievance void; I appeal to community School Board (7 of ?)

Perhaps the most helpful communication is a summary of events to now, an update, and preview of coming events (articles 1, 2, 3, 4, 5, 6, 7).

Summary: The California “lockdown” to “flatten the curve and keep hospitals running” has lasted over 6 months, despite statutory limit for emergency powers due to “beyond control” hospitals lasting only 60 days and hospitals being in full control of patient numbers at all times.

As a NorCal public school teacher, I inquired to our district’s leadership and teachers’ union how their negotiated policy to “obey” county “health” “orders” is legal given the above reasonable limits to dictatorial authority.

Three emails were met with silence, then a fourth promising legal action was met with silence. I filed three legal complaints: federal, state, and a grievance for district violation of worker safety to support apparent dictatorial and illegal policy under direct threat of $1,000 fines and imprisonment.

Our union responded with support to ask the district, and to communicate indirectly that they wouldn’t pursue the grievance to arbitration because the working conditions were negotiated in good faith. The grievance process finished with district and union agreement the complaint didn’t qualify as a grievance.

I appealed the district’s answer to our community school board for what the district now defines as a “written complaint.”

Updates:

(1 of 5): HUSD’s Assistant Superintendent’s response to Level II grievance (10/2/20)

This serves as the HUSD written response to the safety concerns brought forward originally as a Level I grievance of the HEA CBA. On September 23, 2020, you made the request to appeal the Level I grievance. Upon review of your concerns, the District and HEA do not feel there is a contract violation that would follow the grievance process, but does consider it a written
complaint to be addressed in writing per Board Policy 4144.

The District still recognizes your concerns for safety and compliance with current federal, state and county regulations, and has the obligation to address and respond to the concerns you have brought forward. We met on September 25, 2020 to further discuss the specific concerns you raised regarding the conflicting information between federal regulations of the Emergency Services Act and the declaration of the “State of Emergency” made by the Governor of California, and subsequent county public health orders based on the state declaration.

In review of the information discussed, I was unable to locate the exact language of the Federal regulations that were referenced, however, I did consult with our District’s school insurance legal counsel in an effort to identify the conflict in legal language as we discussed. Below is our
legal counsel’s response.

The federal law only “preempts” conflicting state laws when the federal government controls the entire subject matter across the nation (called “occupying the field”). HOWEVER, there are some areas where states are expressly granted rights to control their own laws, as long as they are at least as protective as the federal government. Public safety, workplace safety, employment laws, education law, insurance, workers’ comp and a host of other areas may be regulated by the state. When the state regulates it may provide broader rights to employees and more stringent compliance requirements.

Public health and safety is one of the primary areas where the state can regulate more stringently, which is why many of the CAL OSHA requirements for workplace safety are more stringent than Fed-OSHA. Result: the California executive orders, regulations and forthcoming legislation with COVID restrictions and compliance
mandates controls over the federal law across the board.

At this time, the District is following governing protocols as referenced in our Board Policy 5141.22 and Education Code 32282 and 49403, which direct the District to cooperate with local health officer measures necessary for the prevention and control of communicable diseases in school age children specific to influenza pandemic episodes.

As you are aware, our county public health officer has issued public health orders in accordance with the Governor’s declarations of state of emergency as a result of a local health emergency. The health orders as discussed outline “Shelter in Place” and “Face Coverings” in the prevention of the spread of COVID-19.

The District believes it is properly following education code provisions to ensure health and safety for students and staff, as directed by local governance bodies appropriately.

(2 of 5): My escalation to Level III grievance (10/4/20)

Request for Level III Grievance:

I respectfully request HEA submit this grievance for arbitration because HUSD’s response to my Level II grievance continues to willfully ignore the one reason for the grievance: HUSD supports an illegal policy.

Supporting a prima facie criminal policy under threat of $1,000 fine and a year torn from our families and work for one-year imprisonment is neither a legal nor safe condition for our employment.

Please answer my repeated questions HUSD so far ignores:
§ 8627.5. (b) of the California Emergency Services Act states “emergency necessities” are for a maximum of 60 days, and therefore expired in May 2020. This is the one definitive legal document that OBVIOUSLY puts in writing how long an emergency declaration will last, and BASIC law to prevent unlimited government powers. HUSD: How does the county or Governor still have emergency authority given this 60-day limit???
How is HUSD’s support of county “health” “orders” lawful given the limits of California Code 8558 (b) of hospitals “beyond control”? What is the objective and independently-verifiable evidence for that requirement being met? I ask because I’ve found zero reports of hospitals “beyond control,” along with unanimous testimonies of ~20 testimonies of physicians, nurses, and other health professionals.
I respectfully request our School Board Members to consider that for over one month, HUSD has evaded, obfuscated, and now openly refused to get legal counsel to respond to our laws’ crystal-clear text in letter and intent that all our students, teachers, and family members will understand in time: no government should be given unlimited powers. A 60-day limit and only under conditions of hospitals being “beyond their control” with patients are reasonable limits to allow emergency powers. Because the 60 days have expired, and no evidence is in consideration for overrun hospitals, HUSD is in violation of several laws to continue their support. I, for one, honor our Oath to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic,” and invite all of you to do so in good-faith effort.

HUSD’s Level II grievance response raises further questions of employee safety:
HUSD responds, “the District and HEA do not feel there is a contract violation that would follow the grievance process” without explanation. Given I’ve provided prima facie evidence with the definitive California law that emergency power is both terminated in May (60 day strict limit), and conditions of “beyond control” hospitals never occurred, how is this embrace of dictatorial government a safe working condition? I say dictatorial in its academic definition that government power outside of limited government becomes dictatorship: authority for whatever is said when it’s said. HUSD’s support of dictatorial government under threats of $1,000 fines and a year imprisonment if employees are within 6 feet of another human, fail to wear a “face covering” within 30 feet, and “teaching” that hundreds or thousands in our community are “non-essential” and therefore not permitted to earn a living is not a safe employment condition.
HUSD responds, “I was unable to locate the exact language of the Federal regulations that were referenced…” What Federal regulations are you referencing? I, as a principal in the conversation, have no idea what you’re talking about. If you’re referencing federal safety standards all employers are required to know and follow, then obviously this is your responsibility. I did ask your explanation how generic “whatever face coverings” met federal and state safety standards, and we were in agreement that obviously California’s “whatever” rule meets zero standards for safety and protection.
HUSD responds that states can “control their own laws, as long as they are at least as protective as the federal government.” We specifically discussed in agreement that California’s “whatever face coverings” seem to be the opposite of protection. Please explain how generic and untested face coverings are at least as protective as applicable federal and Cal/OSHA protections with their cited texts. I cannot imagine how generic and untested “whatever face coverings” is found to be of greater protection than OSHA and Cal/OSHA tested standards, and very curious to see the data and expert analysis informing that conclusion. You made this claim, so please substantiate it. If you can’t or won’t substantiate, please withdraw that claim. I hope you recognize such a statement is ridiculous on its face.
HUSD responds again that they are following orders while ignoring the specific and definitive California laws that make those orders void: the authority granted by the governor only exists for 60 days, and certainly any further declaration of emergency would fail the primary test of “beyond control” hospitals. The county had emergency authority only for those 60 days, not magical forever dictatorial powers. How is HUSD cooperation with prima facie unlawful orders lawful? How is prima facie illegal policy safe for employees? You advocate what we expressly teach against in US History classes.
How is HUSD fulfilling their obligation to explain to employees how their policies are legal when HUSD ignores the cited, specific, and definitive California laws that appear crystal-clear in letter and intent to limit emergency power to 60 days, and only applicable now with “beyond control” hospitals? No reasonable person would accept an “explanation” that ignores the central concern requiring explanation.
Because HUSD ignores the option to escalate obvious and basic questions to the county or state, and prima facie evidence of definitive California laws demonstrating “health” “orders” as illegal, how is HUSD not in violation of our Oath to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic”?
How is HUSD fulfilling its Core Value to “communicate with integrity and transparency” when HUSD ignores the central question of how their policy is legal given explicit and definitive California law crystal-clear in letter and intent that emergencies only last 60 days, and only occur in a pandemic with “beyond control” hospitals? Each and every HUSD student learns that limits are placed upon governments exactly like these two examples clearly limiting time and conditions as protections from unlimited and dictatorial government.
All I am literally asking the educated professional adults at HUSD to do is what all California students are required in Grades 6-8 (page 81 of Common Core Standards):

“Cite specific textual evidence to support analysis of primary and secondary sources.”

The messenger’s friendly advice:

You can accept or reject this subjective advice at will, of course. I’m a powerless messenger pointing to future events. I fully understand that HEA and HUSD have contractual authority to issue a joint statement that they have no further comment than the Level II response, and close the grievance. That said, I offer my observations:
HUSD’s basic choice so far is to continue covering-up an illegal act that is outside the 60-day limit of all emergency powers, and outside the limit of “beyond control” hospitals. I say “illegal” in prima facie confidence in all available evidence of California law that is both definitive and crystal-clear. I’m sure if you could refute this summary of applicable laws, you would; instead, you ignore the questions for over a month. You can safely ignore me, but you won’t avoid the power of truth. Eventually, everyone will know of the choice I’ve offered, and your response for dictatorship or freedom. Please consider who you most want to be, and take action. Ignoring this prima facie argument might violate several state and federal laws.
There is no way for HUSD to look good on its current path to ignore questions our students will be asking, millions of Californians are now asking, and tens of millions of Americans will successfully demand to have answered. Our community might ignore your pathway and me now, but will not later. Hundreds of American lawsuits are in process, and thousands around the world. For example, Michigan’s Supreme Court just declared their governor’s “forever and unlimited” “emergency powers” as unconstitutional. What side of history do you choose?
The right choice is so easy! Just tell the truth that California law seems clear on two deciding points: the emergency was over in May given the 60-day limit, and that the requirement of “beyond control” hospitals was never met. With the truth, issue the same challenge to the county and/or state to either explain legality or to downgrade their “orders” under threat of fine and imprisonment to “advice.” Please do not be tools to those choosing illegal dictatorial control. We all have a choice. This choice of truth fully allows distance learning, as I see no conflict there.
(original grievance from 9/23/2020 for reference):
Statement of Grievance:

HUSD’s support of county “health” “orders” is outside emergency power limits from prima facie examination of applicable California law. This means that according to all reasonable evidence, HUSD and HEA are mistaken in their support. Absent any reasonable explanation the “health” “orders” are within the limits of California’s documented emergency powers, then further support of HUSD is OBVIOUS dangerous devolvement to unlimited and dictatorial government that includes threat of fine and imprisonment.

Obviously, HUSD is in egregious violation of our safety to embrace dictatorship to order us to obey an illegal policy (unless proven lawful), ignoring questions by an employee to repeat “orders” to “Obey,” and supporting the illegal threat to all our community members to fine us $1,000 per violation, arrest us, and lock us in cages away from our families and work up to a year.

This is among the most unsafe and terrifying procedures imaginable.

HUSD, unless they provide immediate removal of support, is setting the precedent to incorporate illegal policy under threat of fine and imprisonment! This is the opposite of safe working conditions.

HUSD’s support of enforced poverty connected to the orders threaten thousands in our community with conditions for future riots: obviously unsafe.

HUSD’s stonewalling of OBVIOUS and BASIC questions about their policy that many of our students, parents, and teachers are asking as well as millions of Californians and tens of millions of Americans creates unsafe and illegal conditions of fear, threat, intimidation, and harassment.

Specific contact provision alleged to have been violated (cite source):
Article 9 EMPLOYEE SAFETY to “make provisions for the safety of unit members in all aspects of their employment. This shall include published District or school procedures on the safety of unit members.”

Remedy sought:

1. HUSD either:
Immediately explains how support of county “health” “orders” is lawful given the limits of California Code 8558 (b) of hospitals “beyond control,” and § 8627.5. (b) of the California Emergency Services Act that “emergency necessities” are for a maximum of 60 days and therefore expired in May 2020. Or:
Amplifies this question to at least the level of the county for an answer within one calendar week.
If neither HUSD nor the county provide a reasonable and prudent explanation, HUSD either:
Makes an immediate public statement withdrawing support of “health” “orders” because applicable law seems to prove such “orders” are void. Or:
Immediately does whatever is legally required with prima facie evidence that HUSD and county policy are illegal (you are welcome to include state-level). This will be fully transparent in all aspects except explicitly excluded by law. This begins by immediately answering if the district has a responsibility to explain if a policy is legal when asked by an employee (if no responsibility to explain, cite relevant law).
2. HUSD reaffirms our Oath to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic.”

(3 of 5): HUSD + teachers’ union declare grievance void (10/7/20)

Mr. Herman,

The District has received your written request to appeal the response provided to you on October 2, 2020. The response to your concern was processed as a District formal complaint due to the nature of your concerns, and as there was no labor contract violation. Through the complaint process, the District attempted to adequately address your concerns. Per board policy 4144 you may request an appeal to the response received. I have attached the full policies for your reference.

BP/AR 4144 Appeal to the Governing Board
If a complaint has not been satisfactorily resolved at Step 3, the complainant may file a written appeal to the Board within five working days of receiving the Superintendent or designee’s response. All information presented at Steps 1, 2, and 3 shall be included with the appeal, and the Superintendent or designee shall submit to the Board a written report describing attempts to resolve the complaint and the district’s response.

The Board may uphold the findings by the Superintendent or designee without hearing the complaint or the Board may hear the complaint at a regular or special Board meeting. The hearing shall be held in closed session if the complaint relates to matters that may be addressed in closed session in accordance with law.

Please confirm if you wish to file an appeal through this process. I have now included (redacted), Administrative Assistant to the Board of Education/Superintendent, who will acknowledge receipt of your appeal once confirmed.

Kind regards,

(4 of 5): Appeal to our local school board (10/11/20)

Dear (omitted), HUSD colleagues, and Board Members,

Thank you all for your engagement with these important ideas for basic political freedom with safe working conditions. I appreciate all your thinking and reflection during these game-changing times. I know we’re all together in support of creative and intelligent responses for the best educational outcomes for our community.

Please consider this communication as my appeal.

Request for Appeal to the Governing Board:

I appeal:
HUSD’s current position to ignore central and obvious questions to their apparent illegal policy. After three levels of grievance and four previous emails, HUSD still refuses to address OBVIOUS and BASIC questions of cited California law that seem definitive to prove California emergency powers only last 60 days and therefore ended in May 2020, and that such powers REQUIRE local hospitals with Covid cases “beyond control.” The Board must either answer or demand the county answer. Without such answer, the Board must withdraw support of illegal policy.
HUSD’s claim they’ve explained how their support of county “health” “orders” is legal while ignoring OBVIOUS and BASIC questions. HUSD admits they are legally required to explain how their policies are legal. HUSD cites their obligation to “conduct any necessary investigation.” To claim they’ve done so while refusing to respond or even acknowledge California law text limiting emergency power to 60 days and “beyond control” hospitals is obviously not an explanation or investigation, but a tragic-comic, cringe-worthy, and illegal avoidance. The Board must admonish HUSD’s failure to avoid answering obvious questions.
HUSD’s claim that embrace of dictatorial government policy is a safe working condition. By all prima facie evidence provided, the county’s authority to order anything based on an “emergency” expired in May 2020, and cannot be renewed because stated conditions for an emergency thankfully never materialized. Threatening to enforce $1,000 fines and a year ripped from work and family for jail if employees do not submit to whatever government says outside clear limits of law is the opposite of safe, hypocritical to what we teach, and an embarrassment to our entire community. The Board must declare dictatorship as obviously an unsafe LIVING condition that includes working conditions.
HUSD’s claim that declaring human beings “non-essential” is a safe working condition. This claim is evil: an intense separation among our Brothers and Sisters that some must go without earning a living “for our safety.” HUSD ignores perhaps the greatest government crime since Segregation and forcing Japanese-Americans into WW2 internment camps. The Board must stand that where we go one, we go all. No human being is “non-essential.”
HUSD’s failure to uphold our Oath to “support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic.” All HUSD employees sign this Oath. HUSD is in violation by ignoring crystal-clear limits to emergency powers of 60 days maximum, and “beyond control” hospitals to authorize dictatorial government. The Board must remind us of our Oath, and reject dictatorial illegal polices.
HUSD’s apparent claim that California “whatever face coverings” are “at least as protective” as OSHA and Cal/OSHA safety standards for “pandemic” response. HUSD ignored my request to provide the data and analysis to support their conclusion. Untested “whatever” quality is not demonstrated as protective as tested OSHA and/or Cal/OSHA standards. The Board must demand HUSD’s evidence or force the withdrawal of such an apparent ridiculous claim.
The messenger’s friendly advice:

Again, I’m a powerless messenger without support of HEA, and acting almost alone except for a few interested teachers. My mission is to offer choice, and without personal interest or power to move on this issue outside of receiving everyone’s choice.

Throughout these communications I’ve made the case of HUSD/HEA’s error to embrace apparent illegal policy, and now their willful cover-up of this mistake.

HUSD is intentionally ignoring California legal text, refusing to engage legal counsel specific to the limits of emergency powers, and are on a pathway for embarrassment.

HUSD is wrong to lie about how their policy is legal while intentionally ignoring questions and data in apparent demonstration their policy is illegal. Saying you’ve explained something while ignoring the central data is a lie.

The Board has an opportunity and choice whether to correct this lie, or attempt to enforce it.

Be proud of your choices; you will have and be known for what you choose.

In all respect and professional support,

(5 of 5) Superintendent’s receipt + my response (10/12/20)

Dear Mr. Herman,

We are in receipt of your appeal and will follow up accordingly. Have a good week!

Thanks,

**

Thanks, (omitted)!
I know such an appeal might come across as oppositional, and in these crazy times please know I’m taking actions in good-faith professionalism for truth and support for our declared “non-essentials.” I know people are frightened, and that causes lapses in critical thinking and judgement. I appreciate everyone’s good-faith work for factual consideration along with different subjective preferences of what we should do.

Together we’ll all do our best to de-crazy this

Thanks, and yes, a great week with clean air to all,

Up next: The school board meets on October 14, 2020. According to the information I was provided, HUSD then has until November 14, 2020 to issue their decision.