Challenging our public school district’s obedience of county ‘health’ ‘orders’: After 4 emails and 15 days of teachers’ union President and VP silence, I email the union’s entire Board of Directors (18 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, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18).

Summary to date: The California “lockdown” to “flatten the curve and keep hospitals running” has lasted since March 3, 2020, despite statutory limit for emergency powers due to “beyond control” hospitals lasting only 60 days (§ 8627.5 California Emergency Services Act). Thankfully, our local hospitals have been 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 one year 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 defined as a “written complaint.” From October 2 to December 18 2020 the district was silent, despite policy promising a response within 30 days of the board’s receipt. After this December 13 reminder they were out of compliance for a response, the superintendent answered that the school board upheld the district response without comment.

I also received a “non-response” after nearly 5 months from my complaint to the US Department of Justice regarding unlimited government. My complaint to the California Department of Fair Employment and Housing complaint was fielded with a phone call response in December, with their promise to follow-up, and silence since then.

In March 2021, our NorCal public school superintendent sent all staff an email citing county deaths from COVID nearing 1,300 with 80,000 “cases.” He also asked for our professional responses to an upcoming survey. I responded with three basic questions: how many of our staff and students have died of (not with) Covid, what is the data for overall county deaths given controversy over causes of deaths, and how many staff and students have been injured by vaccines. He ignored my questions twice, which I then shared with our school’s ~100 teachers with zero support and Social Science Department cognitive dissonance when directly asked.

I followed up with 14 CA government agencies, with all ignoring the 60-day limit of “emergency” authority I provided them from § 8627.5 of the California Emergency Services Act (ESA) except finally in April with CA Senator Glazer’s office stating the 60-day limit applied only to “non-safety” related orders. I hadn’t considered an American legislature would surrender forever dictatorial powers to a governor or elected officials without a time limit, as public recourse would be limited to recall (as is happening with Governor Newsom) or electing other legislators. In follow-up to the more complicated question requiring “beyond control” hospitals, Senator Glazer’s office refused to answer.

School district and CA government “answers” are therefore intentional lies of omission to claim they answered a question about ESA to “justify” dictatorial government while leaving out any consideration of crystal-clear letter and intent to prevent dictatorial government past 60 days unless hospitals are “beyond control.” The 14 CA government agencies claim dictatorial power to close businesses, stop social gatherings, force masking, force humans to forever remain no closer than six feet from each other, and with forever power until legislators or governor say otherwise, and while ignoring the requirement for “emergency powers” by sharing transparent and independently-verifiable hospital data.

I communicated these findings to district leadership, school board members, teachers’ union leadership, our Professional Learning Community (PLC) members and school teachers. On April 26th, the district’s Assistant Superintendent of Human Resources immediately responded with threats of disciplinary action for unspecified violations of district policies, as did my school principal. The district has yet to respond to my questions regarding their undocumented complaints as the “foundation” to their threats.

I appealed to our teachers’ union for relief. After 4 emails and 15 days of silence from our union President and VP, I sent this email to 14 of the Board of Directors of our teachers’ union.

**

Update: My May 17, 2021 email to teachers’ union Board of Directors

Dear HEA Board of Directors,
Please forgive this creative communication to ask all of you what relief HEA can offer for the following HUSD violations of contract and/or law, provable lies, threats, refusal to document per se defamation on a teacher’s professionalism, censorship, attack on academic freedom, failure to explain a lawful basis for district policies other than prima facie illegal “just follow orders,” failure to document health and safety factual claims, and failure to respond to our mutual Oath to “support and defend” Constitutional limited government.

This case is also directly connected to the worst drop in HUSD student GPA and failure rate in likely district history, and the damning label of “non-essentials” on thousands among our Hayward families.

I write all of you because (union President and VP) have chosen to ignore my 4 emailed requests since May 2, which you are welcome to see in this email chain.

Ignoring this case is NOT the HEA I will accept without my best light, voice, and choice.

(Union VP) contacted me in early September regarding this evolving HUSD tragic-comedy, stating that HEA encourages my questions with good wishes for answers, but would not support a Grievance. I asked HUSD to explain how their Covid working conditions were lawful under threats of $1,000 fines per violation, locked in a cage for a year, and being fired given the strict limits of the California Emergency Services Act (ESA) I document of apparent 60 days of emergency authority (ending May 2020) and requirement of “beyond control” hospitals. HUSD evaded through all three levels of Grievance and appeal to our School Board, with further problems you’ll read in my 8 points below. (Union VP’s) reason to not support a Grievance was that HEA and HUSD negotiated working conditions in good faith, and therefore contractual rights are not violated.

Even upon accepting (VP and President’s) reasoning, I cannot imagine any reason to ignore HUSD’s current attacks on a teacher.

I request all of you consider this case, and respond as you see best with intellectual integrity and moral courage.

I predict you’ll discover this case is bigger than you imagine.

Please provide an official HEA response to each of these eight points by 5PM Friday May 21.

**

What relief can HEA provide me for the following?
HUSD through HR Superintendent (names omitted) and Principal (omitted) accuse me of unprofessional conduct and threaten me with disciplinary action, then provide no evidence for at least the fourteen business days since I requested.
HUSD is responsible to explain to employees how work conditions are legal. Despite asking for over 7 months, HUSD evades specific questions of Emergency Services Act (ESA) limits, and claims their response of “just following orders” is sufficient explanation. “Just following orders” is taught in all California US History classes as an illegal defense. When I asked HUSD to cite their answers in their responses, HUSD refused and cut-off further communications other than threatening me. To any rational and independent observer, HUSD has failed to perform their legal requirement to explain how work policies are legal, and are lying to say that they have.
HUSD through HR Assistant Superintendent (omitted) accuses me of using our PLC to “communicate political views and discontent” in Orwellian-opposition to the truth: HUSD’s “just following orders” is a prima facie-illegal political view while I cite ESA and ask HUSD to explain how the “health orders” they impose are lawful. There is no “political view” in asking questions and seeking answers about work policies under threat of being fired, fined $1,000, and locked in jail for a year if disobeyed.
Superintendent (omitted) emailed that, “If you do not agree with the state and county guidelines or if you believe we are not following them, please pursue your questions and concerns with the appropriate agency.” I responded I would do so, and report my findings. My report is from 6 weeks of full documentation that all 14 CA government agencies willfully failed to address the same fundamental questions HUSD evaded. Therefore, by all appearances, there is no known rational explanation that ESA’s limits to dictatorial orders are being honored. Under our mutual Oath HUSD is sworn to join me in getting answers for our community, especially those declared “non-essential” under these prima facie-illegal “health orders.” Instead, HUSD attempts to censor our PLC under threat of “disciplinary action” for asking important and obvious questions. I provided this extensive report to HUSD Superintendent, School Board, and HEA’s President and VP.
HUSD through HR Assistant Superintendent (omitted) lie that PLCs somehow cannot represent themselves to get data connected to our biggest academic performance drop in likely district history. I uphold 3 HUSD CORE VALUES that the district hypocritically forbid me to express under threat of disciplinary action:
Well-Supported Staff: We enhance the capacity of every employee to promote equity and model service excellence.
Collaborative Leadership: We develop leaders at all levels who creatively tackle our challenges and communicate with integrity and transparency.
Data-Informed Decisions: We use multiple types of data, including stakeholder voice, to inform decisions and monitor progress.
HUSD through Principal (omitted) falsely directs me to stop my unanswered questions of dictatorial “health orders” and be censored because in some unexplained way it “appears” asking about our teaching and learning conditions connected to the worst negative change in student fails somehow doesn’t support district and school goals to minimize student fails. Former Social Science teacher (omitted) fails to cite the preceding contract point that emphasizes a PLC’s academic freedom must express “an understanding of our democratic tradition and its methods.” (Omitted) claims power to order censorship upon unspecified “appearances” to “leaders” while a PLC report on the very first and foremost “democratic tradition and its methods” of challenging the legality of government orders is declared forbidden speech punishable by disciplinary actions. HUSD will fail to see the irony of their claimed expression of power.
HUSD must also account for their Level II Grievance response claim that experimental, untested “whatever” face coverings are at least as protective as applicable federal and Cal/OSHA standards. My obvious response for HUSD to document that claim with cited texts and data was ignored by HUSD. Like ESA’s apparent limits making “health orders” illegal on their face, HUSD’s claim seems impossible, and requires a reasonable written response to avoid being challenged as a lie and illegal order.
HUSD has failed to answer my request of the proper way to communicate (“well and faithfully discharge the duties”) an apparent violation of our entire community’s constitutional rights given our mutual Oath and ESA language making the “health orders” HUSD requires as prima facie-illegal. This Oath is a requirement of our employment, so HUSD must research and answer.

Thank you,
Carl Herman
HHS Math Department
National Board Certified Teacher
National Board Certified Teacher Coach
[email protected]
(phone)