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Home My WebLink AboutAGENDA REPORT 1994 1207 CC REG ITEM 08ERichard S. Whitmore Janice E. Johnson Richard C. Bolanos WHITMORE, JOHNSON & BOLANOS A 1 1 O k I 1 + 1 I A Vv November 10, 1994 City Attorneys, County Counsel, and General Counsel for California Public Agencies ITEMS, , -- RECEIVED %ov 1 4 �, mootpark Cynthia J. O'Neill C�1 Helene L. Leichter Kathryn J. Burke Nancy J. Clark Julie F. Tompkins Z ,Ch r.stopher H. Alonzi 19�Susan L Mould �; T;ON. E. Resnick Re: Farmers Insurance Group and Craip Nelson v County of Santa Clara .Re guest for Support of Amicus Curiae Brief to be Filed with California Supreme Court Dear Public Agency Attorneys: Pursuant to the request of the League of California Cities' Legal Advocacy Committee, this office will be filing an amicus curiae brief on behalf of the County of Santa Clara in the case of Farmers Insurance Group and Craig Nelson v. Coun of Santa Clara, which is currently pending before the California Supreme Court. This letter is to enlist your agency's support of this effort by listing their name on the brief. Farmers involves a sheriffs deputy, Craig Nelson, who sexually harassed several female co- workers. The deputy and his employer, the County of Santa Clara, were sued by the female co- workers for violation of California Government Code provisions prohibiting sexual harassment. Nelson was the only deputy accused of actually engaging in sexual harassment. Other male deputies allegedly failed to take appropriate remedial action. Due to Nelson's blatant and admitted violation of the County's policy prohibiting sexual harassment in the workplace, the County declined to provide Nelson with a defense. Nelson then sought legal defense through his homeowner's insurance carrier, Farmers Insurance Group, which represented him throughout the litigation conducted in the underlying case. After the underlying case was settled, Nelson and Farmers Insurance Group filed a request for indemnification from the County in an attempt to recoup the legal fees incurred by Farmers Insurance Group during the litigation. After that request was denied by the County, Nelson and Farmers sued the County. % Pae \1a' 2570 W. LI Camino Real, Suite 0(10 ■ Mounfin View, (A 9 W t( ■ 4 y4 . ; - - - -- - - - - -- ■ i1oO `�ti) 452() ■ 1 AX -41-)-(141-()47(, City Attorneys, County Counsel, and General Counsel for California Public Agencies Re: Farmers Insurance Group and Craig Nelson v County of Santa Clara Re guest for Support of AMiCUS Curiae Brief to be Filed with California Supreme Court November 10, 1994 Page 2 The Sixth District Court of Appeal granted Nelson's request for indemnification, finding that his conduct was not "unusual or startling," and thus the County should be forced to incur liability for the conduct as a cost of doing business. Relying heavily on two Supreme Court decisions, John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, and Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, the Court of Appeal held that because the County had defended the other male deputies accused of sexual harassment, it could not claim that Nelson's acts were outside the scope of employment on the basis of their distinguishing degree or quantity. The Court of Appeal's decision raises two serious issues of practical importance for public employers. The first of these is what should be the proper test for determining the scope of employment for purposes of indemnification. In Farmers, the Sixth District Court of Appeal adds a new twist to the analysis established by Mary M. by holding, in part, that one consideration in determining whether conduct is unusual or startling is whether the employer has elected to defend other employees accused in the same proceeding. However, the Court of Appeal's analysis is incomplete. The pertinent inquiry should be whether the employer has made a rational distinction between the nature or severity of the conduct engaged in by the employee who has not been defended versus the conduct of those employees who have been defended. In addition, the Court of Appeal, in analyzing whether conduct is "unusual or startling," focused on whether the conduct in question was reasonably foreseeable as determined by the employer's enterprise. The Court held that the conduct was foreseeable given that sexual harassment is prevalent in the workplace. However, the Court made this determination without fully considering the nature of Nelson's position, including whether Nelson had violated the express limitations on his employment as defined by the employer. An employer has the recognized right (and duty) to determine what tasks and actions are within the parameters of an employee's job duties. Whether the employer has adequately defined such duties and parameters, and notified the employee of such parameters (e q., by adopting specific harassment policies and conducting training), should also be considered in determining whether the conduct in question is "unusual or startling." paeA147.027 00048 City Attorneys, County Counsel, and General Counsel for California Public Agencies Re: Farmarc �GI� 1 bt Tor Support of Supreme Court November 10, 1994 Page 3 The second serious issue with practical implications for public employers is whether the same test for determining scope of employment should be applied in other employment contexts. In Farmers, the County of Santa Clara argued that the term scope of employment" has various meanings dependent upon the circumstances in which it is used. The Court of Appeal rejected this contention, of employment has the same definition regardless of the context sting "[wje think scope If This assertion is problematic in the public employment arena because the term scope of employment" is used in a variety of contexts e. disability insurance and /or retirement, and administrative disc) linary pr compensation, oceedings. The term "scope of employment" should not have the same meaning pin each of these contexts. In order to determine what "scope of employment" means in each context, the Policy underlying the statutes governing that particular context must be examined. For example, in workers' compensation and disability arenas, the term "scope of employment" is viewed as broadly as possible because the purpose of such statutes is to provide coverage for injured workers. In contrast, the term "scope of employment" has a different purpose in administrative disciplinary settings and in writs of mandate brought to challenge decisions rendered in those settings. In such actions, the term "scope of employment" is used to determine whether the employer has a ri ht to discipline an employee for committing acts within that scope. g The opinion of the Court of Appeal in Farmers Insurance fails to sufficient) consider the employer's role in defining the scope of employment and the particular context in which the term "scope of employment" is being applied. We will be addressing these issues in the amicus curiae brief and urge that y ou join us in supporting the County of Santa Clara in this appeal. Should our age decide to do so, please send this office a letter stating that your agency joins ncy amicus curiae brief for the County of Santa Clara in Farmers Insurance Group and Craia Ne- I v. County of Santa Clara, Supreme Court Case No. SO41795. Because the brief is due on January 2, 1995, please mail your requests no later than December ief to ensure that your agency's name is included in the list of supporting 15, 1994, brief. pporting agencies on the pae \147.027 100,49 City Attorneys, County Counsel, and General Counsel for California Public Agencies Re: Farmers Insurance Grou and Crain Nelson v. Coun ly of Santa Clara: Request for Support of Amicus Curiae Brief to be Filed with California Supreme Court November 10, 1994 Page 4 Thank you for your consideration of this matter. Please do not hesitate to contact the undersigned if you have any questions. RSW:pae Very truly yours, WHITMORE, JOHNSON & BOLANOS By: . e a 4A � Richard S. Whitmore Helene Leckman Leichter pae \147.027 1100511