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Calaveras County school districts warned of penalties for non-compliance with COVID-19 vaccine mandate; VUSD board delays resolution

Marie-Elena Schembri, Calaveras Enterprise, November 24, 2021

School districts throughout Calaveras County have received notice from the law firm which represents them, Lozano Smith, informing of potential liability risks associated with defying or choosing not to enforce the Covid-19 vaccination mandate for school-aged children that was announced by Gov. Gavin Newsom last month.

Recently, two of Calaveras County’s school districts, Mark Twain Union Elementary School District (MTUESD) and Calaveras Unified School District (CUSD) announced that they will not comply with the state’s new vaccine mandate for students. CUSD also announced that they will not require staff to be vaccinated, as the mandate stipulates. Currently, unvaccinated teachers and staff are required to test weekly for the virus, but with the new mandate, that option is taken off the table.

At another school board meeting last week, the superintendent and school board for Vallecito Union School District (VUSD) also discussed their stance on the vaccine mandate, inviting a legal representative from Lozano Smith to address the board regarding the liability risks, as well as answer questions that the board had. VUSD Superintendent Tom Hoskins also read from a letter the district received from Tuolumne Joint Powers Authority (JPA), an entity that provides risk and litigation management services for school districts in Calaveras, Tuolumne, Amador, and Alpine counties.

According to Hoskins, all superintendents in Calaveras County received the same letter from the JPA following the MTUESD school board’s decision to defy the vaccine mandate earlier this month.

The letter, signed by Kristina Funderburk, contained several instances of potential risk to the district and its board members, should they choose not to comply with the mandate. It included warnings of “a misdemeanor offense subject to punishment by a fine not to exceed $1,000 or imprisonment not to exceed 6 months, or both fine and imprisonment,” and stated that board members “could be found guilty...for willfully neglecting to obey a lawful order issued under the California Emergency Services Act”.

The consequences spelled out in the letter painted a dour picture. Filled with ominous language like “violation of board law,” “misconduct outside of the liability protection,” and references to various education codes that would be violated, Funderburk’s letter strongly urged school districts to “be prepared to follow and enforce any future requirement for students to be vaccinated for COVID-19 for in-person attendance at California schools.”

In addition to risks for litigation at the organizational and individual levels, the letter warns of the possibility of losing both state and federal funds.

The JPA’s letter specifically mentioned the Elementary and Secondary School Emergency Relief (ESSER III) funds, which allocated over $15 billion to schools in California to assist them in implementing “a safe return to in-person instruction”.

VUSD, as well as other districts in the county who have been awarded ESSER III funds, had to submit a plan of action for use of the money, including how they plan to “maintain the health and safety of students, educators, and other staff” based on safety recommendations laid out by the CDC. This includes “efforts to provide vaccinations to school communities.”

VUSD’s plan for use of the funds, which totals almost $1.8 million, was approved just last month. Funderburk called the potential loss of these funds “devastating” in her letter.

After reading parts of the Tuolumne JPA’s letter to the board and public audience, Superintendent Hoskins introduced Gabrielle Flowers, an attorney from the Lozano Smith Law Firm, who had also sent the district information regarding the risks of defying the mandate.

Flowers gave an overview of these risks. She stressed that the mandate is not currently in effect, and therefore doesn’t exist—yet.

Flowers told the board (and dozens of parents, students, and community members gathered in the gymnasium) that Gov. Newsom’s announcement from Oct.1 simply revealed his intent that “mandatory vaccinations for students and staff will only become required when the Covid vaccine received full approval from the FDA for middle and high school grades.”

Explaining that the FDA’s emergency use authorization for children is not the same as “full approval,” Flowers reiterated that there is no current vaccine mandate in place.

The vaccine mandate for schools in California is expected to go into effect July 1, 2022, or possibly sooner if it receives full FDA approval for use by the relevant age groups. Currently, the vaccine is only FDA approved for ages 16 and up, though emergency use now allows for use of the Pfizer vaccine in children ages 5-11.

Flowers further explained that in order for the vaccine to be mandated via the California Department of Public Health, as opposed to going through a legislative process, the law requires that a personal belief and medical exemption be allowed.

“It means that parents, if they so choose, can claim exemption for their child not to receive the Covid vaccine,” said Flowers, possibly implicating that with such exemptions in place, there is no need for a school board to decide to defy a mandate.

Flowers also advised the board “there is significant liability that attaches for failure to follow the law. Period.”

Flowers alluded to the JPA’s letter read by Hopkins and delved into some of the ways that the school district, individual schools, leaders, and board members would be risking liability if they chose not to comply with the mandate (once it goes into effect). These include liability for damages in lawsuits over failure to provide “duty of care”, whistleblower situations, charges of negligence, Cal/OSHA violations for failure to provide a safe working environment, and/or criminal charges for failure to follow the law.

The fines for some of these violations can be quite hefty. For example, a private school in Fresno County was fined $15,000 last year for ignoring the public health order prohibiting in-person attendance in schools. Just this month, an Oregon school district was fined $11,000 by OSHA for failing to enforce the state’s face mask mandate after complaints of non-compliance were received. According to Flowers, Cal/OSHA can fine up to $13,000 per violation, plus potential penalties.

“Where does that money come from? It comes from the general fund—which is used to pay for schools, books, teachers, custodians, that’s where that money comes from. It goes away from students to defend litigation,” said Flowers.

She concluded, saying, “I represent the board, I represent the board’s interest. The board represents the interest of the district. The number one most important interest is the safety of students.”

In a subsequent Q&A, the legal representative advised that if the district were to choose not to comply with a vaccine mandate, they also risk losing Covid-related funds, like the ESSER III funds, and could even have to pay back money already received for Covid mitigation.

During a public comment section following the presentation, parents brought up concerns that personal exemptions may be difficult or even impossible to receive. Parents asked the board to provide some guarantee that exemptions will be granted.

Superintendent Hoskins advised that he is currently working with all of the other school superintendents in the county to draft a letter to send to state authorities including the governor, CDPH, and assembly members. Hoskins said the letter would “share our county’s circumstance and situation, how this could impact us negatively, the challenges, how hard this has been to take that direction and order and figure out how to implement and enforce...and how, potentially, with the sentiments in our county, (it) could really impact enrollment.”

He continued, “We’re expressing all that in a letter...as superintendents of the county, we would ask the state of California to maintain medical, religious and personal exemptions with regards to COVID-19. So, we’re listening.”

Parents, teachers, and even students throughout the county have expressed fear and mistrust when it comes to the state-mandated vaccine for school-age children and school staff, demanding that their leaders stand up against what some perceive to be a moral issue. Many parents have threatened to remove students from schools if the vaccine mandate is enforced, which played heavily in the decision of MTUESD and CUSD school boards to vote against enforcing the mandate.

Some parents have protested the mandate since it was announced in early October. Last Monday, in advance of the VUSD school board meeting, parents lined up along Highway 4 in Murphy’s with signs and American flags, some removing their kids from school for the day in order to attend the event, according to Calaveras County resident Susie White. White herself, who has no children, took the day off of work to be there and support their statement. Some of these parents were also in attendance at the VUSD school board meeting Nov. 17.

While VUSD’s board emphasized that exemptions will be allowed, they did not know what the application process might be, what entity would be responsible for issuing and approving them, or how accessible they would actually be for students in their schools.

Following several comments from displeased and worried parents, the VUSD board decided not to act on the resolution they had put forth during the meeting. Instead, Superintendent Hoskins said he will research and then rework the resolution to include language addressing parents’ concerns—particularly surrounding personal exemptions and how the school district intends to support parents in obtaining them for their children. The resolution will be brought back to the table at a future board meeting.

Meanwhile, what will happen to other school districts that have stated that they will not support, enforce, or comply with the vaccine mandate? It is still unclear when the mandate will become law, as it is pending the FDA’s approval, and when the enforcement of vaccines in California schools will begin to take place. Small, rural school districts like VUSD have unanswered questions about how to enforce a mandate when doing so presents logistical challenges in addition to the risk of losing large populations of its students. Exemptions are on the table, but no one really knows what that looks like yet, or what the role of the school district would be in allowing them for its students. And, if the vaccine mandate is introduced through legislation, there is still a possibility of personal exemptions being removed from the equation, as they have been for other vaccines since Senate Bill 277 was passed in 2015.

That’s why the superintendents of Calaveras County are asking state officials for consideration of their plight.

In a joint letter released on Nov. 19, Calaveras County school districts asked California policy and lawmakers to uphold the promise of vaccine exemptions for its students and staff.

The letter was addressed to Gov. Newsom, Dr. Sohil Sud and Dr. Tomás Aragón of the California Public Health Department, California Senator Andreas Borgeas, and Assemblymember Frank Bigelow, and was also sent to the Calaveras County Public Health Officer, Assemblymember Anthony Rendon, Senator Toni Atkins, the California County Superintendents Educational Services Association (CCSESA) and the state board of education.

The letter stated, “It is important to understand the challenges this mandate is already creating for our school community. We anticipate the implementation of a COVID-19 vaccination mandate, without an exemption for medical, religious or personal beliefs, will deeply impact schools at a time when enrollment numbers are already declining, and staffing shortages are a huge concern.”

The letter advises “this directive will put the districts of Calaveras County in jeopardy” with initial analysis projecting losses of 50% or more of the student body from in-person enrollment in addition to further staffing shortages.

“If either of these happens,” the letter continued, “it will dramatically impact the staffing and funding for our schools and will put all of them in financial distress or ruin.”

The letter then addresses the burden placed on school leadership throughout the pandemic to enforce state-ordered mandates, saying they “are left to manage the real frustrations of large portions of our public, taking time and focus away from our critical mission of serving students and supporting teachers and staff.”

The letter argues, “In order for us to do our job of educating youth during this difficult time, it is imperative that you hear our request: The Superintendents of Calaveras County Schools ask that the State of California maintains the medical, religious, and personal exemptions with regard to the COVID-19 vaccination requirement.”

The joint letter was signed by Calaveras County Superintendent of Schools Scott Nanik and the superintendents of all four county school districts.