This article about personal liability for officials who impose public health mandates in schools was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
I was asked to address a piece of misinformation that has, apparently, taken off in anti-vaccine circles. Starting from the end — no, activists (or parents) cannot hold school boards and superintendents personally liable for imposing COVID-19 restrictions. No, there is no surety bond that would freeze school funds. The threat to use a surety bond in this context is not a valid legal threat.
If school boards and superintendents receive such threats, they should realize this is, in fact, pseudo-law used by science deniers to try and intimidate, just as sovereign citizens use similar tactics to attack traffic courts, and the officials’ job is not to give in.
The claim I am addressing appears to be a national effort, with a California-specific branch. In this post, I will try to explain why this personal liability does not hold generally, but also give specific points for California.
The claims about personal liability
The California iteration of this was brought to me through a group called Informed Parents California. A video on the group’s Facebook page alleges that a mom managed to get a school to take down COVID-19 restrictions by finding the school’s superintendent surety bond, and filing a claim with, apparently, the bond company, that, the video claimed, led to the school’s state and federal funding being “removed from the district” and the school abandoning the superintendent, canceling restrictions, and leaving the superintendent in substantial debt.
This seems to draw on a video, that is not from California, by a mom who claimed to have changed her school district’s mask mandate that way. Apparently, in making a claim against the bond she, allegedly, accused officials of violating intentional laws and the Nuremberg code and that’s why they should pay the bond.
Doubling down on this bit of misinformation and new idea, a new nationally-oriented site titled “bonds for the win” tells people to use surety bonds if they have been harmed, encouraging people to use surety bonds to penalize officers for doing things they do not like.
Here is the list of codes they post for California.
There is no legal validity to the claims
The claim about school officials’ personal liability in the videos above are extreme, unconvincing, and unrealistic. It’s certainly possible that a specific district moved from required masks to voluntary masks, it’s even possible they did it in response to harassment from anti-mask activists, but the claim that they did it because of a surety bond that the activist actually managed to misuse to harass the superintendent trying to keep her children and others safe is implausible.
Starting from the top — even if there was a valid claim against a school official’s personal surety bond, that is not going to freeze state and federal school funding. Anywhere in the state.
A personal surety bond allows a private company to impose consequences on the bondholder – personal consequences – if they don’t do certain conduct. That’s what a surety bond is. A claim under a school liability policy is not going to freeze school funds, either. Torts claims do not automatically freeze government money. I don’t actually have a link for this, because it’s too basic for anyone to have actually had to write this.
So when the activists allege state and federal funding was frozen over a personal surety bond they were, not to put too fine a point on it, saying something untrue.
In California, further, there is no general requirement for superintendents or school boards to file a bond. Some officers need to file a bond. A superintendent for a special adjustment school for children under the authority of the juvenile court needs to file a bond. But there is no similar provision for superintendents generally, or for boards.
Mr. Dave George, the Chief Executive Officer of the Schools Excess Liability Fund, a Joint Powers Authority which provides coverage to a large number of California public school districts, explained to me that:
…in California, surety bond requirements are met for tort purposes through School Board Legal Liability coverage contained in general liability policies of public agencies and employee dishonesty/crime coverage for those who handle money directly.”
He pointed out that §1463 of the California Government Code permits it for cities and counties. The section says that:
…a government crime insurance policy or employee dishonesty insurance policy, including faithful performance, may be provided as an alternative to the official bond by any county or city.
So officials are not actually likely to have a bond at all; the school district will have a liability policy, instead.
A bond may be needed in other states. Oklahoma, for example, requires a bond. But it’s certainly not a universal requirement.
To trigger and use any liability policy or bond – anywhere – you would need to bring a valid tort claim. But there is not one that really applies here. Imposing a mask mandate on a school – in line with CDC and state guidance – is not negligent. Even without state guidance, following CDC recommendations is likely not negligent.
The Nuremberg Code does not apply to mask mandates, since they are not human experiments, and at any rate, is not a source of domestic law in the United States, so would not be a source for a tort. There just is no good argument here that schools requiring masks are committing a tort, so there are no grounds for liability under either a bond or a liability policy.
Further, in California and most states, any torts claims would likely be barred because adopting measures to make schools safer is within officers’ discretion. The site calling on people to use bond has a few California codes that address what happens when public officials are liable – and sometimes, public officials can be held liable. But it drops the most important provision, §820.2 of the Government Code.
Providing an exception to liability that is valid in most states, §820.2 says:
Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.
In other words, when using their discretion to set policies to keep the schools safe, public employees – including board members and superintendents – cannot be held liable in torts. The same is true for most states and the federal government. There is no personal liability for torts based on the use of discretion.
The fact that mask mandates are not a violation of law, that the Nuremberg Code is not relevant here, and that mask mandates are well within expert recommendations makes the threat even less credible, but even if the decision was on less solid legal ground, in most states you cannot sue public officials for using their discretion. And the reasoning for this is likely obvious. Public officials are expected to use their discretion for the public good, not in response to threats of litigation from people. The way to respond to policy decision you disagree with is through the political process, not legal threats.
This is another example of anti-vaccine and anti-mask activists trying to use the personal liability law to intimidate, harass, and attack, with no basis. Like sovereign citizens, the activists are making untrue legal claims in the service of undermining public health and putting other at risk.
School board officials, school superintendents, and school counselors, do not let them. Your duty is to keep the schools safe. Further, this might be a good place to consider – even though it’s not easy – countering the harassment by suing harassers for abuse of process.
Because that is what this is.
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