SB 98 Impacts on Charter Schools

July 2020
Number 60

Senate Bill (SB) 98, the Budget Education Trailer Bill, signed by Governor Gavin Newsom on June 29, 2020, has several impacts specific to charter schools.

Changes Related to Assembly Bills (AB) 1505 and 1507

SB 98 includes several provisions that amend and/or clean-up provisions of the Charter School’s Act (the Act) codified under AB 1505 and AB 1507, including:

  • Renewal Criteria: Under recent charter school reform legislation, charter schools up for renewal are separated into three categories based on their performance on the California Dashboard: “high performing,” “middle performing,” and “low performing.” SB 98 provides that for a “high performing” or “low performing” charter school for which the two consecutive years immediately preceding renewal include the 2019-20 school year, the authorizer shall consider the charter school’s performance on the Dashboard for two of the three years immediately preceding the renewal decision instead of only the two years immediately preceding the renewal decision. This means that for a charter school meeting this prerequisite, the authorizer can look back one extra year in assessing the charter school’s performance on the Dashboard. The amendment is intended to solve for the absence of Dashboard data for the 2019-20 school year due to the suspension of California assessments as a result of the COVID-19 pandemic. Absent this amendment, all charter schools for which the two consecutive years immediately preceding renewal included the 2019-20 school year would have automatically been placed in the middle performing category.
  • Grounds for Denial: SB 98 clarifies that for a material revision, the two new grounds for denial added by AB 1505 – whether the charter school will serve the interests of the entire community in which the charter school is proposing to locate, and whether or not the district is positioned to absorb the fiscal impact of the proposed charter school – may only be considered relative to the impact of the proposed material revision, and not the entire charter school program.
  • Status as a Continuing Charter School: AB 1507 eliminated the two exemptions which permitted a charter school to locate outside the geographic boundaries of its authorizer. Pursuant to AB 1507, a charter school located outside the geographic boundaries of its authorizer pursuant to one of these exemptions prior to January 1, 2020, may be grandfathered in by either obtaining permission from the school district in which the charter school is located or by submitting its renewal petition to the charter school in which it is located, depending on the applicable grandfathering provision. AB 1507 further specified that a charter school authorized by a different authorizer because of changes in the law, and which was providing educational services to students prior to July 1, 2019, will be regarded by the California Department of Education (CDE) as a “continuing charter school” for all purposes, including funding determinations. SB 98 clarifies that in order for a charter school satisfying the grandfathering provisions of AB 1507 to be regarded as a “continuing charter school,” the charter school must notify the CDE by May 15 before the fiscal year in which the charter school is to be regarded as a continuing charter school.

For more details regarding AB 1505 and AB 1507, see our 2019 Client News Brief Number 49.

Miscellaneous Provisions

SB 98 also makes the following changes impacting charter schools:

  • A charter school is not required to request a material revision to its charter to offer distance learning pursuant to the provisions of SB 98.
  • A charter school that is scheduled to open or add grade levels during the 2020-21 school year may delay opening or adding grade levels for one year without a request for material revision. Note, the charter school must have provided notice to its chartering authority and the CDE of that decision no later than July 17, 2020.
  • SB 98 clarifies that the State Board of Education cannot waive the requirements of SB 126, which expressly states that charter schools and entities managing charter schools are generally subject to the Ralph M. Brown Act, the Political Reform Act of 1974, Government Code Section 1090, and the California Public Records Act. For more information regarding SB 126, see our 2019 Client News Brief Number 15.

Takeaways

SB 98 makes several significant changes impacting charter schools. If you have any questions regarding the impact of SB 98 on charter schools, or regarding charter schools in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Courtney de Groof

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Deadline to Present Claims against Public Entities Extended

July 2020
Number 61

In a series of executive orders addressing impacts of the COVID-19 pandemic, Governor Gavin Newsom has extended a statutorily-imposed timeline significant to public entities. The first 60-day extension, which applies to the deadline to file claims against public agencies, was published on March 21, 2020, under Executive Order N-35-20. Then, on May 19th, the Governor issued Executive Order N-65-20 which extended the deadline an additional 60 days. Finally, the deadline was once again extended by 60 days by Executive Order N-71-20 issued on June 30. Accordingly, evaluating the timeliness of claims will require particular attention in the coming months.

These extended deadlines apply to the timeline for presenting a claim against a public entity pursuant to the Government Claims Act found in Government Code section 911, et seq. The Government Claims Act allows a claimant to sue a public entity, including local government agencies, public school districts, and community college districts, after meeting certain procedural requirements. Generally, a claimant must file his or her claim with the governmental entity within six months or one year, depending on the claim, of the “accrual’ (the date of the injury or in some instances the date the claimant learned of the alleged wrongdoing that caused injury to the claimant) of the injury. Due to the multiple extensions and wording outlined by the Executive Orders, the deadline for when a Government Claim is required to be filed is likely unique to the factual situation of the claim. If you receive a claim that could be affected by these Orders, we recommend that you consult with legal counsel immediately in order to preserve your agency’s arguments or defenses.

It should also be noted that none of the Executive Orders modifies the timeframe for a local agency’s response, which must typically occur within 45 days of the submission of the claim. However, the orders do extend the deadlines for the Department of General Services to act on government claims.

If you have any questions regarding responding to a government claim submitted under the extended timeframe, or for more information on issues arising from COVID-19 generally, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Junaid Halani

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Questions Remain Regarding Face Coverings in Schools

July 2020
Number 59

As California’s local educational agencies (LEAs) examine how and when schools can reopen, a frequent question has been the extent to which face coverings will be required for staff and students. While there have been numerous questions and some confusing guidance from the California Department of Public Health (CDPH), the issue has come more into focus with the latest guidance. Based on the July 17 CDPH “COVID-19 Industry Guidance: Schools and School-Based Programs” school staff will be required to wear masks absent particular exceptions, as will students of particular age groups, again subject to specified exceptions.

Background Information

Governor Newsom has issued various executive orders directing California residents to conform to guidance issued by State health officials. The Governor’s orders establish that public health “directives” automatically include an enforceable order to comply.

Employees

As a result of guidance from the California Department of Public Health (CDPH), school employees will be required to wear face coverings in most circumstances. The July 17 CDPH guidance states that “[a]ll staff must use face coverings in accordance with CDPH guidelines unless Cal/OSHA standards require respiratory protection.” This appears to put to rest the question of whether staff will be required to wear masks.

The July 17 guidance includes a link to prior CDPH guidance dated June 18. The June 18 guidance required face coverings for Californians in “high-risk situations.” The list of “high-risk situations” expressly includes people who are working, and who are interacting, with members of the public; working in any space visited by the public, regardless of whether anyone from the public is present at the time; working in spaces where food is prepared for distribution to others; or working in or walking through common areas, or in any room or enclosed area where other people are present when unable to physically distance. To the extent that students may be considered “members of the public” within the meaning of the CDPH, the June 18 CDPH guidance seems to require teachers to wear face coverings in their classrooms at all times, even when they are alone. LEAs may wish to consult with their attorneys regarding that specific issue.

The June 18 guidance also includes specific exemptions from the face covering requirement, including persons with a medical condition or disability that prevents them from wearing a face covering; persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication; and persons who are engaged in outdoor work when they are able to maintain a distance of at least six feet from others, among other circumstances. LEAs should provide an opportunity for employees to request a reasonable accommodation, and engage in the interactive process, if they feel they are unable to wear a mask. If engaged in the interactive process, it is important to recognize that the question of whether a face covering is an essential function of an employee’s job is open for debate.

Students

In his July 17, 2020 press conference, Governor Newsom stated “all staff and students in third grade and above must wear masks.” That requirement is reflected in the July 17, 2020 CDPH guidance for schools, which provides the most direction to date regarding student use of face coverings in schools. The document states that children under two years old are not required to wear face coverings; children two years old through second grade are “strongly encouraged” to wear face coverings; and children in third grade through high school are required to wear face coverings, unless exempt.

The recent guidance additionally states the following:

In order to comply with this guidance, schools must exclude students from campus if they are not exempt from wearing a face covering under CDPH guidelines and refuse to wear one provided by the school. Schools should develop protocols to provide a face covering to students who inadvertently fail to bring a face covering to school to prevent unnecessary exclusions. School should offer alternative educational opportunities for students who are excluded from campus.

The guidance is silent on the type of alternative offerings, but they may potentially include distance learning or independent study. (For information regarding distance learning issues raised by recent legislation, see CNB No. 56.)

The July 17 guidance provides qualifiers for wearing face coverings, including anyone who has trouble breathing; anyone who is unable to remove the face covering without assistance; for meals and snacks; and during naptime and recreation. The guidance refers back to the prior guidelines, indicating that they are still in effect. While the July 17 document uses strong language indicating a legal mandate, and the Governor has referred to the guidance as a mandate, the document itself includes qualifiers. The guidance states that “[a]ll guidance should be implemented only with county health officer approval following their review of local epidemiological data including cases per 100,000 population, rate of test positivity, and local preparedness to support a health care surge, vulnerable populations, contact tracing, and testing.” Also, the document is titled “Guidance” further bringing into question its binding effect. LEAs continue to wait for the CDPH to indicate with greater clarity that their guidance is indeed intended as a mandate.

To the extent that there remains an unresolved question regarding whether the use of masks by students as set forth in the most recent guidance is a mandate, it is noteworthy that the July 17 CDPH guidance does “require” cloth face coverings for students while at school, whereas the prior guidelines limited themselves to “recommending” and “encouraging” coverings. CDE’s prior recommendations, issued on June 8, 2020, combined with both prior CDPH guidance and the most recent guidance of July 17, 2020, lead to the likely conclusion that students should be required to wear face coverings, subject to the indicated exceptions. Regardless of the legally binding effect of these various recommendations and guidelines, they can be taken together to establish a standard of care that could be cited by aggrieved individuals seeking to establish liability against an LEA for failure to comply with that standard.

As an additional consideration, school districts may need to review and possibly revise or suspend any existing Board Policies restricting the use of face coverings.

Takeaways

From a safety and liability perspective, the more precautions an LEA can take, the better, which could include requiring everyone (including students of an appropriate age) to wear face coverings while in school, unless particular, narrow exceptions apply, such as health conditions that limit the wearing of a mask, or the other exceptions addressed in the July 17 guidance.

If you have any questions about school reopening plans, including the use of face coverings, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Harold M. Freiman

Partner

Sophia V. Cohn

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court of Appeal Rules that Santa Monica’s At-large Method of Elections Does Not Violate the California Voting Rights Act

July 2020
Number 58

On July 9, 2020, California’s Second District Court of Appeal unanimously held that the City of Santa Monica’s (City) at-large elections do not violate the California Voting Rights Act (CVRA) (Elec. Code, § 14025, et seq.). The CVRA is a state law that allows voters to sue public agencies whose at-large elections may result in underrepresentation of minorities. Pico Neighborhood Association et al., v. City of Santa Monica represents the first time a public agency has successfully defended its at-large method of election when sued under the CVRA. While the case was decided based on the specific facts and record before the court, the decision shows that public agencies can successfully defend a CVRA challenge where there is no evidence of discriminatory intent or effect.

Background

This case’s long history began in 2016 when the Pico Neighborhood Association (Plaintiff) filed a lawsuit alleging that the City’s at-large elections violated the CVRA and the equal protection clause of the California Constitution. In at-large elections, elected officials may reside anywhere within the public agency’s boundaries, and all registered voters in the boundaries may vote for all seats on the governing board. The Plaintiff here argued that the City’s at-large elections prevented Latinos from influencing local elections and diluted their voting power. At the time of the trial, Latinos made up approximately 16 percent of the City’s total population.

On February 15, 2019, the Los Angeles Superior Court issued a judgment in favor of the Plaintiff, holding that the City’s at-large elections violated the CVRA and the California Constitution. As a remedy, the court ordered the City to implement by-district elections. In by-district elections, a public agency is separated into areas (or “districts”), and residents of each area vote to elect a candidate who resides within their specific area. The court also ordered the City to pay the Plaintiff’s attorneys’ fees and costs, estimated at $22 million.

The Appellate Court Rules that the City did Not Violate the CVRA or the California Constitution.

On appeal, a three judge panel from the Second Appellate District unanimously overturned the trial court’s ruling, finding that the City’s at-large method of elections did not violate the CVRA or the California Constitution.

A plaintiff must show five elements to succeed in a CVRA claim:

  1. Membership in a protected class.
  2. Residence in the public agency they are suing.
  3. The public agency uses an at-large method of election.
  4. Racially polarized voting has occurred.
  5. Dilution has occurred.

Here, the parties agreed that the first three elements were met, but disagreed on whether element four, racially polarized voting (meaning there is a difference in the choice of candidates preferred by voters in a protected class and of candidates preferred by the rest of the electorate), and element five, dilution, had occurred. The appellate court’s analysis focused on element five, dilution, eventually holding that no dilution occurred.

The appellate court explained dilution as “the act of making something weaker by mixing in something else,” explaining that “pouring a quart of water into a quart of milk for instance, dilutes the milk to half strength.” The appellate court continued: “this familiar concept applies to electoral results. Many techniques can manipulate a voting system to dilute the ability of particular groups to achieve electoral success.”

After analyzing the history of the City’s election procedures going back almost 75 years, and the City’s prior consideration and rejection of by-district area elections in the 1990’s, the appellate court held that Plaintiffs failed to prove that the City’s at-large elections diluted the votes of Latinos. The appellate court reasoned that the City’s Latino population was not sufficiently large enough to constitute a statistical majority in any potential trustee area. The appellate court concluded that, at most, Latinos would constitute 30 percent of any particular trustee area, and “30 percent is not enough to win a majority and to elect someone to the City Council, even in a district system.” “The reason for the asserted lack of electoral success in Santa Monica would appear to be that there are too few Latinos to muster a majority, no matter how the City might slice itself.” In sum, the appellate court concluded that at-large voting was not to blame for the Latino population’s lack of electoral success. Instead, “small numbers” were.

Additionally, the appellate court found that the City’s at-large elections did not violate the California Constitution because Plaintiff was unable to prove that the City historically implemented at-large elections with the purpose of discriminating against Latinos.

Takeaway

This decision, should it stand after any further appeal, significantly impacts the landscape of CVRA litigation and public agency elections. Most public agencies transition from at-large to by-district elections when threatened with CVRA litigation. Some public agencies make the transition because by-district elections are appropriate for their voters. Other public agencies, however, make the transition in order to avoid incurring significant attorneys’ fees, even if they don’t believe by-district elections are appropriate for their voters, transitioning primarily because at-large elections historically have not stood up to challenge under the CVRA.

This case provides an example of when at-large elections can be found in compliance with the CVRA. By requiring plaintiffs to show that a trustee area can be created that allows a protected class of voters to elect their preferred candidate, the appellate court has acknowledged that by-district elections are not appropriate for every jurisdiction. However, it is too early to know if this case represents a new direction in the law or is an aberration. The court based its decision on the specific record before it, and it may be too soon to expand the holding of the case to other factual settings. Maintaining at-large elections remains problematic for public agencies that do not want to risk a court loss or who do not have the funds and commitment to litigate these types of issues. Additionally, the court noted several arguments that the Plaintiff failed to make, leaving those issues to be litigated elsewhere at some point in the future.

The Plaintiff in this case has already indicated publicly that they plan to appeal to the California Supreme Court. Based on the history and purpose of the CVRA, and the unprecedented nature of this case, it would not be surprising to see the California Supreme Court address this decision in the coming years. We will continue to monitor this case and report on its progress should there be an appeal or if legislation is proposed to address this issue.

If you have any questions about your public agency’s election process, or to discuss any legal matters pertaining to public agencies, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sarah L. Garcia

Partner

Jennifer Baldassari

Senior Counsel

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

SB 98, COVID-19 and Special Education: What’s Next?

July 2020
Number 57

SB 98 is the recent Education Budget Trailer Bill signed into law by Gavin Newsom on June 29, 2020. Among other things, it was enacted to protect school funding from uncertainties caused by the COVID-19 pandemic. It makes important statutory changes to almost every area of education from labor and employment, to average daily attendance (ADA), Local Control Accountability Plan (LCAP), charter schools, and special education. This article focuses on SB 98’s impacts to special education in particular.

IEP Description for Emergency Conditions

Moving forward, all individualized education programs (IEPs) must now include a description of how services will be provided in future emergency conditions, like the COVID-19 physical school closures. Other examples of emergency conditions are explained in section 46392 of the Education Code and include fires, floods, and earthquakes, among other things. The emergency plan would go into effect in the event of a physical closure due to an emergency condition lasting more than 10 school days. The description should be developed by the IEP team and included in an IEP amendment or the next annual IEP.

The statement should include:

  • the special education and related services the student will receive during the emergency period;
  • any supplementary aides and services required to facilitate access during the emergency period;
  • transition services under Education Code section 56345.1 as necessary; and
  • extended school year services where appropriate.

Special Education Funding

SB 98 significantly changed the funding formula for special education significantly. It repeals statutes related to prior funding programs and stops funding at the 2019-20 fiscal year’s levels for most add-on adjustments. The bill makes funding available for special education programs if revenues distributed are less than the estimated amount to fund those programs. It also creates a funding structure where Special Education Local Plan Areas (SELPAs) are provided with $625 per ADA rate or the ADA rate received in 2019-20, whichever is greater, and applies the cost-of-living adjustment (COLA) to future years to the statewide base rate. SB 98 does not provide COLA in the 2020-21 fiscal year. SB 98 also adds section 56122 and 56195.1 to the Education Code, which includes certain requirements for SELPAs. Some of the requirements include:

  • mandates use of a template to ensure compliance with Education Code sections 56195.1 and 56205;
  • launches a moratorium on the establishment of single district SELPAs through the 2023-24 fiscal year;
  • provides a two-year extension for SELPAs to include its annual assurances support plan for the education of all individuals with exceptions needs

Regarding funding for educationally-related mental health services (ERMHS), SB 98 lifts prior restrictions, which limited the use of such funds for students with IEP ERMHS. SB 98 now allows funds for ERMHS to benefit all students, including students without IEPs ERMHS, thus providing LEAs with greater flexibility in funding intervention and support services in the wake of the COVID-19 pandemic and physical school closures.

Considerations for Distance Learning

Importantly, the language of SB 98 requires in-person education, and authorizes distance learning in at least three stated circumstances: (1) where distance learning is necessary as a result of an order or guidance from a state or local public health officer; (2) for students who are medically fragile, or would be at-risk from in-person instruction; and (3) if a child is quarantining due to COVID-19 exposure. Districts may be able to offer distance learning in other circumstances as discussed more fully here. For students in special education, distance learning would necessarily include IEP services. For those special education students who are medically fragile, or self-quarantining, it may be prudent to consider offering distance learning, or some other remote educational program, to meet their needs in a safe and appropriate manner. The distance learning environment must include special education and related services required by the IEP, and accommodations, modifications, or supports necessary to ensure that an IEP can be implemented in a distance learning environment. IEP meetings may be necessary to discuss any potential changes in services necessary in a distance learning environment, or an IEP amendment may be offered if the local educational agency (LEA) and parent/guardian agree to make changes to an IEP without an IEP meeting.

In the event a LEA offered distance learning for the 2020 extended school year, the agency may claim an apportionment if the time value offered was equivalent to previous ESY requirements, including the minimum of 20 instructional days.

Considerations for Instructional Minutes

Where distance learning is offered, instructional minutes are to be calculated based on the time value of assignments as determined by the educational agency or certificated employee. For county offices of education operating special day classes, SB 98 additionally requires compliance with Education Code standards for minimum number of instructional days (see Ed Code 46200, et. seq.) and minimum number of instructional minutes, which depends on grade level (see Ed Code 46201). For all others, SB 98 modifies previous instructional minute requirements and should be carefully reviewed. You can read more about it here. LEAs should review their learning plans for the upcoming year to ensure compliance with IEPs. We also suggest LEAs coordinate with county offices for students who are or may be county placed, making sure any necessary changes are addressed by IEP teams.

Takeaways

SB 98 makes significant changes impacting special education. LEAs should consider whether changes are necessary in order to provide FAPE in light of a child’s circumstances. LEAs should consider creating IEP amendments if changes are necessary. Finally, LEAs should ensure contingency plans are clearly documented in IEPs and follow the requirements set forth in SB 98.

Due to the complexity of these issues and the overlapping impacts, we advise LEAs consult with legal counsel before making major programming changes. To read more about the impacts of SB 98, please refer to Lozano Smith’s concurrent Client News Briefs on the topics of charter schools, employee lay-offs CNB 55, distance learning CNB 56 and LCAP CNB 52.

If you have any questions about the special education implications of SB 98, or to discuss any legal matters pertaining to public agencies, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michael E. Smith

Partner

Harold M. Freiman

Partner

Ryan P. Tung

Senior Counsel

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Layoffs Under SB 98

July 2020
Number 55

After much anticipation, following the Governor’s grim May Revise, Governor Newsom and the California Legislature reached an agreement for the 2020-21 California state budget. The final 2020-21 state budget and the enacting legislation, including the Education omnibus budget trailer bill (SB 98), reflect the profound impact COVID-19 has and continues to have on the economy and on state revenues. While cuts to K-12 public education were spared, under SB 98 various layoff options that would otherwise be available to school districts have been limited, and new requirements regarding distance learning must be considered during labor negotiations.

Classified Implications

Section 97 of SB 98 addresses the role of classified employees in reopening school and college campuses. This section encourages governing boards of school districts, county offices of education, community college districts, and joint powers authorities to avoid classified layoffs during the 2020-21 school year.

Additionally, governing boards of a school districts, county offices of education, community college districts, and joint powers authorities are prohibited from “implementing layoffs or releasing permanent or probationary classified employees who are assigned to positions in nutrition, transportation, or custodial services” during the 2020-21 school year. The intent of this prohibition was clarified in a July 2, 2020 letter from Senator Holly Mitchell, Chair of the Senate Committee on Budget and Fiscal Review, that such prohibition includes layoff notices given to employees in these specific classifications that become effective on or after July 1, 2020. As a result, layoff procedures in process between May 2, 2020 and July 1, 2020 for employees assigned to positions in nutrition, transportation, or custodial services cannot be carried out, which may require rescission of layoff notices already issued to persons in these classifications. We recommend that local educational agencies (LEA) with pending classified layoffs work with legal counsel to ensure compliance with SB 98.

This section does not prohibit termination of probationary or permanent classified employees in the above-mentioned positions for “good cause.” Therefore, LEAs still have the ability to terminate probationary and permanent classified employees for disciplinary reasons, regardless of classification. And, although discouraged, LEAs are also permitted to layoff or release probationary or permanent classified employees in positions other than those listed above. However, we recommend consulting counsel prior to making a classified termination, layoff, or release decision during the 2020-21 school year to ensure compliance with SB 98.

Certificated Implications

SB 98 also amends Education Code section 44955.5, the so-called “August layoff” statute. Subdivision (a) of this section permits school districts to release certificated employees “[d]uring the time period between five days after the enactment of the Budget Act and August 15 of the fiscal year to which that Budget Act applies” if certain criteria are met. First, the state budget must be passed. Second, the governing board must determine that its total revenue limit per unit of average daily attendance for the fiscal year for which the Budget Act applies has not increased by at least two percent (2%). Third, the governing board must almost determine that, as a result of the revenue limit, it is “necessary” to decrease the number of permanent employees.

SB 98 amends Education Code section 44955.5 subdivision (a) so that the determination is based on local control funding formula (LCFF) apportionment rather than “revenue limit.” The budget agreement between Governor Newsom and the Legislature maintains LCFF at its 2019-20 levels (with some apportionment deferred), for the 2020-21 school year. Because LCFF for 2020-21 has not increased by at least two percent (2%) over 2019-20, normally this would enable a school district to utilize the August layoff process, if desired.

However, SB 98 also amends Education Code section 44955.5 to make the August layoff statute inoperative for the 2020-21 school year. The amendment includes an exception that certificated employees holding a position that requires an administrative or supervisory credential may be terminated pursuant to the requirements described above. Therefore, school districts are permitted to release and/or reassign certificated administrators until August 15, 2020, under Education Code sections 44955.5 and 44951.

Education Code section 44951 sets forth the process to release employees holding a position that requires an administrative or supervisory credential. Note that while administrators do not obtain tenure in an administrative position, they do progress towards tenure in a classroom teaching position and, if released from their administrative position, may have so-called “retreat rights” to a teaching position, consistent with their credential(s). Therefore, if a school district exercises the summer administrator release process and the administrator has retreat rights, they are entitled to a teaching position for 2020-21. This may result in overstaffing of teachers unless the school district has appropriate vacancies. Because the summer layoff status is suspended for teachers, a school district cannot address any such overstaffing through a summer layoff.

SB 98’s amendments to section 44955.5 are currently limited to the 2020-21 school year. Therefore, the traditional “March 15” layoff process under which layoffs would be effective in the 2021-22 school year, is still an option for school districts and county offices of education (unless the Legislature takes future action to preclude it).

Takeaways

As a result of SB 98, school districts’ ability to layoff both classified and certificated employees is more limited for the upcoming school year. We recommend reviewing any pending classified layoffs with counsel before making any other employment decisions related to classified or certificated layoffs, releases, or terminations during the 2020-21 school year to ensure compliance under SB 98.

If you have any questions about thelabor and employment implications of SB 98, or to discuss any legal matters pertaining to public agencies, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Michelle L. Cannon

Partner

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Distance Learning & In-Person Instruction Requirements Under SB 98

July 2020
Number 56

On June 29, 2020, Governor Newsom signed Senate Bill 98 (SB 98) into law. Though SB 98 is a budget bill, it includes requirements regarding distance learning and in-person instruction, among other topics, for the 2020-2021 school year. This CNB addresses distance learning, while other CNBs cover SB 98 as it relates to special education, charter schools, employee lay-offs CNB 55, and LCAP CNB 52.

It should be noted at the outset that while there has been much discussion regarding what learning will look like for 2020-2021, and while SB 98 sought to address the need for clarity, many questions still exist regarding what instruction will and must look like for 2020-2021. Thus, consultation with legal counsel is advised when determining what course of action a local educational agency will take.

Requirements for In-Person Instruction and Distance Learning

SB 98 states that school districts must offer “in-person instruction”, and allows local educational agencies, including county offices of education, charter schools, and school districts (LEAs), to offer distance learning. SB 98 defines “in-person instruction” as “instruction under the immediate physical supervision and control of a certificated employee of the LEA while engaged in educational activities required of the student.” SB 98 defines “distance learning” as “instruction in which the student and teacher are in different locations and students are under the general supervision of a certificated employee of the LEA.” SB 98 goes on to provide that distance learning may include the following:

  • Interaction and instruction between teachers and students through the use of technology.
  • Video or audio instruction between the students and teachers that relies on computer or communications technology.
  • Hard copies of materials that are subject to feedback.

SB 98 provides that distance learning may be offered under either of the following circumstances:

  • On an LEA or schoolwide level as a result of an order or guidance from a state public health officer or a local public health officer; or
  • For students who are medically fragile or would be put at risk by in-person instruction, or who are self-quarantining because of exposure to COVID-19.

Based on the above, an LEA may close an entire site, or an entire district for example, in consultation with public health officers. Alternatively, distance learning may be offered on a student by student basis under the second bullet point.

Additionally, while the above list of when distance learning may be offered may appear exhaustive, letters submitted to the Senate Journal from Senator Holly J. Mitchell and Assembly member Philip Y. Ting provide that it is not the intent of the legislature to limit LEAs to those two scenarios. The letters state it is not the intent of the legislature to require an LEA to seek out or receive approval from a state or local public health officer prior to adopting a distance learning model. The letters went on to state that Section 43503 of the Education Code, added by SB 98, is not intended to prevent an LEA from adopting a distance learning, hybrid, or mixed-delivery model.Rather, the intent is to grant flexibility to an LEA to determine what instructional model the LEA will adopt during the COVID-19 pandemic, “taking into account the needs of their students, staff, and their available infrastructure, provided the model adheres to an applicable state or local public health order or guidance.”

If an LEA, wishes to rely on the intent letters to pursue a distance learning option outside of the two statutorily authorized scenarios listed above, it is recommended that the LEA be prepared to show how the needs of students, staff and/or infrastructure were taken into account in making the decision. In addition, it is recommended that any LEA considering this option consult with legal counsel to ensure compliance and to understand any associated risks, such as any potential risks to LEA funding.

In summary, and in light of the above, Section 43502 states that LEAs are required to offer in-person instruction during the 2020-2021 school year. However, it is unclear whether in-person instruction must be offered for the entirety of the year (from the first day till the last day), for all grade levels, or for the entire instructional day in order to meet the requirements of SB 98. It is recommended that LEAs consult with legal counsel when finalizing their plans for re-opening for the 2020-2021 school year.

Requirements if Distance Learning is Offered

If an LEA offers distance learning, it must ensure the following:

  • Student access to internet connectivity and devices to participate in the educational program.
  • Quality, challenging content aligned to grade level standards equivalent to in-person instruction.
  • Supports to address the needs of students.
  • Special education, related services, and accommodations required by an individualized education program.
  • Designated and integrated instruction in English language development.
  • Daily live interaction with certificated employees and peers.

SB 98 provides that “daily live interaction” may take the form of internet or telephonic instruction, or by other means permissible under public health orders. If “daily live interaction” is not “feasible” as part of regular instruction, the governing board of the LEA shall develop an alternative plan for frequent live interaction that provides a comparable level of service and school connectedness.

Development of Distance Learning Curriculum

SB 98 also appropriates $750,000 to the Sacramento County Superintendent of Schools to develop and draft distance learning curriculum and instructional guidance for mathematics, English language arts, and English language development. The State Board of Education is then required to adopt distance learning curriculum and instructional guidance by May 31, 2021.

Instructional Days and Minutes for Distance Learning and In-Person Instruction

For the 2020-2021 school year, SB 98 provides that LEAs must comply with the minimum number of instructional days per school year, set forth under the Education Code and certain regulations. However, SB 98 modifies the instructional minute requirements, imposing minimum instructional minutes by grade level ranging from 180 minutes for kindergarten, 230 minutes for grades one through three, and 240 minutes for grades four through twelve, with variances specified under SB 98. SB 98 also provides that LEAs shall not be required to offer the minimum physical education minutes set forth under the Education Code.

SB 98 provides that LEAs may meet the minimum instructional minute requirements by in-person instruction or through distance learning, or through a combination thereof. SB 98 further provides that for in-person instruction, “instructional minutes shall be based on time scheduled under the immediate physical supervision and control of an employee of the LEA who possess a valid certification document.” For distance learning, “instructional time shall be based on the time value of assignments as determined, and certified to, by an employee of the LEA who possesses a valid certification document.” For combination programs, the LEA would add the time from in-person instruction and distance learning assignments.

Under SB 98, in order to meet the required 180 instructional days (175 days for charter schools), an “instructional day” is a day in which all pupils are scheduled for the length of the day established by the governing board/body of the LEA in a classroom under the immediate supervision of a certificated employee or in distance learning that meets the requirements set forth above.

Daily Participation Logs, Weekly Engagement Records and Attendance for Distance Learning

SB 98 provides that all LEAs must document daily participation of each student on each school day, in whole or in part, for which distance learning is provided. If the student does not participate in distance learning, then they must be marked absent. Participation includes, but is not limited to “evidence of participation in online activities, completion of regular assignments, completion of assessments” and contact with an employee of the LEA and the student or the parent/guardian of the student. Each LEA is also required to ensure that a “weekly engagement record” is completed for each student participating in distance learning.

For purposes of tracking average daily attendance, LEAs must document daily student participation when providing distance learning. LEAs are also required to develop written tiered re-engagement strategies for students who are absent from distance learning for more than three school days or 60% percent of the instructional days in a school week, which may include transitioning the student back to in-person instruction.

LEAs have until September 1, 2020 to comply with the above. If an LEA fails to complete the daily participation log, weekly engagement letter, or abide by the attendance requirements, then the Superintendent of Public Instruction is required to withhold funds from the LEA’s LCFF grant moneys as specified under SB 98.

Funds for Diagnostic Assessments

SB 98 also sets aside certain federal funds for eligible LEAs, to be used between specified dates, for activities that directly support student academic achievement and mitigate learning loss related to COVID-19 school closures.

Summer School 2020

SB 98 provides that summer school programs may be offered through distance learning. Regarding Title I Migrant Education summer school programs for eligible migrant children, SB 98 provides that LEAs that have closed their facilities due to COVID-19 are not required to make facilities available for migrant summer school programs and can offer these services via distance learning during the 2020 calendar year.

Federal and State Subsidized Childcare Programs

SB 98 requires childcare programs that receive federal and state subsidies that are physically closed due to COVID-19, to submit a distance learning plan and to provide those distance learning services to students as specified by the Superintendent of Public Instruction.

Takeaways

SB 98 and the legislative intent letters provide LEAs with options and requirements for distance learning offerings during the 2020-2021 school year. LEAs considering distance learning should work with legal counsel to navigate the options and requirements.

If you have any questions about SB 98 as it pertains to distance learning and in-person instructions, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Aimee Perry

Partner

Marisa Montenegro

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Teachers’ Union Prevails at PERB in Effort to Organize Charter Schools

July 2020
Number 54

The Public Employment Relations Board (PERB) recently held that a teachers’ union’s petitions for recognition at three charter schools were appropriate under the Education Employment Relations Act (EERA). Most importantly, PERB held that the union demonstrated sufficient majority support among employees of the schools to be certified as the exclusive representative of each school.

In this case, the United Teachers Los Angeles (UTLA) filed three separate petitions for recognition with PERB, seeking to represent teachers and counselors at three charter schools. Each of the three charter schools operated as a separate non-profit corporation and had an administrative services agreement with a non-profit charter management organization called Alliance College-Ready Public Schools (Alliance). Each school was a member of the network of 25 Alliance-affiliated charter schools. Alliance schools refused to recognize UTLA as the exclusive representative of the three schools, contending that the 25 school network constituted a single-employer and the appropriate bargaining unit must encompass all teachers and counselors within the entire 25 school network. Therefore, Alliance argued, the union could not organize on a school-by-school basis.

In determining whether a bargaining unit is appropriate, the EERA requires PERB to decide the question based on the community of interest, employer efficiency, and established practices. PERB found that there was sufficient community interest to support school-by-school units when considering the record of various Alliance cases as a whole. Alliance argued that a network-wide unit would be more efficient, but PERB pointed out that employer efficiency does not trump an employee’s right to representation. Lastly, when analyzing Alliance’s established practice, PERB pointed out that the practice in which UTLA relied was established in Alliance’s prior declarations that each school was an independent employer, in the schools’ individual charters, as well as prior PERB cases involving Alliance in which the schools strenuously asserted their autonomy. Thus, Alliance’s established practice undermined their own argument that only a network-wide bargaining unit is appropriate.

PERB also considered the Peralta presumption, which states that all certificated employees of a “public school employer” should normally be included in a single bargaining unit. Here, all three schools filed declarations that they were a “public school employer” for purposes of the EERA, and PERB reasoned that, to the extent it applies, Peralta largely favors school-by-school units. The schools contended that PERB should disregard these declarations and rely on California Virtual Academies (2016) PERB Decision No. 2484 (CAVA). In CAVA, a union asserted that 11 charter schools satisfied the single employer test and, using Peralta, PERB supported granting the union’s request to find a network-wide unit to be appropriate. Alliance asked PERB to extend Peralta and find that, where the single employer test is satisfied, a single unit of all employees of the single employer is the only appropriate bargaining unit. PERB found that to be a bridge too far and concluded that the schools’ declarations and underlying charters, together with the record as a whole, were sufficient to establish each individual school as a “public school employer.”

In prior unfair practices cases before PERB, Alliance had taken the exact opposite tact. Alliance schools successfully opposed UTLA’s motions seeking to name every Alliance charter school as a respondent by denying the existence of any “single-employer” entity. The single employer doctrine says that PERB must consider: (1) functional integration of operations, (2) centralized control of labor relations, (3) common management; and (4) common ownership. The burden belongs to the schools to show, not only that they are part of a single-employer construct, but also that the only appropriate unit includes all certificated personnel within the purposed single-employer. PERB pointed out that the schools’ evidence to meet their burden was directly contradicted by the evidence in their prior unfair practice cases. Specifically, PERB stated, “the Charter schools’ evidence regarding the four-factor single-employer test established that they have spoken out of both sides of their mouths throughout the different proceedings.” Consequently, PERB concluded that the schools’ inconsistent arguments between PERB matters confirmed they could not meet their burden. It is important to note that in this particular case, PERB chose not to analyze the schools through the single-employer doctrine, but found for UTLA because Alliance schools benefited from prior PERB rulings based on the schools’ past representations and UTLA, to their detriment, relied on those representations.

PERB considered the record of various Alliance cases as a whole and determined that school-by-school organizing was appropriate in this instance because each school legally declared itself to be a separate public school employer for the purposes of EERA. Further, PERB found that UTLA demonstrated majority support among the employees of each school, and certified UTLA as the exclusive representative of each school.

Takeaways

  • When determining the appropriateness of network-wide or school-by-school union representation, PERB looks at the community of interest, employer efficiency, and established practices.
  • Alliance’s shifting and inconsistent arguments between PERB matters seemed to lead PERB to decide against Alliance in this matter.

If you have any questions regarding this decision or charter schools in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Everett J. McLean

Law Clerk

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

A Return to Sports? California Interscholastic Federation Issues Guidelines for Return to Physical Activity and Training

July 2020
Number 53

Among the many questions school districts are struggling with as they prepare for the fall semester, is whether, and to what extent, athletics and other extracurricular activities may resume. The California Interscholastic Federation (CIF), the organization that governs high school sports in California, has partially answered that question by issuing its initial “CIF Guidelines for Return to Physical Activity/Training” (“Guidance”). CIF also announced the decision about whether competition will move forward in the fall will be made by July 20, 2020. If fall competition cannot begin, given ongoing public health and safety concerns, alternative schedules will be offered. In the meantime, if districts decide to utilize the pre-participation physical examination waiver discussed below, they can plan to agendize this item for their next board meeting in order to be prepared for the start of school.

Initially, the Guidance encourages school districts to follow their local County guidelines with regard to permissible and impermissible activities and notes the Guidance should be altered in accordance with these guidelines, for example where there are differing limits on group sizes or where there is limited testing available or lack of resources for contact tracing.

Pre-Participation Physical Examination Waiver

Recognizing that obtaining pre-participation physical examinations may be difficult, the Guidance authorizes school district governing boards to waive the requirement that students obtain a physical examination prior to participation for CIF Fall 2020 sports for a maximum of thirty (30) calendar days from a school’s first day of practice in that sport. (See CIF Bylaw 503.G). Where a board approves such waivers, students may request a waiver in the following circumstances:

  1. Student submits documentation related to prior year examination as follows:
    • Student has a pre-participation examination on file from 2019-20 school year; or
    • Student’s parent/legal guardian submits a copy of pre-participation physical examination to the District from 2019-2020; or
    • Student’s parent/legal guardian submits a copy of the student’s well-check examination (incoming 9th graders only).
  2. Student submits a 503.G Waiver and Release of Liability Form signed by the student and parent/guardian.
  3. Student submits a health screening form signed by the parent/legal guardian.

Districts will need to decide whether to allow the pre-participation physical examination waiver and, if so, how it will collect and track the required information. Sample documents will be posted on the CIF website but are not yet posted as of the date of this publication. (See https://cifstate.org/).

Practice/Training Considerations

Health Screenings
The Guidance also suggests that pre-screening be conducted of all coaches and students on a daily basis, prior to participation in the athletic event. Where any person has positive symptoms, they are directed not to participate, to self-isolate, and to contact their healthcare provider. The Guidance provides that “written medical clearance will be required to return to the activity.”

Face Coverings
The Guidance provides that State, local or school district guidelines for cloth face coverings should be strictly followed. In the absence of guidelines to the contrary, CIF recommends that cloth face coverings be worn by students during athletics, with the exception of swimming, distance running or other high intensity aerobic activity. However, plastic shields covering the entire face will not be allowed during participation due to the risk of unintended injury to the person wearing the shield or others. Further, the Guidance recommends that coaches, officials and other contest personnel wear cloth face coverings at all times and especially when physical distancing is not possible. It suggests artificial noisemakers such as an air horn, electronic whistle, or a timer system with an alarm be used to signal in place of a traditional whistle.

Facilities, Athletic Equipment, & Hygiene Measures
The Guidance provides additional recommendations regarding the cleaning, sanitizing and sharing of equipment and facilities. It also recommends that athletes and coaches practice good hygiene and physical distancing procedures, including avoiding physical contact, and that entrance/exit strategies be developed to limit groups from gathering and to avoid crossover and contact.

Activities Limitation
The Guidance also identifies the activities allowed for specific sports, unless local guidelines permit additional activities. For example, for football, only conditioning and individual drills are authorized. Players should not participate in drills with a single ball that may be handed off or passed to other teammates. Contact with other players is not allowed and there is no sharing of equipment or use of protective equipment.

Financial Hardship Waiver for Transfer Students
Finally, recognizing the financial impact of the COVID-19 crisis on many families, CIF may waive eligibility restrictions (CIF Bylaw 207) for students that transfer to a new school during the first semester of the 2020-21 school year. Such restrictions may be waived if there is a demonstrated and verifiable hardship condition due to financial difficulties. This will require submission of evidence of an unforeseeable, unavoidable and uncorrectable act, condition, or event resulting from the COVID-19 crisis that necessitated the student’s transfer, along with specific additional documentary evidence. While this waiver is currently only in effect for the fall semester, CIF stated that it may extend the application period.

If you have any questions regarding CIF’s guidance, or student health and safety laws, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Chelsea Olson Murphy

Senior Counsel

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Senate Bill 98 Suspends LCAPs for 2020-2021; Instead, LEAs Must Adopt a Learning Continuity and Attendance Plan

July 2020
Number 52

Senate Bill (SB) 98, the Education Budget Trailer Bill, suspends the requirement to adopt a Local Control Accountability Plan (LCAP) for the 2020-2021 school year. Instead, for the 2020-21 school year, local educational agencies (LEA) will be required to adopt a “learning continuity and attendance plan.”

The Governor had previously, through Executive Order N-56-20, extended the 2020-21 LCAP adoption and LCAP budget overview deadlines from July 1 to December 15, 2020. (See 2020 Client News Brief Number 35) Now, the LCAP is eliminated and replaced for 2020-21, although LEAs must still adopt a budget overview for parents by December 15.

Learning Continuity and Attendance Plan

SB 98 adds section 43509 to the Education Code and requires LEAs to adopt, by September 30, 2020, a learning continuity and attendance plan for 2020-2021. This learning plan must include the information specified in the template to be developed by the California Department of Education (CDE) by August 1.

Learning Plan. The learning continuity and attendance plan must include the following:

  • A description of how the LEA will provide continuity of learning and address the impact of COVID-19 on pupils, staff, and the community in the following areas, along with the specific expenditures the LEA anticipates making to support its ability to address the impacts of COVID-19:
    • In person instructional offerings;
    • Distance learning program;
    • Pupil learning loss;
    • Monitoring and support of mental health and social and emotional well-being of pupils and staff;
    • Professional development and resources to address trauma and other impacts of COVID-19 on the school community;
    • Pupil engagement and outreach;
    • School nutrition;
  • A description of how federal and state funding is used to support the efforts described in the learning continuity and attendance plan; and
  • A description of how the LEA is increasing or improving services based on the number and concentration of unduplicated pupils.

Adoption Timeline and Process. Although similar to the LCAP, the adoption timeline and process for soliciting input on the learning plan are distinct, as summarized below.

  • August 1– CDE will publish template for the learning continuity and attendance plan;
  • September 30 – Deadline for LEAs to adopt learning continuity and attendance plan;
  • Five Days After Adoption – Deadline for district to file with county office of education (COE), COE to file with CDE, or charter school to file with its chartering authority and COE;
  • October 30 – Deadline for COE or CDE to provide written recommendations for amendments to the plan, if any;
  • 15 Days after receipt of COE or CDE recommendations – Deadline for LEA to consider written recommendations in a public hearing;
  • December 15 – Deadline for LEAs to adopt the LCAP budget overview for parents.

Similar to the LCAP process, LEAs must solicit and consider stakeholder feedback while developing the learning continuity and attendance plan. Specifically, the LEA must solicit recommendations and comments from members of the public, notify members of the public about the opportunity to submit written comments, present the learning plan to the parent advisory committee (PAC) and the English Learner parent advisory committee (EL PAC), respond to comments from PAC and EL PAC in writing, provide options for remote participation in the public hearings and include efforts to solicit feedback to reach stakeholders who do not have internet access or who speak languages other than English. The learning plan must be presented at a public hearing before the governing board, after posting the agenda for at least 72 hours; then the governing board must adopt the learning plan in a public meeting after, but not on the same day as, the public hearing. Finally, the LEA must prominently post the learning plan on the homepage of its website, consistent with the LCAP posting requirements.

Takeaways

LEAs must adopt a learning continuity and attendance plan by September 30, 2020. Despite a truncated timeline, the requirements for stakeholder engagement, a separate public hearing, and adoption at a public governing board meeting remain. LEAs are not required to adopt an LCAP for the 2020-2021 school year, however, LEAs must adopt a LCAP budget overview for parents by December 15, 2020.

If you have any questions about the learning continuity and attendance plan, the LCAP budget overview for parents; or SB 98 in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Amanda J. Cordova

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Supreme Court Keeps DACA in Place, Emphasizing Importance of Procedural Requirements for the Program’s Rescission

June 2020
Number 51

On June 18, 2020, in Department of Homeland Security v. Regents of the University of California (June 18, 2020, Nos. 18-587, 18-588, and 18-589) __ U.S. __[2020 U.S. LEXIS 3254], the United States Supreme Court found unlawful the way in which the Trump Administration sought to rescind the Deferred Action for Childhood Arrivals (DACA) program. Specifically, in the 5-4 majority opinion, the Supreme Court held that the Department of Homeland Security’s (DHS) original analysis and explanation for rescinding DACA failed to address whether DACA’s process in granting forbearance in deferring removal of Dreamers was actually a legal exercise of prosecutorial discretion. While the DACA program itself has been the source of headlines in relation to the opinion, the Supreme Court’s decision is not based on the legal merits of DACA, but instead focused on the requirements of the federal Administrative Procedure Act (APA). As a result, while DACA presently remains in place and operative, the merits of DACA’s legality may have yet to be decided, and DHS could continue its quest to rescind DACA in future proceedings.

The effort by DHS to end DACA has been a long process, starting with DHS’s September 5, 2017 memorandum rescinding DACA. (See 2017 Client News Brief Number 57.) That action was quickly the subject of numerous legal challenges, the results of which were eventually reviewed by the Supreme Court.

At the heart of the court’s opinion are three holdings: (1) claims that DHS’s rescission of DACA violated the APA are reviewable; (2) DHS’s attempted rescission of DACA was arbitrary and capricious, in violation of APA; and (3) the parties challenging DACA’s rescission failed to state a claim for violation of the equal protection clause of the United States Constitution.

In ruling, the court quickly dismissed arguments that APA review was not applicable in the case, holding that rescission of DACA was not merely an act of non-enforcement on the part of DHS. The court then focused on DHS’s initial 2017 reasoning for rescinding DACA under APA. The court dismissed DHS’s subsequent DACA analysis, affirming past precedent that “[a]n agency must defend its actions based on the reasons it gave when it acted.” In analyzing DACA, the court found that the program is comprised of two parts: (1) granting eligibility for benefits; and, (2) forbearance on removal. Each part is subject to review for legality under the Immigration and Nationality Act (INA), and DHS failed to consider the second part. As a result, the court found DHS’s failure to consider the forbearance component of DACA, in its initial decision to rescind DACA, was arbitrary and capricious, and a failure to fulfill its obligations under the APA.

Additionally, while not impacting the current status of DACA, the court’s opinion dismissed the claim that the rescission of DACA violated constitutional equal protection, reasoning there was no evidence that the rescission was motived by discriminatory animus. The court noted that DHS had previously rescinded the related Deferred Action for Parents of Americans (DAPA) and sought to rescind DACA on similar grounds. Thus, challenges to any future rescission of DACA are likely limited to APA-like procedural claims.

Takeaways

For the foreseeable future, DACA remains in place. Yet, the federal government may again attempt to rescind DACA under the parameters set forth in the opinion.

California public agencies are encouraged to continue following the law; avoiding discriminatory practices; and informing students and parents of DACA students’ education and privacy rights. Additionally, public agencies should further refer to the State’s Attorney General’s guide on the rights of undocumented immigrant students and families. (See 2018 Client News Brief Number 17.)

If you have any questions about the Supreme Court’s decision, or about DACA and its impact on public agencies, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Nicholas G. Felahi

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

U.S. Supreme Court Holds that Title VII of the Civil Rights Act of 1964 Prohibits Workplace Discrimination Based on Gender Identity and Sexual Orientation

June 2020
Number 50

On June 15, 2020, the Supreme Court of the United States reached a landmark decision in Bostock v. Clayton County Georgia (2020) ___ U.S. __ [(U.S., June 15, 2020) 139 S.Ct. 1599] (Bostock) to extend protections against employment discrimination based on sexual orientation and gender identity under Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits workplace discrimination because of race, sex, religion or national origin.

Relevant Facts

The Supreme Court agreed to review three separate cases “to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons.”

All three cases alleged discrimination based on sex under Title VII, after the employers admittedly fired long-time employees after the employees identified as homosexual or transgender. First, the County of Clayton, Georgia, fired Gerald Bostock after he joined a gay recreational softball league. Mr. Bostock had been an employee of Clayton County for a decade before he was fired for conduct “unbecoming” of a county employee. Second, Donald Zarda was fired from his position as a skydiving instructor in New York after working there for several seasons shortly after mentioning he was gay. Third, Aimee Stephens, who was born biologically male, was fired from her position at a funeral home in Garden City, Michigan, after six years of employment, once she informed her employer that she wanted to “live and work full-time as a woman.”

The Supreme Court’s Opinion

Until Bostock, whether the category of “sex” afforded federal protection against employment discrimination to LGBTQ persons was debated. And while individual states, including California, enacted laws to include LGBTQ individuals as a protected class against employment discrimination, Bostock conclusively finds that employers who fire, or otherwise discriminate against employees because they are homosexual or transgender violate federal law—Title VII—because of sex.

In reaching its decision, the Court reasoned: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” For example, the Court described an employer who fires a male employee because he is attracted to men. In doing so, the employer discriminates against the male employee based on his sex because the employer has fired the male employee for the same traits it accepts from his female colleagues. Put differently, “If changing the employee’s sex would have yielded a different choice by the employer, a statutory violation has occurred.” This is true even if an employer tries to refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law regardless of their knowledge of individual applicants.

In reviewing employer actions relative to its holding, the Supreme Court clarified:

  • It is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it;
  • An employee’s sex need not be the sole or primary cause of the employer’s adverse action. So long as an employee’s sex was one of the reasons for the employer’s decision, that is enough to trigger the law;
  • An employer’s discrimination must be intentional; and
  • An employer cannot escape liability by demonstrating that it treats males and females comparably as groups, such as subjecting both female and male homosexuals or transgender employees to the same rule.

In conclusion, because discrimination on the based on sexual orientation or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender violates Title VII.

Bostock‘s Implications on Employment Policies and Practices

Bostock may not significantly change policies already in place for public agencies in California. But this ruling undoubtedly removes any ambiguity regarding whether homosexual and transgender persons are federally protected from employment discrimination. In light of the Supreme Court’s opinion, public agencies should review employee handbooks and agency policies and update them if needed.

The court noted that the only issue before it was whether an employer who fires someone simply for being homosexual or transgender violates Title VII. Nonetheless, the court discussed “penalization” and “discrimination” throughout its decision. Public agencies should consider other workplace policies that can more easily be challenged in light of Bostock. For example, sex-segregated bathrooms and locker rooms, and workplace dress codes.

Implications on Title IX in Federally Funded Institutions

While the Court’s opinion in Bostock is based upon the review and interpretation of Title VII, the opinion’s rationale and textual analysis may lend to the opinion’s possible application to Title IX of the Education Amendments of 1972 (Title IX), which provides that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

While current guidance and the stated interpretation from the United States Department of Education (DOE) takes the more narrow, traditional view on the definition of “sex” under Title IX, students and litigants around the country may now look to Bostock as directly impacting the meaning of “on the basis of sex” under Title IX. In fact, the United States Commission on Civil Rights, created by Congress in 1957 “as an independent, bipartisan, fact-finding federal agency . . .” with the “mission . . . to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws,” has already called on the current Administration to apply the Bostock holding to the application of Title IX. Specifically, on June 19, 2020, the United States Commission on Civil Rights requested that the DOE Office for Civil Rights rescind a May 15, 2020 letter of impending enforcement action against some Connecticut public school districts for allowing the participation of transgender youth in school athletics. It further asked the Office of Civil Rights to cease any regulatory or enforcement actions, including guidance issuance and adoption of litigation positions that conflict with Bostock’s decision. This request comes shortly after the Office of Civil Rights withdrew guidance and rejected the interpretation of Title IX protection against discrimination “on the basis of sex” to include sexual orientation and gender identity.

In the meantime, in California, the Education Code’s definition of sex and policies based upon same are already consistent with the understanding of the term “sex” as articulated in Bostock. (See 2020 Client News Brief No. 48.)

All told, school districts may want to contact their legal counsel to discuss impacts on policies and practices relative to employees and students as result of the Bostock opinion.

If you have any questions Bostock, and its implications on Title VII or Title IX, please contact the author of this Client News Brief or an attorney at one of our nine offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Michelle N. Sliwa

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Title IX Regulations Issued by the Department of Education Take Effect August 14, 2020

June 2020
Number 49

On May 6, 2020, the United States Department of Education (DOE) issued much-anticipated Regulations (Regulations) addressing how schools and colleges (referred to as Recipients) must respond to claims of sexual harassment covered by Title IX of the Education Amendments of 1972 (Title IX). Title IX is the federal law which prohibits discrimination on the basis of sex in educational settings. The Regulations make significant changes to current requirements and practices and require compliance by August 14, 2020. Some of the most notable changes imposed by the Regulations are detailed below.

Sexual Harassment is Narrowly Defined.

Sexual harassment is now narrowly defined to mean conduct on the basis of sex that satisfies one or more of the following:

  1. Any employee of the Recipient conditioning the provision of an aid, benefit, or service of the Recipient on an individual’s participation in unwelcome sexual conduct;
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it denies a person equal access to the Recipient’s educational program; or
  3. Sexual assault (as defined in the Clery Act (20 U.S.C. § 1092(f)(6)(A)(v)), or dating violence, domestic violence, or stalking (as defined in the Violence Against Women Act (20 U.S.C. § 12291(a)).

A Single Investigator/Decision-Maker Model is Prohibited.

The Regulations clearly provide that the decision-maker, or the person(s) responsible for determining responsibility, cannot be the same person as the Title IX Coordinator or the investigator. Moreover, in the event of an appeal, the appellate decision-maker cannot be the same person who served as the Title IX Coordinator, investigator, or decision-maker making the original determination. Among other things, the decision-maker must also issue a written determination regarding responsibility in accordance with the Regulations at section 106.45(b)(7).

Disclosure of Evidence

As part of the formal grievance process, detailed within section 106.45 of the Regulations, both parties and their advisors must be given the opportunity to inspect, review, and respond to all evidence that is directly related to the allegations in the formal complaint, before the investigator completes the investigation report. Additionally, the final investigative report must be provided to the parties and their advisors at least 10 days before any hearing, if there is one.

Live Hearings Are Required for Postsecondary Recipients.

Post-secondary Recipients must have live hearings that permit the cross-examination of the involved parties and witnesses. Cross-examination must be conducted by the advisor, and not by the parties themselves. If a party does not have their own advisor, one must be provided by the Recipient at no cost. The decision-maker overseeing the hearing must determine whether each question posed by the advisor is relevant and explain any decision to exclude a question. Live hearings may be conducted with all parties physically present in the same location, or may be conducted virtually. If a party or witness does not submit to cross-examination at the live hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility.

Under the Regulations, K-12 Recipients have the option of conducting live hearings, though live hearings are still mandated under California Education Code section 48900 et seq. prior to the expulsion of any student. For K-12 Recipients, whether a hearing is conducted or not, once the investigative report has been sent to the parties and before reaching a determination regarding responsibility, the decision-maker must afford each party the opportunity to submit written questions they want asked of any party or witness. Answers to relevant questions must be provided along with additional, limited follow-up questions from each party.

Recipients Must Choose and Consistently Apply the Standard of Evidence.

A Recipient can decide whether the standard of evidence to be used during the grievance process is the “preponderance of the evidence” or the “clear and convincing evidence” standard. The standard used must be consistent whether the respondent is a student or an employee, and with all other formal investigation processes.

The Option to Appeal Must Be Afforded to Both Parties.

Both complainant and respondent must be offered the opportunity to appeal a determination regarding responsibility, and from a dismissal of a formal complaint or any allegation therein. Appeals may be based on (i) procedural irregularity; (ii) new evidence that was not reasonably available at the time of the determination or dismissal; or (iii) conflict of interest or bias of the involved Title IX personnel.

Records Must Be Maintained for 7 Years.

A Recipient must maintain for a period of seven years, all records relating to sexual harassment investigations, any appeal and the results therefrom, any information resolution and the results therefrom, and all materials used to train Title IX Coordinators, investigators, decision-makers, or any person who facilitates an informal process.

Takeaways

The over 2,000 page document presents sweeping changes that are required for Recipients in their implementation and handling of Title IX complaints. The above highlights some of the key changes, though by no means is an extensive or complete outline of the Regulations. By August 14, 2020, all Recipients will need to update their policies and procedures, train personnel, and in some cases add personnel to their Title IX teams. It is important that the new requirements be included in student discipline procedures, as well as employee complaint and discipline procedures.

If you have any questions about the new Title IX Regulation, Investigations or Title IX in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Stephanie M. White

Partner Effective July 1, 2020

Sarah E. Fama

Senior Counsel

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Status of Federal and State Laws on Student Gender Identify Rights: Federal Lawsuit Seeks to Block Participation of Transgender Athletes and the Office for Civil Rights Weighs In

June 2020
Number 48

In February of this year, the families of three cisgender female high school athletes (Plaintiffs) filed a federal lawsuit against the Connecticut Interscholastic Athletic Conference (CIAC) and multiple Connecticut school boards over a CIAC policy (Policy) that allows transgender athletes to participate in sports based on their gender identity. The complaint focuses on the biological differences between males and females, stating that the Policy permits athletes “who are male in every biological respect to compete in girls’ athletic competitions if they claim a female gender” resulting in fewer opportunities for victory and advancement for cisgender female athletes. The complaint claims that the Policy has denied, and continues to deny, equal athletic opportunities for cisgender female athletes, in violation of Title IX of the Education Amendments of 1972 (Title IX), which prohibits sex-based discrimination in federally funded programs and aims to ensure equal opportunities for female athletes.

Plaintiffs initially sought an expedited preliminary injunction to prevent the CIAC and named school boards from enforcing the Policy, pending the entry of a final order in the case. On April 8, 2020, the court denied Plaintiffs’ motion to expedite the preliminary injunction, reasoning that it is likely that no track events will be held this spring due to the coronavirus pandemic. Any claims for other injunctive relief or damages will be addressed in accordance with a schedule that gives all concerned adequate time to address the various issues of law and fact.

The federal Department of Justice (DOJ) has filed a Statement of Interest (Statement) to aid in the proper application of Title IX in the underlying case. In the Statement, the DOJ took the position that because the Policy fails to account for the physiological difference between men and women, it “deprives those women of the single-sex athletic competitions that are one of the marquee accomplishments of Title IX.” The DOJ also concluded that Title IX and its implementing regulations do not require or authorize the Policy, because Title IX prohibits discrimination solely “on the basis of sex” which does not include transgender status or gender identity. The DOJ’s now-stated position is that under Title IX, “sex” refers to a binary concept (male and female), and that if the legislature intended for it to go beyond that, it would have specified that Title IX applies to “transgender status” and/or “gender identity” as it had done in subsequent legislation.

The DOJ’s reasoning here is potentially weakened by a recent Supreme Court ruling. On June 15, 2020, the United States Supreme Court issued its opinion in Bostock v. Clayton County, Georgia (2020) ___ U.S. __ [(U.S., June 15, 2020) 139 S.Ct. 1599], holding that because sexual orientation and transgender status “are inextricably bound up with sex” as the term “sex” is used under Title VII of the Civil Rights Act of 1964, discrimination because of sexual orientation or transgender status is discrimination “because of sex.” Because there might be a nuanced distinction between Title IX’s use of the words “on the basis of sex” and Title VII of the Civil Rights Act of 1964’s “because of sex” it remains to be seen how the Bostock opinion might affect the DOJ’s reasoning in the Statement.

There has yet to be any determinative rulings on the merits of the case and the court issued a scheduling order indicating that the trial would be set in the spring of 2021.

Status of California Laws Relating to Transgender Students

At the K-12 level, in January 2012, California’s Assembly Bill (AB) 887 amended Education Code section 220 to specifically prohibit discrimination in any school program or activity based upon gender identity or gender expression. AB 887 also added Education Code section 210.7, which defines “gender” as “sex, and includes a person’s gender identity and gender expression” and defines “gender expression” to mean “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” (See July 25, 2016 article, Keeping Pace with Development in Student Gender Identity Rights.) Thereafter, effective January 2014, AB 1266 amended Education Code Section 221.5 to include Section 221.5(f), which provides that a student must be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender, regardless of the gender listed on the student’s records. (See 2016 Client News Brief Number 53.)

At the community college level, Title 5 of the California Code of Regulations prohibits discrimination on the basis of sex, which is defined as “sexual harassment or discrimination on the basis of gender.” Under Title 5, “‘gender’ means sex, and includes a person’s gender identity and gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” Moreover, “sex” is defined to include “a person’s gender.” As of the date of this article, in addressing the treatment of transgender athletes, the California Community College Athletic Association’s website references OCR’s 2016 guidance, which appears to be consistent with Title 5, and which provides that transgender students should be allowed to participate in activities in a manner that is consistent with their gender identity. However, it is important to note that in 2017 this guidance was rescinded, but never amended or otherwise addressed, by the United States Department of Education until the filing of the Statement.

Given the similarities between California’s laws and the CIAC Policy in Connecticut, it is important that school districts and community college districts closely follow this case and others that address the applicability of Title IX to transgender-related matters. For example, on April 15, 2020, a federal lawsuit was filed challenging Idaho’s recently passed law that bans transgender women from participating in women’s sports sponsored by public schools, colleges, and universities, contending that the law violates the 14th Amendment’s Equal Protection Clause and Title IX because it is discriminatory, and the 4th Amendment’s protections of privacy because the requires testing should an athletes’ gender be in question. Should Plaintiffs prevail and the court adopt the reasoning in the DOJ’s Statement, this would result in a conflict between state and federal law in California. Such a ruling could also raise a question about student confidentiality and privacy rights. Further, as indicated by the OCR’s May 15 letter, there could also be funding implications for school districts and community college districts who enforce similar policies.

School districts, local education agencies, and community colleges should continue to observe the laws currently in place in California, and they should also ensure they have board policies and regulations which are designed to address the needs and legal rights of both transgender and non-transgender athletes. For further guidance on best practices with regard to transgender student issues, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Stephanie M. White

Senior Counsel

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Surplus School District Property and the Budget Crisis: New and Proposed Legal Requirements and Opportunities

June 2020
Number 47

The COVID-19 pandemic has created a looming fiscal crisis across California. As local agencies prepare to adopt their fiscal year 2020-21 budgets, some are eyeing the option of selling or leasing surplus property in order to generate funds to ease potential shortfalls. There is a great deal happening in Sacramento currently that may impact that option for better or worse.

School districts must follow specific procedures prior to selling or leasing real property. These procedures and related issues are summarized in Lozano Smith’s Surplus Property Checklist. The latest version of the checklist addresses a new legal requirement effective January 1, 2020, regarding declaring property as “exempt surplus land” in order to avoid certain procedural steps that would otherwise be required. (Gov. Code § 54221(b)(1).) The 2020 update to our user friendly checklist is now available here:

http://www.lozanosmith.com/docs/resources/flipbook/Surplus_Checklist/

Limitations on the Expenditure of Proceeds from Sale of Property

The use of proceeds from the sale of property, or a lease with option to purchase, is limited, while lease proceeds with no option to purchase are not subject to expenditure limitations. In the past, this fact, coupled with the desire to preserve property for future use if needed, has often led school districts to lease their surplus property rather than selling. Today, pending legislative efforts growing out of the COVID-19 crisis may give school districts reason to revisit that thinking.

Education Code Section 17462 requires that the proceeds of the sale of surplus property generally must be used for capital outlay or maintenance costs that will not recur within a five-year period. Proceeds from a lease with an option to purchase may be deposited in a restricted fund for routine repairs for up to a five-year period, where they must be used for one-time expenditures. They may not be used for ongoing expenditures, such as salaries and other general operating expenses.

If the district governing board and the State Allocation Board (SAB) have determined that the district will have no anticipated need for additional sites or construction in the next ten years, the proceeds from the sale or lease with option to purchase may be placed into a general fund for one-time expenditures for that ten year period.

Education Code Section 17463 adds another option for the use of funds by school districts with an average daily attendance of less than 10,001 in any fiscal year. Such school districts may deposit interest earned on the proceeds from a sale in that fiscal year of surplus property into the general fund to be expended for any school district purpose, while surrendering State facilities funding for ten years.

Another pitfall to be wary of is that under Section 17462.3 and under SAB regulations, the SAB may require a school district to return State school facilities funding to the State if the school district sells surplus property that was purchased modernized, or improved with that funding, and the following conditions exist:

  • The property is not sold to a charter school, another school district, a county office of education, or any agency that will use the property exclusively for the delivery of child care and development services;
  • The proceeds from the sale will not be used for capital outlay; and
  • The property was purchased, or the improvements were constructed or modernized on the property, within 10 years before the property is sold.

Again, because of these various restrictions on the expenditures from the proceeds of a sale, school districts sometimes lean toward leasing the property. Proceeds from a lease are unrestricted and can be used for general fund purposes and ongoing expenses.

Legislative Efforts to Relax Expenditure Limitations

Former Education Code Section 17463.7, which was initially enacted as a response to the 2008 financial crisis in an effort to help school districts meet their fiscal challenges, allowed school districts to deposit the proceeds from the sale or lease of surplus property purchased with local funds into their general funds. The proceeds could then be used for any one-time general fund purposes. By its own terms, Section 17463.7 expired on January 1, 2016, and is no longer in effect.

Due to the financial impacts stemming from the COVID-19 pandemic, the Governor’s May Revision to the proposed 2020-21 State Budget indicated that flexibility would be provided regarding the expenditure of surplus property sale proceeds. Initial legislative efforts to address the Governor’s budget message appear to be centered on reviving Section 17463.7. Assuming that section is revived in whole, in order to take advantage of the increased flexibility, a school district would need to submit documents to the SAB certifying that their sale of real property does not violate the provisions of a local bond act and that the real property is not suitable to meet projected school construction needs for the next 10 years. The school district must also present a plan for expending the proceeds, identifying the source, use of funds, and why the expenditure will not result in ongoing fiscal obligations for the school district. Upon SAB approval, a school district can use the proceeds for the one-time expenditures identified in its spending plan. Section 1700 of Title 2 of the California Code of Regulation defines “one-time expenditures” as “costs paid by the general funds of a school district that are nonrecurring in nature and do not commit the school district to incur costs in the future, and are exclusive of Ongoing Expenditures.” Under this regulation, these allowed one-time expenditures can include unfunded retirement benefits, within certain limitations.

The Pandemic’s Impact on the Ability to Collect Rent Payments

At the same time that the Legislature is considering ways to loosen restrictions on the use of sale proceeds, school districts are experiencing challenges in collecting rents for existing leases. Many California businesses are experiencing loss of income due to the COVID-19 pandemic shutdown. This not only impacts commercial tenants and their ability to pay rent, but owners who depend on rent payments from their tenants. While school districts that lease property are not required to renegotiate with their tenants, doing so may be a viable option in order to receive some rent payments, rather than none at all.

In response to the struggles being experienced by tenants, the Governor issued two executive orders protecting residential and commercial tenants from eviction for non-payment of rent due to COVID-19. The first order, N-28-20 (March 16, 2020), authorizes local agencies to suspend evictions for both commercial and residential tenants. The second order, N‑37-20 (March 27, 2020), requires the suspension of evictions for residential tenants through May 31, 2020. There is no requirement for suspension or reduction of rent payments.

Local governments are also implementing renter protection. As one example, Santa Clara County has passed and extended ordinances (NS-9.287 and NS-9.288) imposing a temporary moratorium on evictions for non-payment of rent by residential and commercial tenants. Other counties have implemented ordinances that protect only residential tenants.

Recently proposed Senate Bill (SB) 939 would prohibit commercial landlords from evicting their tenants for non-payment of rent due to COVID-19 for a full year. While SB 939 is still being revised, as initially proposed it would eliminate any renter late fees for 12 months after the end of the Governor’s declared state of emergency. Any unpaid rent would be due at the end of the month following the date 12 months after the end of the state of emergency, unless the tenant has reached an agreement with the landlord to pay off the balance at a later time. This bill would not reduce or eliminate rent payments.

In order to qualify for the protection of SB 939 as it was initially proposed, commercial tenants would have to meet the requirements of an “eligible COVID-19 impacted commercial tenant” at the time the eviction notice was served. An eligible COVID-19 impacted commercial tenant would mean a commercial tenant that operates primarily in California, that operates commercial real property pursuant to a lease, and that meets one of the following criteria:

  • It is a commercial tenant that has experienced a decline of 20 percent or more in average monthly revenue over the two most recent calendar months when compared to one or both of the following
    • Its average monthly revenue for the two calendar months before a state or local government shelter-in-place order took effect;
    • Its average monthly revenue for the same calendar months in 2019;
  • It is a commercial tenant that was prevented from opening or required to delay opening its business because of the state of emergency; or,
  • It is a commercial tenant that has suffered a decline of 15 percent or more in capacity due to compliance with an official public health order or occupational health and safety guideline for preventing the spread of coronavirus.

If passed, this legislation could not only impact the ability of school districts to collect timely rents under leases, but it could also impact property values and property tax collection, which would decrease funding for public schools, community colleges and local government.

At this time, other pending bills regarding tenant protections appear to revolve around protecting residential tenants, as opposed to commercial. We will continue to keep our clients informed of new legislation impacting surplus property.

Takeaways

The COVID-19 emergency, the Governor’s orders, the Legislature’s activities, and the current rental environment, all arguably tend to tip the scales toward selling, rather than leasing, surplus property. The sale of surplus property could provide the opportunity for school districts to reap proceeds from the sale, rather than wait on tenants for reduced or late rent payments, or no rent payments altogether. The current fiscal crisis may provide an opportunity for lobbying for even greater flexibility in use of sale proceeds. For the time being, school districts with tenants can expect renegotiation efforts and demands regarding leases and rent.

Lozano Smith is a statewide leader on the topic of surplus property. For more information on how your agency can sell or lease surplus property, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn, or download our mobile app.

Coming Soon

Watch for Lozano Smith’s upcoming webcast on current surplus property issues, featuring an interview with the authors of this Client News Brief.

Written by:

Harold M. Freiman

Partner

Kelly M. Rem

Partner

Emma J. Sol

Law Clerk

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

UPDATE: California Supreme Court rules against Local Agencies- Local Agencies Cannot Recover Costs of Redacting Video Footage under the Public Records Act

June 2020
Number 46

The California Supreme Court has reversed the judgment of the First District Court of Appeal in National Lawyer Guild v. City of Hayward (2018) 27 Cal.App.5th 937, holding that the California Public Records Act (CPRA) does not allow local agencies to charge requesters for the cost of redacting digital video footage. The Appellate Court had previously held that the City of Hayward was entitled to reimbursement of costs associated with redactions of exempt body camera footage it was producing in response to a CPRA request. (See 2019 Client News Brief No. 8.)

Supreme Court’s Interpretation of Cost Recovery under the CPRA

Generally, the CPRA provides that local agencies may recover their direct costs for duplicating records produced to a requester in response to a CPRA request. But courts have held that costs of redactions are considered ancillary and therefore not recoverable. (See Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1336.) The CPRA gets more technical when it comes to the production of electronic records. The provision of the CPRA addressed by the Supreme Court in this case provides that requesting parties shall bear the cost of producing a copy of the record. Specifically, that cost may be recovered where “[t]he request would require data compilation, extraction, or programming to produce the record” (Gov. Code § 6253.9, subd. (b)(2).)

Under this provision, the Court of Appeal had allowed the City of Hayward to recover its costs for redactions due to the ambiguous meaning of the term “extraction” It determined that removing or redacting exempt data from video footage was “extraction” under the CPRA. The Appellate Court found that the legislature’s addition of the above referenced subdivision (b)(2) was meant to address the greater costs of redacting electronic records than that of paper records.

However, the California Supreme Court disagreed. The Court found that “data extraction” under the CPRA had a more technical meaning, referring to the process of retrieving data from data stores when it is required or necessary to produce a record. The Supreme Court found that neither the plain reading of the statute against the rest of the CPRA nor its legislative history support the City’s position that redaction costs may be recovered. The Court held the Legislature’s intentional use of the term “extraction” instead of “deletion” means that redactions do not constitute “data extractions” under the CPRA, and therefore requesting parties cannot be charged for those costs.

Takeaways

Prior to this ruling, many local agencies shifted the cost burden of making redactions to audio and video footage to the requesting party. Following the Supreme Court finding that there is no real distinction between paper redactions and audio-visual redactions, local agencies and tax-payers are going to be fully responsible for the time, effort, and costs relating to producing non-exempt records to the public. It is likely that with redaction costs out of the equation, local agencies will soon experience a tremendous influx of new and renewed CPRA requests for audio and video records.

If you have any questions about the National Lawyers Guild decision or the California Public Records Act in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Matthew M. Lear

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Contracting COVID-19 While Working Could Make Employees Eligible for Workers’ Compensation Benefits

May 2020
Number 45

On May 6, 2020, Governor Gavin Newsom signed Executive Order N-62-20, the latest in a series of Executive Orders expanding protections for workers during the ongoing COVID-19 pandemic. This order imposes a presumption that a California worker working outside their home who contracts COVID-19 has contracted the illness at work, making them eligible for workers’ compensation benefits. The presumption remains in place from March 19, 2020, through July 5, 2020, and can be rebutted by the employer.

When Does the Presumption Arise?

For the presumptions to apply, an employee must test positive for or be diagnosed with COVID 19 within 14 days after the employee worked for their employer at a location outside of their home or residence. The date the employee worked must have been on or after March 19, 2020. If the employee’s contracting of the virus is established through diagnosis rather than testing, the diagnosis must be provided by a physician who holds a physician and surgeon license issued by the California Medical Board and the diagnosis must be confirmed by further testing within 30 days of the date of the diagnosis.

The presumption is rebuttable and may be controverted by other evidence. If the claim is not denied within 30 days—a shortened timeframe from the typical 90 days—of the claim form being filed by the employee, it is presumed compensable, unless rebutted by evidence that could only be discovered subsequent to the 30-day period.

Eligibility Requirements

To qualify for workers’ compensation benefits such as temporary disability or Labor Code section 4850 salary continuation benefits under Executive Order N-62-20, an employee must satisfy either of the following:

  1. If the employee tests positive for COVID-19 or is diagnosed with the virus on or after May 6, 2020, the employee must be certified for temporary disability within the first 15 days after the initial diagnosis, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis; or
  2. If the employee tested positive or was diagnosed prior to May 6, 2020, the employee must obtain a certification by May 21, 2020, documenting the period for which the employee was temporarily disabled and unable to work, and must be recertified for temporary disability every 15 days thereafter, for the first 45 days following diagnosis.

What Benefits Are Available?

Under this Order, qualifying employees are eligible for all workers’ compensation benefits, including full hospital, surgical, medical treatment, disability indemnity, and death benefits, and are subject to the workers’ compensation laws.

Typically under the workers compensation rubric, there is a three day waiting period prior to an injured worker receiving temporary disability benefits. Executive Order N-62-20 waives this waiting period.
However, where an employee has paid sick leave benefits specifically available in response to COVID-19, for example, benefits provided under the Families First Coronavirus Response Act (FFCRA), those benefits shall be used and exhausted before any temporary disability benefits or benefits under Labor Code section 4850 are due and payable. (See 2020 Client News Brief Number 17 for more information on FFCRA)

Takeaways

The Governor has put in place another protection for California workers who return to work during the COVID-19 pandemic, creating further incentive for employees to seek medical treatment if they experience COVID-19 symptoms contracted at work and for employers to implement policies and procedures to protect workers and reduce their risk of exposure. This Executive Order raises questions regarding its interplay with other leave provisions. For example, it is unclear what impact this presumption has on industrial illness and accident leave under the Education Code. See the Lozano Smith COVID-19 Leave Chart for further information regarding how leave is affected by the ongoing COVID-19 pandemic.

If you have any questions about Executive Order N-62-20, COVID-19 related leave or any other leave related questions, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Sarah E. Fama

Senior Counsel

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Individual Councilmember’s Conduct Found to Deny Fair Hearing

May 2020
Number 44

It is sometimes difficult for elected officials to remain unbiased when considering controversial matters, while properly representing their constituents at the same time. Nonetheless, when acting in a quasai-adjudicatory capacity, elected officials must be “neutral and unbiased,” and must recuse themselves if they are unable to do so. In Petrovich Development Company, LLC v. City of Sacramento (April 8, 2020, C087283) ___Cal.App.5th ___, the court found that a Sacramento City Councilmember was not neutral and impartial, necessitating his self-recusal from voting on an appeal for a conditional use permit. The court also provided guidance on actions that an elected official can take that would not create the “probability of actual bias.”

Background

Petrovich Development Company, LLC (Petrovich) applied for a conditional use permit with the Sacramento Planning and Design Commission (Planning Commission) for a gas station in the shopping center zone of a local residential development. The Planning Commission approved the conditional use permit, however, representatives of the homeowner’s association appealed the decision to the Sacramento City Council. On appeal, the City Council then denied the conditional use permit in a seven-to-two vote. Petrovich sued, alleging multiple claims, including being wrongfully deprived of a fair and impartial quasi-adjudicatory hearing and denial of due process of law. Specifically, Petrovich claimed that there was an unacceptable probability of actual bias by one Councilmember. The trial court held in favor of Petrovich and the matter was appealed to the Court of Appeal.

The Appellate Court’s Decision

The Court of Appeal focused on whether there was a fair hearing. A councilmember must recuse themselves if there are sufficient facts to demonstrate an unacceptable probability of actual bias on their part. The Court of Appeal concluded that a number of factors that were raised did not constitute evidence of actual bias, including:

  • The Councilmember’s membership in the neighborhood association;
  • The Councilmember’s expression of public concern at a meeting of the neighborhood association. At that meeting, the Councilmember stated “I don’t think a gas station fits in with what was originally proposed;” and
  • The fact that the Councilmember lived in the residential neighborhood adjacent to the proposed gas station.

Nonetheless, the Court of Appeal found that Councilmember crossed the line and acted as advocate, not a neutral and impartial decision maker, based on the following actions:

  • The Councilmember engaged in ongoing direct communication with the homeowner’s association who appealed the Planning Commission’s decision to the City Council, advising him on project “talking points,” which in essence coached the appellant on how to prosecute the appeal to the City Council;
  • There was evidence that the Councilmember was counting, if not securing, votes on the City Council against the gas station and communicating an “update” on that score to the Mayor; and
  • The Councilmember prepared a compilation of “talking points” that amounted to a presentation against the gas station, which he emailed to the Mayor. The talking points were modified by the Mayor’s staff to include a sequencing of the hearing and identified which councilmembers would move to deny the permit and second the motion, carried by a majority vote. This sequencing of events was what in fact occurred at the hearing.

The Court of Appeal found that the Councilmember should have recused himself from voting on the appeal. As stated by the Court:

These “concrete facts” establish that [the Councilmember] was biased. He took affirmative steps to assist opponents of the gas station conditional use permit and organized the opposition at the hearing. [The Councilmember] acted as advocate, not a neutral and impartial decisionmaker, and should have recused himself from voting on the appeal. Because he did not, Petrovich did not receive a fair hearing.

Takeaways

Elected officials face challenging circumstances when serving as a quasi-adjudicatory decision maker on a controversial matter. As we learn from Petrovich Development Company, LLC, the analysis of whether a fair hearing was conducted is fact driven. The Court of Appeal in this case outlined examples of facts that do and do not demonstrate an unacceptable probability of actual bias on the part of the decision maker. Elected officials facing such a complex process should consult with their legal counsel early in the process to ensure their ability to legally participate in the decision. The bottom line is that the more involved an elected official becomes in a matter that will be heard by the elected body prior that hearing, the greater chance that the official will be disqualified from participating in the hearing and the decision. Failure of an elected official to recuse themselves can result in invalidating the local agency’s decision about a project.

If you have any questions about the Petrovich case and the issues raised by it, or to discuss any legal matters pertaining to public agencies, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Harold M. Freiman

Partner

James Sanchez

Senior Counsel

Jayme A. Duque

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Bond Election Countdown: Many Things Have Changed, but Election Deadlines Remain the Same

May 2020
Number 43

In response to the coronavirus pandemic, the Governor has issued a series of executive orders, each addressing impacts of the pandemic. While striving to make sense of and comply with these orders and the countless local, state, and national public health orders and recommendations, it is easy for public agencies to lose sight of looming deadlines, especially when so many administrative timelines have been suspended or extended.

Despite the pandemic-and maybe even as a result of the pandemic as public agency leadership begins to contemplate a future need for a physical environment that can accommodate potential future social distancing guidelines-facilities needs are still pressing for many public agencies. Some public agencies are incurring substantial costs related to preparedness and public health issues, while at the same time seeing decreases in tax revenue. For many public agencies, these factors may exacerbate the need for facilities funding, by both decreasing other available funds and increasing the need for facilities.
Those public agencies still considering a bond or parcel tax measure for the Presidential Election on November 3, 2020, should be aware that the process and deadlines to place a bond or parcel tax measure on the ballot remain unchanged. In order to place a bond measure on the ballot this November, county elections officials must receive an agency’s call and order of election by August 7, 2020.

On May 8, 2020, the Governor issued Executive Order N-64-20, requiring that every Californian who is eligible to vote in the November 3, 2020 election receive a vote-by-mail ballot. The Executive order did not, however, make any changes to the election calendar, or the deadlines or process for placing a local measure on the ballot. Because upcoming election deadlines are fast approaching, it is critical to have your financing team and consultants in place. If you have any questions or need assistance regarding your measures, compliance with laws, or about navigating a future bond campaign, please contact a member of our Public Finance Practice Group.

Lozano Smith’s Public Finance Practice Group

Lozano Smith’s Public Finance Practice Group is comprised of attorneys who are recognized experts in municipal finance and who regularly assist California public entities, including cities, counties, school districts, and special districts, with the issuance of municipal debt vehicles. If you have any questions about the issuance of municipal securities, or any matter related to public finance generally, please contact one of our eight offices located statewide and ask to speak to a member of our Public Finance Practice Group.

Lozano Smith provides bond counsel, disclosure counsel, and special financing counsel services and advice to California public agencies. Lozano Smith conducts bond workshops across the state, covering topics that include:

  • Elections: Timelines and Requirements
  • Bonds: Types, Validity and Tax Treatment
  • Roles and Responsibilities: Committees, Consultants and Counsel
  • Disclosure and Record-Keeping: Regulations and Legal Considerations
  • Statewide Bonds: Matching and Impact

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

Written by:

Jennifer Grant Bradlee

Partner

Derek Ulmer

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Supreme Court Weighs in on Juvenile Court’s Jurisdiction Over Habitual Truant

May 2020
Number 42

On May 4, 2020, the California Supreme Court clarified a juvenile court’s jurisdiction over a minor in a formal wardship proceeding to declare the minor a habitual truant. In In re: A.N. (May 4, 2020, S242494), the court determined that a juvenile court may exercise jurisdiction in a formal wardship proceeding on the basis of the minor having “four or more truancies within one school year” if a fourth truancy has been issued to the attendance supervisor or the superintendent of the school district, even if the minor has not been previously referred to a school attendance review board (SARB) or similar truancy mediation program.

Background

A SARB is a state or local mediation program, designed to help truant students and their parents address school attendance and behavior problems with a variety of approaches and resources. Once a student has been reported three or more times for truancy, the student is deemed a habitual truant and may be referred to a SARB or similar truancy mediation program. Though not a hard and fast rule, the referral of a truant student to juvenile court is generally viewed as the nuclear option – the escalation of the habitual truancy issue that persists even after other methods have been employed, including SARBs or other truancy mediation programs. A wardship proceeding in juvenile court is a serious matter, and may result in a minor being named a ward of the court, fines and penalties for the parents or guardians, and in extreme situations the court may even remove the child from the custody of the parents. One basis of juvenile court jurisdiction is four or more truancies within one school year.

In the fall of 2015, the principal of student A.N.’s school mailed three truancy notices to A.N.’s parents. In addition to the notices sent to A.N.’s parents, the school’s computerized system automatically sent reports to the school district and to “attendance supervisors” whenever A.N. was absent or tardy to class. In December of 2015, the District Attorney filed a wardship petition in the juvenile court alleging A.N. was a habitual truant and that she was within the jurisdiction of the juvenile court under Welfare and Institutions Code section 601. In January of 2016, A.N. and her mother attended a SARB hearing. In spring 2016, the juvenile court held a trial on the wardship petition, which was ultimately sustained.

On appeal of the juvenile court’s judgment, A.N. claimed that the juvenile court lacked jurisdiction because, at the time the wardship petition was filed, she had not yet appeared before a SARB, and a fourth truancy report had not been sent to her and her parents. The Court of Appeal affirmed the juvenile court’s judgment, holding that neither of these steps were prerequisites to the juvenile court’s jurisdiction over a minor on the basis of the minor having “four or more truancies within one school year” under Welfare and Institutions Code section 601, subdivision (b).

The Supreme Court’s Opinion

The California Supreme Court considered whether the use of a SARB or a similar truancy mediation program, or the issuance of a fourth truancy report to the student and his or her parent or guardian, is a prerequisite to the juvenile court’s jurisdiction in a formal wardship proceeding on the basis of a student having “four or more truancies within one school year” under Welfare and Institutions Code section 601, subdivision (b).

The court determined that the use of a SARB or similar truancy mediation program is not a prerequisite to the juvenile court’s jurisdiction. Although the Education Code provides school officials the discretion to initially refer habitual truants to SARBs or similar truancy mediation programs, such referrals may be in lieu of or in addition to issuing of a notice to appear in juvenile court. The court acknowledged that referring truants directly to the juvenile court system prior to the conclusion of a truancy mediation program could undermine the purpose of SARBs. Nevertheless, the court concluded that current law does not require that truancy mediation precede juvenile court jurisdiction, and stated that any policy tension between the two attendance-improvement paths is matter for the Legislature to resolve.

The court also concluded the issuance of a fourth truancy report to the student and his or her parent or guardian is not a prerequisite to the juvenile court’s jurisdiction. Rather, the fourth truancy “report” was more broadly interpreted, and is satisfied if a “report” is issued to the attendance supervisor or the superintendent of the school district, including by way of an automated report sent by a school’s computerized attendance tracking system. In other words, the fourth truancy report, though required, does not need to be a parental notice.

Takeaways

The California Supreme Court’s decision in In re: A.N. clarifies that school districts are not required to utilize SARB or similar truancy mediation program prior to a juvenile court exercising jurisdiction over a minor on the basis of truancy. However, the decision highlights the potential tension between this grant of juvenile court jurisdiction and the rehabilitative and diversionary purposes of SARBs or similar programs to address the underlying sources of attendance problems.

The court suggests that the Legislature may wish to revisit what services and interventions are required before a juvenile court can exercise jurisdiction over a minor. Lozano Smith is tracking pending legislation that may impact the juvenile court’s jurisdiction over minors on the basis of truancy and will provide updates if any legislation is adopted and signed by the Governor that would impact this decision.

If you have any questions about this case or truancy matters in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Roberta L. Rowe

Partner

Amanda J. Cordova

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

When the Code Enforcement Process Goes Wrong! California Court of Appeals Scolds City for Overzealous Enforcement of the City’s Municipal Code

May 2020
Number 41

A recent decision out of the 5th District Court of Appeals chronicles the City of Visalia’s code enforcement actions against property owner Delbert Beames over a zoning dispute that ultimately resulted in legal action against the City. The appellate court upheld the trial court’s decision in ruling that the City’s hearing officer abused his discretion, and ordered the City to pay Beames’ attorneys’ fees, finding that his 14th Amendment due process claims against the City were substantial. The court took care to note that there was no articulable reason for the City to pursue enforcement in this action, and that the City only made matters worse by failing to settle the action with Beames. Although the City was “right” that the property was in violation of the code (at the time), was the cost of fighting over who was “right” worth it?

Background

In 2016, Beames leased to a towing company property he owned uniquely located along a stretch of road that included other automotive related businesses. This area was zoned for Shopping Office Commercial, and neither the tow company, nor the other businesses were a conforming use for that zoning. For many years prior, no code enforcement actions were taken against these other non-conforming businesses; but in February 2016, the City served Beames with a notice of a zoning violation, ordering the towing business to be removed. Meanwhile, the City was in the process of overhauling its zoning code. In part because of this ongoing process, Beames asked the City to pause its enforcement actions against him for six months while he attempted to apply for a zoning change. However, the City declined.

After the City assessed $2,800 in administrative penalties against him, Beames requested an administrative hearing. At the hearing, the City indicated Beames’ property would not be redesignated under the ongoing zoning code overhaul, so Beames requested a continuance of the hearing so that he could come up with a plan. The continuance was rejected and penalties against Beames were upheld.

Prior to Beames filing his action, Beames attended the City’s planning commission meeting, recommending that the City add “auto repair” to the list of allowed conditional uses on the road where Beames’ property was located. The planning staff employee in attendance who actually spoke against Beames at the administrative hearing stated, “If the [planning commission] desires to increase the number of possible uses for older buildings on the Ben Maddox Way corridor, then Staff would recommend that ‘Auto Repairs, Major’ be added to the list of uses allowed with a conditional use permit (CUP) in the C-MU zone.

Following the meeting, Beames found counsel willing to help him file his writ petition against the City, alleging an abuse of discretion and a violation of his procedural due process rights under the 14th Amendment. He also requested attorney’s fees.

Issues

The Court of Appeals took issue with several different aspects of the City’s enforcement action against Beames. During Beames’ administrative hearing, the hearing officer stated that his job was to make sure the City followed its procedures and that he did not have authority to remove fees or fines, only justify them. The court found that the hearing officer was ignorant of his discretion to consider other information and to consider whether or not a continuance would be helpful. The court also noted that, pursuant to the City Municipal Code, the hearing officer has broad discretion over the outcome of the matters before him.

The court also took notice of how the City failed to disclose to the hearing officer the information concerning the zoning update, and the possibility that the update could make Beames’ use of the property legal. The City should have made the hearing officer aware that the zoning update was still under consideration, and could have a direct outcome on the pending zoning action. In the alternative, the hearing officer should have weighed the benefits of continuing the hearing until the zoning update was complete.

Finally, the court did not take kindly to the City’s outside litigation counsel’s tactics in defending this action. The court characterized the City’s defense as needless litigiousness in defense of an unlawful administrative order. During the action, the City’s counsel acknowledged that a provision being offered by the planning commission would make Beames’ use lawful. Despite this fact, the City continued to zealously defend the action, resulting in additional attorney’s fees.

Takeaways

There are several things a public entity can take away from this case in regards to code enforcement, administrative hearings, and potential litigation. First, the court took issue with the City’s uneven enforcement of its zoning code, as several other properties were also in a state of non-compliance but were not cited. This uneven prosecution weakened the City’s position at both the trial and appellate court levels. Also, for administrative hearings, the City should: (1) verify that the hearing officer is knowledgeable of all the options available for resolution when making an order in an administrative hearing; and (2) make the hearing officer aware of pending ordinance revisions and related developments that could affect the decision. Ultimately, the City’s failure to take these steps was enough for the appellate court to award Beames’ his attorney’s fees.

This case provides an example of why reasonableness should be considered in code enforcement situations. While a city has the discretion to enforce compliance of the municipal code, a city must also consider the facts of each situation separately to determine the best course of action to attain that compliance. The court in this case determined that the City’s actions before and during litigation turned an unnecessary code enforcement action into a large bill from both the City’s retained counsel, and counsel for the property owner.

If you have any questions about this case, code enforcement, or administrative hearings, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

William P. Curley III

Partner

Matthew M. Lear

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Rejects Constitutional Challenge to School Safety Plan Allowing Transgender Student Use of Single Sex Facilities 3

May 2020
Number 40

The Ninth Circuit said it best: “Schools face the difficult task of navigating varying student (and parent) beliefs and interests in order to foster a safe and productive learning environment, free from discrimination that accommodates the needs of all students.”

In the recent case of Parents for Privacy v. Barr (9th Cir. 2020) 949 F.3d 1210, the Ninth Circuit artfully untangled these “varying beliefs and interests” when it upheld a “Student Safety Plan” that allowed transgender students to use school facilities that matched their gender identity, including restrooms, locker rooms and showers. In doing so, the court rejected several legal arguments that the “Student Safety Plan” violated Title IX and/or the First and Fourteenth Amendment privacy, parental, and/or religious rights of the students and parents who objected to the use of such facilities by transgender students. This case was brought by parents of current and former cisgender students who attended Dallas High School in Oregon. Plaintiffs believed the Safety Plan created a sexually harassing environment in violation of Title IX; violated the children’s right to “bodily privacy” and the parents’ right to direct their students’ education under the Fourteenth Amendment of the United States Constitution; and violated their right to freedom of religion under the First Amendment.

Ninth Circuit Holding

In a long and legally intricate opinion, the Ninth Circuit articulated why the Safety Plan at issue did not infringe upon others’ fundamental rights.

Title IX: Prohibition of Harassment/Discrimination on the Basis of Sex

Plaintiffs argued that the Safety Plan violated Title IX “by turning locker rooms, showers and multi-user restrooms into sexually harassing environments and by forcing students to forgo use of such facilities as the solution to the harassment.” The court struck down both arguments, holding: “A policy that treats all students equally does not discriminate based on sex in violation of Title IX” and “the normal use of privacy facilities does not constitute actionable sexual harassment under Title IX just because a person is transgender.” The court noted that “just because the Safety Plan implicitly addresses the topics of sex and gender by seeking to accommodate a transgender student’s gender identity, or because it segregates facilities by gender identity, does not mean that the Plan harasses other students on the basis of their sex.” The court further noted “Plaintiffs do not allege that transgender students are making inappropriate comments, threatening them, deliberately flaunting nudity, or physically touching them.” In doing so, it declared that something more than a transgender person using a facility for its intended purpose is needed to violate Title IX.

Fourteenth Amendment: Right to Privacy

Plaintiffs alleged that under the Fourteenth Amendment individuals have a constitutional right to “bodily privacy” that includes a right to “privacy of one’s fully or partially unclothed body and the right to be free from State-compelled risk of intimate exposure of oneself to the opposite sex.” The court disagreed saying, “The Fourteenth Amendment right to privacy does not extend to avoiding all risk of intimate exposure to or by a transgender individual.” The court explained that the Fourteenth Amendment Right to Privacy protects against unreasonable, arbitrary and unjustifiable intrusions into an individual’s privacy by government actors. Here, the inadvertent exposure that might occur as a result of the “gaps” in the privacy stalls is not protected. Although the alternatives and privacy protections afforded to the students who did not want to share the facilities with transgender students “admittedly appear inferior and less convenient” those “slight discomforts” were not enough to establish a privacy violation.

Fourteenth Amendment: Parental Rights

Plaintiffs argued that parents have a fundamental right to make decisions concerning the care, custody, and control of their children and that the Student Safety Plan infringed upon their right to do so. The court declined to extend parental rights to include the right to determine the bathroom policies of a public school. Rather the court found that a parent’s right to direct the education and raising of one’s child “does not extend beyond the threshold of the school door.” It noted, “[w]hile parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Whether it is the school curriculum, the hours of the school day, school discipline, the timing and content of examinations, the individuals hired to teach at the school, the extracurricular activities offered at the school or … a dress code, these issues of public education are generally committed to the control of state and local authorities.

First Amendment: Right to Free Exercise of Religion

Finally, plaintiffs alleged that the Safety Plan conflicts with and prevents objecting students and parents from fully practicing their religious beliefs (i.e. displaying modesty). The court disagreed, finding that the Safety Plan was neutral, generally applicable, and rationally related to a legitimate governmental purpose of protecting transgender students from harassment, discrimination, or other harm. The court noted that the plaintiffs’ acknowledged that the District created the plan in response to the students request for accommodation and to the threat of federal enforcement action; the plan did not reference religious practice, conduct, belief or motivation; and that the plain language of the plan stated it was created to “support a transgender male expressing the right to access” school facilities dedicated to male students. These facts weighed against a finding that the Safety Plan infringed upon an individual’s right to free exercise of religion.

Takeaways

While creating a safety plan is not legally required, doing so is a best practice to ensure compliance with federal and state anti-discrimination laws. This case serves as a reminder for school districts who choose to create and implement safety plans for transgender students that, if done appropriately, such safety plans will comply with federal and state anti-discrimination laws and not infringe upon others’ fundamental rights. Where safety plans are implemented, school districts should take steps to ensure that the safety plan clearly articulates the reason for the plan, the safety measures to be implemented, and treats all students, regardless of gender or gender identity, equally.

If you have questions about the Ninth Circuit’s decision in Parents for Privacy v. Barr or would like assistance in preparing, reviewing, or revising your existing or potential student safety plan, please contact the authors of the Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Carolyn L. Gemma

Senior Counsel

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Plaintiffs with Late Tort Claims Take a Hit

May 2020
Number 39

A would-be plaintiff’s ability to obtain relief from the government claim presentation requirement (the Government Claims Act, Gov. Code, § 810, et seq.) has been limited by the California Court of Appeal. In Lincoln Unified School Dist. v. Superior Court (2020) 45 Cal.App.5th 1079, the court held that a plaintiff may not request that a court waive the six-month time limit for submitting a claim to a public entity for reasons different than the plaintiff presented to the public entity when seeking a waiver of the same six-month time limit.

Background Information

 When a person seeks to sue a public entity for personal injury claims, the Government Code requires that, prior to filing their lawsuit, the injured person must first submit their claim for injury and damages to the public entity within six months of the date of the injury. The public entity may then choose to accept the claim, deny the claim, or ignore the claim. If the public entity denies or ignores the claim, the injured person may then proceed to filing a lawsuit in state court. If they do not timely file their lawsuit, they may later be barred due to the expiration of the statute of limitations.

Lincoln USD v. Superior Court

On August 1, 2017, Jayden, a high school student, was participating in football tryouts at Lincoln High School in Lincoln Unified School District (District) in Stockton, California. Jayden collapsed due to extreme exhaustion and dehydration, and suffered permanent injuries as a result.

Jayden’s mother, Ms. Jones, timely submitted a claim on Jayden’s behalf to the District in November 2017, alleging the District was liable to Jayden for his injuries. In November 2017, Ms. Jones also engaged Jayden’s attorney to represent her in her own claim against the District, based on the realization that Jayden’s injuries may be lifelong and may require Ms. Jones’ ongoing care. Ms. Jones, like Jayden, had six months from the date of injury to present her claim to the District but did not do so until March 2, 2018, when she submitted an application to the District seeking an exception to the six-month limit to present the claim on her own behalf. Ms. Jones submitted with her application the facts forming the basis for her legal argument, including that she initially did not file the claim for herself because she believed that Jayden would recover from his injuries; that she was so upset and concerned about him that she was not thinking about herself; and once she realized he may not fully recover, she determined that she too had a claim, as Jayden’s sole caretaker. The District did not respond to Ms. Jones’ application, and therefore it was deemed denied.

In July 2018, Ms. Jones filed a petition for relief from the claim presentation requirement in superior court, using the same factual explanation that she had included in her application to the District. The District introduced evidence contradicting Ms. Jones’ claims that she was previously unaware of the extent of her son’s injuries, and the extent to which she would suffer long-term effects from Jayden’s injuries. Ms. Jones’ attorney filed a supplemental declaration, in which he introduced a new factual theory as to why the petition should be granted. The attorney stated that Ms. Jones had hired him to represent her in November 2017, and due to a highly unusual internal error, his office had failed to timely submit Ms. Jones’ claim. The court granted the petition, based upon the new facts alleged by Ms. Jones’ attorney in the supplemental declaration. The court rejected the District’s argument that the same factual basis must be alleged in the application submitted to the District as the facts alleged in the petition for relief submitted to the court. The District appealed.

On appeal, the court decided that the facts included as the basis for Ms. Jones’ application to the District seeking an exception to the six-month limit to present the claim must be the same as the facts then presented to the trial court in the corresponding petition for relief from the claim presentation requirement. The lower court was overruled, and Ms. Jones’ claim against the District was barred from proceeding. Having prevailed in its appeal, the District was relieved of liability as to Ms. Jones.

Takeaways

Lincoln USD v. Superior Court bolsters the resources available to an accused public entity when a plaintiff has missed the six-month deadline to present their claim and is seeking an exception to the rule, strengthening the overall effect of the Government Claims Act. Under this case, a plaintiff has one opportunity to develop their theory as to why they should be granted an exception to the timeline for filing a claim — they cannot change their story once they get into court. 

If you have any questions about the Lincoln USD case or the Government Claims Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Mary F. Lerner

Partner

Sophia V. Cohn

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Calls for Greater Collaboration between Court Schools and Counties

May 2020
Number 38

Last fall, Governor Gavin Newsom signed Assembly Bill (AB) 1354 which creates new legal requirements for a county office of education and certain charter schools operating juvenile court schools. Notably, AB 1354 reaffirms the Legislature’s intent for greater collaboration between county offices of education, county probation departments, and local educational agencies regarding students transitioning in and out of juvenile court schools. Many county offices of education provide educational services to students in court schools while county probation departments have responsibility for all other aspects of the student’s incarceration. Consequently, most county offices of education have existing agreements with counties regarding these transitions, which need to be updated to meet the requirements of this new law.

AB 1354 now requires, as part of a student’s exit from court school, that the county office of education oversee and coordinate:

  • A transfer of the student’s records to the relevant local educational agency within 72 hours of the student’s release from the juvenile facility. (These records include the student’s IEP/Section 504 Plan);
  • Provision of information about postsecondary academic and vocational opportunities, including college financial aid programs, to the student; and,
  • Immediate enrollment in an appropriate public school in the student’s community, including acceptance of course credits for coursework completed at the court school and placement in appropriate courses.

AB 1354 also clarifies the requirements for court school students to have a developed individualized transition plan if detained for more than 20 consecutive school days. This plan must be designed in collaboration with county probation departments, as needed, to address the student’s academic, behavioral, social-emotional, and career needs and, prior to the student’s release, identify with and establish programs, services, and individuals to support a student’s successful transition out of court school.

With many juvenile court schools closed due to the COVID-19 pandemic, county offices operating court schools may want to take this time to evaluate how the program enrolls students in and transitions students out of the court school. Also, county offices of education should review procedures with county probation departments regarding the development and sharing of individualized learning plans, IEPs, Section 504 Plans, and individualized transition plans.

For more information about AB 1354, including questions about revisions to agreements and procedures with county probation departments regarding the operation of juvenile court schools, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michael E. Smith

Partner

Joshua Whiteside

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Title IX and “Pre-Assault”: Closing the Flood Gates

May 2020
Number 37

A new ruling by the Ninth Circuit Court of Appeals amended a January 2020 opinion on the liability of colleges and universities for “pre-assault claims,” or the argument that inadequate Title IX policies created a “heightened risk” of sexual misconduct. The intent of the amendment was to clarify the test for liability with respect to such “pre-assault claims,” limiting exposure of Title IX liability to cases where the claimant can show the heightened risk of sexual harassment was known or obvious to the educational institution and, as a result, the claimant suffered harassment that was so severe, pervasive, and objectively offensive that the claimant was deprived of access to the educational opportunities or benefits provided by the school.

Background

Under Title IX, institutions receiving federal funding face potential liability when they have knowledge of sexual harassment and exhibit “deliberate indifference” to the misconduct, meaning they fail to adequately respond or take appropriate action. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).

January 2020 Opinion

In January 2020, a decision by the U.S. Court of Appeal for the Ninth Circuit permitted a case to move forward to determine whether a university maintained a policy of deliberate indifference that increased the risk of sexual harassment on its campus. In Karasek v. Regents of the University of California, three former students, all women, filed a complaint against the UC Board of Regents alleging that UC Berkeley failed to adequately respond to their individual sexual assault complaints and that the university maintained a general policy of deliberate indifference to reports of sexual misconduct, which resulted in a higher risk of being assaulted. The District Court found that the women failed to plausibly allege that UC Berkeley was deliberately indifferent while handling their cases, which is a criteria needed to prevail in a lawsuit against an educational institution on a Title IX claim. The case was dismissed, and the women appealed.

In the January 2020 opinion ((9th Cir. 2020) 948 F.3d 1150), the Ninth Circuit established a test for Title IX pre-assault claims. Specifically, the court held that claimants asserting a “pre-assault claim,” also referred to as a “before theory,” must prove the following:

  • The educational institution maintained a policy of deliberate indifference to reports of sexual misconduct;
  • The educational institution created a heightened risk of sexual harassment in a context subject to the institution’s control; and
  • The claimants were harassed as a result of the policy.

April 2020 Amended Opinion

After attorneys for the UC Board of Regents submitted a petition for the appeal to be reheard in the Ninth Circuit, the court, on April 20, 2020, amended the language of the test set forth in its January 2020 opinion (discussed above), clarifying that, in order for Title IX liability to apply, the heightened risk of sexual harassment must be known or obvious and as a result, the claimant must have suffered harassment that was so severe, pervasive, and objectively offensive that the claimant was deprived access to the educational opportunities or benefits provided by the school. Claimants asserting a pre-assault claim now must prove the following:

  • The educational institution maintained a policy of deliberate indifference to reports of sexual misconduct;
  • The educational institution created a heightened risk of sexual harassment, that was known or obvious to the institution, in a context subject to the institution’s control; and
  • The claimant suffered harassment, which was so severe, pervasive, and objectively offensive, that they were deprived of access to the educational opportunities or benefits provided by the school.

The April 2020 opinion amends the previous opinion by adding heightened standards to “pre-assault” claim test, laid out by the Ninth Circuit in January 2020. Without the amended language, educational institutions could have experienced an influx of exposure to damages under Title IX, if their official acts or omissions were determined to have increased the risk of sexual misconduct on their campuses, even if they were unaware of the risk.

Takeaways

While the Ninth Circuit’s clarification of the test for “pre-assault” claims may have the effect of making it harder for claimants to prevail under this theory, educational institutions must still ensure that they have effective policies and procedures in place that require a prompt and adequate response to sexual harassment and sexual assault complaints. These policies should ensure that, among other things, allegations of sexual harassment and assault are timely and fairly investigated and that victims are offered protections from further harm.

If you have any questions about this case, or need assistance in conducting Title IX investigations or policy review, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marisa R. Lincoln

Partner

Marisa Montenegro

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Appellate Court Clarifies When School Employees are Eligible for Unemployment

May 2020
Number 36

In United Educators of San Francisco, AFT/CFT, AFL-CIO, NEA/CTA v. California Unemployment Ins. Appeals Bd. (“United Educators”), the Supreme Court of California clarified when and how educational employees might be eligible for unemployment insurance benefits during the summer break. When a school employee receives a reasonable assurance letter to work for the following school year, expects to work during summer school, but ultimately does not perform the expected work during the summer period through no fault of their own, the court held that such employee may be eligible for unemployment insurance benefits for that summer school period only if the summer school program is a “regular” term as compared with other academic terms that comprise the school year.

Background

Unemployment Insurance Code section 1253.3 states that public school employees are not eligible to collect unemployment insurance benefits during “the period between two successive academic years or terms” if the employees worked during “the first of the academic years or terms” and received “reasonable assurance” of work during “the second of the academic years or terms.” As a result, school employees who only work during the traditional academic year and are given reasonable assurance of employment for the following school year are generally ineligible for unemployment insurance benefits during the summer recess when they are not working.

In 2011, the Employment Development Department’s (EDD) denied unemployment insurance benefits to 26 San Francisco Unified School District (SFUSD) on-call substitute teachers or paraprofessional employees. All but one of the employees had received a letter in the spring of 2011 from SFUSD providing “reasonable assurance” of employment for the following 2011-2012 school year. In the summer of 2011, SFUSD operated summer school for its students. Only those who worked during the summer school session received compensation during the summer recess. The 26 employees filed their lawsuit after their claims unemployment insurance benefits for the summer recess were denied.

The Supreme Court’s Decision

The Supreme Court of California reviewed whether the limitation found in Unemployment Insurance Code section 1253.3 applied to substitute teachers and other public school employees during the summer months.

Ultimately, the Court determined that summer sessions at year-round schools, or summer sessions that, “as a whole, resemble other academic terms of the school year in terms of enrollment, staffing, budget, instructional program, or other objective criteria” qualify as “academic terms” and therefore unemployment insurance benefits are payable.

Unemployment insurance benefits are not available to employees during parts of the calendar year when they remain employed by the school district but are not expected to work. This includes Thanksgiving, winter, and spring breaks. If a school district operates a summer session, unemployment insurance benefits are only available if the summer school session is comparable to an academic term during the traditional school year in terms of enrollment, staffing, budget, or instructional program, among other things.

Takeaways

Going forward, when a claim for unemployment insurance benefits is filed by a school employee as a result of not working during a summer program, EDD and reviewing courts will consider whether that summer program as a whole resembles the school district’s other academic terms, using a variety of objective criteria. Most school districts operating under a traditional nine month school year model will likely not have “regular” summer school sessions under this new test. Even if a district’s summer term qualifies as an “academic term” this case does not provide analysis on whether and to what extent an employee’s expectation to work during summer school makes them eligible for unemployment benefits for the summer term if they ultimately do not work.

As summer school programs continue to grow, it is important for school districts to consider whether their summer program reflects a traditional academic term. If it does, employees who have received a reasonable assurance letter for the following school year may be entitled to unemployment insurance benefits for that summer period to the extent they do not work during the summer.

If you would like more information about this case, or have any questions related to payment of public employee wages and unemployment claims during, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

CDE Issues Template for Written Report in Place of LCAP; Executive Order N-56-20 Changes Budget Adoption Process for 2020-2021

May 2020
Number 35

The California Department of Education (CDE) has issued the template for local education agencies (LEAs) to use for their written report to the community explaining their changes to program offerings made in response to school closures to address COVID-19. Governor Newsom’s Executive Order N-56-20 of April 22, 2020, provides that, for LEAs that adopt the written report as described, the deadline to adopt the Local Control Accountability Plan (LCAP) and budget overview for parents is extended to December 15, 2020. The Executive Order defines LEAs to include school districts, county offices of education, and charter schools. Details of the written report and the Executive Order are summarized below.

  • The deadline for adoption of the LCAP and the budget overview for parents has been extended to December 15, 2020, provided that the LEA:
    • adopts a written report explaining changes to program offerings made in response to COVID-19;
    • submits the written report to the County Superintendent concurrently with the LEA’s 2020-2021 budget; and
    • posts a copy of the written report on the homepage of its website, all as further specified in Section 2 of the Executive Order.
  • The written report shall include a description of how the LEA is meeting the needs of unduplicated pupils (i.e., English learners, students eligible for a free or reduced-price meal and foster youth) to support the following during school closures:
    • Continue delivering high-quality distance learning opportunities;
    • Provide school meals in non-congregate settings; and
    • Arrange for supervision of students during ordinary school hours.
  • The written report must be adopted by the LEA’s governing board at the same meeting at which the 2020-2021 budget is adopted by the board.
  • The budget itself must still be adopted by July 1, 2020.

Takeaways

LEAs who choose to take advantage of the extended deadline for adopting the LCAP will not need to hold LCAP stakeholder meetings this spring nor provide for a public hearing on the LCAP. Accordingly, the budget adoption process can be streamlined, with the public hearing and adoption of the budget being accomplished during one meeting. This will require revisions to the LEA’s notice and agenda language related to the public hearings and the budget adoption process. Implementing the changes to the LCAP deadline may also require LEAs to revise or suspend the operation of certain Board Policies and/or Administrative Regulations, depending on whether they incorporate the original July 1 deadline for adoption of the LCAP.

If you have questions about this recent Executive Order or would like assistance in preparing the written report and modifying your budget adoption process, please contact the authors of the Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

Written by:

Ruth E. Mendyk

Partner

James N. McCann

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Industrial Disability Retirement May Still Be Considered a Constructive Discharge

May 2020
Number 34

On January 28, 2020, the California Court of Appeal for the First Appellate District revived a former California Highway Patrol (CHP) officer’s claims that he was forced to quit because he is openly gay. In Brome v. California Highway Patrol, the Court of Appeal held that a workers’ compensation claim could extend the statute of limitations for filing a complaint of discrimination and that an industrial disability retirement could still be considered a constructive discharge in violation of California anti-discrimination laws.

Background

Throughout his nearly 20-year tenure with the CHP, Officer Brome complained that he suffered discrimination and harassment from fellow officers based on his sexual orientation. From 2008 through 2014, Brome complained to his superiors that he was frequently subjected to derogatory comments and that other officers routinely refused to provide Brome with backup assistance during enforcement stops. Brome’s superiors investigated his complaints and disciplined at least one officer related to the failure to provide backup assistance. Despite the actions of the employer, Brome alleged that the harassment and discrimination continued, causing him extreme stress and anxiety.

In January 2015, Brome went on medical leave and filed a workers’ compensation claim due to his work-related stress. After his workers’ compensation claim was resolved in his favor in October 2015, he applied for and received an industrial disability retirement effective February 2016.

In September 2016 – over a year after he first went on medical leave – Brome filed a complaint with the Department of Fair Employment and Housing (FEH), and a lawsuit alleging sexual orientation discrimination and harassment, failure to prevent harassment, and retaliation. The trial court dismissed the case on statute of limitations grounds because it was not filed within one year of the challenged actions, as required by the Department of Fair Employment and Housing Act’s (FEHA) provisions in effect at that time. The trial court also rejected Brome’s constructive discharge theory, finding that Brome failed to establish that the working conditions were sufficiently intolerable to cause him to quit.

As of January 1, 2020, the one year statute of limitation to file with the Department of Fair Employment and Housing was extended to three years. See Complainants Now Have 3 Years to File Charge of Employment Discrimination, Lozano Smith Client News Brief Number 79 for December, 2019, available at http://www.lozanosmith.com/news-clientnewsbriefdetail.php?news_id=2952

The Court of Appeal reversed the trial court’s decision on three grounds. First the court reversed the trial court’s finding regarding the statute of limitations. The court found that Brome’s discrimination/harassment claims could be tolled while his workers’ compensation claim was pending. This finding hinged in part on whether a jury could reasonably conclude that the worker’s compensation claim constituted notice to the CHP that Brome also had potential discrimination claims. The court held that it was reasonable to conclude CHP received such notice, because the CHP necessarily considered the cause of Brome’s work-related stress in order to investigate his worker’s compensation claim.

Second, the Court of Appeal also found that Brome’s claims may include allegations of wrongful conduct occurring before the statute of limitations period under the continuing violation doctrine. The continuing violation doctrine allows claims regarding conduct alleged to have occurred prior to the limitations period to move forward if a jury could find:

  • discriminatory/harassing conduct that occurred before the limitation period are “sufficiently similar in kind” to those occurring during the limitation period,
  • the acts occurred with reasonable frequency, and
  • the problems had not “gained permanence” before the limitations period – i.e., that the CHP’s actions did not make it clear that further efforts at informal resolution without litigation would be futile.

Finally, the Court of Appeal disagreed with the trial court’s conclusions that Brome could not prove that his February 2016 disability retirement was a constructive discharge (i.e., forced quitting). A constructive discharge claim requires an employee to show that the “working conditions were so intolerable or aggravated that a reasonable employee would be forced to resign and that the employer either created or knowingly permitted those conditions.” The appellate court found, “the accumulation of discriminatory treatment over time can amount to intolerable working conditions.” Furthermore, the court determined Brome presented sufficient evidence to conclude that the CHP knowingly permitted the intolerable conditions and, due to his workers’ compensation claim, should have known that a reasonable employee in Brome’s position would resign.

The Court of Appeal returned the case to the trial court in order to make a final determination as to CHP’s liability.

Takeaways

The ruling in Brome highlights recent legislation that extends the statute of limitations on Fair Employment and Housing Act claims from one to three years. Further, employers should be aware that a workers’ compensation claim – particularly a stress-related claim – could signal the presence of discriminatory conduct. Receipt of such a claim can constitute notice of discrimination or a hostile working environment. This ruling also highlights the importance for employers to consider and address any subsequent discrimination/harassment claims that may be raised even after the initial claims have been resolved and disciplinary action taken.

If you have any questions about FEHA claims or workplace harassment/discrimination claims in general in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Lindsey F. Zwicker

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Recent Executive Orders Increase Access to Childcare for Essentials Workers

April 2020
Number 33

In the wake of statewide school closures, workers combatting COVID-19 on the front lines have encountered difficulties finding childcare while they go to work. In an effort to assist these essential infrastructure workers, on April 4 and 7, 2020, Governor Gavin Newsom signed Executive Orders (EO) <a href="https://www.gov.ca.gov/wp-content/uploads/2020/04/4.4.20-EO-N-45-20-text.pdf&quot; class="underline" N-45-20 and N-47-20. Both EOs temporarily waive certain Education Code provisions regarding childcare and development services provided by local educational agencies (LEAs) to children from infancy to 13 years of age, among other things, with the specific purpose of allowing essential workers to access childcare during the COVID-19 pandemic. The waived provisions mainly impact LEA-operated preschool and after school programs that receive state and federal subsidies. While neither EO requires LEAs to provide childcare to children of essential workers, they do loosen restrictions previously limiting the ability of LEAs to grant children of some essential workers access to childcare.

Executive Order N-45-20

EO N-45-20 temporarily waives certain portions of the Child Care and Development Services Act (the Act) (Ed. Code, § 8200 et seq.) and its accompanying regulations which ordinarily might prevent LEA-operated childcare programs, including preschool and afterschool programs, from serving children of essential workers. Specifically, EO N-45-20 temporarily waives the following:

  • eligibility requirements for non-CalWORKS federal and state subsidized early learning and care services (e.g., preschool classes);
  • enrollment priorities (except children who are at risk of being neglected or abused retain first priority);
  • fees for families using “preschool and child care and development services”; and
  • various requirements for the 21st Century Community Learning Centers grant and the After School Education and Safety grant.

Subsidies for families currently enrolled in LEA-operated childcare programs are not changed by EO N-45-20. The EO’s waivers allow LEA-operated childcare providers that are currently open to serve a greater population, but do not require any LEA-operated childcare providers to reopen.

EO N-45-20 also allows the Department of Social Services (DSS) to waive certain licensing, contractual and payment requirements related to LEA-operated childcare providers, and waives limitations on data-sharing between the California Department of Education (CDE) and DSS in an effort to hasten identification of SNAP-eligible students during the pandemic. Lastly, EO N-45-20 requires CDE and DSS to jointly develop guidance for how to prioritize enrollment for children of essential workers into LEA-operated childcare programs, as well as guidance regarding safe practices for LEAs providing childcare during the pandemic. The initial guidance can be found here.

Executive Order N-47-20

EO N-47-20 expands upon EO N-45-20 in a number of ways. It grants DSS the power to waive requirements of the Welfare and Institutions Code and accompanying regulations related to the In-Home Supportive Services program (which does not directly impact LEAs.)

As it pertains to LEAs, EO N-47-20 expands the scope of EO N-45-20 by:

  • adding that non-CalWORKS early learning and care eligibility and enrollment requirements in the Act are waived not only for children of essential infrastructure workers, but also for “children with disabilities or special health care needs whose individualized education programs and individual family support plans include early childhood education services”;
  • waiving the Act’s requirement for a written referral from a “legal, medical, or social services agency” for children at risk of abuse or neglect to have enrollment priority; and
  • ordering CDE and DSS to jointly develop guidance for how to prioritize early learning and care enrollment for not only children of essential critical infrastructure workers, but also for children with disabilities or special health care needs whose individualized education programs and individual family support plans include early childhood education services. The complete guidance can be foundhere.

Takeaways

EOs N-45-20 or N-47-20 increase access to childcare programs administered by LEAs for essential workers and students with disabilities or special health care needs. Neither EO requires currently closed LEA-operated childcare providers to reopen or that LEAs provide childcare in any manner, but the subtext of these EOs certainly encourages currently closed LEA-operated childcare providers to reopen. Many public agencies are working together to coordinate childcare for essential workers, while others are referring essential workers to existing childcare facilities that have openings due to the number of children staying home.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

For more information on current requirements for public agencies to provide childcare, public funding tied to childcare services, or the recently issued Executive Orders, or to discuss any other issues arising because if COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Aimee Perry

Partner

Kate S. Holding

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

FTC Issues New Guidance Regarding Child Online Privacy Law in Light of COVID-19

April 2020
Number 32

In light of the COVID-19 pandemic, schools have transitioned to distance learning. Almost overnight, schools have become dependent on technology in order to provide students with education. This dependence, however, brings with it a multitude of questions, costs, and risks. For example, we all know that online user information is being actively gathered by countless companies. When schools provide access to district-owned or procured computers and software, is it the software company, the parents, or the school’s responsibility to ensure students’ information is not being improperly mined and utilized? Privacy laws are often overlooked, or viewed as barriers, as school administrators struggle to deliver educational programs. Recent guidance helps schools to streamline the process and includes the following measures:

  • Ed-tech companies must provide schools with notice of their data collection and use practices “in plain language.”
  • Schools are provided a list of questions to ask potential ed-tech vendors to learn how the student information will be used, collected, and disclosed.
  • Ed-tech vendors are directed to review the student privacy laws to ensure their compliance.

The Federal Trade Commission (FTC) has issued guidance that reverses previous approaches on parental consent requirements under the Children’s Online Privacy Protection Act (COPPA). COPPA outlines what companies must do to protect the online privacy and safety of children who use the companies’ commercial websites, mobile applications, and online services. Generally, COPPA requires companies to provide notice and to obtain parental consent before collecting personal information online from children under 13 years old. On April 9, 2020, the FTC published a blog which included FAQs and guidance which ease requirements and allow schools to provide consent on behalf of parents for ed-tech vendors who provide educational services. The FTC limits their advisory to information collected for school-authorized educational purposes and not for other commercial purposes. Schools can provide such consent whether the learning takes place in the classroom or at home at the direction of the schools. In order for ed-tech services to obtain consent from schools instead of parents, the service must provide schools with notice of its data collection and use practices “in plain language.” As a best practice, the FTC recommends that ed-tech vendors provide the required COPPA notice to parents as well as schools and to let parents review the data collected, when feasible.

Per the guidance from the FTC, schools must also provide parents with “notice of the websites and online services whose collection they have consented to” on their behalf. Additionally, school districts should consult with legal counsel and information security specialists to review their ed-tech vendor’s privacy and security policies to determine whether the policies are appropriate. The guidance also details a list of questions that school districts should ask potential ed-tech vendors in order to understand how student information will be used, collected, and disclosed. COPPA is just one of many regulations that impact distance learning through technology. Understanding these practices will help school districts in deciding which technology to use in delivering distance learning programs to students during these difficult times.

The FTC guidance also directs ed-tech vendors to review the Protection of Pupil Rights Amendment (PPRA) and the Family Educational Rights and Privacy Act (FERPA) in order to ensure compliance with those laws. On March 30, 2020, the Student Privacy Policy Office at the United States Department of Education (SPPO), the organization responsible for implementing PPRA and FERPA, presented a webinar that addressed common scenarios and questions relating to compliance with FERPA during the pandemic. Notably, the presentation highlighted best practices and considerations for school districts when implementing virtual learning systems.

Relevant Links

The FTC’s April 9, 2020, guidance is available at the following link:

https://www.ftc.gov/news-events/blogs/business-blog/2020/04/coppa-guidance-ed-tech-companies-schools-during-coronavirus

SPPO’s March 30, 2020, webinar recording and presentation slides are available at the following links:

  • Webinar Recording

https://studentprivacy.ed.gov/training/ferpa-and-virtual-learning-during-covid-19-webinar-recording

  • Webinar Presentation Slides

https://studentprivacy.ed.gov/sites/default/files/resource_document/file/FERPAandVirtualLearning.pdf

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

For more information on student privacy issues related to use of technology procured or owned by school districts, or to discuss any other issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Manuel F. Martinez

Partner

Tina C. Mirzazadeh

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Federal Reserve Launches Municipal Liquidity Facility for Short Term Lending to Eligible States, Cities & Counties

April 2020
Number 30

The coronavirus global pandemic and the related shutdowns are causing far-reaching impacts on just about everyone and everything. As the economic toll continues to mount, state and local governments are seeing their tax revenue materially decline, due to decreases in both taxable sales transactions and taxable income. These declines are being compounded by delays, as many states, including California, have postponed their state tax filing deadlines, similar to the IRS’ postponement of the federal income tax filing deadlines. At the same time, state and local governments are incurring substantial costs related to preparedness and public health issues. The federal government recently passed an economic stimulus bill known as the CARES Act (see 2020 Client News Brief Number 24), which included up to $500 million “to provide liquidity to eligible businesses, states, and municipalities related to losses incurred as a result of coronavirus.”

This liquidity assistance will be implemented by the Federal Reserve System (the Fed), through an initiative called the Municipal Liquidity Facility (MLF), authorized and established by the Fed’s Board of Governors on April 8, 2020. Under the MLF the Fed, via a special purpose vehicle, will begin purchasing short term municipal debt instruments directly from state governments, counties with populations of at least two million, and cities with populations of at least one million in order to assist eligible state and local governments in managing cash flow impacts related to the pandemic. The types of debt instruments authorized for purchase include Tax and Revenue Anticipation Notes (TRANs), Bond Anticipation Notes (BANs), and other similar short-term notes. Eligible securities must be purchased before September 30, 2020, and must have a maturity date within two years of issuance.

California cities and counties that are facing or anticipating a revenue deficit and/or delay due to the coronavirus pandemic, and are considering accessing the MLF program, should seek the advice of both financial advisors and bond counsel.

Lozano Smith’s Public Finance Practice Group

Lozano Smith’s Public Finance Practice Group is comprised of attorneys who are recognized experts in municipal finance and who regularly assist California public entities, including cities, counties, school districts, and special districts, with the issuance of municipal debt vehicles. If you have any questions about the issuance of municipal securities or would like to discuss the Fed’s note-purchasing program, please contact one of our eight offices located statewide and ask to speak to a member of our Public Finance Practice Group.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

Written by:

Daniel Maruccia

Partner

Jennifer Grant Bradlee

Associate

Kip Pinette

Paralegal

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Classified Layoffs- in the Age of COVID-19

April 2020
Number 31

Public school districts are faced with unprecedented times this school year due to the global pandemic of coronavirus (COVID-19). As a result, California public school districts closed down their facilities in the middle of March and are now preparing to end the school year in a distance learning environment. At this time, we do not know whether school districts will continue with distance learning when the 2020-21 school year starts in August 2020.

Amidst school closures and a possible economic recession, Governor Gavin Newsom reassured school districts they would still receive funding for the 2019-2020 school year. However, the California state budget for 2020-2021 has not been finalized and it remains unclear how it will be impacted by the economic downturn. Many school districts are therefore preparing for the operational and budgetary uncertainty by considering classified reductions in force. Classified staff can be laid off based upon a lack of work or a lack of funds. (Ed. Code, §§ 45113, 45117.)

Timing Issues

The timing and process for classified layoffs are not as detailed or complicated as certificated layoffs, but there are important considerations that school districts must contemplate.

Generally, classified employees can be released upon 60 days’ notice of layoff after board action. This 60 days’ notice of layoff should also inform the employee of displacement and reemployment rights. When a classified layoff at the end of a school year is caused by the expiration of categorical monies, notice must be given on or before April 29th, after having taken board action.

Seniority Issues

In classified layoffs, the bumping process can be rather involved if employees have served in multiple classifications. When a classified unit is represented, the collective bargaining agreement may include a bumping process for the school district to follow. Further, seniority is determined by hours served in a classification, unless the school district and the exclusive bargaining unit representative have agreed to use the date of hire in a classification for seniority purposes. In either event, the school district should review its recordkeeping system to validate its seniority rankings.

Note also that the decision to implement classified layoffs is not negotiable, but the effects of a layoff are negotiable. School districts should remember to plan in advance so that timely notice to bargaining unit representatives can be given, and the effects can be bargained prior to the implementation of the layoff.

Service Issues

There layoff statutes do not specify the service method for classified layoff notices. In other sections of the Education Code, California courts have required personal service of employment notices whenever a section of the code does not specify the required method of service. (Hoschler v. Sacramento City Unified Sch. Dist. (2007).)

Because personal service is not always possible or practical, courts have made exceptions to the Hoschler rule under special circumstances, such as when actual notice has been given (Sullivan v. Centinela Valley Union High Sch. Dist. (2011) 194 Cal. App. 4th 69), or when an employee is evading service (Hankla v. Governing Bd. (1975) 46 Cal.App.3d 644, 655).

COVID-19 may present school districts with another special circumstance in that state and local orders issued as a result of COVID-19 recommend the avoidance of person-to-person contact.

Some classified school employees fall under the category of “essential workers” and continue to travel to and from the workplace, and a school district would be within its authority to require these employees to attend meetings at the district office to personally serve these notices. Such steps, however, should be considered carefully, as school district administrators may wish to avoid person-to-person contact due to social-distancing orders. Other classified employees are working from home, and districts are attempting to reduce or eliminate the need for such employees to come to the district office or interact with other district staff.

If a school district wishes to avoid personal service given the current circumstances caused by COVID-19, it should consider ensuring that actual notice (by a conversation via telephone, text message, or emails) is given while concurrently serving written notice by tracked U.S. mail service (without requiring the recipient to sign for receipt). As another option, school districts may consider entering into an agreement with the local union permitting service of layoff notices to be administered in another manner.

Takeaways

School districts who are forced to consider initiating classified staff reductions for the 2020-21 school year should be mindful of the notice deadlines and service requirements due to the current COVID-19 pandemic. If you require assistance or have any questions about the layoff process, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here:
http://www.lozanosmith.com/covid19.php
.

Written by:

Darren C. Kameya

Partner

Marina L. Ramirez

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Pair of Cases Uphold School Districts’ Limitations on Parent Communications and Access to Campus

April 2020
Number 29

Parents have legal rights to access school campuses, advocate for their children, and otherwise be involved in their students’ education. However, in a pair of recent cases, the U.S. Court of Appeals for the Ninth Circuit, affirmed, again, that these rights are not unlimited, and are subject to restriction if parents cannot adhere to a school’s standards of conduct.

L.F. v. Lake Washington School District (L.F.)

The L.F. case involved a parent who disagreed with the school’s decision not to find his daughter eligible for a plan under section 504 of the Rehabilitation Act of 1973 (section 504). Expressing his displeasure with the school district’s actions and his daughter’s education, the parent engaged in “incessant emails…presumptuous demands…demeaning insults,” and “aggressive, hostile, and intimidating” face-to-face interactions. In response, the school district imposed a “communication plan,” which provided that the district would not respond to the parent’s emails, and the parent’s communications would be limited to biweekly in-person meetings with school administrators. Following the parent’s violation of the plan, the district reduced the meetings to once per month.

The parent filed suit in federal court, alleging the communication plan imposed by the district violated his First Amendment free speech rights, constituted retaliation under section 504, and also violated Washington state anti-discrimination laws. The Ninth Circuit’s opinion only addressed the parent’s First Amendment claim. Reasoning that the First Amendment imposes no requirement for public agencies to listen or respond to citizen concerns, the Ninth Circuit concluded that limiting communications to specific channels, if the parent wished to obtain a response, was not a violation of the parent’s free speech rights under the First Amendment.

Camfield v. Redondo Beach Unified School District (Camfield)

This case, also decided by the Ninth Circuit, addressed a similar fact pattern, but was brought as a claim under section 504 and the Americans with Disabilities Act. In Camfield, a parent verbally harassed her student’s instructional aide to the extent that the aide “felt so uncomfortable that she would hide inside a locked classroom until [the parent] left the campus.” In response, the school district issued a “disruptive parent letter,” requiring the parent to seek the school principal’s permission 24 hours in advance of any campus visit.

The parent filed suit, alleging that the limitations on her campus access were in retaliation for her advocacy on behalf of her daughter, who was a student with a disability. The Ninth Circuit found against the parent. Given the parent did not dispute the school district’s characterization of her conduct, the Ninth Circuit found the parent’s actions presented a legitimate, nonretaliatory reason for limiting access to campus. Moreover, such limitations did not interfere with the parent’s ability to advocate on behalf of her child, as the school district never denied permission for her to access the campus. Because the school district responded to the tone of communications, and not the content, the restriction on parental access to campus was reasonable and justified.

Takeaways

Camfield and L.F. both feature examples of procedures available to school districts when parents repeatedly violate standards of conduct. To best defend against claims of retaliation, districts should cite specific factual examples of conduct justifying communications restrictions when communicating with parents in such situations. While Camfield andL.F. feature examples of how a parent’s communications with school staff can be restricted, neither case provides support that communication or access to campuses can be completely forbidden. Further, while neither case analyzes parental participation rights under the Individuals with Disabilities Education Act, it is likely that a court would analyze such an issue and conclude similarly to how the Ninth Circuit did in these cases.Camfield and L.F. provide some examples of how a school district can respond to disruptive or disrespectful parents, but school districts also have other tools when faced with a parent whose conduct jeopardizes the safety or well-being of school employees or the school environment generally. Restricting communications or access of parents, particularly parents of students with disabilities, requires a careful fact-based analysis given protections afforded by anti-discrimination and disability education laws.

If you have any questions about how to address situations involving parents violating standards of conduct, or school safety in general, please contact the author of this Client News Brief or an attorney located at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Tilman A. Heyer

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

2020 Updates: Annual Notice of Parental Rights and Responsibilities

April 2020
Number 28

California school districts and county offices of education are required annually, at the beginning of each school year, to provide written notice of parental rights and responsibilities. Lozano Smith continuously tracks legislation impacting these notices. The following summarizes changes in California law that call for mandatory updates to the Annual Notice of Parental Rights and Responsibilities (Annual Notice) as well as other related changes that do not directly affect the Annual Notice.

To date, legislative and non-legislative orders, actions, directives and guidance related to novel coronavirus (COVID-19) have not addressed or impacted the Annual Notice deadline or required content.

Mandatory Annual Notice Changes

Medical Exemptions for Student Immunizations. The California Legislature passed two laws in 2019, Senate Bills (SB) 276 and 714, respectively, which place additional requirements on parents seeking immunization exemptions based on their child’s medical condition. Students who have a medical exemption issued before January 1, 2021, will be allowed continued enrollment until they enroll in the next “grade span.” Grade spans are defined as follows:

(1) birth through preschool;

(2) Kindergarten through 6th grade; and

(3) 7th through 12th grade.

As of January 1, 2021, the California Department of Public Health (CDPH) must develop and make available a standardized, statewide medical exemption certification form, and school districts and county offices will only be allowed to accept medical exemption requests that are submitted on the CDPH’s form, which the student’s licensed physician or surgeon must complete and submit directly to the California Immunization Registry.

Please note that Lozano Smith previously advised (see Client News Brief Number 54 from October 2019) that medical exemptions requests submitted between January 1, 2020 and December 31, 2020 are only valid until January 1, 2021, which, given the language of the statute, was a reasonable interpretation of these new laws. However, we have recently received clarification from the CDPH that medical exemption requests submitted in 2020 are valid until a student enters the next grade span. Annual Notice immunization provisions should be revised to reflect these new medical exemption requirements.

Residency Retention for Migratory Children. Assembly Bill (AB) 1319 is intended to minimize academic and social disruptions for migratory students. The bill added Education Code section 48204.7, which provides that “currently migratory children,” who are enrolled in a school district due to a parent’s or immediate family member’s temporary or seasonal employment in an agricultural or fishing activity, as defined, must be allowed to continue in their schools of origin, regardless of any change of residence during that school year, for the duration of their status as migratory children.

Also, when a student’s status as a migratory child changes during the school year, school districts must:

(1) allow K-8th grade students to continue enrollment in their schools of origin for the remainder of that school year; and

(2) allow 9-12th grade students to continue in their schools of origin through graduation.

AB 1319 also requires that migratory children and their parents/guardians be informed of the impact that remaining in their schools of origin will have on their eligibility to receive migrant education services, such as instructional, health and welfare services, and transportation.

Since statutory attendance options are a required component of the Annual Notice, we recommend adding a residency retention for migratory children provision.

Related Requirements

The following statutory changes do not impose any new Annual Notice requirements, but school districts and county offices of education should be aware of these new requirements for 2020, especially if a district’s Annual Notice contains content on these subjects:

Self-Administration of Prescribed Asthma Medication. AB 743 requires a school district to accept a written statement provided by a physician or surgeon relating to a pupil carrying and self-administering inhaled asthma medication, from a physician or surgeon who is contracted with a prepaid health plan operating lawfully under the laws of Mexico that is licensed as a health care service plan in California . The written statement must be provided in both English and Spanish and include the name and contact information for the physician or surgeon.

Also, school nurses or other school personnel shall not be subject to professional review, be liable in a civil action, or be subject to criminal prosecution for their acts or omissions relating to a pupil self-administering inhaled asthma medication in accordance with a written statement from such a physician or surgeon. AB 743 also provides that a school district shall not be subject to civil liability if a pupil self-administering inhaled asthma medication in accordance with a written statement from such a physician or surgeon suffers an adverse reaction. AB 743 does not affect the Annual Notice’s medication provisions.

Student Sexual Harassment Policy Distribution and Posters. AB 543 added the requirement that student sexual harassment policies be provided as part of orientation for continuing, as well as for new, students, at the beginning of each quarter, semester, or summer session, as applicable. Student sexual harassment policies are already required to be included with the Annual Notice.

AB 543 also requires schools serving students in any of grades 9 through 12 to create and display age appropriate posters that notify students of the school’s student sexual harassment policy. For more information on the new poster requirement, see Client News Brief Number 71 from November 2019.

Anti-Discrimination Based on Race Now Includes Hair Texture and Protective Hairstyles. SB 188 expanded the definition of “race” to include traits historically associated with race, such as hair texture and protective hairstyles. “Protective hairstyles” may include, but are not limited to, braids, locks, and twists. School districts may wish to update their anti-discrimination policies and Annual Notice provisions to include this expanded definition of race. For more information, see Client News Brief Number 38 from August 2019.

Bullying, Discrimination, Harassment and Suicide Prevention Website Information. Specific information on bullying and harassment prevention must now be readily accessible and in a prominent location on a Local Education Agency’s (LEA) existing internet website. LEAs are defined as county offices of education, school districts, state special schools, and charter schools. AB 34 took effect on January 1, 2020, and further requires that LEAs post on their websites specific state and local policies adopted by the LEA related to hate violence, bullying, harassment, discrimination, and suicide prevention, and resources related to these topics.

Beginning in the 2020-21 academic year, LEAs must have the following information posted on their websites:

a) The LEA’s:

  • Student suicide prevention policy for 7th-12th graders;
  • Student suicide prevention policy for K-6th graders;
  • Sexual harassment policy as it pertains to students;
  • Policy on preventing and responding to hate violence, if it exists;
  • Anti-discrimination, anti-harassment, and anti-intimidation policies; and
  • Anti-bullying and anti-cyberbullying policies and procedures.

b) The definition of discrimination and harassment and copies of Education Code sections 230 (prohibited practices on the basis of sex) and 221.8 (list of rights under Title IX).

c) The name and contact information of the LEA’s Title IX Coordinator.

d) The rights of students and the public, and responsibilities of the LEA, under Title IX.

e) A description of how to file a Title IX complaint, including an explanation of the statute of limitations and how the complaint will be investigated, with weblinks to this information on the United States Department of Education Office for Civil Rights’ (OCR) website.

f) A weblink to the federal regulations implementing Title IX from the OCR website.

g) Social media bullying prevention and statewide and community resource information for students who have been victims of violence, bullying, discrimination, intimidation and harassment.

See Client News Brief Number 70 from November 2019 for more information.

Lozano Smith regularly reviews and updates Annual Notices for school districts and county offices of education around the state. Such revisions involve either an update to last year’s Annual Notice to account for changes in the law within the past year, or a more comprehensive review to covering changes in the law over the past several years and/or changes in adopted policies and practices. If you are interested in any of the annual review services that Lozano Smith provides, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Claudia P. Weaver

Partner

Mary Gates

Paralegal

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Brown Act Case Clarifies Brown Act’s Pending Litigation Exception When Litigation is Orally Threatened

April 2020
Number 27

On February 10, 2020, the California Court of Appeal decided Fowler v. City of Lafayette (2020) __ Cal.App.5th __, concluding a five-year dispute among neighbors involving the construction of a tennis court cabana on private residential property. Neighbors opposing the project challenged it at every stage in the review process. In the end, the disagreement embroiled the City of Lafayette (the City) in Brown Act litigation. On appeal, the case established new precedent governing the Brown Act.

The Brown Act generally requires that governing bodies, such as a city council, conduct their business in open session allowing for public participation. Under certain exceptions, governing boards may conduct business in “closed session,” out of the view and participation of the public. One such exception allows governing boards to discuss pending or threatened litigation in closed session, provided that the closed session discussion is properly noticed and any action taken during closed session is “reported out” once the board returns to open session.

One of the issues in Fowler was whether the City violated the Brown Act by discussing in closed session an oral threat of future litigation communicated by the project applicant’s attorney. The applicant’s attorney had told City planning department staff that he would sue the City if the City continued its refusal to allow the project to move forward. The City planner made a digital note of the threat in the relevant project application file in the City’s computer system. He also informed the City attorney.

The timing of the threat coincided with the City council’s review of the project application. Because of this, the City attorney discussed the litigation threat with the council in closed session. The City attorney did not provide the council with the City planner’s note of the communicated threat, and the note was not placed within the meeting agenda packet. Rather, to provide notice of the closed session discussion, the agenda contained a general reference that the City Council would “confer with legal counsel in closed session about one case of anticipated litigation,” without identifying the facts and circumstances of that case. When the Council held the closed session and thereafter approved the project application, the neighbors sued the City, petitioning the court to overturn the City’s approval on the theory that the City council committed a Brown Act violation by not including the City planner’s note of the threat in the publicly-posted agenda for the meeting.

The trial court ruled in favor of the City. However, the Court of Appeal reversed that decision. According to the Court of Appeal, Government Code section 54956.9, subdivision (e)(5) (Section (e)(5)), required the City to provide the litigation threat to the public with the meeting agenda packet.

Under Section (e)(5), a contemporaneous note or other record of “a statement threatening litigation made by a person outside an open and public meeting on a specific matter” constitutes a basis for a closed session discussion pursuant to the Brown Act’s pending litigation exemption. The plain language of Section (e)(5) also requires the note to be made available for public inspection upon request.

However, the Court of Appeal took into consideration that the document containing the litigation threat was buried within the City planner’s notes, in the applicant’s file, located within in a password-protected computer database. The court reasoned that, based on these facts, the public would not have access to the document unless it knew exactly what to request. According to the court, “This availability is illusory if an interested person would not know the question to ask.” And, citing to well-settled case law, the court said “the Brown Act must be construed liberally” to achieve government transparency.

Accordingly, the court held the public is entitled to rely on the agenda packet made available upon request, and in order to base the need for closed session discussion on a staff note memorializing a verbal threat of litigation, the note must be provided within the agenda packet.

Despite the court’s finding that the City did in fact commit a Brown Act violation, the neighbors did not prevail in stopping the tennis cabana project. The court held that the project application approval was a separate and distinct issue from the threatened litigation and closed session discussion. According to the court, the City complied with the Brown Act when it held open meetings to discuss the project application. Therefore, the neighbors were not prejudiced by the City’s violation of the closed session requirement.

Takeaways

Under Fowler, a local agency that receives a verbal threat of litigation that is memorialized by the agency in writing must now make that writing available in a public meeting agenda packet before going into closed session under Section (e)(5). If the threat was in writing, the agency similarly would presumably have to include that writing if relying on Section (e)(5) to allow for a closed session. We note that Government Code section 54956.9, subdivision (d)(3) (Section (d)(3)) allows for a closed session to consult with legal counsel when there are “existing facts and circumstances” that might result in litigation. There are specific rules about how to agenize the matter and what must be on the agenda or disclosed verbally if relying on Section (d)(3), but this may be an alternative to agendizing under Section (e)(5) in certain circumstances that would not require making a record of threatened litigation publicly available with the agenda.

If you would like more information about this case or have any questions related to the Brown Act and closed sessions for potential litigation matters, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Mary F. Lerner

Partner

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court of Appeal Issues Opinion in School Districts’ Favor in Latest Round of P.E. Minutes Litigation

April 2020
Number 26

In the latest chapter of litigation over physical education (P.E.) minutes, the Court of Appeal recently issued an unpublished opinion in Cal200, Inc. v. Apple Valley Unified School District. The opinion is notable for two reasons. First, the court sets forth a comprehensive analysis of when a party has standing to seek injunctive relief in a matter. Second, the opinion addresses the unique set of circumstances where a party affirmatively requests for a court to issue judgment against itself, ordering the exact relief which the opposing party seeks.

Background

Cal200, Inc. (Cal200) is a corporation purporting to advocate for the right of children to P.E. instructional minutes in California’s elementary schools. Cal200 does not claim it has been personally harmed or aggrieved in any manner by the respondent districts’ alleged conduct of providing less than 200 minutes of P.E. instruction every ten school days for pupils in first through sixth grades, pursuant to Education Code section 51210, subdivision (a)(7). However, to date, Cal200 has sued over 125 California school districts in multiple, costly, lawsuits spanning many years, all premised upon the same theory and seeking to remedy alleged public harm arising from these alleged violations.

The Court’s Opinion

In this latest iteration, Cal200 sued Apple Valley Unified School District and 87 others school districts, seeking a writ of mandate ordering the districts to provide the required number of P.E. minutes. A writ is a legal remedy that requires a public agency to act as directed by the court. The crux of Cal200’s appeal in the present matter was that they were entitled to more relief than that granted by the superior court. Specifically, Cal200 contended they were entitled to an injunction. However, the superior court had already issued a writ against five of the districts (pursuant to the districts’ own motion).

Although in most cases a party must have a beneficial interest in a matter in order to have standing to litigate that matter before a court, Civil Code section 1086 contains a narrow “public interest” exception permitting any member of the public to seek a writ against a public officer or entity in appropriate circumstances. In rejecting Cal200’s arguments, the Court of Appeal distinguished between a party’s standing to seek a writ in the “public interest” and the standing required for a party to be entitled to an injunction against a public agency where the party alleges no particularized harm as to itself apart from that alleged as to the public at large. Relying upon appellate case law, the court confirmed that standing to seek an injunction is only available where a party has been personally “aggrieved by certain torts or other wrongful acts[,]” and is able to show “an actual or threatened injury to property or personal rights.” The court stressed that injunctive relief bears its own beneficial interest requirement, the absence of which is dispositive-that is, to have standing to obtain an injunction, “a party must be beneficially interested in the controversy[,]” “as to himself.” Thus, a party may have standing to seek a writ, while lacking the particularized harm that would entitle that party to an injunction.

In the unique circumstances of this case, the districts affirmatively requested that the superior court issue the writ sought by Cal200, which simply had the effect of requiring the districts to comply with applicable law. When the superior court did so, Cal200 appealed, arguing that such action by the superior court was improper without Cal200’s consent, or some evidentiary proceeding confirming propriety of writ issuance. The Court of Appeal disagreed, confirming that, generally speaking, there are no procedural or evidentiary requisites that must be satisfied before judgment may be entered in an opposing party’s favor.

On this point, the opinion provides an important analysis helpful to future litigants, who may see strategic value in requesting a court to enter judgment against themselves, in an opposing party’s favor, and the opinion confirms that a party need not necessarily satisfy specific evidentiary or procedural prerequisites before requesting such action from a court, especially in litigation designated as “complex.” By extension, the opinion further demonstrates the broad universe of remedies available in a complex litigation matter, including issuance of a judgment or order not expressly delineated by statute or common law.

Takeaways

The court’s opinion was initially published. However, after Cal200 sought review of the opinion by the California Supreme Court, the state’s high court denied review, but determined not to publish the case. As such, the unpublished opinion cannot be relied upon directly as future precedent. The opinion, however, still provides a helpful analysis of the difference between the applicable standards for seeking writ and injunctive relief against a public entity or officer. This case marks the latest in the series of cases against school districts around the state by the appellants, the purpose of which largely appears to be seeking attorneys’ fees from school districts. Four of the five school districts involved in this appeal were represented by Lozano Smith attorneys Sloan Simmons, Anne Collins, Steve Ngo and Erin Hamor.

For additional information regarding the court’s decision in these cases and its unpublished opinion, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Brenda E. Arzate

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Public Agencies Must Disclose All Public Documents Regardless of the Record’s Origin

April 2020
Number 25

In Becerra v. Superior Court of San Francisco, California’s First District Court of Appeal broadened the definition of documents that public agencies must provide pursuant to a request made under the Public Records Act (PRA), to include records in the possession of the agency regardless of the record’s origin. The court held that the PRA “generally requires disclosure of all responsive records in the possession of the Department, regardless whether the records pertain to officers employed by the Department or by another public agency and regardless whether the Department or another public agency created the records.”

Background

The PRA requires public agencies to respond and produce public records whenever they are requested. On January 1, 2019, Senate Bill (SB) 1421 expanded California Penal Code section 832.7 and 832.8 making some peace officer records, previously held to be confidential, public documents under the PRA. (See 2018 Client News Brief No. 60) Those records which are now considered public records include peace officer records involving incidents of the discharge of a firearm at a person, use of force resulting in death or great bodily injury, sustained findings of dishonesty, or sustained findings of sexual assault.

After SB 1421 became law, a coalition of news organizations called theFirst Amendment Coalition requested records from the DOJ. The Attorney General objected to the request, in part, stating that it would not provide documents that it received from other agencies as the DOJ was not the agency that “maintains” those documents. They asked the First Amendment Coalition to request those documents from the separate agencies directly. In response to the objections, the First Amendment Coalition filed a lawsuit seeking to compel the DOJ to produce the requested records. The trial court granted the First Amendment Coalition’s writ and ordered the DOJ to produce all the requested documents by January 4, 2020. The DOJ filed an appeal requesting that the trial court order be vacated with respect to the disclosure of records relating to other agencies’ officers.

Becerra v. Superior Court of San Francisco

This case represents the first time a court has directly tackled the issue of disclosing records in the possession of one agency, but which were created by another agency. The Court of Appeal evaluated the language of Penal Code section 832.7, as amended by SB 1421, and the PRA.

Following its evaluation, the Court of Appeal concluded that based on a plain reading of the PRA, members of the public may inspect any record “retained by” or in the possession of a state agency, despite whether the record was “prepared, owned, [or] used” by the state agency. The Court of Appeal applying this analysis to the new requirement for disclosure of peace officer records found that both the plain language of the statute and the legislative history of SB 1421 supported the position that the statute requires disclosure of all responsive records in the agency’s possession, regardless of where the peace officer was employed or which agency created the record.

Takeaways

The Becerra case provides a broader interpretation of what documents must be disclosed under the PRA and SB 1421, effectively changing a long standing practice by many agencies of not producing records generated by other agencies. As many law enforcement agencies have experienced, the requests for public records under the new provisions of the Penal Code have been numerous and show no sign of ceasing. As more requests come in, issues and interpretation of the new law will continue to evolve. This new case will not only change long standing practices of many agencies, but could have other consequences. For example this new case could be interpreted to require district attorneys’ offices to disclose records from local agencies which relate to issues of officer misconduct if the conduct falls within the four enumerated categories. It could also require agencies to expend additional resources to review all of their records to determine if the agency possesses any documents from other entities responsive to the request received. This is only one of the first opinions, and it is anticipated others will be forthcoming, therefore it is recommended that agencies work with their legal counsel to navigate this new era of transparency.

For more information on the Becerra opinion, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Matthew M. Lear

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

CARES Act – Federal Funding for COVID-19 Prevention

April 2020
Number 24

In the midst of the emergency surrounding the novel coronavirus and its associated respiratory disease (COVID-19), the federal government passed a two trillion dollar spending bill. The bill, known as the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, includes funding assistance in the form of direct tax rebate payments to individuals and couples, increased unemployment benefits, loans for small businesses, student loan payment deferral, and the expansion of numerous federal programs and federally-supported programs administered by state and local governments. Local governments and school districts may be on the receiving end of some of these expenditures. Below are some potential areas of funding for cities, counties, and school districts under the CARES Act.

Coronavirus Relief Funds – Payments to State and Local Governments

The CARES Act appropriates $150 billion to state, local, territorial, and tribal governments for necessary COVID-19 expenditures incurred between March 1, 2020 and December 31, 2020 that were not budgeted by the public entity. Most of this money is allocated to the states based on population, but direct payments can be made to “unit[s] of local government” which meet certain criteria. A “unit of local government” includes a county or municipality with a population of more than 500,000. Most local public entities, save for a handful of large California cities and counties, will not be eligible for direct payments. For California local agencies with a population of less than 500,000, it will be up to the State of California to determine how the money is distributed.

It is unclear whether state appropriation is intended to be a pass-through payment or used only by the direct recipient. There do not appear to be any express bars against disbursement down to the local level, but there is also no directive or process for states to distribute these funds. Therefore, cities, counties, and school districts may be eligible for disbursements from California’s proportionate share, but it remains to be seen what that will look like. A separate bill, the Coronavirus Community Relief Act (H.R. 6467), was recently introduced to provide $250 billion in funding to all local governments with fewer than 500,000 residents. It is pending in the House of Representatives.

Financial Liquidity, Loans, and Bond Purchasing

Under a portion of the CARES act called the Coronavirus Economic Stabilization Act of 2020, up to half a trillion dollars will be available for loans, loan guarantees, and other investments “to provide liquidity to eligible businesses, States, and municipalities related to losses incurred as a result of coronavirus.” A “municipality” is a political subdivision of a state and appears to include cities, counties, school districts, and other special districts in California. There does not appear to be a designated amount set aside for municipalities, which means cities, counties, and school districts may be competing with private businesses and with states for the available funds.

Direct loans and loan guarantees are available to municipalities under the appropriation. There are few details in the bill as to what the loans would entail for public entities who take advantage. The Treasury Secretary is authorized to make the loans on whatever terms and conditions he determines to be appropriate. Rules establishing procedures and minimum requirements are forthcoming.

In addition to loans, the United States Department of the Treasury can use the money for “purchasing obligations or other interests” directly from issuers or in the secondary market. Municipal bonds and school bonds likely qualify as obligations that could be purchased under the program. Currently, there are no details that would suggest how this program will be implemented and operated. It is unknown at this time whether any special conditions will be required for federal purchasing of municipal bonds, or whether the federal government will simply act as a normal purchaser in the municipal bond market.

Education Stabilization Fund – Grant Money for Schools

The CAREs act establishes the Education Stabilization Fund, which consists of several grant programs and pass-through funding totaling more than $30 billion. Of the appropriations, $3 billion is for states to distribute as grants to educational entities “most significantly impacted by coronavirus” to be able to continue to provide educational services to their students. State governors have discretion in how and how much of these funds will be allocated to local educational agencies. More than $13 billion is allocated directly to local educational agencies, including charter schools, as subgrants to maintain operation and continuity of services. Such grants will be allocated in a similar manner as under the existing federal Elementary and Secondary Education Act. Finally, almost $14 billion will be distributed directly to institutions of higher education for costs associated with changes in instruction due to COVID-19. At least half of the funds must be used for emergency financial aid grants for students.

Recipients of Education Stabilization Fund grants are required, to the greatest extent practicable, to continue to pay their employees and contractors during any disruptions or school closures. This is similar to a California mandate to continue to pay employees and contractors during the COVID-19 emergency. In general, funds not used or distributed by the states must be returned to the U.S. Department of Education.

COVID-19 Pandemic Education Relief Act of 2020 – Various AuthorizationsThe COVID-19 Pandemic Education Relief Act of 2020 is another section of the CARES Act. This section includes an assortment of goodies, mostly for institutions of higher education and students. Among the types of provisions included in this part of the bill are: waivers of matching-fund requirements; transferability or reservation of existing funds; continuation of payments to federal work-study participants; temporary student loan relief and Pell Grant changes; and more.

The bill also permits the United States Secretary of Education to waive certain statutory or regulatory provisions if the waiver is necessary or appropriate due to the COVID-19 emergency. Access to this part is not limited to higher education institutions. State education agencies may request waivers related to assessments, accountability, and reporting requirements related to assessments and accountability. Local educational agencies, including public charter schools, can request waivers of certain provisions of the ESEA. The requests must describe how the COVID-19 emergency prevents or restricts the local educational agency’s ability to comply with the legal requirement and provide assurance that the local educational agency will work to mitigate the negative effects of the waiver.

Unemployment Reimbursement for Local Governments

States will receive an unspecified amount of money equal to one-half of the unemployment benefits paid to employees of governmental entities in order to reimburse the governmental entities for amounts paid into the state unemployment fund in lieu of contributions. “Governmental entities” is not defined and presumably includes all public entities below the state level, such as cities, counties, school districts, and special districts.

Additional Appropriations for Existing Programs

Numerous appropriations are made to existing programs under the label “Emergency Appropriations for Coronavirus Health Response and Agency Operations.” These are generally appropriations to federal programs and agencies. To the extent local public entities and school districts will benefit from these expenditures, it will most likely be through normal operation of the federal program. Here are some notable expenditures under this part:

  • $25 million for broadband to support distance learning services in rural areas.
  • $3.5 billion in payments to states for the Child Care and Development Block Grant for child care assistance for low-income families.
  • Almost $1.9 billion for Children and Families Services Programs. This includes $750 million for programs under the Head Start Act, from which $500 million is available for operating supplemental summer programs.
  • $5 billion for the Community Development Fund, including an additional $2 billion to existing grantees under the current distribution formula and $1 billion directly to states and insular areas, as defined.

There are also appropriations for the Child Nutrition and Supplemental Nutrition Assistance Programs; law enforcement and firefighter grants; funding for operations of public transit; and healthcare programs in response to the COVID-19 emergency.

In general, these are additional appropriations specifically intended to fight COVID-19, but many do not include any more specific instructions for how the funds must be spent beyond “to prevent, prepare for, and respond to coronavirus.” Some appropriations specify that the money should be used for administration, salaries, supplies, equipment, or some other specific expenditure needed to continue program operations or adapt the operations in light of the COVID-19 emergency. In many cases, there is additional money available for distribution under existing grant or award mechanisms to which public entities may be eligible recipients.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

If you have any questions about the CARES Act or other Coronavirus relief funding, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Wesley L. Carlson

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Special Considerations for Students with Exceptional Needs Related to School Closures Due to COVID-19

April 2020
Number 23

Frequently Asked Questions – Part 3

Background

The following information expands on the Frequently Asked Questions (FAQ) issued on March 12, 2020 and March 25, 2020, which provided general guidance for K-12 school districts in responding to the needs of students with disabilities during the COVID-19 pandemic. On April 9, 2020, the California Department of Education (CDE) released new guidance titled “COVID-19 School Closures and Services to Students with Disabilities” to address additional questions CDE received following its March 20, 2020 guidance. As a means of providing general guidance to LEAs, this information is current through April 9, 2020, but is subject to change in light of this rapidly evolving situation.

We recommend consulting with a Lozano Smith special education attorney or your legal counsel before taking action based on these FAQs.

1. Q: Must all Individualized Education Programs (IEPs) be amended to reflect the change to distance learning?

A: Generally, no. However, this does not constitute an exemption from developing IEP amendments entirely.

In its April 9, 2020 guidance, the CDE states that an IEP amendment is not necessary for every student with an IEP. Because schools are physically closed, educational services must now be provided through alternative options such as distance learning. The CDE provides that it is not necessary to amend an IEP solely to reflect that the student’s previously-agreed upon services are now being provided away from the school. CDE quotes guidance from the Office of Special Education Programs (OSEP) which allows flexibility for schools that may not be able to provide all services in the same manner that they were provided before school closures.

Guidance from both CDE and OSEP focus on the methods and location of providing service and operate under the assumption that a student’s current IEP services can remain the same despite school closures. This means that if a student is able to receive agreed-upon IEP services through distance learning, an IEP amendment would not be necessary. According to the CDE, the “IEP that was in effect at the time of the physical school closure remains in effect, and LEAs should, to the greatest extent possible, continue to provide the services called for in those IEPs in alternative ways.” In these instances, it is unnecessary to develop an IEP amendment and obtain parental consent to that amendment.

It is important to note that CDE’s guidance does not provide a sweeping exemption for IEP amendments. An IEP amendment may still be required, depending upon the circumstance. For example, an IEP amendment may be required if: (1) parents request an IEP meeting or propose an IEP amendment, (2) the district needs to address unique circumstances related to alternative service delivery, or (3) there are changes to the special education and related services provided, including but not limited to a change in the frequency or duration of services. In deciding whether an IEP amendment is necessary and/or appropriate, the district should consider whether services are being altered in any way other than the location or method of delivery. Any other changes should be addressed through IEP amendment.

If an IEP amendment is necessary, LEAs should consider including language that indicates that the amendment is temporary. This would explain that the amendment will only be in effect during the COVID-19 school closures and that the student’s IEP will revert back to the last agreed upon IEP closures when schools re-open.

Examples:
IEP amendment not necessary:

  • Last agreed-upon IEP provides 30 minutes weekly of Speech and Language Therapy, and the district offers to provide the same level of Speech and Language Therapy, through teletherapy.
  • Last agreed-upon IEP provides for full inclusion and access to a mental health therapist, and the district offers to provide access to a mental health therapist through some form of distance learning, such as through access to the therapist via phone or video conferencing.

IEP amendment recommended:

  • Service minutes are reduced from the frequency and duration set forth in the last agreed-upon IEP.
  • Current goals cannot be implemented in a distance learning model and need to be changed.
  • Last agreed-upon IEP includes small group services, which must now be provided individually through distance learning.

The above-mentioned examples do not constitute an exhaustive list but are meant to be illustrative of the situations in which IEP amendments are recommended, as there are many situations in which IEP amendments may be required, per CDE’s most recent guidance.

2. Q: Is the LEA precluded from providing services to students with disabilities in-person or in the home for the purpose of supporting the student in accessing alternative learning options?

A: Generally, no, but with the understanding that federal, state, and local health official guidance should be followed. While LEAs are not precluded from providing services in-person or in the home, this does not mean that services must be provided in-person or in the home. CDE states that “in some exceptional circumstances, LEAs may need to provide certain supports and services to individual students in-person in order to maintain students’ mental/physical health and safety for the purpose of supporting the student in accessing the alternative options for learning being offered (e.g. distance learning).” But there must first be an individualized determination that the student needs in-person or home services in order to fulfill that purpose and the health and safety of all involved must remain the primary consideration.

3. Q: Where can a parent of a student with a disability go if there is a question about their student’s IEP?

A: CDE advises parents to communicate with the school district if they have any questions regarding their child’s IEP. CDE encourages parents to reach out to their school site or district office to discuss the impact of the pandemic on their child’s education. Accordingly, we recommend that districts continue to openly communicate with parents and remain accessible to them during this time.

4. Q: What should an LEA do if it has closed school sites due to COVID-19 and is unable to meet the obligation to have an IEP or an Individual Family Service Plan (IFSP) in effect for a child transitioning from Part C to Part B no later than the child’s third birthday?

A: Here, it is clear that the CDE intends for districts to follow the timelines specified under the IDEA and to develop and implement IEPs by the third birthday of a child transitioning from Part C to Part B preschool programs. At this time, the U.S. Department of Education has not waived or exempted this requirement. To meet this obligation, the district may conduct meetings virtually via telephone, videoconference, or by other means consistent with state and local social distancing orders.

5. Q: If IEP teams meet virtually while school sites are closed due to COVID-19, how should parent consent be obtained? Is verbal consent sufficient?

A: No, verbal consent is not sufficient and written consent should still be obtained. Use of electronic signatures or digital signatures can be utilized, per the most recent CDE guidance. Options for electronic signatures or digital signatures could include, but are not limited to, use of applications such as HelloSign, DocuSign, Adobe Sign, as well as scanned copies or photographs of signed signature pages. For record keeping purposes, LEAs should maintain proof of consent, including printed or mailed copies of signed documents.

In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access the suite here: http://www.lozanosmith.com/covid19.php.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sabrina Buendia

Associate

Sarah L. Garcia

Partner

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Major Changes Announced for Spring 2020 AP, SAT, and ACT Exams

April 2020
Number 22

The administering of high school advanced placement (AP) exams, as well as the SAT and ACT college admission exams, has been altered for Spring 2020 in response to COVID-19.

Advanced Placement Exams

In light of the recent disruptions caused by the COVID-19 pandemic, the College Board, the organization that administers the AP program and the SAT, is offering free online AP review classes as of March 25, 2020. AP students will also be able to take their AP exams online from any device, including computers, tablets, or smartphones. Students will also have the option of handwriting their responses and submitting a photo of them.

On April 3, 2020, the College Board made the full exam schedule available online, including local testing times for each AP course. Course-specific exam information, exam scoring, timing, and exam security are also posted on the College Board’s website. The website also states that information regarding details for test day will be provided to AP students and educators in late April of 2020. The exams will be open book/open note and will emphasize content that most schools completed by March of 2020, before school closures. According to the College Board, colleges have expressed support for the online exam solution. Registered students also have the option of cancelling an exam at no charge.

The College Board has asked students who do not have access to the internet to contact them directly as the organization is working on developing solutions to help provide those students with access to the online programs.

SAT and ACT Exams

The College Board has canceled the May 2, 2020 administration of the SAT, and has cancelled makeup exam dates for past exams. Registered students will be refunded for the cost of the canceled exams. While the June 6, 2020 SAT has not been canceled yet, the College Board has expressed student and educator safety as its top priority, signaling the possibility of its cancelation depending on the status of the pandemic. The College Board is currently reviewing solutions for future testing opportunities to address increased testing demand due to the canceled SAT administrations.

The April 4, 2020 administration of the ACT was rescheduled to June 13, 2020, due to the pandemic. Students registered for the April 4, 2020 ACT may receive a refund and will not be automatically rescheduled to take the June 13, 2020 exam. According to the ACT organization, these registered students should receive an email with postponement information and instructions for free rescheduling of the exam.

Relevant Links

The College Board’s exam schedule and course-specific exam information for each AP exam is available at the following link: https://apcoronavirusupdates.collegeboard.org/students/taking-ap-exams/ap-exam-schedule

Information regarding SAT and ACT administration is available at the following links:

SAT: https://collegereadiness.collegeboard.org/sat/register/test-center-closings

ACT: https://www.act.org/content/act/en/covid-19.html

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Tina C. Mirzazadeh

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Department of Education Provides Grading and Graduation Guidance for Local Educational Agencies During School Closures

April 2020
Number 21

Last week, the California Department of Education (CDE) released its highly-anticipated guidance to school districts, county offices of education and charter schools (collectively, LEAs) regarding course grading and graduation requirements as LEAs proceed with delivery of their educational programs through distance learning during the COVID-19 crisis.

The CDE guidance can be found here https://www.cde.ca.gov./ls/he/hn/gradegraduationfaq.asp. CDE’s primary goal in providing this guidance is that school districts “do no harm to students.”

Grading Guidance

The CDE reaffirmed that for courses completed through distance learning, the decision of whether to issue letter grades, versus assigning students a pass/fail grade, is to be made by each LEA, depending on the unique needs of their students and school communities. CDE’s guidance goes on to state that teachers have final discretion when assigning grades, based upon the general format and methodology established by the LEA. The CDE underscored the importance of striving for equity when determining distance learning grading policies. Specifically, CDE opined that LEAs should seek to preserve the progress students made prior to physical school closures, and enable students to demonstrate further learning, as appropriate. The CDE stressed that LEAs should address the needs of all students, including students with disabilities, English learners, homeless and foster youth, and students with differing access to digital learning and related materials.

The options available to LEAs around grading are plentiful. The CDE is advising the LEAs may modify current grading to include pass/fail;credit/no credit; or using a modified A-C or A-D grading scale. When implementing a new grading system, LEAs should be careful to consider additional issues that may arise, including how and when to deploy the new policies, consistent with locally-negotiated bargaining unit agreements; how to clearly communicate changes in polices to staff, students, and families; and how the new grading criteria will affect GPA calculations. Additional considerations include policies for how students can make-up late or missed work due to illness. Existing policies should be reevaluated, taking into account the need to be flexible during the present public health crisis.

Graduation Requirements Guidance

The California Education Code establishes a minimum set of requirements for graduation from California high schools, which can be found here: https://www.cde.ca.gov/ci/gs/hs/hsgrtable.asp. It is expected that LEAs will enable students to complete state graduation requirements with needed flexibility around assignments and grading. Importantly, LEAs may submit a request for a waiver of the state graduation requirements to the State Board of Education for specific students. Such waivers must be approved at a public hearing of a school district’s governing board, county board of education, or authorizer’s governing board on behalf of a charter school. Additionally, pursuant to the Education Code, employee associations must be given an opportunity to participate in the development of the waiver. More information on the waiver process can be found here: https://www.cde.ca.gov/re/lr/wr/.

As with grading policies, local governing boards may elect to amend their own graduation requirements, to the extent they were designed to go beyond the Education Code’s requirements.

College Eligibility Guidance

Questions have also arisen regarding how a change in grading will affect a student’s eligibility for admission to state colleges (including either the UC system or the CSU system). State leaders in k-12 education as well as higher education are currently meeting to determine the best ways to hold students harmless from any impacts caused by school closures and distance learning. The UC and CSU systems are willing to accept credit/no credit grades in lieu of letter grades for all courses (including the required courses known as “A-G” courses) completed in winter/spring/summer 2020 for all students. Grades of credit/no credit will have no effect on the UC and CSU high school GPA calculations. More specific information from colleges and universities in California is available at the following links:

Takeaways

The CDE’s guidance provides LEAs with a lot of discretion regarding how they want to proceed in delivering high-quality education to their students. The primary vehicles by which LEAs may implement revised policies around grading and graduation requirements include board resolution, or amendment of board policies and/or administrative regulations. Generally, the best option regarding grading issues appears to be the amendment of the relevant administrative regulation, which many school districts accomplish without governing board approval.

If you have questions about this recent CDE guidance, would like assistance in amending grading and graduation requirements, or have questions related to any other novel issues that arise during this time of crisis, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Sophia V. Cohn

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Framework for Labor-Management Collaboration Jointly Issued by Governor and Statewide Organizations

April 2020
Number 20

On April 1, 2020, Governor Gavin Newsom announced that California labor and management organizations have jointly agreed to a framework for collaboration during the novel coronavirus (COVID-19) emergency. The announcement comes at a time when local education agencies (LEAs) and bargaining units across California are working together to resolve issues related to the evolving developments and growing uncertainties related to COVID-19. The framework is intended to assist LEAs and bargaining units negotiating agreements related to labor and management matters impacted by the implementation and delivery of distance learning, special education, and meals to students through the end of the school year.

The key components of the framework include:

  • School employees will continue to receive pay and benefits through the 2019-20 budget year, including temporary, hourly, exempt, and non-exempt employees.
  • Subject to executive orders, current law, regulations, and guidance, employees are not required to use accrued sick leave to comply with a medical professional’s recommendation, including quarantine, to secure their own health or secure the health of their household during the COVID-19 pandemic.
  • Schools and their employees shall continue to deliver education to students through any practical means, including distance learning and/or independent study.
  • Students in need shall continue to receive meals, utilizing measures that protect the safety of both students and school employees.
  • Schools shall provide adequate personal protective equipment (PPE), to the extent reasonably possible and consistent with the California Department of Public Health and the Centers for Disease Control and Prevention guidelines.
  • Labor and management should work together in gathering information, developing plans, and decision making to find the best path for students, employees, and communities.

This framework is neither binding nor a mandate from the State, nor is it intended to abrogate, amend, or affect current law, regulation, executive orders or agreements that have been entered into. The framework is solely intended to serve as a guide or aspirational framework for labor agreements. It does not affect any memoranda of understanding or other agreements already reached between LEAs and bargaining units.

LEAs are encouraged to consult with their legal counsel prior to acting on the information contained in framework and in order to respond to unions wishing to create agreements with provisions from this framework.

The Framework for Labor-Management Collaboration may be accessed at the following link: https://www.gov.ca.gov/wp-content/uploads/2020/04/4.1.20-Labor-Management-Framework.pdf.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Courtney de Groof

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Governor Newsom Signs Two Bills Aimed to Assist Local Educational Agencies During COVID-19 Crisis

March 2020
Number 19

On March 17, 2020, Governor Gavin Newsom signed two bills, Senate Bill (SB) 117 and SB 89, into law which provide for emergency funding to help fight the novel coronavirus (COVID-19) pandemic and help to clarify the law as it relates to school districts. The bills address several issues confronting school districts, county offices of education, and charter schools. SB 117 provides necessary funding, ensuring that local educational agencies (LEAs) may continue to operate, and waives various requirements and deadlines otherwise required by law. SB 89 provides for significant funding to be used to assist individuals, nonprofit organizations, and small businesses experiencing economic hardships due to the impacts of COVID-19. Both bills took effect immediately. Below are highlights of each bill.

Senate Bill 117

School Funding.

For purposes of Average Daily Attendance (“ADA”) reporting to determine funding, LEAs need only report their ADA from July 1, 2019 to February 29, 2020, rather than July 1, 2019 to April 15, 2020. This has the effect of providing full state funding for closed schools, as described and required by Executive Order N-26-20, with the stated intent to ensure that employees and contractors are compensated and paid during the time that a school is closed due to the COVID-19 pandemic. Because the legislation did not include details related to this compensation piece, some districts are grappling with how best to implement this provision.

Similarly, the bill provides that for After-School Education and Safety programs, LEAs will receive funding based on the ADA they would have reported but for the school closure.

The bill also appropriates $100 million from the state’s general fund to be provided to certain LEAs for purposes of purchasing personal protective equipment, or paying for supplies and labor related to cleaning school sites, or both.

Instructional Time.

Schools that are closed are excused from the instructional time requirement. The requirement will be deemed to have been met upon written certification that the school was closed due to COVID-19 on a form unique to the current situation, rather than by following the typical waiver procedure.

Assessments.

SB 117 provides a 45-day extension for LEAs to administer English Learner proficiency assessments (normally required upon a pupil’s initial enrollment and at least annually during a four-month period after January 1).

SB 117 provides for an extension of the testing window to perform such English Learner assessments (English Language Proficiency Assessments of California or “ELPAC”), equal to “the length of time a school is closed due to COVID-19, or until the end of the testing window, whichever comes first.” The same extension applies to the testing window for the California Assessment of Student Performance and Progress (CAASPP), and the physical performance test.

On March 18, 2020, a day after SB 117 was signed into law, the California Department of Education announced that it had suspended all CAASPP testing and ELPAC testing for the 2019-2020 school year, and had placed the physical fitness test on hold until students returned to school.

Moreover, while not covered under SB 117, on March 20, 2020, Secretary of Education Betsy DeVos announced the United States Department of Education will grant a waiver to any state that is unable to assess its students due to the ongoing national emergency, providing relief from federally mandated testing requirements for this school year. Any state that receives this waiver may also receive a waiver from the requirement that this testing data be used in the statewide accountability system due to the national emergency. On March 26, 2020, California’s waiver application was submitted and the U.S. Department of Education issued its preliminary approval. The public comment period for all stakeholders and LEAs is open through April 15, 2020.

Special Education & Student Records.

SB 117 extends the 15-day timeline a district has to propose an assessment plan to determine if a student requires an Individualized Education Plan (IEP) by the number of days the school is closed-in effect, the 15-day period is paused during the time the school is closed and begins running once the school reopens and the regular school session reconvenes.

Under existing law, parents of special education students have the right to examine and receive copies of the student’s records within five business days, before any IEP meeting, and before any hearing or resolution session. The bill excuses LEAs that have closed from meeting these timelines, up until the school reopens and the regular school session reconvenes. However, the bill explicitly encourages LEAs to respond as expeditiously as possible to requests from parents or guardians received during the period of time a school is closed due to COVID-19. Because of what appears to be a Legislative oversight, some parents might assert that LEAs must respond to student records requests (within five business days), including the transfer of records to a student’s new school district (within ten schooldays), according to normal timelines. LEAs should assume that the rules applicable to records requests under SB 117 apply to all student records requests, resulting in the waiver of timelines until COVID-19 school closures end. Still, LEAs should respond to parent requests during this time period “as expeditiously as possible.” With this in mind, if an LEA knows that, due to COVID-19 school closures, it is unable to comply with a request for records within the normal five business day timeline or the timeline to transfer records to a student’s new school, the LEA is best served to provide notice of this in writing to parents who request records during this time period. Note that timelines under the IDEA and FERPA still apply. For advice on guidance on how to respond to records requests during closures, please see our CNB.

Charter Schools.

A charter school that does not have an independent study program or distance learning program in its currently approved charter petition does not need to submit a request to alter its charter petition to offer independent study or distance learning programs during the period of time the charter school is closed due to COVID-19.

State-Subsidized Childcare and Development Programs.

Such programs are exempt from attendance and reporting requirements, subject to guidance from the State Superintendent of Public Instruction to ensure the continuity of payments. Pursuant to guidance and direction from the Superintendent, childcare and development programs shall be reimbursed using the most recent certified record or invoice available.

Uniform Complaint Procedure.

Timelines included in the uniform complaint procedure are extended by the length of the school’s closure due to COVID-19.

Senate Bill 89

SB 89 appropriates $500 million from the General Fund-and up to $1 billion over time-to be used to provide assistance related to the impacts of COVID-19. The intent is to assist individuals, nonprofit organizations, and small businesses experiencing economic hardships due to the impacts of COVID-19.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Aimee Perry

Partner

Angela J. Okamura

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Important Update: The deadline to file the Annual Statement of Economic Interests (Form 700) has been extended from April 1, 2020 to June 1, 2020

March 2020
Number 18

In light of the current COVID-19 pandemic, the Fair Political Practices Commission (FPPC) has announced it is allowing a 60-day extension for those required to file a 2019 Annual Statement of Economic Interests (Form 700). As a result of this extension, Form 700’s normally due no later than April 1, 2020 will be accepted by the FPPC as timely filed if submitted by June 1, 2020. This extension applies to all officials required to file in April pursuant to Commission Regulations 18723 and 18730. This extension will likely be welcomed relief for many public officials in California required to file Form 700’s, and is in contrast to the FPPC guidance issued on March 17, 2020 indicating that the April 1 deadline could not be extended by state or local filing officers.

The FPPC still encourages annual filers to file as soon as they are able, in advance of the June 1, 2020 extended deadline. Those who have access to an electronic Form 700 filing system are encouraged to use it. If electronic filing is not available, filers can submit Form 700’s by mail. Statements postmarked on or before June 1, 2020 will be considered filed on time. The Commission intends to formally ratify this extension at its April 2 special meeting.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Scott G. Cross

Partner

Andrea Ortega

Law Clerk

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Supreme Court Sides Against School Districts in State Mandates Case

February 2020
Number 11

In California School Boards Association v. State of California ( CSBA), the California Supreme Court has allowed the Legislature to avoid appropriating new funding to cover the costs of state mandated programs. Instead, the Legislature is now able to point to existing, unrestricted state funding to satisfy the Constitutional requirement that it identify funding for such programs. In light of the court’s holding the Legislature may be incentivized to create new state mandated programs utilizing unrestricted state funding previously intended for school districts’ discretionary use. The reduction in unrestricted funding and the commensurate increase in state mandate programs threatens to erode local control of public education.

State Mandates in California

The California Constitution provides that when “the Legislature or any state agency mandates a new program or higher level of service on any local government, the State shall provide a subvention of funds to reimburse that local government for the costs of the program or increased level of service.” (Cal. Const., art. XIIIB, § 6, subd. (a).) The Legislature created a statutory process to implement this constitutional provision, including the creation of the Commission on State Mandates (CSM) which is responsible for hearing “test claims” from public agencies to determine whether the Legislature or a state agency has created a new “reimbursable mandate.”

Among other requirements, the CSM is prohibited from finding a reimbursable mandate if “[t]he state [or] executive order [alleged to impose the mandate] or an appropriation in a Budget Act or other bill provides for offsetting savings to local agencies or school districts that result in no net costs to the local agencies or school districts, or includes additional revenue that was specifically intended to fund the costs of the state mandate in an amount sufficient to fund the cost of the state mandate.” (Gov. Code, § 17556.)

The CSBA Opinion

CSBA involved two requirements the Legislature imposed upon school districts that had been previously determined by the CSM to be state mandates: (1) a science course graduation requirement; and (2) regulations related to behavior health interventions for students receiving special education and related services. The Legislature passed two bills requiring school districts to utilize unrestricted state funding for each of these mandates. These bills were challenged as violating the California Constitution’s requirement that the Legislature “reimburse that local government for the costs of the program or increased level of service.”

The Court reasoned the Legislature could have reduced school districts’ unrestricted state funding and provided new funding for the mandates at issue in an amount equal. The Legislature’s designation of unrestricted state funding for mandated costs was the functional equivalent.

The Court also described several permissible ways in which the mandate requirements of California Constitution could be met by the Legislature: (1) provide new funding; (2) eliminate a different program or funded mandate to free up funds to pay for a new mandate; (3) identify new offsetting savings or offsetting revenue; (4) designate previously unrestricted funding as prospectively allocated for the mandate; or (5) suspend the mandate and render it unenforceable for one or more budget years. Thus, the court affirmed the Legislature’s use of the fourth option listed here for the mandates at issue in CSBA.

Takeaways

The State high court’s decision provides the Legislature with additional flexibility to impose mandates on school districts because it can designate unrestricted funding to cover the costs of the mandate rather than providing new funding. As the Legislature burdens unrestricted state funding with the covering the costs of state mandates, there will be fewer dollars available for school districts to address local needs. The result could be a further erosion of local control of public education.

If you have any questions about the CSBA v. State decision or state mandates in general, please contact the author of this Client News Brief or an attorney at one of our eight officeslocated statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Nicholas J. Clair

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Federal Families First Coronavirus Response Act: Temporary Employer-Paid Sick Leave and Employer-Paid FMLA Leave for Childcare

March 2020
Number 17

In response to the nationwide economic disruption and uncertainty resulting from the COVID-19 outbreak, Congress passed, and the President signed, the “Families First Coronavirus Response Act” (H.R. 6201), which became law on March 18, 2020. While H.R. 6201 provides federal assistance in a range of areas, this Client News Brief focuses on relief provided by H.R. 6201 in the form of employer-paid sick leave for individuals and families unable to work due to the virus or its effects.

Background

California public agency employees are granted a certain amount of annual sick leave by statute. Modified or additional paid leave may be available pursuant to collective bargaining agreements and/or agency policy. Up to half of an employee’s sick leave may also be used to care for a sick family member.

Emergency Paid Sick Leave Act

Under the unique circumstances resulting from the COVID-19 outbreak, H.R. 6201 established the Emergency Paid Sick Leave Act (EPSLA), which requires all public agency employers, regardless of size, and private employers with fewer than 500 employees, to provide temporary paid sick leave to eligible employees. Until December 31, 2020, full-time employees in the following subgroups will receive 80 hours (approximately two work-weeks) of employer-paid sick leave not to exceed $511 per day and $5,110 in the aggregate for any of the following reasons:

  1. Employees subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. Employees advised by a health care provider to self-quarantine due to COVID-19 related concerns; or
  3. Employees experiencing COVID-19 symptoms and seeking a medical diagnosis.

Employees taking leave for the following reasons will receive 80 hours (approximately two workweeks) of employer-paid sick leave at 2/3 their regular pay amount not to exceed $200 per day and $2,000 in the aggregate:

  1. Employees caring for an individual who meets the specifications in (1) or (2) above;
  2. Employees caring for a son or daughter due to school or childcare closure based on COVID-19 precautions; or
  3. Employees experiencing any other similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

“Son or daughter” includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older and incapable of self-care because of a mental or physical disability. Part-time employees in all categories get the number of hours of paid leave equal to their average work hours over a two workweek period. This sick leave is available to any employee, excluding employees who are healthcare providers and emergency responders. There is no requirement that an employee have worked for the employer for any particular length of time. Employers must also post a notice of these requirements in conspicuous place.

The EPSLA creates a completely new bank of sick leave that an employee can elect to use immediately. An employer cannot force an employee to use other existing leave before using this new sick leave.

FMLA Expansion

H.R. 6201 also allows employees to receive employer-paid leave under the Family and Medical Leave Act (FMLA), under limited circumstances. Qualifying employers are private entities with fewer than 500 employees, and all public agencies already required to comply with the FMLA. While employers with under 50 employees are typically excluded from the FMLA, this exclusion is retracted for purposes of the temporary FMLA expansion. In addition, an employer is not required to provide such leave to employees who are healthcare providers or emergency responders. Until December 31, 2020, employees unable to work (or telework) because of their son or daughter’s school closure or unavailability of the child care provider due to COVID-19, are eligible to take up to 12 weeks of FMLA leave, paid as follows:

  • The first 10 days of the expanded FMLA leave are unpaid, but may run concurrently with alternative employer-paid leaves including paid leave under the EPSLA, should the employee choose to use paid leave.
  • For the remaining 10 weeks, the employee is eligible to receive two-thirds of their average monthly earnings, not to exceed $200 per day and $10,000 in the aggregate.

“Son or daughter” has the same meaning as stated above. Employees have access to this leave after having worked for the employer for 30 days, rather than the typical 1,250 hours over 12 months under the FMLA.

Tax Credit for Employer-Paid Social Security Taxes Not Available to Public Agencies

While the Act provides a tax credit for employer-paid social security taxes as an effort to reduce the financial burden from these new paid leave entitlements, this tax credit is only available for private employers and not for public employers. The Act does not seem to include reimbursement provisions for public entities that must provide the new paid leave. Additional guidance from the federal government on the topic of reimbursements may follow.

Takeaways

H.R. 6201 will go into effect not later than April 2, 2020. Until then, employees are able to use existing qualifying leave time if they are forced to miss work due to COVID-19. Leave granted pursuant to H.R. 6201 is in addition to any paid or unpaid leave employers already provide.

If you have any questions about H.R. 6201, FMLA or labor and employment issues related to COVID-19 in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Jenell Van Bindsbergen

Partner

Kate S. Holding

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Special Considerations for Students with Exceptional Needs Related to School Closures Due to COVID-19

March 2020
Number 16

Frequently Asked Questions – Part 2

Background

The following updates and expands on the Frequently Asked Questions (FAQ) we issued on March 12, 2020 (available here), which provided general guidance for K-12 school districts in responding to the needs of students with disabilities during the COVID-19 pandemic. Since that date, additional statutory and federal and state guidance has been issued, listed below. The information in this document is current through March 24, 2020, but is subject to change in light of this rapidly evolving situation and potential legislation from the federal government waiving certain IDEA requirements. We recommend you consult with a Lozano Smith special education attorney or your legal counsel before taking action based on these FAQs.

  • Governor Gavin Newsom issued Executive Order N-26-20 on March 13, 2020, addressing local educational agencies’ (LEAs) response to COVID-19 (Executive Order N-26-20);
  • Senate Bill 117 (SB 117) received Governor Newsom’s approval on March 17, 2020, and went into effect immediately upon signature, impacting, in part, special education timelines;
  • United States Department of Education Office for Civil Rights (OCR) on March 16, 2020, issued a “Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students” (OCR Fact Sheet) and an accompanying seven-minute webinar (OCR Webinar);
  • California Department of Education (CDE) and the Health and Human Services Agency (HHS) jointly issued guidance on March 17, 2020, addressing, in part, the implementation of distance learning strategies and equity and access issues related to differential access to internet connectivity and technology (CDE Distance Learning Guidance);
  • CDE issued “Special Education Guidance for COVID_19: COVID_19 School Closures and Services to Students with Disabilities” on March 20, 2020 (CDE Special Education Guidance); and
  • OCR, on March 21, 2020, issued a “Supplemental Fact Sheet: Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities” (OCR Supplemental Fact Sheet).

As a means of providing general guidance to LEAs, this updated FAQ discusses the above, in the context of serving students with disabilities under the IDEA and Section 504 during school closures due to COVID-19.

1. Q: Does an LEA need to provide educational services to students with an existing IEP or Section 504 Plan if schools are closed due to COVID-19 concerns?

A: Yes. We recommend that LEAs provide educational services to both general education and special education students while schools are closed due to COVID-19.

(Note that this question was answered in our March 12, 2020 FAQ document. However, in light of the additional guidance note above, our answer has been revised.)

With the issues of Executive Order N-26-20, and the passage of SB 117, state funding is available for LEAs that continue to provide “high quality instruction.”

The CDE Distance Learning Guidance specifically provides that LEAs must “immediately” begin to develop Distance Learning Plans, for educating students and providing trainings to teachers and staff. Two major implications of the CDE Distance Learning Guidance are: (1) schools are strongly encouraged to provide some sort of educational opportunity going forward to all students, given that state funding is tied to the delivery of such services; and (2) schools must provide some degree of special education and related services during this crisis.

The CDE Distance Learning Guidance provides examples of what to include in a Distance Learning Plan, including a range and continuum of options to consider, including but not limited to:

  • in-school computer instruction;
  • classroom instruction (with social distancing);
  • work packets;
  • videoconferencing, and
  • online curriculum.

Note that two of these options contemplate students (and staff) returning to schools, and using social-distancing. The viability of these options are subject to change, and may be contingent upon state and local officials determinations and directives, including as the nature, extent and duration of county/city “shelter-in-place” orders, or other developing circumstances.

2. Q: Is an LEA permitted to provide optional enrichment activities to students as opposed to instruction during a school closure?

A: Per Executive Order N-26-20, an LEA can continue to receive state funding to support the continued delivery of “high-quality educational opportunities to students to the extent feasible” during a COVID-19 related school closure. However, “high-quality educational opportunities” is left undefined. When providing optional enrichment activities to students, an LEA should ensure that, those opportunities are accessible to students with disabilities, in an equitable manner, and comparable to those provided to the general student population.

3. Q: Is an LEA permitted to provide instruction to students in an alternative mode of education during a school closure?

A: Yes, LEAs that physically close schools should focus their planning efforts on how to continue serving students with disabilities by tailoring distance learning to provide educational benefit to those students, to the greatest extent practicable under the circumstances. At this time, California LEAs are not prohibited from offering distance learning or independent study to students impacted by a COVID-19 related school closure, and to the extent any state or local law may be interpreted to the contrary, that law is waived by Executive Order N-26-20. The CDE Distance Learning Guidance urges LEAs to develop distance learning plans immediately.

4. Q: If an alternative mode of education is made available to the general student population during a school closure, is the LEA required to make the same alternative education available to students with disabilities?

A: Yes, per the OCR Fact Sheet, if a student who has an IEP through the IDEA or is receiving services under Section 504 is not attending school for an extended period of time due to COVID-19, whether because required or advised to by public health authorities or school officials, provision should be made to maintain education services. If an alternative mode of education is made available to the general student population during a school closure, such as online instruction, tele-instruction, independent study, or some other form of alternative education that does not require “in-person” school attendance, the LEA must ensure that students with disabilities have equal access to the same opportunities, including the provision of a free appropriate public education (FAPE). (34 C.F.R §§ 104.4, 104.33 (Section 504) and 28 C.F.R § 35.130).

For students with disabilities, LEAs must determine on an individual basis whether each student could benefit from online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available, and in following appropriate health guidelines to assess and address the risk of transmission in the provision of such services.

5. Q: If an alternative mode of education is made available during a school closure, is the LEA required to make a FAPE available to students with disabilities?

A: At this time, the federal government has not waived the federal requirements under the IDEA. Accordingly, those obligations continue to apply. As a result, LEAs must ensure that, to the “greatest extent possible,” each student with a disability is provided special education and related services. (34 C.F.R §§ 300.101 and 300.201 (IDEA), and 34 C.F.R § 104.33). The same is true for those students with a Section 504 plan.

6. Q: What is distance learning?

A: By Executive Order N-26-20, the CDE and HHS jointly developed guidance addressing, in part, the implementation of distance learning strategies and addressing equity and access issues that may arise due to differential access to internet connectivity and technology. For purposes of this guidance, “distance learning” is defined to mean instruction in which the student and instructor are in different locations, which could include interacting through the use of computer and communications technology. It includes video or audio instruction in which the primary mode of communication between the student and instructor is online interaction, instructional television, video, tele-courses, or other instruction that relies on computer or communications technology. It may also include the use of print materials incorporating assignments that are the subject of written or oral feedback.

LEAs must assess their ability to deliver distance learning instruction both in an online setting and also in a non-technological setting, keeping in mind that not all students have access to devices or high-speed internet, and that an LEA may not be able to meet the needs of all its students through online instruction. The CDE Distance Learning Guidance includes appendices with guidance, resources, and strategies for providing online instruction to students with disabilities.

Finally, there are confidentiality and privacy considerations relating to distance learning. LEAs should be aware of and put in place steps to ensure that their usage of video, audio, or online interaction for distance learning purposes complies with state and federal data and other privacy laws, as well as LEAs’ own student data or other privacy policies.

7. Q: What if a student does not have a computer or internet access?

A: The California Constitution prohibits LEAs from requiring students to purchase devices or internet access, to provide their own devices, or otherwise pay a fee as a condition of accessing required course materials under the free schools guarantee, per CDE Guidance. LEAs should therefore assess whether a distance learning strategy would provide the most meaningful educational opportunity for students and, if so, steps they can take to ensure equitable access-which does not require, per CDE Guidance that LEAs offer the exact same content through the same channel for all students. Rather than abandoning e-learning because not all students will have equal access to it from home, the plan should include an analysis of alternate deliveries of comparable educational content. These alternate deliveries might include providing students access to a device or internet at school or a community site, consistent with social distancing guidelines. Therefore, in considering the development and implementation of a distance learning plan, LEAs are to assess the continuum of available strategies, with most schools needing to offer multiple options and a combination of strategies to students, depending on accessibility to devices and the internet. This includes considering the means by which students access content, such as by mobile devices like smartphones.

8. Q: Is there any guidance on including students with disabilities in distance learning?

A: Yes. LEAs should consider to the following in supporting students with disabilities in relation to distance learning:

  • Individualized Instruction in Distance Learning Settings. As an LEA considers options for distance learning, the LEA should generally assess the extent to which its students with disabilities will be able to attain educational benefit under each option.
  • Related Services. To the greatest extent possible, LEAs should continue providing related services consistent with the student’s IEP. This may involve providing services on one or more school sites consistent with social distancing guidelines and accounting for the health needs of students and staff.
  • Assistive Technology. LEAs should be flexible in providing access to school-purchased assistive technology devices when necessary, consistent with law, to ensure children have access to devices they typically use at school.

Related, last year’s Assembly Bill (AB) 605 requires that LEAs provide, on a case-by-case basis, the use of school-purchased assistive technology devices in a child’s home or in other settings if the student’s IEP team determines that the child needs access to those devices in order to receive a FAPE.

In addition, OCR’s March 17, 2020 webinar reminded LEAs of their obligations to ensure websites are accessible to students with disabilities. OCR advised that when LEAs are considering the use of online technology for distance learning during the COVID-19 pandemic, schools should keep in mind that many individuals are blind, have low vision, have mobility disabilities, are deaf, are hard of hearing, or have other disabilities such as seizure disorders or cognitive disabilities. As a result, OCR advised that it is important that websites and online learning are built and developed to be accessible to individuals with a variety of disabilities and compatible with the various forms of assistive technology these individuals utilize, such as speech-recognition software, eye tracking and pointing devices, and screen reader software.

9. Q. What if LEAs with school closures have students with disabilities who attend nonpublic schools that are not closed-should those students continue to attend their nonpublic schools?

A. Yes. LEAs are encouraged to work with nonpublic schools and agencies (NPS/A) to take advantage of services that can be offered by NPS/As that elect to continue to provide services during school closures. In addition, CDE Guidance encourages LEAs and NPS/As to work collaboratively to ensure continuity of services for students currently served by NPS/As, pursuant to the IEP, including exploring options related to distance learning. Also, because of continued funding provided to LEAs under Executive Order N-26-20 to offer educational opportunities to all students during school closures, LEAs are encouraged by CDE Guidance to review master contracts with NPS/As and explore options for payment given the likelihood of student absences and the fiscal impact on NPS/As.

10. Q. Can an LEA provide home hospital instruction to students with disabilities who do not have that placement offered in an IEP or Section 504 plan?

A: Home hospital instruction may be an acceptable form of alternative education for students with disabilities, but such a determination should be made on an individual basis. Typically, home hospital instruction is not provided to a student absent a specific medical reason and related documentation. Although by Executive Order N-26-20, only those state and local laws pertaining to independent study and distance learning are being waived, the implication is that the same would apply in relation to home hospital so as to ensure continued access to instruction.

11. Q. Does an LEA need to hold IEP meetings or Section 504 meetings during a school closure?

A: While IDEA timelines for holding IEP meetings (including, annuals, triennials, and IEP meetings to review assessments) are not waived, CDE states that for purposes of its compliance monitoring, CDE will not count days of school closure due to COVID-19. CDE also advises that, unless and until USDOE ultimately provides flexibility under the IDEA, districts should do their best to adhere to IDEA federally mandated timelines to the maximum extent possible. Districts are encouraged to consider ways to use distance technology to meet these obligations. OCR states as a general principle, during this unprecedented national emergency, LEAs are encouraged to work with parents to reach mutually agreeable extensions of time, as appropriate. It is also possible to conduct IEP meetings telephonically or via video-conferencing. During these times, it is advisable for an LEA to maintain communication with parents with regard to any delays, and seek consent to any timeline extensions, where appropriate. If there is a disagreement regarding the delay of a timeline, it is advisable to use a prior written notice (PWN). A PWN is required any time there is a dispute between a parent and an LEA regarding identification, evaluation or placement, and any time there is a proposal or refusal to assess, or make changes to, a student’s education program. (34 C.F.R. § 303.421.)

12. Q. If a referral is received during a school closure for an initial assessment to determine special education eligibility, must the LEA respond within 15 days?

A: No. Typically, if proposed, the assessment plan must be developed within 15 calendar days of referral for assessment, not counting calendar days between the student’s regular school sessions or terms or calendar days of school vacation in excess of five schooldays, from the date of receipt of the referral, unless the parent or guardian agrees in writing to an extension. SB 117 mandates that CDE permit an LEA with school closures due to COVID-19 to consider those school closure days as days between the student’s regular school session, up until the time the school reopens and the regular school session reconvenes.

13. Q: How should an LEA handle pending assessments during a school closure?

A: Given that IDEA timelines have not been waived (at this time), we recommend LEAs strive to meet timelines with minimal delay to avoid impacting students’ education, or seek waivers of the timeline from the parents of students. CDE also advises that, unless and until USDOE ultimately provides flexibility under the IDEA, districts should do their best to adhere to IDEA federally mandated timelines to the maximum extent possible, and should use distance technology to meet these obligations. OCR encourages LEAs to work with parents to reach mutually agreeable extensions of time, as appropriate.

School closures are likely to disrupt special education timelines, including those regarding assessments and IEP meetings to review assessments. In cases where there is a disagreement between parent and an LEA regarding extension of the 60-day timeline, we recommend using PWN.

14. Q: During the period of a school closure, how should an LEA handle a request for student records from a parent or an attorney or advocate on behalf of a parent?

A: Typically, LEAs must respond to a parent’s request for student records within five business days (whether for special or general education student records). SB 117 directs that the normal five business day timeline to respond to requests for special education student records “shall be waived if a school is closed due to COVID-19, up until the time school reopens and the regular school session reconvenes.” Note, however, even with the waiver of the timeline, SB 117 requires LEAs to respond to requests for student records from parents “as expeditiously as possible” during the period of school closures. Additionally, separate from state deadlines,to date the IDEA’s and FERPA’s 45 calendar day deadline for responding to student records requests has not been adjusted, and LEAs may still need to comply with these 45 calendar day timelines. (34 C.F.R.§§ 99.10(b), 300.613(a).)

15. Q: During the period of a school closure, how should an LEA handle a request for student records received from another school to which the student with a disability is transferring?

A: Typically, LEAs must provide student records to an LEA into which a special education student has transferred within five working days of the request from the student’s new LEA. As with parent records requests, noted above, SB 117 directs that the normal five working day timeline to respond to student transfer records request “shall be waived if a school is closed due to COVID-19, up until the time school reopens and the regular school session reconvenes.” Upon the reopening of schools by an LEA, the LEA should seek to transfer a former student’s records to the student’s new LEA within five working days.

Special Note on FAQs 14 and 15 Regarding Student Records Requests: As noted above, SB 117 waives the normal timelines for responding to student records requests until schools reopen following COVID-19 closures. In enacting this change, SB 117 expressly cites to the records request statutes which generally apply in the special education context (Education Code sections 56043, subdivisions (n) and (o), and 56504, and California Code of Regulations, title 5, section 3024). SB 117, however, is silent with regard to the waiver of the timelines in those statutes which generally govern records requests and the transfer of records for all students, regardless of whether the student is a special education student or a general education student (Education Code sections 49068 and 49069.7, and California Code of Regulations, title 5, section 438).

Because of what appears to be a Legislative oversight, some parents might assert that LEAs must respond to student records requests (within five business days), including the transfer of records to a student’s new school district (within ten schooldays), according to normal timelines. It does not appear, however, that this was Legislature’s intent, as failing to waive the overarching general student records request response timelines which apply to all students would negate the waiver of the timelines that specifically apply to special education students. As a result, LEAs should assume that the rules applicable to records requests under SB 117 apply to all student records requests, resulting in the waiver of timelines until COVID-19 school closures end. Still, LEAs should still respond to parent requests during this time period “as expeditiously as possible.” With this in mind, if an LEA knows that, due to COVID-19 school closures, it is unable to comply with a request for records within the normal five business day timeline or the timeline to transfer records to a student’s new school, the LEA is best served to provide notice of this in writing to parents who request records during this time period.

Finally, as noted above, FERPA and the IDEA require LEAs to respond to a request for records within 45 calendar days. At this time, no provisions of FERPA or IDEA have been waived in relation to school closures, and LEAs may still need to comply with these 45 calendar day timelines to provide student records in response to a parent request.

16. Q: Once school resumes, if it appears that a student with exceptional needs has lost skills, what is the LEA required to do?

A: Depending on a student’s particular needs and the distance learning options available to the LEA, LEAs may also need to develop plans to provide additional services to some students with disabilities when onsite instruction and regular school operations resume. Once school resumes, the student’s IEP team (or appropriate personnel under Section 504) must make an individualized determination as to whether, and to what extent, it may be necessary to provide compensatory education. (34 C.F.R §§ 300.320-300.324, and 34 C.F.R §§ 104.33-104.35). Compensatory services may be necessary if there is a decline in the student’s skills that occurred as a result of the student not receiving services during an extended closure, and such skills are not regained within a reasonable time.

17. Q: Will CDE’s compliance monitoring and investigation timelines be affected by a school closure?

A: Yes. The CDE Special Education Guidance states that unless and until the U.S. Department of Education ultimately provides flexibilities under federal law, LEAs should do their best to adhere to IDEA federally mandated timelines to the maximum extent possible. LEAs are encouraged to consider ways to use distance technology to meet these obligations. However, the CDE has clarified that for purposes of its compliance monitoring, it will not count days of school closure due to COVID-19 when looking at when annual and triennial IEPs are due. Additionally, while CDE will continue to receive complaints that allege violations of IDEA, CDE’s compliance investigation timelines will be extended for the period of time of a school closure to allow LEAs to meaningfully respond to complaint investigations. It is anticipated that once LEAs reopen and are available to participate in the investigation process, the 60-day timeline will recommence and both the complainant and LEA will be notified.In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access the suite here: http://www.lozanosmith.com/covid19.php.

If you have any questions about AB 806 or postsecondary educational student support, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

Alyssa R. Bivins

Associate

Kelly Broedlow Dunagan

Associate

Erin Frazor

Associate

Tilman A. Heyer

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Student Attendance Issues in Response to COVID-19

March 2020
Number 15

The coronavirus disease 2019 (COVID-19) is a novel respiratory disease that has affected communities worldwide. Cases of COVID-19 have recently appeared in several California communities, prompting a significant number of school closures around the state. In the coming weeks, as schools begin to re-open, they may encounter issues regarding student attendance and exclusions. This news brief provides K-12 districts with general guidance relating to these issues.

Excluding Students from School

Whenever there is good reason to believe that a student has contracted COVID-19, they must be sent home and may not be permitted to return to school until school authorities are satisfied that the disease no longer exists. Further, any students who have been subject to strict isolation or a quarantine by a health officer may not attend school unless they have received written permission from a health officer to do so. A principal or his or her designee may also exclude students from school if the principal or designee believes that the student’s presence constitutes a clear and present danger to the life, safety, or health of other pupils or school personnel.

When a student is excluded from school for any of the above reasons, a district need not issue prior notice of the exclusion to the student’s parent or guardian, however, the district must send notice of the exclusion as soon as is reasonably possible after the exclusion.

Student Absences

A student absence must be excused when the student is absent for any of the following reasons: 1) the student is ill; 2) the student cannot attend school due to a quarantine implemented by a county or city health officer; or 3) the student is receiving medical services. Additionally, the law has recently been amended to allow school administrators to excuse absences that they deem to be valid in light of a student’s individual circumstances.

This means that students who are absent from school because they have contracted COVID-19 and/or are receiving treatment for COVID-19 must be excused. Also, students who cannot attend school due to a quarantine implemented in response to COVID-19 must be excused. Students who have not contracted COVID-19, are not receiving treatment for COVID-19, and are not quarantined, but who nevertheless decline to come to school due to concerns about the spread of disease, need not be excused, though, school administrators have discretion to excuse these absences if they deem the absences to be valid. Special situations may exist for students with compromised immune systems.

Takeaways

When school districts reopen, they will likely face a number of issues regarding student absences and exclusions. If school districts believe that students have contracted COVID-19, they must exclude these students from school. Further, absences must be excused for students who have contracted COVID-19, are being treated for COVID-19, or have been quarantined. If parents elect to keep their children home from school as a precautionary measure, these absences need not be excused, but may be excused pursuant to the discretion of school administrators. Districts are advised to consult with legal counsel if they have questions about their discretion to excuse absences.

School districts should keep apprised of guidance issued by CDPH and the California Department of Education regarding proper methods for responding to COVID-19. CDPH guidance can be found here: https://www.cdph.ca.gov/Programs/OPA/Pages/New-Release-2020.aspx.

For more information on issues arising from the COVID-19 outbreak, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Thomas R. Manniello

Partner

Benjamin Brown

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Special Considerations for Students with Exceptional Needs Related to School Closures Due to COVID-19

March 2020
Number 14

Frequently Asked Questions

Background

COVID-19 is a novel form of coronavirus which causes respiratory disease that has affected communities worldwide, and cases of COVID-19 recently appeared in California communities, prompting concerns about student wellness, attendance, instruction, and school operations. This FrequentlyAsked Questions (FAQ) sets out general guidance for K-12 school districts as they respond to the needs of students with disabilities in the wake of COVID-19, in a manner that is legally compliant with the Individuals With Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504).

As of the time of this FAQ, throughout the nation, as well as in California, many school districts, colleges and universities have closed schools. In many cases of school closure, instruction has shifted from in-person instruction, to online instruction. This FAQ is only provided as general guidance, and any specific legal questions should be directed to your legal counsel.

The United States Department of Education very recently published a Questions and Answers on Providing Service to Children with Disabilities During a COVID-19 Outbreak (Questions and Answers Memo) which provides guidance to Local Education Agencies (LEAs) to ensure that students with disabilities continue to receive services required under the IDEA and Section 504 in the event of a school closure due to a COVID-19 outbreak (COVID-19 Advisory).The COVID-19 Advisory is available at COVID-19 Advisory. Prior to this, the United States Department of Education published Non-Regulatory Guidance in 2018, in the wake of Hurricane Florence, regarding educational services challenges during times of federal disasters (USDOE Disaster Guidance) available at USDOE Disaster Guidance

This FAQ briefly summarizes much of the information contained in the COVID-19 Advisory, as a means of providing general guidance to LEAs regarding IDEA and Section 504 obligations during school closures due to COVID-19.

Q: If an alternative mode of education is made available to the general student population during a school closure, such as online instruction, tele-instruction, independent study, or some other form of alternative education that does not require “in-person” school attendance, is the LEA required to make the same alternative education available to students with disabilities?

A: Yes, if an alternative mode of education is made available to the general student population during a school closure, such as online instruction, tele-instruction, independent study, or some other form of alternative education that does not require “in-person” school attendance, the LEA is required to make special education available. The COVID-19 Advisory advises that, if an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. (34 CFR§§ 104.4, 104.33 (Section 504) and 28 CFR § 35.130).

Q: If an alternative mode of education is made available to the general student population during a school closure, such as online instruction, tele-instruction, independent study, or some other form of alternative education that does not require “in-person” school attendance, is the LEA required to make special education available?

A: Yes, if an alternative mode of education is made available to the general student population, the COVID-19 Advisory provides that LEAs must ensure that, to the greatest extent possible, each student with a disability is provided special education and related services. It is best pract ce for the provision of special education and related services to be provided in a manner that is as reasonably comparable to that identified in the student’s IEP or Section 504 Plan. (34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33).

Q: What if it is not possible, during a period of extended school closure, to provide the type of special education and related services required by a student’s IEP or Section 504 Plan?

A: If a school continues to provide instruction to the general school population during an extended closure, but is not able to provide services
to a student with a disability in accordance with the student’s IEP, an LEA may consider the following, which the USDOE advises in the COVID-19 Advisory:

  • the IEP team determines which services can be provided to appropriately meet the student’s needs.
  • the IEP team may meet by teleconference or other means to determine if some, or all, of the identified services can be provided through alternative or additional methods.
  • an IEP addendum (or amendment to the Section 504 Plan) may be developed to document changes in the manner of delivery of all or some of the special education and related services.

With regard to students with Section 504 Plans, appropriate personnel responsible under Section 504 must take similar actions regarding a student who has a Section 504 Plan.

Q: Instead of convening an IEP meeting, Section 504 meeting, or making changes to a student’s special education and related services, or Section Plan, via an amendment or addendum, can this be accomplished through a prior written notice (PWN)?

A: The COVID-19 Advisory references the use of PWN in connection with a change in placement to homebound instruction. A PWN is required any time there is a dispute between a parent and an LEA regarding identification, evaluation or placement, and any time there is a proposal or refusal to assess, or make changes to, a student’s education program. (34 C.F.R. § 303.421.) While changes in placements are typically made through the IEP process, by way of an IEP meeting or IEP amendment or addendum, if this is not possible for an LEA under the circumstances, it is advisable that an LEA issue a PWN describing any changes.

Q: How might an LEA provide services to special education students during an extended period of school closure?

A: The COVID-19 Advisory references school closures as “extended” when closure are for more than 10 consecutive school days. Schools should consider ways of ensuring that education activities and services are accessible to students with disabilities when they are provided to the general education population. Technology may afford students, including students with disabilities, an opportunity to have access to educational instruction during an extended school closure, especially when continuing education must be provided through distance learning. However, when considering the issue of technology, an LEA should ensure that accessibility considerations are taken into account, so that instructional content is accessible to students with disabilities.

Q: Once school resumes, if it appears that a student with an IEP has lost skills, what is the LEA required to do?

A: Consistent with the COVID-19 Advisory, once school resumes, the student’s IEP team (or appropriate personnel under Section 504) must make an individualized determination as to whether, and to what extent, it may be necessary to provide compensatory education. (34 CFR §§ 300.320-300.324 (IDEA), and 34 CFR §§ 104.33-104.35). Compensatory services may be necessary when there is a decline in the student’s skills that occurred as a result of the student not receiving services during an extended closure, and such skills are not regained within a reasonable time.

Q: How should schools respond to parent requests for independent study for special education students?

A: Any request for independent study should be addressed in a manner that is consistent with board policies (BP) and administrative regulations (AR). Pursuant to Education Code section 51745(c), any decision to place a special a student on independent study is a decision that must be made by the IEP team. While state law provides that such decision should be made by the IEP team, under the IDEA, changes to a student’s IEP may be also be made via an IEP amendment, as long as the LEA and parent agree to make such changes without convening an IEP meeting. Thus, it seems reasonable that, should a parent request independent study during a period of school closure, or should a parent make such request while the school remains open, the LEA may consider:

  • Processing such request in a manner consistent with the LEA’s BPs and ARs.
  • Convening an IEP meeting to consider such request, on a case-by-case basis.
  • Developing IEP amendments to document the provision of independent study, on a case-by-case basis, where the LEA and parent agree to make such changes without convening an IEP meeting.

Q: How should an LEA respond to a doctor’s note for excusal from school for a student who is medically fragile?

A: The LEA should respond to a doctor’s note for excusal from school for any student, medically fragile or otherwise, in a manner consistent with the LEA’s BPs and ARs, and state law. Per Education Code sections 48205 and 48260, a student absence must be excused when a student is absent due to: (1) illness; (2) the student cannot attend school due to a quarantine implemented by a county or city health officer; or (3) the student is receiving medical services. A student absence may otherwise be excused at the discretion of school administrators. Specifically, school administrators may excuse absences that they deem to be valid in light of a student’s individual circumstances.

Q: How should an LEA handle pending Assessment Plans during period of school closure?

A: School closures are likely to disrupt special education timelines, including those regarding assessment plans and IEP meetings to review assessments. Timelines affecting assessment plans and IEP meetings to review assessments are paused for school breaks in excess of five schooldays. (Ed. Code, § 56043, subd. (a), (f).) Special education timelines are a procedural requirement, meaning that changes that carry a substantive effect on the student’s education may result in a denial of FAPE. We recommend LEAs strive to meet timelines with minimal delay to avoid impacting students’ education. If an IEP team changes the offer of FAPE outside of timelines due to school closure-related delays, LEAs may consider providing some measure of retroactive compensatory services to the student, in order to place the student in the same position he or she would have been in had the offer of FAPE been changed in a timely manner.

Related Resources

In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. Access here: http://www.lozanosmith.com/covid19.php.

If you have any questions, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

How to Address COVID-19 with Your Governing Board: Brown Act Reminders

*** UPDATED AS OF 3/27/20 *****

This Client News Brief (CNB) supersedes and replaces the prior CNB on this topic based on the new Executive Orders and public health officer directives.

March 2020
Number 13

Background

With growing concerns over the spread of the novel coronavirus (COVID-19), many public agencies are closely monitoring guidance and updates from health and science officials. The California Department of Public Health (CDPH) along with the Centers for Disease Control and Prevention (CDC) have been providing regular updates and recommendations for employers, and the fluidity of the situation has resulted in some public agencies taking or considering actions on an emergency basis or without the time for all the public notice and input required for routine public business.

Generally, the public has a right to attend meetings and address the legislative body on any item on the agenda or any item of interest to the public that is within the subject matter jurisdiction of the legislative body. With increased precautions in place related to large gatherings and travel, public agencies are faced with the need to make decisions quickly in response to the latest information available. The following provides guidance for conducting public meetings to discuss COVID-19 with your governing board and the public, in compliance with California’s open meeting laws under the Brown Act.

How to Convene a Meeting:

  • Notice must be given of the time and place for regular meetings, by posting an agenda at least seventy-two (72) hours in advance of the meeting. Posting must occur in a place that is freely accessible to the public and on the agency’s website.
  • A special meeting may be called at any time including weekends and holidays, by notice at least twenty-four (24) hours in advance of the meeting. Only the business set forth in the notice may be considered at the meeting.

Emergency Meetings:

  • In case of an emergency meeting to consider matters that require prompt action due to the disruption or threatened disruption of public facilities and services, the Brown Act meeting notice described above is not required. However, absent a “dire” emergency, attempts must be made to contact the media by telephone at least one hour before the meeting, unless the telephones are not working. Following the emergency meeting, the minutes of the meeting, a list of persons notified or attempted to be notified of the meeting, and actions taken must be posted for ten (10) days in a public place.

Not all discussions about COVID-19 necessarily merit an “emergency” situation allowing for greater flexibility with certain legal requirements. For purposes of the Brown Act, an emergency is defined as a “work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body.” A “dire emergency” is a “crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting under this section may endanger the public health, safety, or both, as determined by a majority of the members of the legislative body.” (Gov. Code section 54956.5(a).) The legislative body should make findings supporting the existence of an emergency.

Attending Meetings Remotely: On March 12 and 17, 2020, as part of a larger effort to address the outbreak, Governor Gavin Newsom issued Executive Orders allowing state and local legislative bodies to hold meetings via conference calls without violating the Brown Act. Board members may attend regular, special, or emergency meetings by telephone (or video conference), and the Governor’s Executive Orders suspends the following requirements which normally apply to teleconference attendance:

  • A quorum of the members participate from locations within the boundaries of the agency and each location is accessible to the public;
  • Each teleconference location from which a member will participate must be publicly noticed, and agendas must be posted at each teleconference location;
  • Each teleconference location be accessible to the public;
  • Members of the public may address the body at each teleconference location; and
  • At least one member of the legislative body must be physically present at the location specified in the notice of the meeting.

These requirements are suspended on condition that 72 hour or 24 hour (whichever applies) public notice is still given, and to give notice by which members of the public may observe the meeting and offer public comment. While the definition and parameters surrounding “public participation” are unclear, there are various options to allow the public to address items on the agenda and provide public comment including, but not limited to conducting the meeting via teleconference, using an internet platform such as Zoom or YouTube to stream the meeting allowing attendees to comment in real-time, or providing a special email address for the public to submit comments in advance of the meeting. Given the Order of the State Public Health Officer of March 19, 2020 and the Governor’s Executive Order of the same date placing limits on the public congregating, public agencies should work closely with their legal counsel as to whether and to what extent public meetings are permissible. Public agencies will need to decide whether to provide such an in-person opportunity for the public to attend meetings, as personal attendance is not “essential.” In addition, if the Board elects to meet in person, it should continue to monitor and adhere to all state and local public health directives and social distancing guidelines.

How to Act on Items Not on the Agenda: Under normal circumstances, the legislative body may not discuss or take action on any item that does not appear on the posted agenda. The following exceptions apply:

  • Subsequent Need. The legislative body may act upon an item not appearing on a regular agenda upon a finding by two-thirds (2/3) vote of the members present, or by unanimous vote if less than two-thirds (2/3) but more than a quorum of members are present, that there is a need for immediate action and the need for action came to the attention of the agency after the agenda was posted.
  • Emergency Situation. If by a majority vote the legislative body determines prior to any such action that an “emergency situation” exists and that prompt action is required, they may take action on an emergency item not appearing on the posted agenda. The emergency situation exception is for an agenda that has already been posted, in contrast to the emergency meeting discussed above.

How to Address the Board in Closed Session:

  • The legislative body may discuss COVID-19 in closed session if there has been a threat of or exposure to litigation. An attorney should be present at such closed session discussion.
  • There is also an exemption under the Education Employment Relations Act for discussing negotiations. Therefore, topics such as changes to work day and work year, overtime for employees doing deep cleaning, addressing non-refundable staff travel plans, changes to employee leave provisions, all of which are negotiable, may be discussed in closed session as long as the purpose of the discussion is to discuss negotiation direction and strategy.
  • The Brown Act provides that the legislative body may go into closed session to discuss threats to public safety/security, including a threat to the public’s right to access public facilities or public services. However, the intent of this exception appears to focus on allowing law enforcement officials or security consultants to advise during closed session and should be used with caution.

Local and State Agency Governing Bodies May Receive COVID-19 Updates Without Violating Open Meeting Laws:

On March 21, 2020, the Governor issued an Executive Order to allow all, or more than a quorum, of a legislative body (local and state), to listen in and ask questions for COVID-19 updates from federal, state or local officials. This limited exception from the open meeting laws does not authorize discussions, serial or otherwise, among members constituting a majority without complying with open meeting law requirements.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.
Written by:

Mary F. Lerner

Partner

Anne L. Collins

Partner

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Public Agency Employer Responses to COVID-19: Labor and Employment Implications

March 2020
Number 12

Background

With growing concerns over the spread of the novel coronavirus, COVID-19, public agency employers are taking proactive steps to limit exposure and further transmission. The California Department of Public Health (CDPH) along with the Centers for Disease Control and Prevention (CDC) have been providing regular updates and recommendations for employers, which should be closely monitored and followed.

The following is some general guidance from a labor and employment perspective as public agency employers take additional steps to maintain a safe work environment, including potentially closing facilities or limiting employee attendance at work.

Employee Leaves

Agency policies and collective bargaining agreements describe entitlement to and appropriate use of sick leave and other paid leaves. Employers may provide an additional period of paid or unpaid leave for employees who are medically quarantined. (See Ed. Code, §§ 44964, 45199 for school districts.) It is important to keep in mind that employees absent due to COVID-19 may qualify for industrial illness leave if they contracted the virus at work. Employees who pay into State Disability Insurance (SDI) may also qualify for disability insurance benefits while they are unable to work. If an employee is absent due to their own illness or to care for an ill family member they may be entitled to kin care leave and up to 12 workweeks of job protective leave under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). It will be important to examine every request for leave carefully to determine if it is a qualified leave, and what leave entitlements may be implicated by the leave request.

Ensuring a Safe Work Environment

As a reminder, employers are required to provide and maintain a safe work environment. Work safety may be addressed in policy and/or collective bargaining agreements. Employers should review such language to ensure they are complying with their policies and obligations. To the extent employees are required to do additional cleaning beyond what is within their regular job duties, such a change in work duties may be negotiable, may require out of class pay, and/or may result in overtime compensation, among other things. Employers should ensure that overtime is offered according to relevant collective bargaining agreement provisions.

Also, the California Division of Occupational Safety and Health has put out guidance for employers in responding to COVID-19: https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html, https://www.osha.gov/SLTC/covid-19/. It is critical that employers ensure that recommended safety measures, including stocking sufficient soap/hand sanitizer, are followed to maintain a safe work environment.

Active Employee Considerations

It is possible that some employees may refuse to perform duties within their job description that may be implicated by COVID-19. For example, some employees may refuse to provide health services that are part of their normal job duties. When an employee is at work, they are required to perform their job. However, it is also important to remember that antidiscrimination laws protect employees who are temporarily or permanently disabled or who are perceived as being disabled. Conversely, an employee’s refusal to provide services could also constitute discrimination against those whom they serve, be it students or patients.

Some employees with compromised immune systems may receive medical directives temporarily limiting their work activities. The Americans with Disabilities Act (ADA), may require temporary work modification as a reasonable accommodation to the extent an employee is medically unable to perform certain tasks.

School Closure

For public agencies whose employees are represented by a collective bargaining unit, the decision to close a school or facility due to an epidemic is generally not negotiable. However, the impacts and effects of such closures are negotiable to the extent that decision impacts matters within the scope of representation, like work hours. In addition, whether employees will be paid during any work-site closure is negotiable.

It is recommended that employers notify their labor unions of any possible school or facility closures to help impacted employees prepare and respond to such changes. School closures may also require negotiating additional work days beyond the regular work year.

Payroll and business offices should be prepared for potential increases in unemployment insurance claims if facilities are closed or employee hours are reduced.

Availability of J-13A Waiver for ADA Loss

Public schools that experience loss of ADA due to the coronavirus should be aware of the availability of the J-13A waiver to minimize the fiscal impact of ADA loss due to emergency. Information on the J-13A waiver can be found at:

https://www.cde.ca.gov/fg/aa/pa/documents/j13a.pdf

Availability of Waiver to Avoid Instructional Minute Penalties

Public schools districts, including basic aid districts, should also be aware of the availability to request a penalty waiver from the California Department of Education (CDE), in the event instructional minutes fall below Education Code minimums.

For more information on issues arising from the continued spread of COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Derek Ulmer

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Creditable Compensation for Paid Administrative Leave Under Review by CalSTRS

February 2020
Number 10

On January 23, 2020, the California State Teachers’ Retirement System (“CalSTRS”) issued an Employer Information Circular taking a restrictive position regarding what leaves count for the purpose of calculating creditable compensation under the Teachers’ Retirement Law. The CalSTRS Employer Circular is located here.

Creditable compensation is a term set forth in the Education Code that represents all compensation reportable to CalSTRS for an employee’s performance of creditable service. Compensation paid for the use of sick leave, vacation, or an employer-approved leave, is included in the statutory definition of creditable compensation.

Effective January 1, 2016, a definition for “leave of absence” was incorporated into the Teacher’s Retirement Law, in Education Code section 22144.3, limiting the definition to only those leaves included in specific sections of the Education Code.

CalSTRS’ January 23, 2020 Circular expressed a narrow interpretation of section 22144.3, stating that only those paid leaves expressly stated in those Education Code sections listed in section 22144.3 count as creditable compensation. The Circular specifically noted that leaves legally granted through a governing board’s general authority to grant paid administrative leave under Education Code sections 44963 (K-12 school districts) or 87764 (community colleges) are not expressly authorized for purposes of the Teachers’ Retirement Law.

CalSTRS’ position effectively eliminated certain discretionary leaves commonly utilized by school districts for various reasons, such as paid administrative leave while an employee is under investigation, from the definition of a “leave of absence” under the CalSTRS system. CalSTRS’ interpretation, if it stands, will mean that teachers do not earn any service credit for time spent on such leaves.

There has been significant concern over the position taken in the CalSTRS Circular. CalSTRS has recently indicated that it will be withdrawing the January 23, 2020 Circular and will be taking this issue under review. CalSTRS may pursue legislative or regulatory changes to address how paid administrative leave and other leaves granted under a governing board’s general authority will be treated in the CalSTRS system. School districts and community colleges will need to monitor this issue carefully as the outcome of this issue may impact the retirement benefits of their employees and could have audit ramifications if the compensation is not reported correctly.

For questions regarding CalSTRS’ guidance related to leaves of absence or the potential impacts this guidance may have on its current practices, or to discuss any other labor and employment issues, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Thomas R. Manniello

Partner

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

State Allocation Board Adopts Developer Fee Increases For 2020

January 2020
Number 9

The State Allocation Board (SAB) has increased the amount of “Level 1” developer fees that school districts are authorized to collect to $4.08 per square foot of residential development and $0.66 per square foot of commercial development. The increase takes effect immediately, and may now be implemented by school districts through local action.

The new rates, which the SAB approved on January 22, 2020, represent a 7.64 percent increase over the maximum amounts authorized as of February 2018. The SAB based its increase on the RS Means cost index for Class B construction.

Government Code section 65995 authorizes the SAB to increase the amount of Level 1 developer fees that school districts are authorized to collect at the SAB’s January meeting in every even-numbered year. The SAB increase does not affect “Level 2” developer fees, which a school district must adopt annually based on its own school facilities needs analysis. The change also does not affect “Level 3” fees, which school districts may only collect when the SAB certifies that state funds for new school facility construction are no longer available.

Assembly Bill (AB) 48, adopted last year, includes provisions that would result in reduction of certain developer fees for school districts. AB 48 is entirely conditioned on voter approval of Proposition 13, a statewide school bond measure on the March 2020 ballot. Thus, passage of Proposition 13 may change the above fee amounts for multifamily housing development. Lozano Smith’s Client News Brief on Assembly Bill 48 can be found here.

Based on this and other legal developments, Lozano Smith is preparing an update for the firm’s publication, Developer Fee Handbook for School Facilities: A User’s Guide to Qualifying for, Imposing, Increasing, Collecting, Using and Accounting for School Impact Fees in California and current subscribers can purchase these updates for a nominal fee. The handbook is intended to help school districts reduce their legal costs by providing comprehensive information regarding California law and process for school impact fees. The handbook contains procedures, timelines, checklists, and forms to be used when adopting and implementing fees and/or increases.

Lozano Smith is making the handbook available at a cost of $100 to public school districts that are also clients of Lozano Smith. The handbook will be available to non-client public school districts at a cost of $200. Non-public agencies can purchase the handbook at the full price of $300. Districts wanting a second or replacement copy may request one for $75. School districts may order the handbook here. For more information on the Developer Fee Handbook, or to order a copy, you may also contact our Client Services department at clientservices@lozanosmith.com or call (800) 445-9430.

If you have any questions regarding the adoption or implementation of fee increases or any other developer fee issue, please contact an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Harold M. Freiman

Partner

Kelly M. Rem

Partner

Peter Y. Sumulong

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court of Appeal Confirms Limits on Severance Payouts to Public Employees

January 2020
Number 8

In Koenig v. Warner Unified School District (2019) 41 Cal.App.5th 43, the California Court of Appeal added to the legal landscape under Government Code sections 53260 and 53261, which limits severance payouts to public employees, while also addressing the important concepts of severance of illegal contract provisions in the context of an employment termination agreement. Warner Unified School District (District) was represented in this matter by Lozano Smith attorneys Sloan Simmons and Kyle Raney.

Background

In December 2012, the District and its then-superintendent mutually agreed to terminate the superintendent’s employment one year early. Under the termination agreement, the District agreed to provide the plaintiff with a lump sum payment of $130,727.92, which was the value of one year of his salary, retirement plan contributions, monthly stipend for service on a charter school management team, and accrued but unused vacation. The termination agreement further provided for the continuance of the plaintiff’s health benefits, as set forth in his initial employment agreement. The termination agreement included a severability clause which permitted the severance or excision of any illegal contractual term, while keeping the remainder of the agreement intact; an “integration clause” reflecting that the written agreement constituted the parties full agreement; and a term making clear that the parties each voluntarily entered into the agreement. Additionally, the termination agreement included language that the parties intended to comply with Government Code section 53260, which sets the maximum cash settlement that a terminated school district employee can receive at “an amount equal to the monthly salary of the employee multiplied by the number of months left on the unexpired term of the contract.”

The District ceased providing the plaintiff with health benefits when it discovered, in November 2014, that the promise to continue the plaintiff’s health benefits until the age of 65 or until Medicare took effect would violate Government Code sections 53260 and 53261, the latter of which limits the provision of non-cash settlement items to health benefits, which may only be provided for the same duration as is covered by the settlement or until the employee finds other employment. Accordingly, the District stopped providing the plaintiff with health benefits when he started a new job, and demanded return of the $16,607 it had expended to date pursuant to the illegal health benefit provision of the termination agreement. Despite there being no dispute as to the illegality of the continued health benefits provision, the plaintiff refused and sued the District for reinstatement of his health benefits under his employment agreement and to rescind the termination agreement. The District cross-complained, arguing that the termination agreement’s promise to continue paying health benefits was void and unenforceable under Government Code sections 53260 and 53261, and the payments made in excess of the statutory maximum should be returned as an impermissible gift of public funds in violation of the California Constitution, Article XVI, section 6.

When the matter ultimately made its way to the Court of Appeal, the court entered judgment in favor of the District in the amount of $16,607, and remanded the matter to the trial court to determine the District’s entitlement to attorneys’ fees under the termination agreement. In the opinion, the court relied upon its previous decision inPage v. MiraCosta Community College District (2009) 180 Cal.App.4th 471, in reaching the conclusion that both Government Code sections 53260 and 53261 limited the cash and non-cash benefits payable to the plaintiff upon his termination. In Page, the Court held that Government Code sections 53260 and 53261 applied to settlements upon termination of a local agency administrator’s contract, regardless of the circumstances surrounding the termination. The court reached a similar conclusion in Koenig as to the illegality of the District’s promise to continue benefits beyond the term of the original employment agreement. The resulting question, then, was what effect the illegal contractual provision had on the termination agreement.

On this point, the court reversed the trial court’s holding that the illegal health benefits provision was not severable from the termination agreement. In reaching its decision, the court relied on well-settled contract interpretation principles which support the proposition that, where a contract has several distinct objects, of which at least one is lawful and one unlawful, in whole or in part, the contract is void as to the unlawful portion and valid as to the rest. The court held that “the unlawful provision governing health benefits was capable of being severed from the remainder of the termination agreement and severance was clearly warranted here.” In exchange for the plaintiff’s termination from employment and release of any potential claims against the District, the District agreed to pay him in excess of $130,000 (which was intended to be in compliance with Government Code section 53260), and continued health benefits. The sole illegality, the court held, arose from the provision for continued payment of health benefits beyond the settlement term of the termination agreement, and severance of the illegal term would further the interests of justice because it allowed the plaintiff to retain the lawful benefits, while preventing his receipt of an illegal windfall in the form of continued health benefits.

The court determined the termination agreement’s promise to pay health benefits in excess of the statutory maximum should have been severed and the remainder of the agreement enforced in a manner that complies with Government Code sections 53260 and 53261. As a result, the court concluded that the plaintiff was entitled to payment for health benefits only for the duration of the term of his original employment agreement-until December 2013-the maximum duration permitted under sections 53260 and 53261. Any payments made for health benefits by the District after December 2013 were made in excess of the statutory maximum, and the District was entitled to repayment of that amount. This constitutes the first published appellate opinion applying the principles of severance to the terms of an employment termination agreement.

Takeaways

Koenig provides public employers with important guidance regarding the cash and non-cash items that might be included when terminating a public employment contract, and for how long a public employer can provide such benefits. Additionally, Koenig highlights the importance of drafting enforceable contracts for employment and termination, including the need for clear, ironclad language regarding severability, integration, and voluntariness. Although “boilerplate” language is often overlooked for its “legalese,” the court’s opinion relied upon, perhaps more than anything else, the termination agreement’s incorporation of an enforceable severability clause, which was indisputable evidence of the parties’ intent to sever any illegal provision of the agreement in favor of the whole.

For more information on the Koenig opinion, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Kyle A. Raney

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

AB 1600 Modifies Pitchess Motion Filing Deadlines and Expands Potential Access to Peace Officer Personnel Records

January 2020
Number 7

Assembly Bill (AB) 1600, which took effect on January 1, 2020, shortens the filing timelines for Pitchess motions in criminal matters and renders the personnel records of supervisorial officers potentially discoverable.

Background

Pitchess motions are written requests for the discovery of peace officer or custodial officer personnel records. Prior to the passage of AB 1600, Evidence Code section 1403 required that a criminal defendant file written notice of a Pitchess motion at least 16 court days before hearing. AB 1600 amended this provision to allow a Pitchess motion in a criminal matter to be filed as little as 10 court days before the hearing. Moreover, Pitchess motion oppositions must now be filed no less than five court days before hearing, and reply papers must be filed no less than two court days before hearing. It is notable that these timelines refer to “court” days, not calendar days, so court holidays and weekends do not count as “days” for the purposes of these timelines. The timelines forPitchess motions in civil matters remain unchanged.

Another significant change made by AB 1600 is with respect to discovery of the personnel records of supervisorial officers. Before the enactment of AB 1600, Evidence Code section 1047(a) prohibited the disclosure of personnel records of supervisorial officers or other peace officers or custodial officers who were not present during the arrest, had no contact with the party seeking disclosure from the time of arrest until the time of booking, or who were not present at the time the conduct at issue occurred within a jail facility. However, AB 1600 added a significant exception to this rule: the personnel records of a supervisorial officer who had direct oversight of a peace officer or custodial officer and who issued command directives or had command influence regarding the circumstances at issue are discoverable if the supervisorial officer was supervising a peace officer or custodial officer who: (1) was present during the arrest, (2) had contact with the party seeking disclosure from the time of arrest until the time of booking, or (3) was present at the time the alleged conduct occurred within a jail facility.

AB 1600 is only the latest in a number of sweeping legislative and judicial changes promoting the accessibility of peace officer and custodial officer records. For example, SB 1421, which became effective on January 1, 2019, rendered personnel records related to officer misconduct disclosable pursuant to the California Public Records Act. (See 2018 Client News Brief No. 60 and 2019 Client News Brief No. 24.) And, in Association for Los Angeles Deputy Sheriffs v. Superior Court, the California Supreme Court opined that officer information may be disclosable under Brady v. Maryland if an officer is a potential witness in a pending criminal prosecution. (See 2019 Client News Brief No. 60.)

Takeaways

By shortening the filing timelines for Pitchess motions in criminal matters, public agencies will receive notice of the filing closer to the hearing date and will have fewer days to prepare and file their opposition to the motion. To avoid potentially waiving any opposition or other objections, public agencies will need to move quickly when in receipt of a Pitchess motion. Additionally, AB 1600 significantly expands the scope of Pitchess motions and renders the personnel records of supervisorial officers-which were previously shielded from disclosure-discoverable.

If you have any questions about AB 1600 or Pitchess motions generally, please contact the authors of this Client News Brief or an attorney at one of oureight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Mary F. Lerner

Partner

Travis E. Cochran

Senior Counsel

Benjamin Brown

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Court Rules that Second Contract with the Same Vendor Did Not Create a Conflict of Interest

January 2020
Number 6

A recent California Appellate Court ruling has determined that a public entity’s award of a second contract to a construction firm did not create a conflict of interest even though it related to an earlier contract between the parties. InCalifornia Taxpayers Action Network v. Taber Construction, Inc. (2019) A145078, the First Appellate District held that the contractor’s second contract with a school district did not create a conflict of interest because both contracts were part of one initial transaction which had been structured as two contracts because applicable law at the time did not permit the transaction to be structured as a single contract. This is the latest chapter in a series of cases about potential conflicts of interest in lease-leaseback construction contracts for school districts, but the ruling has implications for many different types of contracts made by all local public agencies.

Background

Prior to January 2017, when the Education Code’s lease-leaseback statutes were revised, school districts were prohibited from awarding lease-leaseback construction contracts until plans and specifications for the underlying project were approved by the Division of the State Architect (“DSA”). [Link to CNB re LLB changes in Jan. 2017 – CNB No. 63, 2016] Until those changes took effect, school districts wishing to procure preconstruction services from the contractor who would ultimately perform their lease-leaseback projects commonly entered into a separate contract for such preconstruction services. Mount Diablo Unified School District (“District”) selected Taber Construction (“Taber”) to perform a modernization project through a request for proposal process and first awarded a preconstruction contract to Taber. After completion of the preconstruction services and approval of the plans and specifications by DSA, the District awarded a lease-leaseback construction contract to Taber.

A taxpayer organization challenged this dual contract structure by alleging a conflict of interest based on the contractor’s ability to inappropriately influence the District in the creation of the second contract. In May 2017, an appellate court ruled that the plaintiff’s allegations were sufficient to let that issue proceed to trial. [See CNB No. 23, 2017] That decision agreed with appellate decisions in 2015 and 2016 on similar issues, in which other courts agreed that the preconstruction services contract/lease-leaseback contract structure could lead to violation of Government Code section 1090, which prohibits conflicts of interest in public contracts, because of the contractor’s ability to shape the scope of the second contract through their work under the first contract. Based on this reasoning, a conflict of interest could potentially arise whenever a local public agency entered into two successive contracts with the same contractor, if the work performed under the first contract had an impact on the scope of work under the second contract.

The Appellate Court’s Decision

Following trial on these issues, an appeal once again reached the appellate court, which has now held that when Taber performed the preconstruction services, it was not transacting “on behalf of” the District in violation of Government Code section 1090. The court reasoned that Taber was not hired under the first contract to find a firm to complete the project – rather, the District hired Taber to perform preconstruction services for the District “in anticipation of Taber itself completing” the project. The court reasoned that it was standard practice at the time to award two separate contracts due to the existing lease-leaseback law, and that the District purposefully selected Taber with the initial intent that it would award both contracts to Taber.

The court distinguished an appellate court decision, Stigall v. City of Taft (1962) 58 Cal.2d 565, that the plaintiff relied upon which held that a conflict of interest existed under Section 1090. In that case, which arose outside of the lease-leaseback context, there was evidence that a representative of the selected contractor was involved in the selection process. However, the court found no evidence indicating that during performance of the preconstruction services, Taber influenced the District to select Taber for the second contract.

Takeaways

As noted above, due to revisions that went into effect in January 2017, the lease-leaseback statute (Ed. Code § 17406) now expressly permits a school district to award a single contract that includes preconstruction services and lease-leaseback construction. Therefore, the fact pattern of this case is not likely to recur.

However, similar fact patterns could arise in other contexts, such as architectural contracts for master planning services where the architect may wish to also receive award of a subsequent contract for design of an individual project. Another example might be a vendor who enters a consulting contract with an agency to determine the agency’s technology needs, and then is subsequently awarded a contract to supply technology to the agency. In these situations, this case provides guidance as to when a conflict of interest might exist under Section 1090. While initially selecting one firm for both contracts might reduce the chances of a conflict of interest when the second contract is eventually awarded, risk remains if the firm is involved in the shaping the scope of the second contract. If appropriate for the situation, it may be beneficial simply to award a single contract for all of a contractor’s or consultant’s work, rather than two contracts.

For more information about this ruling and conflict of interest issues, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Arne B. Sandberg

Partner

Gayle L. Ketchie

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Government Code 1090 Challenges by Third Parties Clarified and Limited by California Supreme Court

January 2020
Number 5

The California Supreme Court has ruled that third parties (private citizens, taxpayers, watchdog groups, etc.) do not have legal standing to sue public agencies to invalidate contracts allegedly made in violation of Government Code section 1090.

Background

Government Code section 1090 is a “good government” law prohibiting public officials and public employees from participating in any way in the “making” or awarding of a contract in which they hold a financial interest. The penalties for violating Section 1090 are potentially severe, ranging from imposition of a fine to imprisonment.

Government Code section 1092 allows any contract made in violation of Section 1090 to be voided “at the instance of any party except the officer interested therein.” Previous case law had left open to interpretation the meaning of “party” in this provision. Thus, it was not clear whether Section 1092 created a private right of action to enforce Section 1090, or if that right was limited only to the actual parties to the contract.

San Diegans for Open Government v. Public Facilities Financing Authority of the City of San Diego et al. (2019) __ Cal.5th __ (“San Diegans for Open Government“)

In 2015, a citizens’ taxpayer organization sued to invalidate bonds issued by the City of San Diego to refinance the baseball stadium at Petco Park, alleging that financing participants had a financial interest in the sale of the bonds in violation of Section 1090. The trial court determined that the taxpayer group lacked standing to sue on Section 1090 grounds, and dismissed the complaint. On appeal, the Court of Appeal reversed, finding in favor of the taxpayer group on the issue of standing, reasoning that public policy supports a third party plaintiff having the right to seek relief under Section 1092, and ruling that the phrase “any party” as used in Section 1092 conferred standing upon “any litigant with an interest in the subject contract[.]”

The Supreme Court reversed the appellate decision, holding that Section 1092’s language providing that “any party” may sue to avoid a contract involving a prohibited conflict of interest, only confers standing to sue upon the actual parties to the contract at issue. In this case, the court’s ruling meant that the plaintiff taxpayer organization did not have standing to bring suit or seek relief under Section 1092. In other words, the court determined a private right of action does not exist under Section 1092.

In reversing the lower appellate opinion, the Supreme Court applied basic rules of statutory interpretation in determining that the Legislature had not clearly indicated an intent to create a private right of action under Section 1092. The court found no compelling reason to infer such intent because sufficient enforcement mechanisms already exist to ensure compliance with Section 1090. The court acknowledged cases cited by the taxpayer group suggesting taxpayers have standing to sue to set aside a contract for a Section 1090 violation, but dismissed those authorities as either distinguishable or dicta.

The Supreme Court noted that its decision in San Diegans for Open Government does not reduce the available avenues for enforcement of Section 1090 violations or lessen the severity of the penalties for such violations. While Section 1092 was not deemed an appropriate avenue for taxpayer enforcement of Section 1090, the Supreme Court remanded the case back to the appellate court to determine the plaintiffs’ ability to use alternative statutory provisions as an enforcement mechanism. Specifically, the Court of Appeal will expressly determine what type of relief plaintiffs are seeking, and whether such relief is available under Civil Code section 526a (Section 526a). Section 526a allows taxpayers to challenge government contracts where public funds will be spent illegally. However, Section 526a prohibits injunctive relief where the contract is a debt instrument, such as the bond purchase agreement at issue in this case. At oral argument in front of the Supreme Court, plaintiffs argued they were not seeking injunctive relief, and only sought the conflicted officers to be disgorged of profits from the contract. The Court of Appeal will have to sort out the availability of a remedy for plaintiffs under Section 526a on remand.

Regardless of how the courts ultimately rule on these other causes of action, the Supreme Court’s prohibition on the use of Section 1092 by a taxpayer group remains significant, since Section 1092 calls for the contract to be voided, and allows a challenge to be brought for up to four years. The Civil Code bases for suit that the appellate court will now consider generally have much shorter statutes of limitation and do not provide for voiding the contract as a remedy.

This case highlights the importance of clearly identifying the parties to a public contract, and considering express exclusion of “third party beneficiaries” when drafting public contracts, in order to limit those who may sue.

For more information on issues arising from Government Code Sections 1090 or 1092, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Harold M. Freiman

Partner

William P. Curley III

Partner

Kate S. Holding

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Student Newspaper Sues University After All Print Media Is Defunded Following The Publication Of A Satirical Article

January 2020
Number 4

A University of California San Diego (UCSD) student newspaper, The Koala, brought suit against UCSD officials alleging that they defunded all print media in violation of the First Amendment. In The Koala v. Khosla (9th Cir. 2019) 931 F.3d 887, the Ninth Circuit sided with the student newspaper, reversing in part and vacating in part a district court’s dismissal of the complaint, holding that the Eleventh Amendment did not bar The Koala’s claims, and allowing the case to proceed.

Background

The Koala is a UCSD student organization that publishes a newspaper featuring art and satirical writing. In 2015, The Koala published an article which mocked the concept of “safe spaces” on college campuses. The publication included numerous ethnic and sexist stereotypes, generating various complaints and prompting UCSD to publicly denounce the article. Two days later, the UCSD student government passed the Media Act (the Act), eliminating student organization funding for all print media. Thereafter, The Koala brought suit against UCSD, alleging multiple violations of the First Amendment. Specifically, The Koala argued that in violation of the Free Press Clause, the Act intentionally singled out and financially burdened The Koala, and that it did so in retaliation against the publication of the “safe spaces” article. The Koala also argued that funds for student organizations were a limited public forum and the Act’s exclusion of The Koala from the forum was viewpoint discrimination and violated the Free Speech Clause. UCSD filed a motion to dismiss these claims, and the district court granted the motion, concluding that The Koala’s claims were barred by the Eleventh Amendment. The Koala appealed to the Ninth Circuit.

Ninth Circuit Opinion

The Ninth Circuit reversed in part and vacated in part the district court’s dismissal of the complaint, allowing The Koala could move forward with its claims. First, the Ninth Circuit analyzed whether The Koala’s claims should be barred by the sovereign immunity doctrine under the Eleventh Amendment, which generally prevents a state and state government actors from being sued in federal court without the state’s consent. The Ninth Circuit found that because The Koala was seeking only a return of theireligibility to apply for funding, and not an order directing the state to provide funding, the claims were not barred by the Eleventh Amendment.

The Ninth Circuit then analyzed each of The Koala’s claims individually, starting with the freedom of the press claim. The Koala argued that the Act targeted student press by defunding it and that it was “substantially motivated by discrimination,” while UCSD argued that the Act did not implicate the Free Press Clause because it applied equally to all student organizations. The Ninth Circuit sided with The Koala and found that The Koala stated a viable cause of action, vacating the lower court’s decision.

Next, the Ninth Circuit addressed The Koala’s freedom of speech claim, which argued that UCSD created a limited public forum (funds for student organizations) and then closed off a portion of that forum (print media) with the intent specifically to deny The Koala access to it. While The Koala asserted that the forum consisted of the entire student activity fund, UCSD claimed that the forum was specifically limited to the media funds and that regardless of how the forum was defined, they were free to close it. The Ninth Circuit agreed with The Koala and concluded that the entire student activity fund was the relevant forum for assessing the appropriateness of UCSD’s actions. Because the district court came to a different conclusion, the Ninth Circuit vacated the order granting the motion to dismiss the claim and remanded the decision for consideration under the appropriate forum framework.

Lastly, with regard to their retaliation claim, The Koala argued that the Act was passed in direct response to the “safe spaces” article and intended to silence The Koala’s content. UCSD claimed that the government’s motive is irrelevant when it enacts a rule that is content neutral and intended to apply generally (i.e., applies to all print media). The Ninth Circuit sided with The Koala, holding that the Act did not apply equally to all student organizations, as it banned only print media organizations from obtaining student activity fee funding. The Koala was also found to have alleged an adequate nexus between its speech and the implementation of the Act.

Takeaways

Universities and community colleges should keep this decision in mind when responding to controversial matters. This is especially true in instances where the college’s actions may be viewed as retaliatory or an attempt to silence or regulate student speech, even if the action does not exclusively target the speaker.

If you have any questions about these new laws, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Steve Ngo

Partner

Stephanie M. White

Senior Counsel

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Passes New Law To Increase Protection And Safety Of Special Education Students In Nonpublic Schools

January 2020
Number 3

Governor Gavin Newsom signed Assembly Bill (AB) 1172 this fall, which imposes additional requirements upon nonpublic schools (NPSs), as well as the local educational agencies (LEAs) that place students in NPSs, in order to increase the safety and protection of students in NPS placements. This legislation was passed following the high profile death of a 13-year-old special education student, who passed away after being placed in a prone restraint at an NPS.

AB 1172 places new monitoring requirements on LEAs that enter into contracts with NPSs, and places on NPSs, new documentation requirements related to administrator and staff training, as well as new notification requirements for any student-involved incident involving law enforcement. Most of the new requirements imposed by AB 1172 become effective beginning with the 2020-21 school year.

More specifically, AB 1172 amends Education Code section 51225.2 to include the following:

New requirements placed on LEAs

Beginning with the 2020-21 school year:

  • LEAs that enter into master contracts with NPSs must conduct an onsite visit at the NPS before placing a student there if the LEA does not have any students enrolled at the school at the time of placement.
  • LEAs must conduct at least one onsite monitoring visit each school year at each NPS in which the LEA has a student attending and with which it maintains a master contract. The monitoring visit should include, but is not limited to: a review of services provided to the student through the individual service agreement between the LEA and the NPS; a review of the progress the student is making towards his/her goals as set forth in their individualized education program and behavioral intervention plan, if applicable; an observation of the student during instruction; and a walkthrough of the facility. Additionally, LEAs will need to report the findings resulting from their monitoring visits to the California Department of Education (CDE) within 60 calendar days of each onsite monitoring visit.

New requirements placed on NPS Sites

Beginning with the 2020-21 school year:

  • Each NPS will need to provide documentation that it will train staff who will have contact or interaction with students during the school day in the use of evidence-based practices and interventions specific to the unique behavioral needs of the NPS’s student population. The training will need to be provided within 30 days of employment to new staff, and annually to existing staff.
  • For an NPS to be certified by the CDE, it will need to provide documentation that its administrator holds or is in the process of obtaining one of the special credentials or licenses specified in the law.
  • NPSs serving students with significant behavioral needs or students on behavioral intervention plans, must certify in writing that they have an individual onsite during school hours who is qualified, and responsible for the design, planning, and implementation of behavioral interventions.
  • NPSs must notify the CDE and the LEA of any student-involved incident in which law enforcement was contacted, in writing, no later than one business day after the incident occurred.

AB 1172 also allows the CDE to immediately suspend or revoke the certification of an NPS, if an investigation conducted by CDE results in a finding that student health or safety has been compromised, or is in danger of being compromised, at the NPS.

Takeaways

According to the Legislature, AB 1172 could result in unknown but potentially significant costs to LEAs in conducting the onsite visits of NPSs and the reporting of findings resulting from those visits to the CDE within the specified timeline. School districts should consider identifying or creating a position to conduct the NPS onsite visits, report to the CDE on those visits, and ensure NPS certification when entering into a master contract with an NPS. Training responsible staff on AB 1172 and the requirements identified in Education Code section 51225.2 is also recommended. School districts are also encouraged to consult with counsel regarding these new requirements, if needed.

For additional information regarding AB 1172, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

Brenda E. Arzate

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Data Breach Notification Law Gets Updates With Important Implications

January 2020
Number 2

Data breaches are all but inevitable and occur in all types of organizations. Public entities are no exception, with cyber criminals increasingly targeting the wide-range of sensitive information they maintain (e.g., student data, resident data, confidential government infrastructure data, etc.). Against the backdrop of and in response to this looming threat of cyber-attacks, Governor Newsom recently signed into law Assembly Bill (AB) 1130, which makes small but significant changes to the state’s existing data breach notification laws.

Current Law

Under Civil Code section 1798.29, any agency (including a local government or school district) that owns or licenses computerized data that includes personal information has an obligation to provide notice to any California resident whose unencrypted personal information is or is reasonably believed to have been acquired without authorization. Notification to affected individuals must be made in the format and include the information specified in the law. Importantly, notification obligations are triggered when the acquired information includes personal information as defined under the law, unless the information was encrypted and the security credentials or encryption key that would permit access to the information was not also acquired. As defined under the law, personal information includes an individual’s first name or first initial, and last name, in combination with certain other types of information including social security number, driver’s license number, and medical information. For a more detailed discussion, including the specific information required to be included in a breach notice, see Lozano Smith’s 2017 TIPJar Article.

New Law

Effective January 1, 2020, AB 1130 amends the definition of personal information under Civil Code section 1798.29 with the purpose of addressing perceived gaps in the categories of sensitive information protected under the law. Under these amendments, personal information will now include an individual’s first name or first initial, and last name, in combination with either of the following (in addition to the data elements previously included in the definition):

  • Driver’s license number, California identification card, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual.
  • Unique biographic data generated from measurements or technical analysis of human body characteristics, such as fingerprint, retina, or iris image, used to authenticate a specific individual (not including a physical or digital photograph, unless used or stored for facial recognition purposes).

These changes have the potential to significantly impact public entities in terms of data breach notification obligations. Because biometric data is less commonly found in public entity databases, the largest impact from the new law will likely be the expansion of the types of government identification numbers that, if disclosed, may create a reportable event. By including within this definition “other unique identification numbers issued on a government document,” the law now potentially encompasses many additional types of information used by public entities to identify individuals within their databases and which they would not normally associate with or guard as personal information, one of example of which would be student identification numbers.

Takeaways

The best response to the threat of a cyber-attack is being prepared for it. Public entities should act now to review their data security and breach incident policies and procedures to ensure those documents define a reportable incident in compliance with the changes made by AB 1130. Personnel responsible for the organization’s data security should be placed on notice of these changes and instructed to make updates to all relevant policies, procedures, and data security training, as appropriate. Finally, those organizations without such policies or procedures should strongly consider adopting them to ensure they are prepared to comply with the California’s breach notification requirements, when, not if, an information security incident occurs.

If you have any questions about AB 1130 or data security breach notification obligations of public entities in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Devon B. Lincoln

Partner

James N. McCann

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New State Laws Aimed At Protecting LGBTQ Students And Students Who Are Pregnant Or Parenting

January 2020
Number 1

Assembly Bills (AB) 493 outlines new requirements for school districts, county offices of education, and charter schools to train certificated employees, serving in grades 7 to 12, to support Lesbian, Gay, Bisexual, Transgender, Queer, and Questioning (LGBTQ) youth. AB 809 outlines new requirements for public colleges and universities to increase awareness of the Title IX rights provided to pregnant and parenting students. Additionally, AB 34 requires that specific information on bullying and harassment prevention be posted on the websites of school districts. (For more information see CNB 70.)

AB 493: LGBTQ Resources and Trainings for Teachers

AB 493 was signed into law on October 12, 2019, adding Education Code section 218 with the goal of improving the overall school climate for LGBTQ students. Specifically, by no later than July 1, 2021, AB 493 requires the California Department of Education (CDE) to develop and update resources for in-service training on school site resources (e.g., counseling services, peer support groups, relevant policies, etc.) and community resources for LGBTQ pupils (e.g., healthcare providers experienced in treating LGBTQ youth), as well as strategies to increase support for LGBTQ students. The CDE will design the training resources for schools serving students in grades 7 to 12. Importantly, the new law encourages schools to use the training resources to provide training at least once every two years to teachers and other certificated employees who serve students in grades 7 to 12.

AB 809: Website Posting Requirement for Title IX Protections for Pregnant and Expecting Students

AB 809 was signed into law on September 6, 2019, and requires public postsecondary institutions (the University of California, the California State University, and California community colleges) to prominently post on each institution’s website and provide information regarding, Title IX protections for pregnant and parenting students. Title IX is an existing federal law prohibiting discrimination of any person on the basis of sex, in any educational program or activity receiving federal financial assistance. Implementing Title IX in California, Education Code section 66281 outlines various accommodations afforded to pregnant and parenting students. AB 809 now adds section 66061 and amends section 66281.7 to:

  • Require all public colleges and universities to inform pregnant and parenting students of the protections provided by Title IX on the institution’s website;
  • Require each public postsecondary educational institution with an on-campus medical center to provide notice of the protections provided by Title IX through the medical center to a student who requests information regarding policies or protections for students with children or pregnant students and when otherwise appropriate; and
  • Encourage child development programs established by the public postsecondary educational institutions to give specified priority to children of students who are unmarried and meeting specified income requirements.

Takeaways

AB 493 and 809 are focused on providing training and resources that will support LGBTQ youth and parenting students in public colleges and universities. LEAs and public colleges and universities should review these requirements to make sure they are in compliance.

If you have any questions about these bills or about student issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Marisa R. Lincoln

Partner

Stephanie M. White

Senior Counsel

Lauren A. Lyman

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Governor Signs A Suite Of Bills Aimed At Supporting Students In Higher Education

December 2019
Number 87

Governor Newsom signed a host of Assembly Bills (AB) and Senate Bills (SB) in support of higher education, which expand existing student aid programs and eligibility criteria, among other things.

California College Promise

The existing California College Promise program waives enrollment fees for eligible students. The program generally targets students from low-income families or who are receiving government assistance, such as Supplemental Security Income or Temporary Assistance to Needy Families. The Budget Act of 2019 (AB 74) expands the California College Promise by providing funding for community colleges to offer up to two years tuition free enrollment to first-time, full-time California students. Another bill, AB 2 expands access to the California College Promise program by allowing students with disabilities to qualify for the program even without a full-time course load. AB 2 also specifically excludes participation by students who have previously earned a degree or certificate from a postsecondary educational institution.

Student Equity and Achievement Program

The Seymour-Campbell Student Success Act of 2012 established the Student Equity and Achievement Program, aimed at closing achievement gaps for students from traditionally underrepresented groups in higher education. AB 943 amends the Program by authorizing the use of Program funding for emergency student financial assistance to help eligible students overcome unforeseen financial challenges that would directly impact the student’s ability to persist in their course of study. These challenges include, but are not necessarily limited to, the immediate need for shelter or food as well as textbook purchases and transportation assistance.

Internet Website Notification of Public Services and Programs

Existing law seeks to establish “hunger free campuses” within the University of California (UC), California State University (CSU) and California Community Colleges (CCC). AB 1278 adds a requirement that the attendance student web portal for CSU and CCC campuses include notification of, and a link to, information on public services and programs, such as the CalFresh program, housing resources, and mental health services. UC campuses are “requested” to include this information, but not required to do so. This bill is intended to connect students to existing social services resources to address areas of student need.

California DREAM Loan Program

The California DREAM Loan Program provides educational loans for qualifying undergraduate, UC and CSU students. Qualifying students with a full-time course load may borrow up to $4,000 per year or $20,000 total. Effective July 1, 2020, SB 354 expands eligibility for DREAM loans to students enrolled in qualified professional or graduate degree programs, including, but not limited to, a teaching credential program.

Chafee Educational and Training Voucher Program

The Chafee Educational and Training Voucher (ETV) Program is designed to provide financial assistance for current and former foster youth attending college. Effective July 1, 2021, SB 150 implements changes to the ETV disbursement process by (1) relaxing the academic progress requirements for recipients of student aid (in a manner similar the Cal Grant disbursement process) and (2) instituting an appeals system for those not meeting academic standards. The new disbursement process is structured to provide aid at the beginning of the school year when it is needed most.

If you have any questions about recently signed student aid bills, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Trevin E. Sims

Partner

Stephanie M. White

Senior Counsel

Tilman A. Heyer

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

In An Historic Move, California Paves Way For Public Banks

December 2019
Number 86

Effective January 1, 2020, local agencies will be allowed to create their own public banks. Assembly Bill (AB) 857, known as California’s Public Banking Act, allows local agencies and/or joint powers associations to organize nonprofit mutual benefit corporations for the purpose of engaging in the banking business. The stated purpose of the Public Banking Act is achieving cost savings for local government entities, strengthening local economies, supporting local economic development, and addressing community infrastructure and housing needs.

The procedural requirements for establishing a public bank include the following: the local agency must establish a separate corporate legal entity with appropriate articles of incorporation setting forth a specified purpose statement for the bank. Then, the entity must conduct a required feasibility study to assess the viability of the proposed bank. Next, the entity must submit a certificate of authorization to the Commissioner on Business Oversight (CBO). (Non-charter cities must have voter approval of a motion to submit an application to the CBO.) Finally, the public bank must secure Federal Deposit Insurance Corporation (FDIC) insurance and obtain a license from the CBO.

Entry into the public banking market is limited. Under AB 857, the CBO is allowed to issue just two licenses per year, and there can be no more than 10 public banks authorized to operate at one time.

Once the public bank is operational, it will be prohibited from competing with other retail banking financial institutions. Accordingly, the public bank’s primary function will be lending money to local initiatives that fall within the purview of its specified purpose statement in the articles of incorporation. Public banks are exempt from state taxes and a county is able to lend available funds to the bank.

Notably, the Public Banking Act includes Brown Act and Public Records Act exceptions. Brown Act open meeting requirements are waived when a local agency’s board convenes to discuss matters involving loan or investment decisions, and matters involving internal audits, compliance, governance, and meetings with state or federal regulators. Public Records Act disclosure requirements will not apply to any information or records pertaining to decisions made in any closed session meeting, information regarding investment decisions, information regarding specific bank accounts, and information regarding meetings with state and federal regulators. Furthermore, all information received by a shareholder, member, or owner of a public bank must remain confidential.

Takeaways

The process for establishing a public bank involves multiple procedural steps each requiring state and federal approval. There will likely be significant competition to obtain state licensure because licenses will be severely restricted. Time is of the essence for local government entities interested in establishing their own public bank. Once established, a public bank will need to observe and comply with state and federal regulations applicable to financial institutions.

If you have questions regarding establishing a public bank, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Daniel Maruccia

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Appellate Court Refuses To Enforce An Indemnity Provision Included In Consultant Agreement It Considers To Be Unfair To Consultant Plaintiffs

December 2019
Number 85

On December 9, 2019, the Appellate Court filed its decisions inLong Beach Unified School District v. Margaret Williams LLC, holding that an indemnity provision included in a consultant agreement between the parties was unfair and therefore inapplicable to claims brought by the consultant, Margaret Williams, or her consultant company, Margaret Williams LLC, against the District.

Background

In 2006, Long Beach Unified School District prepared and entered into its standard form consultant agreement with Margaret Williams LLC to perform full-time consultant work related to construction management and environment compliance on District projects.

In October 2013, a general contractor illegally brought contaminated material on one of the District’s construction sites. Based on this incident, a dispute arose between Ms. Williams and the District representatives assigned to the construction site as to how the contamination would be addressed, and Ms. Williams contracted arsenic poisoning. The District terminated the consultant agreement over its dispute with Ms. Williams.

Ms. Williams and her company brought an action against the District based on claims of retaliation and numerous causes of action for breach of contract and Ms. Williams’ wrongfully caused arsenic poisoning. The District filed a cross-complaint alleging the company was required to indemnify the District against the company’s and Ms. Williams’ claims, according to the terms of the consultant agreement. The consultant agreement required the company “at its own expense, cost, and risk, [to] defend any and all claims, actions, suits, or other proceedings . . . that may be brought or instituted against the DISTRICT, its officers, agents or employees . . . and shall pay or satisfy any judgment that may be rendered against the DISTRICT, its officers, agents or employees in any action, suit or other proceedings as a result thereof.” Thus, according to the District, the company was required to indemnify the District even against claims brought by the company and Ms. Williams, and even if the District was at fault.

Ms. Williams and her company asked that the trial court strike the District’s cross-complaint in its entirety. That motion was granted by the trial court, and the trial court’s decision was then appealed by the District.

The Court’s Unconscionability Test

The appellate court’s opinion focused on Williams’ argument that the District could not force the company to indemnify the District because the indemnity provision included in the consultant agreement was unconscionable. The court was required to determine if the indemnification provision was so one-sided in favor of the District that it should not be enforced, and it did so by analyzing multiple factors to consider both the provision’s procedural unconscionability (the allegedly unfair fashion in which the contract was imposed) and its substantive unconscionability (the alleged unfairness of the contract’s terms).

  • Procedural Unconscionability: The consultant agreement was presented to the company in a standard form, on a take-it or leave-it basis, with no negotiation. Based on these facts, the District was found to have the superior bargaining power and, according to the court, the company faced economic pressures to accept the contract as drafted. In addition, the court stated that, based on the terms of the agreement, the company was unfairly surprised to learn it would be required to pay for the District’s defense and indemnity, since the agreement also included a requirement that each party pay their own costs and attorney’s fees in any litigation arising from the agreement. For these reasons, the court found procedural unconscionability.
  • Substantive Unconscionability: The court also considered the fairness of the consultant agreement’s terms, and found a high degree of substantive unconscionability. The indemnity provision as drafted by the District, if enforced, would limit the company’s opportunity to obtain meaningful recovery in numerous valid actions against the District. Further, because Ms. Williams was not herself a party to the consultant agreement, the company would, under the language of the agreement, be required to pay the cost of defending against her claims as well as the cost of any ultimate judgment awarded to Ms. Williams against the District. For these reasons, the court found the clause to be substantively unfair.

Based on the court’s finding of both procedural and substantive unconscionability, it determined the provision could not be enforced because it would result in the unfair scenario of the company being required to pay for the entire lawsuit- required to defend its own lawsuit and indemnify any damages they may be due.

Takeaways

The court’s decision inLong Beach Unified School District v. Margaret Williams LLC, reinforces the legal concept that if a provision of a contract is considered by a court to be unfair, the court has discretion to limit the provision’s application to avoid an unfair result. Therefore, this decision acts as a caution against overly broad indemnification clauses. We recommend reviewing such clauses with legal counsel to determine their enforceability.

If you have any questions about indemnity provisions or contracting issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Devon B. Lincoln

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Charter Cities Bound By More General Law

December 2019
Number 84

A recent ruling of the Sixth District Court of Appeal found that a charter city, the City of San Jose, must abide by the California Surplus Land Act. In Anderson v. City of San Jose (November 26, 2019, H045271) __Cal.App.5th __, the court’s ruling focused on the Act’s provisions requiring that local agencies offer surplus property for subsidized housing affordable to low and moderate-income residents. The City of San Jose argued that its status as a charter city and its “home rule” power allowed the city to determine the best policy for land use within its boundaries. The Court of Appeal rejected this argument and stated that the shortage of affordable housing was a matter of statewide concern, which justifies application of general law regardless of San Jose’s status as a charter city.

Background

The Surplus Land Act requires local agencies to first offer surplus land to a developer for the purposes of a residential project where 25 percent of the units will be affordable housing for at least 55 years. If no such deal can be reached, the local agency may list the land on the open market with the condition that if the land is used to build 10 or more homes, at least 15 percent of those units must be affordable.

The California Constitution defines general law cities and charter cities, and authorizes them to: (1) make and enforce all local laws and regulations not in conflict with general state laws (Cal. Const., art. XI, § 7);(2) establish, purchase, and operate public works and utilities or franchise others to do so (Cal. Const., art. XI, § 9); and (3) be free from state legislation delegating to a private person or body control over city property, funds, tax levies and municipal functions (Cal. Const., art. XI, § 11). Cities with voter-approved charters have additional “home rule” authority or supremacy over their municipal affairs, police, subgovernments, city elections, and their elected and appointed city officials and employees (Cal. Const., art. XI, § 5). However, as to matters of statewide concern, charter cities remain subject to state law. (Bishop v. City of San Jose (1969) 1 Cal.3d 61.) The designation of matters of statewide concern is elastic and often reflects the current times and policies of the state.

Anderson v. City of San Jose

In addressing the City of San Jose’s argument in this case, the appellate court’s analysis centered on the application of the test set out in California Fed. Savings & Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1. According to the appellate court, the key elements of the test at issue here are “whether the disposal of locally owned surplus property for affordable housing purposes is a matter of statewide concern. If so, we consider whether the provisions of the Act are reasonably related to resolution of that concern and narrowly tailored to avoid unnecessary interference in local governance.” The court ultimately opined that, “[b]y requiring municipalities to prioritize surplus land for the development of low- and moderate-income housing, the statute addresses the shortage of sites available for affordable housing development as a matter of statewide concern. Because the statute also narrowly tailors the restrictions on local government to avoid unnecessary interference in the locality’s affairs, it meets the test for statewide preemption.”

Takeaways

In ruling that the disposal of surplus land by a charter city is a matter for statewide concern, the Sixth District Court of Appeal offered a new strategy to those looking to challenge the “home rule” and the discretion afforded to charter cities in deciding matters of public policy under their purview. The success of the appellant’s arguments in this case may have a ripple effect far beyond the application of the Surplus Land Act. This ruling may encourage challenges of other charter cities’ application of their “home rule” in other contexts.

For more information about this ruling, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

William P. Curley III

Partner

Junaid Halani

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Settlement Agreements To Resolve Employment Claims Filed By A Person Against Their Employer Can No Longer Contain No-Rehire Clauses

December 2019
Number 83

In the wake of the #MeToo movement, and as part of the ongoing legislative response to it, Governor Gavin Newsom signed Assembly Bill (AB) 749 into law, which prohibits no-rehire clauses in certain types of settlement and severance agreements. While the intent behind that law focused on victims of sexual harassment or sexual assault, the law is broad in scope and is not limited to such claims.

AB 749 applies to any settlement agreement between an employer and an “aggrieved person” entered into to resolve an employment dispute. An “aggrieved person” is defined as a “person who has filed a claim against the person’s employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process.” Beginning January 1, 2020, California employers-including public agencies-will be prohibited from including no-rehire language in any settlement agreement to resolve a claim filed by such aggrieved persons against their employer. Existing agreements regarding an employment dispute containing a no-rehire clause will be void (as to that provision) as of January 1, 2020.

Under AB 749, no-rehire clauses can only be included where there is a good faith determination by the employer that the person entering into the settlement agreement engaged in sexual harassment or sexual assault. The bill further clarifies that employers are not required to continue employing or rehire a person if there is a legitimate nondiscriminatory or nonretaliatory reason for terminating or refusing to rehire the person. In addition, the settlement agreement can contain resignation or termination of employment language.

Takeaways

Employers should review and revise standard settlement and severance agreements regarding employment disputes and remove any no-rehire clauses. It is important to keep in mind that not all settlement agreements will be subject to this prohibition, only those to resolve a claim or claims filed by a person against their employer. Additionally, employers may see an uptick in applications for reemployment from employees who settled employment disputes with the employer in the past, and employers should be prepared on how to handle such applications.

If you have any questions about AB 749 or about labor and employment issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedInor download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Marina L. Ramirez

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Bill Intended To Establish E-Mail Retention Requirement For Public Agencies Vetoed By Governor Newsom

December 2019
Number 82

California lawmakers recently proposed Assembly Bill (AB) 1184, which would have required public agencies to retain business related e-mails for at least two years. While the Governor did not sign the bill, this legislative effort again shows the significant interest in preserving e-mails as part of a public agency’s public record.

AB 1184: Public Records E-Mail Retention

The California Public Records Act establishes that every person has a right to inspect public records. Public records include any e-mail containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency.

Existing law authorizes cities, counties, and special districts to destroy or to dispose of duplicate records when they are no longer required by the city, county, or special district. However, the law does not address the requirements for the retention of e-mails. AB 1184 intended to add section 6253.32 to the Government Code to require all public agencies to retain and preserve every public record that is transmitted by electronic mail for at least two years.

Governor Newsom returned AB 1184 without his signature, stating it did “not strike the appropriate balance between the benefits of greater transparency through the public’s access to public records, and the burdens of a dramatic increase in records-retention requirements, including associated personnel and data-management costs to taxpayer[s].”

Had AB 1184 been signed into law, any other statute or regulation that required a longer retention period, or any rule established by the Secretary of State that provided for a longer retention period, would have remained in place.

With or without this legislation, school districts remain subject to specific California Code of Regulations requirement governing the retention and destruction of school district records in California. The contents of a particular record will determine how long a school district must maintain that record and all records must be classified prior to destruction. (See 2017 Client News Brief No. 2). Community college districts are also subject to retention regulations under the California Code of Regulations, although those retention requirements differ from the rules regarding school districts’ records.

Takeaways

Governor Newsom suggests that legislation must find a balance between the benefits of greater transparency through the public’s access to public records and the burdens of a dramatic increase in records-retention requirements. Though AB 1184 was unsuccessful, local agencies should be aware that the question of preservation of e-mails will remain of interest to the Legislature and to advocates for greater transparency.

For public agencies who may wish to establish or update their own record retention policies to address existing retention requirements, Lozano Smith provides policy options for addressing the complexities raised by the retention of e-mails. For a copy of the retention policy documents, contact Client Services. For more information on AB 1184 or guidance on e-mail retention, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Continues Availability Of Design-Build Construction Delivery Method To Community College District But Also Imposes Additional Labor Requirements

December 2019
Number 81

While a new law ensures that community college districts may continue to utilize the design-build construction delivery method for another ten years, it also imposes additional labor requirements on all design-build projects.

Design-build is a construction delivery method by which an owner retains a single entity to provide architectural, engineering, and construction services under a single contract. Design-build also allows owners to award projects on a “best value” basis, meaning the project owner can consider factors other than price. These features are intended to expedite project completion, reduce design and construction costs, and avoid project disputes. In 2007, community college districts were given statutory authority to award design-build contracts. This authority initially expired in 2014, but was subsequently extended to January 1, 2020. Assembly Bill (AB) 695 extends this statutory authority to January 1, 2030.

While community college districts can take advantage of the design-build method for at least another ten years, AB 695 also imposes a significant new restriction on design-build projects. Specifically, any contractor seeking to be prequalified or shortlisted for a design-build project must provide an enforceable commitment to the district that the entity and its subcontractors at every tier will use a “skilled and trained workforce” to perform all work for the project. These “skilled and trained workforce” requirements mandate that all workers performing work in a designated apprenticeable occupation have certain levels of on-the-job experience and that certain percentages of the workforce be graduates from an apprenticeable program for the applicable occupation. The contractor is also required to provide monthly reports to the project owner that demonstrate compliance with these requirements. The only exception to these skilled and trained workforce requirements is if the district or entity enters a project labor agreement covering the project.

While the addition of the “skilled and trained workforce” requirement creates some new complexities, it is not necessarily a surprise. The legislature has already extended these same requirements to design-build projects for K-12 school districts and all lease-leaseback projects (see 2015 Client News Brief No. 8;2015 Client News Brief No. 71; and 2016 Client News Brief No. 63). On a positive note, recent legislation has also has shifted much of the burden for compliance with these requirements to subcontractors and shifted the risk for noncompliance away from the project owner (see 2019 Client News Brief No. 2).

If you have questions regarding the design-build construction delivery method or the new labor requirements, or if you have any planned or anticipated construction project and would like to discuss delivery methods, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedInor download our mobile app.

Written by:

Devon B. Lincoln

Partner

Travis E. Cochran

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Public Agencies Can Be Liable For Attorney’s Fees In Reverse-CPRA Actions

December 2019
Number 80

The risks involved in asking a court to halt the disclosure of documents sought under a California Public Records Act (CPRA) request were just expanded to public agencies. About a year ago, we reported that a pair of court decisions held that private parties who lose in a lawsuit, to prevent government agencies from disclosing personal information, may be required to pay the requester’s attorney’s fees (see 2018 Client News Brief Number 35). In the recent case of City of Los Angeles v. Metropolitan Water District of Southern California (November 19, 2019, B272169) __Cal.App.5th__, this rule has now been extended to third-party public agencies seeking to prevent the disclosure of governmental records.

Background

During a time of severe drought in California, the Metropolitan Water District (Metropolitan) implemented a rebate program for customers who replaced their grass with drought tolerant landscaping. The City of Los Angeles Department of Water and Power (DWP) is a member agency of Metropolitan, and has customers who received rebates through Metropolitan’s program.

On May 19, 2019, a reporter from the San Diego Union Tribune (Tribune) wanted to research allegations that the rebate program was favoring affluent communities. The reporter made a CPRA request to Metropolitan for information about the rebate recipients, seeking information including recipients’ names, addresses, and rebate amounts. Before responding to the request, Metropolitan provided DWP with a copy of the request. Metropolitan and DWP agreed to limit the response to only generalized block numbers, and Metropolitan’s share of the rebate amount (member agencies had the option of supplementing customer rebates). Tribune objected to the withholding of information, and DWP filed a “reverse-CPRA” lawsuit, seeking to broadly prevent Metropolitan from releasing customer information about anyone who participated in the rebate program. At trial, the court ruled in Tribune’s favor, determining that the records in dispute must be disclosed. The trial court required Metropolitan to pay about $25,000 to Tribune for attorney’s fees under the CPRA. The court further awarded Tribune about $136,700 in attorney’s fees under California’s Private Attorneys General Act (PAGA) (Code Civ. Proc., § 1021.5), to be paid by DWP and other intervening utilities. PAGA allows a court to grant attorney’s fees in favor of a party who seeks to enforce an important public right, such as the disclosure of records concerning public expenditures.

On appeal, the court affirmed for the first time that governmental agencies risk liability for attorney’s fees under PAGA if the agency loses a lawsuit challenging the agency’s decision to withhold public records. Here, DWP lost its appeal to withhold its customer’s information, and the trial court affirmed the initial attorney’s fees and added an additional $12,350 to the award.

Takeaways

City of Los Angeles should serve as a cautionary tale for public agencies considering intervening in CPRA disputes, to prevent disclosure of public records. The financial risks involved in such intervention have now significantly increased for public agencies, and the court has reaffirmed the general stance favoring the broad disclosure of information. When a public agency is at risk of having its information disclosed in another agency’s response to a CPRA request, seek legal assistance in conducting a careful analysis of how to proceed.

If you have any questions about the City of Los Angeles case, the CPRA or PAGA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Manuel F. Martinez

Partner

Sophia V. Cohn

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Complainants Now Have 3 Years To File Charge Of Employment Discrimination

December 2019
Number 79

Effective January 1, 2020, employees complaining of discrimination in the workplace will have three years to file a charge of discrimination with the California Department of Fair Employment and Housing (DFEH).

On October 10, 2019, Governor Gavin Newsom signed Assembly Bill 9 into law, which extends the deadline under the Fair Employment and Housing Act (FEHA) for employees to file a charge from one year to three years-tripling the amount of time employees previously had to do so.

According to the bill’s author, extending the deadline was prompted by the #MeToo movement, which “has brought attention to many of the dynamics related to sexual harassment.” Many victims needed “ample time to fully grasp what happened to them before they felt comfortable coming forward,” and “the fear of retaliation often prevented victims from being able to report incidents of sexual harassment.” The same is true for other types of discrimination as well, where victims “may be initially unclear about what happened, unaware of their rights, or reluctant to report misconduct to their boss.”

FEHA prohibits employer discrimination, harassment, and retaliation against employees based on certain protected classes, such as race, religion, sex, gender, sexual orientation, marital status, disability, and age. Employees must first file a charge with the DFEH, which entails filling out and filing an intake form provided by the DFEH. The DFEH then reviews the information provided by the complainant supporting his or her claim. If the DFEH declines to investigate the case, the complainant receives a “right-to-sue” letter, allowing him or her to file a complaint in superior court within one year from receiving the letter.

AB 9 defines “filing a complaint” as filing the DFEH intake form. So, under the new law, employees must file the intake form with the DFEH within three years of the alleged unlawful practice. This deadline may be extended by 90 days if, within 90 days of the deadline, the complainant first learns of the unlawful conduct. This situation commonly arises when employers conceal their unlawful conduct and the employee has no reasonable means to discover it.

The new law will not apply retroactively-that is, it will not revive claims that have already lapsed under the former one-year limitations period. And it only applies to claims under the California-specific FEHA; for most employers, federal claims of discrimination under Title VII must still be filed with the EEOC within 300 days of the alleged discriminatory conduct.

Takeaways

This new law will have a significant impact on all employers, including public agencies. Employees will now have up to four years to file an employment discrimination complaint in state court-three years from the misconduct, plus one year to file in court. This places employers in the difficult position not only to maintain documentation and other evidence for longer, but to rely on fading memories and to locate witnesses who may have since relocated. In light of these new realities, employers should revisit and update their internal document retention policies, implement effective anti-discrimination trainings and policies, and promptly address any inappropriate conduct in the workplace.

For more information about AB 9, including Lozano Smith training opportunities, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Angela J. Okamura

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

School District Cannot Avoid Responsibility For Residential Placement Despite Availability Of Financial Assistance From A Non-Educational Agency

December 2019
Number 78

In a significant special education case published earlier this year, the California Court of Appeal ruled that a school district was responsible for funding the costs of residential placement for an adopted former foster child, despite funding assistance provided for the placement by the Department of Children and Family Services (DCFS).

Background

B.H., a former foster child with significant disabilities, lived with his adoptive parents within the boundaries of the Manhattan Beach Unified School District (MBUSD). B.H.’s parents arranged for his placement at a residential treatment facility and its affiliated nonpublic school in Sonoma County. MBUSD offered this placement to B.H. in an individualized education program (IEP) upon B.H. qualifying for special education. As adoptive parents of a child formerly under DCFS’s supervision, B.H.’s parents applied for and received financial assistance for his residential placement through the Adoptive Assistance Program (AAP), administered through DCFS. Given this financial assistance from DCFS, MBUSD refused to fund the IEP placement. MBUSD’s reasoning was two-fold: DCFS had placed the student-not the school district-and so MBUSD was not responsible for the costs of B.H.’s education; and, as DCFS was funding the placement, MBUSD had no need to do so.

The parents initiated a due process hearing, with the sole issue being whether MBUSD was responsible for implementing B.H.’s IEP and paying the parents’ travel expenses related to B.H.’s placement at the residential treatment center. The administrative law judge (ALJ) ruled in favor of MBUSD, finding that MBUSD was not responsible for the costs of B.H.’s education. In reaching this conclusion, the ALJ relied on Education Code sections 56155 and 56156.4, which provide that if a child with disabilities is placed in a licensed children’s institution (LCI) . . . by a public agency, other than an educational agency, then the special education local plan area (SELPA) shall be responsible for providing special education to the child residing in the LCI, and not the district of parents’ residence. (Ed. Code, § 56156.4, subd. (a); emphasis added.) The ALJ concluded that DCFS was a “public agency other than an educational agency” for purposes of Sections 56155 and that DCFS had placed B.H. in the residential treatment center.

On appeal, the trial court agreed with the ALJ’s finding that MBUSD was not responsible for the costs of B.H.’s residential placement.

Analysis

The Court of Appeal reversed the trial court’s decision, holding that because DCFS is not a “public agency, other than an educational agency” under Education Code section 56155 and that because DCFS did not in fact “place” B.H. in the residential facility but rather only offered AAP funding assistance, Education Code section 56156.4, subdivision (a), did not provide MBUSD with an exception to the rule that the school district of the parents’ residence is responsible for the costs of education for a student with disabilities.

In reaching these conclusions, the court first pointed out that B.H.’s educational placement was to be determined under the Individuals with Disabilities Education Act (IDEA), which required MBUSD to provide a free appropriate public education (FAPE), including placement, to B.H. Further, regardless of any other agency involvement, the statutory schemes of the IDEA and related provisions of the California Education Code do not provide an exception to a school district’s obligation to provide residential placement services solely on the basis that such services or placement may be available through another agency.

Next, the court explained that for purposes of Education Code sections 56155 and 56156.4, subdivision (a), a “public agency” is defined, in part, as “…any other public agency under the auspices of the state or any political subdivisions of the state providing special education or related services to individuals.” (Ed. Code, § 56028.5.) Because DCFS did not provide “special education or related services” to B.H. it was not a “public agency, other than an educational agency,” and thus the exception under Education Code section 56156.4, subdivision (a) did not apply.

The court found that the purpose of AAP funding is to ease financial burdens on adoptive families in addressing a child’s serious mental health or emotional problems that pre-existed the child’s adoption. The court emphasized that the law does not authorize DCFS to facilitate a residential placement for the purposes of providing special education, noting that such authority arises only when a student is a dependent of the juvenile court, and the court orders or permits DCFS to make educational decisions on behalf of the child.

Takeaways

Under B.H. v. Manhattan Beach Unified School District, a residential placement financially facilitated by DCFS for a child no longer under DCFS’s jurisdiction did not constitute “placement” by a non-educational public agency for purposes of determining the agency responsibility for funding the student’s FAPE. As school districts take stock of the recent legislative season and evaluate their practices midway through the school year, they should bear the B.H. case in mind. Education Code provisions concerning residential placements and licensed children’s institutions are nuanced, and legal counsel should be consulted when these issues arise.

For more information on this decision or to discuss any questions related to special education, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app. Over the next few weeks our housing experts will also be developing materials in response to the 2019 housing laws including sample checklists and preliminary applications to assist local governments in complying with SB 330. Keep an eye out for these resources.

Written by:

Claudia P. Weaver

Partner

Roxana E. Khan

Senior Counsel

Kristy J. Boyes

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

AB 101 And SB 330: The Juggernauts Of The 2019 Housing Laws

December 2019
Number 76

During the 2019 legislative season, upwards of 20 housing bills were passed, all with the purpose of addressing California’s affordable housing crisis. Chief among these bills were Assembly Bill (AB) 101 and Senate Bill (SB) 330, each of which, in different ways, will likely have a significant impact on the discretion exercised by local jurisdictions over how their housing elements are carried out and in their approval of housing developments. Below is a high-level overview of these bills and some practical takeaways.

AB 101

Enacted as urgency legislation as a trailer to the state’s Budget Bill, AB 101 took effect immediately upon its approval by the Governor on July 31, 2019. As an omnibus bill, AB 101 contains distinct measures designed to address affordable housing, ranging from new regulatory enforcement mechanisms to creation of additional housing grants and tax credits for low-income housing projects. Here are the most critical to keep in mind:

1. New Regulatory and Judicial Enforcement of Housing Element Compliance

By way of amendment to Government Code section 65585, AB 101 establishes a detailed framework for enforcement actions against cities and counties when the Department of Housing and Community Development (HCD) finds the jurisdiction’s housing element to be noncompliant with state law. After notification by HCD of a noncompliant housing element, the Attorney General is now required to request a court order directing compliance by the city or county. If the alleged violation relates to the city or county meeting its regional housing need allocation under Government Code section 65863, the HCD must offer the city or county an opportunity for two in person or telephonic meetings to discuss the alleged violations, and must provide the city or county written findings regarding the violations prior to the Attorney General seeking a court order. After the Attorney General obtains a court order, if the city or county does not comply, the following penalty scheme applies:

  • An initial penalty of between $10,000 and $100,000 per month, if within 12 months of the order, the city or county does not comply.
  • Triple the initial penalty, if within three months of the imposition of the first penalty, the city or county does not comply.
  • Six times the initial penalty, if within six months of the imposition of the first penalty, the city or county does not comply. The court may also appoint a receiver with all powers necessary to bring the city or county into substantial compliance.

2. Approval of Low Barrier Navigation Centers

AB 101 creates a special category of homeless shelters called “Low Barrier Navigation Centers” (LBNC), the development of which is a “use by right” in areas zoned for mixed use and nonresidential purposes. Use by right means that the development is ministerially approved through a streamlined process and exempt from review under the California Environmental Quality Act (CEQA). An LBNC is unique from other homeless shelters in that it is a Housing First, low-low barrier, service-enriched shelter focused on moving people into permanent housing while providing temporary living facilities and connecting individuals to basic resources and services such as income, public benefits, and health services. The purpose of this measure is to address the homeless crisis in California and remove legal challenges to the establishment of such navigation centers. Critically, the measure also requires cities and counties to respond to applications for navigation centers within 30 days of receipt in order to notify the prospective developer whether the application is complete and to approve or deny a completed application within 60 days of receipt.

3. Changes to Streamlined Approval Process, Housing Element Bonus Points, and New Grants

Other important changes from AB 101 include an amendment to Government Code 65913.4 (the streamlined ministerial approval process commonly known as SB 35), to make it easier for developers to qualify for streamlined approval by requiring cities and counties to consider any additional density, floor area, and units granted pursuant to a density bonus in their calculation of whether a development has at least two thirds of the square footage of the development designated for residential use. AB 101 also creates a sort of “carrot and stick” approach to housing element compliance with “prohousing” compliant jurisdictions awarded bonus points in the scoring of housing and infrastructure program applications, and conversely, HCD posting on its website each month a list of cities and counties that have failed to adopt a compliant housing element – public shaming if you will. Finally, AB 101 establishes two one-time grants, one in the amount of $650 million to assist cities and counties in addressing homelessness, and another in the amount of $250 million to assist in meeting regional housing needs. Applications must be submitted by February 15, 2020 for the first of these and by July 1, 2020 for the second.

SB 330

This bill, known as the “Housing Crisis Act of 2019,” adds additional teeth to the Housing Accountability Act and Permit Streamlining Act and continues the trend from the last few years of removing local discretion in the approval of housing developments. The purpose of the bill is to address the current housing supply crises, and to that end, to suspend certain restrictions on housing development and work with local governments to expedite the permitting of housing in those areas hit the worst by the housing shortage. In effect, SB 330 makes the process for approving non-ministerial housing projects more akin to the ministerial approval process by strengthening existing requirements that cities and counties apply objective standards in their review of project applications.

SB 330 makes the following important changes:

1. Addition of a Preliminary Application. The most important change with SB 330 is the addition of a checklist and preliminary application to the housing development approval process. Cities and counties must develop their own checklist and preliminary application for housing projects to satisfy this requirement, or in the absence of doing so, use an application developed by the HCD.

2. Limited Information Requested in the Preliminary Application. The checklist and preliminary application is limited to approximately 17 categories of information and an application developed by a city or county may not require or request information beyond the information specified in SB 330. However, it may be permissible to request information to substantiate claims made in the preliminary application, such as a cultural resources study to substantiate the statement that no cultural resources exist on the property, though this is an open question.

3. Earlier Date for Deemed Completion of the Application. A preliminary application is deemed complete once the developer submits the preliminary application with all the required information and pays the permit processing fee. The determination of when the application is deemed complete is important because the city or county may only use their zoning ordinance and general plan land use designation as they existed at the time the application was deemed complete for purpose of approving or denying the final application for the development project. Importantly, SB 330 does not include requests for mitigation measures under CEQA in its prohibition against the application of new ordinances, policies, and standards.

4. Limited Opportunity to Challenge the Sufficiency of the Preliminary Application. SB 330 states that a preliminary application is deemed complete once the required information is submitted, without any determination as to its completeness by the city or county. While the bill is unclear on the degree to which a city or county can respond to an incomplete preliminary application, it is likely that a city or county would be permitted to make a request for any of the information specified in SB 330 that is not provided with the application.

5. Updated Timeframes for Approval/Denial. SB 330’s addition of the preliminary application adds complexity to the timeframes for approval or denial of housing projects, including the addition of a 180-day timeframe in which an applicant must submit a final development application following submission of a preliminary application, as well as a 90-day timeframe in which an applicant must provide information missing from the final application when requested.

6. Limited Amount of Information Requested for the Final Application. Through a small but significant amendment to the Government Code, SB 330 completely changes the process and practice of cities and counties in reviewing and approving the final development application. While current law permits cities and counties to make multiple requests for additional information to clarify information submitted with the application, SB 330 limits this process by requiring cities and counties to provide one exhaustive list of the information missing from the final application. Once this exhaustive list has been provided, no new information may be requested in a subsequent review of the application.

7. Limitations on “Affected” Cities and Counties. SB 330 places restrictions on the ability of affected cities and counties, defined as those in urban areas or urban clusters, to downzone any property to a less intensive use by changing the general or specific plan land use designation or zoning of a parcel, unless such less intensive designation was in effect on January 1, 2018 or there is no net loss in residential capacity. This includes any new or increased space or lot requirements. SB 330 also places strict limits on the ability of affected cities and counties to impose a moratorium or similar restriction on housing development, except to protect against imminent health and safety threats.

8. Steep Penalties. Cities and counties found to have violated SB 330 and existing housing development approval laws may be subject to fines of at least $10,000 per housing unit, which may be increased by a factor of five with a finding of bad faith.

AB 330 will take effect on January 1, 2020 with many of its provisions set to expire on January 1, 2025.

Takeaways

AB 101 and SB 330 make significant changes to California’s housing laws and the way in which local governments review and approve housing developments. Cities and counties can respond to AB 101, which is now in effect, by reviewing their housing elements to ensure compliance with all applicable state laws and ensuring a process exists for timely response to the HCD if allegations of noncompliance are made. To prepare for SB 330, cities and counties should, prior to January 1, 2020, develop a checklist and preliminary application. This checklist and application must be available in writing and on the city’s or county’s website. In addition, cities and counties may wish to establish a local housing trust fund to capture and keep local any fines that may be assessed under SB 330. Finally, any policies implicated by either AB 101 or SB 330 should be updated to reflect changes in the law.

If you have any questions about AB 101, SB 330, or housing laws in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app. Over the next few weeks our housing experts will also be developing materials in response to the 2019 housing laws including sample checklists and preliminary applications to assist local governments in complying with SB 330. Keep an eye out for these resources.

Written by:

Jenell Van Bindsbergen

Partner

James N. McCann

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

AB 101 And SB 330: The Juggernauts Of The 2019 Housing Laws

December 2019
Number 76

According to the California Department of Education Office of Financial Accountability and Information Services, pursuant to Public Contract Code section 20111(a), the bid threshold for K-12 school districts’ purchases of equipment, materials, supplies and services (except construction services)
has been adjusted to $95,200, effective January 1, 2020. The notice may be viewedhere.

The California Community Colleges Chancellor’s Office is expected to announce a similar adjustment to the bid threshold for community college districts’ purchases of equipment, materials, supplies and services (except construction services), pursuant to Public Contracts Code section 20651(a), sometime in the near future. Once released, that information will be available here.

The bid limit for construction projects remains at $15,000.

The bid thresholds for cities, counties and special districts are not affected by the bid limits discussed above.

For those school districts and other public entities that have adopted the California Uniform Public Construction Cost Accounting Act (CUPCCAA), as of January 1, 2019 the force account limit is $60,000, the informal bid limit is $200,000 and the limit for awarding informal bids is up to $212,500, provided that the cost estimate was determined to be reasonable. (CNB 2018 #47).

For more information on the new bid limits or bidding in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Formerly Homeless Youth To Be Granted Priority Enrollment And Additional Resources At The Community College Level

November 2019
Number 72

Assembly Bill (AB) 806 was signed into law by Governor Newsom on July 31, 2019, extending the following postsecondary educational resources to formerly homeless youth:

  • Priority enrollment for community college districts and California State University.
  • The services of a Community College Homeless and Foster Student Liaison.
  • Access to the Community College Student Financial Aid Outreach Program and the Student Opportunity and Access Programs.
  • Eligibility for a community college enrollment fee waiver.

Previously, the resources listed above were made available to homeless youth, current and former foster youth, and youth from low-income households. Through this bill, Education Code section 66025.9 has been amended to define “homeless youth” and “former homeless youth” as a student under 25 years of age, who has been verified, in the case of a former homeless youth, at any time during the 24 months immediately preceding the receipt of the youth’s application for admission by a postsecondary educational institution that is a qualifying institution, as a homeless child or youth, as defined in subsection (2) of Section 725 of the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11434a(2)). Education Code §66025.9 states that verification of “homeless youth” or “formerly homeless youth status” must be provided by one of the following:

  • A homeless services provider, as that term is defined in paragraph (3) of subdivision (d) of Section 103577 of the Health and Safety Code.
  • The director of a federal TRIO program or Gaining Early Awareness and Readiness for Undergraduate Programs program, or a designee of that director.
  • A financial aid administrator for an institution of higher education.
  • A homeless and foster student liaison designated pursuant to paragraph (1) of subdivision (a) of Section 67003.5 of the Education Code.

The priority enrollment provision of existing law was originally set to be repealed on January 1, 2020, but under AB 806, it has been extended indefinitely.

Takeaways

Community colleges must ensure that application forms allow students to identify as formerly homeless and that priority enrollment and fee waivers are made available to these students. A community college must ensure that its Homeless and Foster Student Liaison’s services are extended to any formerly homeless student. A community college’s Community College Student Financial Aid Outreach Program and Student Opportunity and Access Program must also ensure that services are available to formerly homeless youth.

If you have any questions about AB 806 or postsecondary educational student support, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Darren C. Kameya

Partner

Stephanie M. White

Senior Counsel

Peter Y. Sumulong

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Adult Education Students Pursuing High School Diploma Or Equivalency Certificate Allowed To Enroll As Special Part Time Students At Community Colleges

November 2019
Number 73

Senate Bill (SB) 554 was signed into law on by Governor Newsom on October 4, 2019. The law authorizes the governing board of a school district overseeing an adult education program, or the governing board of a community college district overseeing a noncredit program, to authorize an adult student pursuing a high school diploma or equivalency certificate to enroll as a special part-time student at a community college. Through the bill, the community college would be credited or reimbursed through the apportionment process for the student’s attendance at the college.

Existing law authorized school districts to allow pupils whom they determined would benefit from advanced scholastic or vocational work to attend community college as special part-time or full-time students, subject to parental permission. SB 554 extends special part-time student status to adult school students.

Takeaways

Community colleges must recognize the ability of adult school students to enroll as special part-time students, and must keep record of these students to ensure reimbursement.

If you have any questions about SB 554 or special part-enrollment at community college, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Darren C. Kameya

Partner

Stephanie M. White

Senior Counsel

Peter Y. Sumulong

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Laws Streamline Process For Participation In College And Career Access Pathways Partnership

November 2019
Number 74

Assembly Bill (AB 30) and Senate Bill (SB) 586 were signed into law by Governor Gavin Newsom on October 4, 2019. The two bills jointly revised Education Code section 76004 to simplify the requirements for high school pupil participation under a College and Career Access Pathways (CCAP) partnership. AB 30 and SB 586 require the board of a community college to consult with, and consider the input of, the appropriate local workforce development board in adopting a CCAP partnership agreement. Finally, AB 30 and SB 586 streamline the approval process for CCAP partnership agreements.

As revised, Section 76004 requires a high school pupil participating under a CCAP partnership to submit only one parental consent form and principal recommendation and would require the Chancellor of the California Community Colleges to revise the special part-time student application process to allow a student to complete one application for the duration of the pupil’s participation under the CCAP partnership. The changes in the law also allow the units completed by a pupil pursuant to a CCAP agreement to count towards determining a pupil’s priority for registration and enrollment at a community college.

The new law also requires the governing boards of a community college district and either the school district or charter school, as a condition of adopting a CCAP partnership agreement, to solicit and consider the input of the appropriate local workforce development board to better align the CCAP’s career pathways with regional and statewide employment needs.

Section 76004, as revised, now streamlines the approval of CCAP partnership agreements. Existing law required a two meeting process for presentation of a CCAP partnership agreement with presentation and public comment taking place over the course of two meetings. Under the revisions to Section 76004, only one open public meeting is necessary.

The revisions also require the CCAP partnership agreement to include a plan to ensure specified conditions are met, and eliminates the need for a certification of compliance by the college district. The new law extends the operation of Section 76004 until January 1, 2027.

Takeaways

Community college districts must now be aware that high school pupils participating under a CCAP agreement are only required to complete one application for the duration of their attendance. Community colleges must also count a high school pupil’s CCAP units towards priority enrollment at the community college. With respect to adopting a CCAP partnership, participating districts must remember to consult with and consider the input of the appropriate local workforce development board before adoption. Also, a community college district should be aware that only one meeting is now necessary for presentation, public comment, and action on a CCAP agreement.

If you have any questions about the above newly-enacted laws, or CCAP partnerships in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Darren C. Kameya

Partner

Stephanie M. White

Senior Counsel

Peter Y. Sumulong

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Appellate Court Finds That Solar Energy Project Was Not Exempt From City’s Zoning Ordinance

November 2019
Number 75

A recent California appellate court ruling has clarified the requirements for a local agency’s compliance with city or county zoning ordinances. In City of Hesperia v. Lake Arrowhead Community Services District, the Fourth Appellate District held that a community services district did not qualify for zoning compliance exemptions as provided in sections 53091(e) and 53096(a) of the Government Code, after the district had adopted a resolution finding the exemptions applicable in preparation for constructing a solar energy facility.

Background

In City of Hesperia, the Lake Arrowhead Community Services District (District), sought to overturn a trial court’s decision that construction of a solar energy facility did not qualify for exemption from the City of Hesperia’s (City) zoning ordinances. The solar energy facility (Project) was to be constructed on property owned by the District within City limits. The property, which was already in use as a water reclamation facility, was zoned “Rural Residential.” The City’s municipal code provided that “solar farms” were only allowed on nonresidential and nonagricultural property with a conditional use permit and could not be located within 660 feet of agricultural or residential property. Over the City’s objections, the District passed a resolution finding that the City’s zoning ordinances did not apply to the Project, as it was both absolutely exempt and qualifiedly exempt under Government Code provisions specific to energy projects. The City filed suit and prevailed at the trial court level, and the District appealed.

Analysis

Government Code section 53091(a) provides generally that a local agency must comply with “all applicable building ordinances and zoning ordinances of the county or city in which the territory of the local agency is situated.” This case considers two exemptions from this general rule.

Government Code section 53091(e) provides an absolute exemption from local zoning ordinances for the “the location or construction of facilities… for the production or generation of electrical energy” unless the facilities are used for storage or transmission of electrical energy. While the Project was designed to produce energy, that energy was intended to be transmitted to the local utility’s electrical grid. The court concluded that because section 53091(e) does not exempt “transmission” of electrical energy from local zoning ordinances, the Project was not exempt from those ordinances under section 53091(e).

Government Code section 53096(a) provides a qualified exemption to local zoning regulations for a local agency that holds a public hearing and adopts a resolution determining that “there is no feasible alternative to its proposal.” In order to use this exemption, the local agency must properly determine through substantial evidence that no feasible alternatives exist for the location of the proposed facility. The court concluded that the District’s determination that there was no feasible alternative location for the Project was not supported by substantial evidence, and that the District had failed to provide evidence that it had considered “economic, environmental, social, or technological factors associated with an alternative location.” Thus, the Project was not exempt under section 53096(a).

Since the Project did not did not meet the requirements for exemption from the City’s zoning ordinances under either section 53091(e) or section 53096(a), the court ruled that it was not exempt from the City’s zoning ordinances.

Takeaways

The court in City of Hesperia took a narrow view of a local agency’s ability to exempt itself from local zoning ordinances in order to proceed with energy projects. In particular, this ruling makes clear that a local agency’s finding that “there is no feasible alternative to its proposal” must be supported by substantial evidence that the agency had carefully considered alternative locations for its project.

If you have any questions about the City of Hesperia v. Lake Arrowhead Community Services District decision or building and zoning issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Claudia P. Weaver

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Two New Laws Add Duties Regarding Student Sexual Harassment Policies And Domestic Violence Resource Information

November 2019
Number 71

The Governor has signed legislation that promotes student safety by providing additional resources for combating sexual harassment and domestic violence.

Assembly Bill (AB) 543: Student Sexual Harassment Policy Posters

Starting January 1, 2020, schools serving grades 9-12 must create and display posters that notify students of the school’s student sexual harassment policy. AB 543 requires that the posters be age appropriate, culturally relevant, no smaller than 8.5 by 11 inches, in at least 12-point font, and displayed in English and in any primary language spoken by 15 percent or more of the students enrolled at the school. Schools may partner with local, state, or federal agencies, or nonprofit organizations to design and create the poster. AB 543 applies to school districts, county offices of education and charter schools.

The posters must include, at a minimum: (1) the procedures and contact information of the appropriate schoolsite official for reporting sexual harassment; (2) the rights of the reporting student, complainant, and respondent; and (3) the schoolsite’s responsibilities under the policy.

The posters must be displayed prominently and conspicuously in each schoolsite bathroom and locker room. The governing board has full discretion to select other appropriate locations where it may choose to display the posters, such as in classrooms, hallways, gymnasiums, and cafeterias.

Currently, California educational institutions are required to display their sexual harassment policies in prominent campus locations where similar notices are posted, and copies must be distributed to parents at the beginning of the school year and as part of any orientation program for new students. Under AB 543, the policy must also be provided as part of any orientation program for new or continuing students at the beginning of each quarter, semester or summer session, as applicable.

Senate Bill (SB) 316: Student Identification Cards – Domestic Violence Hotline

Currently, the telephone number for the National Suicide Prevention Lifeline must be included on student identification cards issued by public schools, including charter schools, and private schools serving students in any of grades 7 to 12, and public and private colleges and universities that issue student identification cards. (See 2018 Client News Brief Number 78.) The Crisis Text Line, and a local suicide prevention hotline phone number may also be included. Colleges and universities may also include the campus police or security phone numbers, if applicable, or the local nonemergency phone number.

Beginning October 1, 2020, SB 316 requires schools serving students in any of grades 7 to 12, that issue student identification cards, to also print the telephone number for the National Domestic Violence Hotline, 1-800-799-7233, on either side of their student identification cards.

Similarly, commencing October 1, 2020, public and private colleges and universities that issue student identification cards must have printed on either side of their student identification cards the National Domestic Violence Hotline number or a local domestic violence hotline that provides confidential support services by telephone 24 hours a day.

These new requirements apply when student identification cards are issued for the first time or when lost or damaged cards are replaced.

Schools and colleges that have a supply of unissued student identification cards as of January 1, 2020, that do not include the new information, must continue to issue those identification cards until that supply is depleted.

It is worth noting that Assembly Bill 624 proposed that a sexual assault hotline number also be included on student identification cards, but this proposed act was vetoed by the Governor.

These new laws both take effect on January 1, 2020, and that is the date by which the student sexual harassment policy poster requirements under AB 543 must be implemented. October 1, 2020, is the deadline for carrying out SB 316’s new student identification card requirements.

If you have questions regarding fulfilling these new obligations or regarding student safety in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Laws Promote Student Safety: Bullying, Harassment, And Suicide Prevention

November 2019
Number 70

The Governor has signed legislation that promotes student safety by providing additional resources for suicide prevention and combating bullying and sexual harassment.

Assembly Bill (AB) 1767: Suicide Prevention Policies for Kindergarten and Elementary School Students

Currently, local educational agencies serving students in grades 7-12 are required to have adopted student suicide prevention policies pertaining specifically to students in those grades. AB 1767 amends Education Code section 215 to expand the requirement for the adoption of suicide prevention policies to local educational agencies serving students in kindergarten and grades 1-6.

Before the beginning of the 2020-2021 school year, governing boards of local educational agencies serving elementary school students, must adopt, at a regularly scheduled meeting, a suicide prevention policy for their K-6th graders. The policy must be age appropriate, and delivered and discussed in a manner that is sensitive to the needs of young students.

A policy pertaining to K-6th graders must be developed in consultation with school and community stakeholders, the county mental health plan, school-employed mental health professionals, and suicide prevention experts. The policy must address suicide prevention, intervention and postvention, and ensure coordination with the county mental health plan if a referral is made on behalf of a student who is a Medi-Cal beneficiary.

Suicide prevention policies applicable to any grade span must be reviewed and, if necessary, updated, at least every five years.

AB 34: Bullying, Discrimination, Harassment, and Suicide Prevention Website Information

Also, commencing with the 2020-2021 school year, local educational agencies will be required to provide specified bullying, discrimination, harassment, and suicide prevention information in a prominent location on their websites and in a manner that is easily accessible to students, parents and guardians.

AB 34 adds section 234.6 to the Education Code, which provides the full list of the required information that must be posted, including:

  1. The local educational agency’s:
    • Student suicide prevention policy for 7th-12th graders;
    • Student suicide prevention policy for K-6th graders;
    • Sexual harassment policy as it pertains to students;
    • Policy on preventing and responding to hate violence, if it exists;
  2. Anti-discrimination, anti-harassment, and anti-intimidation policies; and/or
  3. Anti-bullying and anti-cyberbullying policies and procedures.
  4. The definition of discrimination and harassment and copies of Education Code sections 230 (prohibited practices on the basis of sex) and 221.8 (list of rights under Title IX).
  5. The name and contact information of the Title IX Coordinator.
  6. The rights of students and the public, and responsibilities of the local educational agency, under Title IX.
  7. A description of how to file a Title IX complaint, including an explanation of the statute of limitations and how the complaint will be investigated, with weblinks to this information on the United States Department of Education Office for Civil Rights (OCR)’s website.
  8. A weblink to the federal regulations implementing Title IX from the OCR website.
  9. Social media bullying prevention and statewide and community resource information for students who have been victims of violence, bullying, discrimination, intimidation and harassment.

While some of these items are already required to be posted on the website, particular attention should be given to ensure that all of the required elements are included.

These new laws take effect on January 1, 2020, but they will need to be implemented by the start of the 2020-2021 school year. If your district would like staff or student training on any of these topics, please contact us.

If you have questions regarding implementing these new requirements or regarding student safety in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Prohibits Barriers To Charter School Enrollment

November 2019
Number 69

A new law is intended to discourage the improper recruitment and disenrollment of charter school students, particularly students who belong to certain protected classes. Recently signed by Governor Newsom, Senate Bill (SB) 75 adds a provision to California’s Charter Schools Act to prohibit charter schools from discouraging a student from enrolling or continuing to enroll in the charter school.

The law lists explicitly unlawful bases for “counseling out” students and their families, including nationality, race, ethnicity, sexual orientation, or if a student exhibits characteristics of: a disability; an academically low-achieving student; an English learner; a neglected or delinquent student; a homeless student; a student who is economically disadvantaged; or a foster youth. In furtherance of the law’s purpose, charter schools are also prohibited from requesting a student’s records, or requiring a parent, guardian, or student to submit the student’s records to the charter school, prior to enrollment. Historically, charter schools have always been required to accept all students that are California residents, regardless of academic achievement, disability, economic status, etc. Here, the California Legislature recognizes problems that have arisen, where certain groups of students were being discouraged from enrolling, or encouraged to disenroll, in some charter schools.

Under the law, the California Department of Education (CDE) is directed to develop a notice and complaint form stating the new legal requirements, and charter schools are required to post the notice on their respective websites. Charter schools also now have an affirmative duty to provide a copy of the CDE notice to parents, guardians, and students over age eighteen when the parent, guardian, or student over age eighteen inquires about enrollment; before conducting an enrollment lottery; and before the disenrollment of any student. In order to ensure enforcement, any member of the public has a right to file a complaint with the charter school’s authorizer, often the local school district, if the person suspects a charter school has violated the provisions of this law. CDE’s notice and complaint form can be found at https://www.cde.ca.gov/sp/ch/cscomplaint.asp.

Although the law creates a process for aggrieved families to complain to charter authorizers, it is silent regarding exactly what action a charter authorizer must take when it receives a complaint. The recently revised statutes regarding charter school renewals, which go into effect in July 2020, shed some light onto the complaint review process (See 2019 Client News Brief No. 49). The law now indicates that, when determining whether to renew a school’s charter, an authorizer must consider, along with other criteria, any substantiated complaints that the charter school has not complied with the new enrollment requirements described above. The determination of whether a complaint is “substantiated” is left to the charter authorizer, and thus the law infers that charter authorizers must develop their own complaint investigation processes. Still, some questions remain unanswered. For example, if the authorizer investigates the complaint and discovers a potential legal violation, what action is the charter authorizer supposed to take, aside from considering whether to revoke the charter? The new law does not appear to create an enforcement mechanism, aside from considering compliance during the charter renewal process.

Takeaways

Charter schools and charter authorizers should be careful to ensure that charter schools are not discouraging any student from attaining or maintaining charter school enrollment. Charter schools must be extra careful when dealing with students who are members of the groups specifically protected under the law. Since the law took immediate effect in July, charter schools should post the CDE notice and complaint form on their websites and implement clear policies for staff regarding the distribution of the CDE notice, in short order. Note that charter schools are still permitted to suspend or expel students for disciplinary reasons, so long as such discipline conforms to federal and state statutory and constitutional due process requirements, and is otherwise consistent with the law, and the processes laid out in the charter.

If you have any questions about SB 75, the amendments to the Education Code regarding charter schools, or charter school student enrollment in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us onFacebook, Twitter and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Sophia V. Cohn

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Requiring Later Start Times For Middle Schools And High Schools Creates Uncertainty For Educational Agencies

November 2019
Number 66

Governor Gavin Newsom signed Senate Bill (SB) 328, which establishes new mandatory school day start times for most middle schools and high schools. SB 328 adds section 46148 to the Education Code, requiring high schools to set the beginning of the school day no earlier than 8:30 a.m., and middle schools at no earlier than 8:00 a.m. The reasoning behind this new law is based on studies showing increased academic performance, school attendance, and health for students at schools that started later in the day.

SB 328 raises several questions for school districts, county offices of education, and charter schools. Here are some of the areas which remain uncertain or will need to be addressed by school districts.

Implementation Date. The new start times must be implemented by July 1, 2022, unless the school district or charter school has a collective bargaining agreement that is operative on January 1, 2020 and expires after July 1, 2022; in that case, the new start times shall be implemented at the expiration of that collective bargaining agreement. Most school districts have two collective bargaining agreements, one with their teachers and certificated personnel, and the other with classified personnel. Unfortunately, SB 328 does not distinguish whether one or both collective bargaining agreements must expire for this start time mandate to be implemented.

Collective Bargaining. In addition to questions regarding when SB 328 will be implemented, collective bargaining may also be required to set new start and end times for employees, and districts affected by SB 328 will need to give notice and offer to negotiate these changes with their bargaining units.

Rural School Districts. SB 328 provides that rural school districts are exempted from the new school start time. However, the law does not currently provide a definition of a “rural school district,” a fact that was noted in the legislative analysis that accompanied the bill. This rural exemption only applies to school districts, but not to charter schools.

Enforcement. The text of the new statute is silent as to how SB 328 might be enforced to ensure compliance.

Middle School and High School. SB 328 lacks a definition of “middle school” and of “high school.” Does “middle school” cover grades 6 to 8 or 7 and 8 only, and does this mandate apply to elementary schools which serve grades ranging from kindergarten to eighth grade?

Other Considerations. Notably, it is still permissible to offer “zero” period classes or activities that start before the school day and do not count towards average daily attendance. Also, SB 328 does not appear to create any new obligations for secondary schools directly run by county offices of education, but would affect a charter school overseen by a county office of education.

Takeaways

SB 328 will have significant impacts on the operations of school districts, for both the students and the employees. School districts who rely on staggering their bus transportation times for secondary and elementary students may have to acquire more buses or push elementary school start times back. Districts may also need to consider the cost of expanding child care and other before-school programs, as well as changes to the scheduling of after school programs and extracurricular activities to later in the day; this may result in student-athletes missing more class time due to afternoon competitions. Many secondary schools open up their campus to outside groups through the Civic Center Act when school ends and the later start time may require renegotiating of arrangements with community groups for time slots after the school day. Finally, districts that are considering whether they qualify for exemption as “rural school district” may wish to contact legal counsel for assistance.

School districts should start planning now to address the issues raised by compliance with this new bill and work together with employees, parents, and other community stakeholders to determine how to best meet student needs within the parameters of SB 328.

For more information about SB 328, including questions about preparing for changes to school start times, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Joshua Whiteside

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Laws Will Impact Public Work Projects

November 2019
Number 65

Governor Gavin Newsom has signed two laws that will impact public works contracts in California. Assembly Bill (AB) 456 extends the operative date for the current contractor claims resolution process to January 1, 2027. AB 1768 expands the definition of “public works” for purposes of paying prevailing wage, regulating working hours, and securing worker’s compensation.

AB 456

The law as currently stated in Public Contract Code section 9204 prescribes a claims resolution process for any claim by a contractor in connection with a conovernor Gavin Newsom has signed two laws that will impact public works contracts in California. Assembly Bill (AB) 456 extends the operative date for the current contractor claims resolution process to January 1, 2027. AB 1768 expands the definition of “public works” for purposes of paying prevailing wage, regulating working hours, and securing worker’s compensation.

AB 456

The law as currently stated in Public Contract Code section 9204 prescribes a claims resolution process for any claim by a contractor in connection with a contract for a public works project entered into on or after January 1, 2017.

Under existing law, such a claim is defined as a separate demand by the contractor for one or more of the following:

  • A time extension for relief from damages or penalties for delay;
  • Payment of money or damages arising from the work done pursuant to the contract for a public work; or
  • Payment of an amount disputed by the public entity.

Upon receipt of a claim that is subject to this resolution process, a public entity must conduct a reasonable review of the claim and provide to claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. The public entity is required to provide this statement within 45 days.

The law requiring this claims resolution process was set to expire January 1, 2020. AB 456 extended the sunset date to January 1, 2027.

AB 1768

This bill specifies that preconstruction and postconstruction work fall within the definition of “public works” and, consistent with existing law, employees conducting such work must be compensated no less than the general prevailing rate of per diem wages as determined by the Director of Industrial Relations. This definition of “public works” is only for purposes of the Labor Code and prevailing wages.

Previously, “public works” included construction, alteration, demolition, installation or repair work done under contract and paid in whole or in part with public funds. Now, the definition of “construction” under Labor Code section 1720 has been expanded to specifically include work performed during the design, site assessment, feasibility study, and other preconstruction phases of construction, including but not limited to, inspection and land surveying work and work performed during the postconstruction phases of construction, including but not limited to all cleanup work at the jobsite. Furthermore, preconstruction work is considered “construction” regardless of whether any actual construction work is done at that phase. What this means is the scope of work covered by existing prevailing wage laws has grown.

Any willful violation of prevailing wage law is a misdemeanor, and because AB 1768 expands the application of an existing crime, it also imposes a state-mandated local program.

Takeaways

Public entities should be mindful that prevailing wage rights have been extended to all employees conducting pre and postconstruction services on public works projects. This may entail additional cost in contracts for those services. Public entities should also ensure that their contracts for construction include appropriate language regarding the claims resolution process.

If you have any questions about AB 456 or AB 1768, or public works projects in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Anne L. Collins

Partner

Peter Y. Sumulong

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Addresses Impact Of Dismissals And Settlement Of Due Process Complaints On The IDEA’s Administrative Remedy Exhaustion Requirement

October 2019
Number 43

The recent opinion of the Ninth Circuit Court of Appeals in Paul G. v. Monterey Peninsula Unified School District clarifies that dismissal or settlement of a special education due process hearing inadvance of a hearing and final administrative decision from the Office of Administrative Hearings (OAH), does not satisfy the requirement that a plaintiff exhaust administrative remedies under the Individuals with Disabilities Act (IDEA) before initiating a lawsuit in federal court asserting claims which could be redressed by the IDEA. In Paul G., the Ninth Circuit held that an adult student with autism could not sue his school district or state educational agency under the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act of 1973 (Section 504), for failing to make an in-state residential placement available to him without having first exhausted IDEA administrative remedies, that none of the exceptions to exhaustion of administrative remedies applied, and that settlement of his special education due process case did not satisfy the exhaustion requirement.

Background

Student Paul G. was an adult special education student with autism who began having episodes of violent and threatening behavior. After unsuccessful efforts to find an appropriate educational placement for Paul, the school district offered to place him in a residential facility. However, no residential facility in California would accept the student because he was 18 years old. Paul enrolled in an out-of-state residential facility, but later became homesick, and returned home.

The student subsequently filed for due process with OAH against both the school district and the California Department of Education (CDE), alleging that the lack of an in-state residential facility for adults denied him a free appropriate public education (FAPE) under the IDEA. As a remedy, the student sought a residential placement in California and an order directing the CDE to develop in-state residential facilities for adult students. OAH dismissed the claims against the CDE, ruling that OAH did not have jurisdiction to order the creation of facilities, and that the school district, not the CDE, was responsible for education decisions affecting the student. Thereafter, the student entered into a settlement agreement with the school district, causing OAH to dismiss the case, without the due process complaint proceeding to hearing or OAH ruling on the merits of the student’s IDEA claim.

The student then initiated a lawsuit in federal court, alleging the CDE violated the ADA and Section 504, and seeking monetary damages for those alleged wrongs. The central theme of his complaint was that to receive a FAPE, he required an in-state residential placement, and the CDE had failed to provide him a residential placement in California. The United States District Court dismissed the student’s case, due to his failure to exhaust the IDEA’s administrative remedies, and the student appealed to the Ninth Circuit.

The Court’s Opinion

The Ninth Circuit considered whether the student was required to exhaust the IDEA’s administrative remedies under the circumstances, and if so, whether an exception to the exhaustion requirement applied. When a plaintiff seeks relief under the IDEA or under any other statute where the relief sought would also be available under the IDEA, the plaintiff must exhaust the IDEA’s administrative procedures before filing a civil action. Exhaustion is not required when use of the administrative process would be futile, the claim arises from policy or practice of general applicability that is contrary to law, or it is improbable that adequate relief can be obtained by pursuing administrative remedies.

The student argued that because his federal claims were brought under the ADA and Section 504, and not the IDEA, the exhaustion of remedies requirement for IDEA claims did not apply. Applying the United States Supreme Court’s test in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), the Ninth Circuit addressed this argument by analyzing whether his ADA and Section 504 claims could have been brought against a public facility that was not a school, or whether an adult employee or visitor could present the same grievance against the school. The court concluded that the answer to both these tests is no, because the relief Paul sought was fundamentally educational – access to a particular kind of school as required by his individualized education program (IEP). Therefore, even though the student brought suit under the ADA and Section 504, and not the IDEA, the student was required to exhaust administrative remedies because the relief sought was available under the IDEA. The Ninth Circuit also determined that none of the exceptions to the exhaustion requirement applied, thus concluding the student could not maintain this action after he failed to seek a final administrative decision regarding his alleged need for in-state residential education under the IDEA.

Takeaways

Paul G. is the first Ninth Circuit opinion to address exhaustion since the Supreme Court’s Fry decision
in 2017. In light of this decision, local educational agencies should carefully scrutinize any ADA or Section 504 claims that appear to seek relief that is fundamentally educational and related to a student’s unique needs. Further, a plaintiff may be unable to maintain a civil suit against a local educational agency if there is a dismissal or settlement prior to a final administrative decision.

If you have any questions about this case or special education matters in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

Sloan R. Simmons

Partner

Amanda E. Ruiz

Senior Counsel

Amanda J. Cordova

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Supreme Court Holds Firefighting Immunity Under California’s Government Claims Act Is A Waivable Affirmative Defense

October 2019
Number 45

In Quigley v. Garden Valley Fire Protection District, the California Supreme Court rejected the midtrial dismissal of a lawsuit involving a firefighter who suffered severe and permanent injuries after she was run over by a water truck while sleeping at a base camp. The court held that a firefighting immunity under Government Code section 850.4, part of California’s Government Claims Act (GCA) (Gov. Code, § 810 et seq.) is an affirmative defense which must be raised before trial and may be waived absent timely assertion.

Background

Plaintiff Rebecca Quigley was a U.S. Forest Service firefighter and part of a team assigned to assist with a large fire which broke out in the Plumas National Forest in September 2009. While Quigley was fighting the fire, she had to sleep at a base camp with other firefighters. One night, while Quigley was sleeping in a field in her sleeping bag, an employee of an independent contractor who was servicing a nearby shower unit drove his truck onto the field where Quigley was sleeping, severely injuring her. Quigley sued Garden Valley Fire Protection District, Chester Fire Protection District, and their employees for damages based upon claims of negligence, failure to warn, and dangerous condition of public property.

During the trial, defense counsel filed a motion for nonsuit arguing, for the first time, that the defendants were entitled to immunity under Government Code section 850.4, which grants public agencies and public employees immunity against claims for injuries caused by fighting fires. The trial court granted the motion, rejecting Quigley’s argument that the defendants waived the immunity defense when they failed to invoke immunity in their answer to her complaint. The trial court specifically ruled that Government Code section 850.4 immunity-one of several governmental immunities provided for under the Government Claims Act -is jurisdictional and therefore could be raised by a defendant at any time, including during trial. On appeal, the Court of Appeal affirmed the nonsuit in favor of the defendants and found that the defendants were immune from liability based upon a broad interpretation of section 850.4, and that such immunity is jurisdictional and thus can be raised at any time.

The Court’s Opinion

On review, the California Supreme Court considered whether the subject governmental immunity provision, section 850.4, constituted an affirmative defense, which a defendant must timely raise, or whether such immunity was absolute so that it served as a limitation on the fundamental jurisdiction of the courts. Affirmative defenses are considered waived if not timely asserted. In reaching its conclusion, the state high court affirmed that section 850.4 in fact confers an absolute immunity from liability.However, the court distinguished absolute immunity from a question of fundamental jurisdiction, and found the section 850.4 also operates as an affirmative defense. In other words, even as an absolute immunity, section 850.4 is only effective as a shield from liability if a defendant invokes the immunity before trial as an affirmative defense.

The court found that there existed a factual dispute as to whether the defendants timely invoked firefighting immunity when they raised an affirmative defense in their answer which broadly cited all the applicable immunity provisions “from Sections 810 to 996.6, inclusive” of the Government Claims Act. The court remanded the case back to the appellate court for further adjudication on this issue.

Takeaways

Quigley is significant in that it clarifies that defendants must timely invoke the absolute firefighting immunity provided for by Government Code section 850.4 in order to reap the benefits of the affirmative defense. Critically, it is likely that the court’s analysis in this respect will apply to the timely assertion of the other governmental immunity defenses provided for under the Government Claims Act.

If you have any questions about the Quigley case or about government claims in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Lauren A. Lyman

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Significant New Developer Fee Cases

October 2019
Number 44

As part of an uptick of cases in recent years regarding school impact fees, two recent cases argued by Lozano Smith on behalf of school districts have been decided by the California Sixth District Court of Appeal, with mixed results. The court ruled in relation to an “adults only” agricultural worker housing project that, when imposing prospective developer fees on development projects, school districts need not establish a reasonable relationship between the fee and the specific project in question. Instead, districts are merely required to establish a nexus between the fee and the general type of project that is at issue (e.g. residential, commercial, industrial). This favorable outcome came after the same appellate court, straying from prior precedent that supported deference to local agencies, issued a published decision invalidating a school district’s developer fee justification study. The court held that the study in question was invalid because it did not provide sufficient analysis to demonstrate that the school district would have to house new students generated from development in new facilities. Both cases are part of a trend toward greater judicial scrutiny of school districts’ imposition of developer fees.

School districts in California are authorized by law to impose fees on development projects, referred to as “developer fees” or “school impact fees.” There are three separate levels of fees that can be charged, each of which are subject to different legal requirements. The first case below addresses whether a school district must analyze the potential residential population of a particular development, as projected by the developer, before imposing fees on that particular development. The second case addresses the legal requirements for preparing a Level I fee justification study.

The Tanimura Case

Tanimura & Antle Fresh Foods v. Salinas Union High School District, 34 Cal.App.5th 775, addressed a dispute regarding Level 2 developer fees. The Salinas Union High School District (Salinas) had imposed a developer fee on a 100-unit agricultural employee housing complex commissioned by Tanimura & Antle Fresh Foods, Inc. (Tanimura) within Salinas. The complex, per the terms of its development permit issued by the Monterey County Board of Supervisors, was designed to house only agricultural workers, without dependents.

In recent years, many school districts have contended with developers who argue that fees should not be imposed on their projects because the developers expect that few or no potential school age students will live in the finished project. These arguments have been made, for instance, regarding housing intended for agricultural workers, college students, or young professionals. This case affirms that a school district need not consider the developer’s intended residents for a particular project, and can instead analyze the impact of residential housing projects across the district when imposing developer fees on residential projects.

In relation to its agricultural worker housing project, Tanimura sued for a refund of its fees, alleging that the developer fees imposed by Salinas were not reasonably related to a need for school facilities, as required by statute. Tanimura cited the project’s prohibition on dependents, arguing that, as no children would reside in the complex, its construction would not generate an increased burden on the district’s facilities. The Government Code requires a public agency, before imposing prospective developer fees, to establish the purpose of the fee, the agency’s use for the funds, a reasonable relationship between the fee’s use and the type of development project on which it will be imposed, and a reasonable relationship between the need for public facilities and the type of development project on which the fee is imposed. The trial court held in favor of Tanimura, reasoning that “case law-and common sense-preclude the application of an overbroad label in a fee study that does not account for a project’s actual impact.” The court opined that Salinas was required to account for the fact that no children would be permitted to live at the complex, and in failing to do so had not met the nexus requirement of the Government Code.

In a victory for school districts, and following argument by Lozano Smith (acting as co-counsel in this matter), the Court of Appeal reversed. The court held that, when establishing a nexus between developer fees and a development project, a public agency need not consider the specific project in question; its calculus is limited to the general type of project at issue (e.g., residential, commercial, or industrial). As applied here, Salinas was not required to consider the complex’s prohibition on dependents in its fee analysis. The district’s treatment of the complex as a generic, residential development was lawful.

The court asserted that its interpretation was the only “commonsense” reading of the statute that avoided practical absurdities. To adopt Tanimura’s position, the court held, “would have the practical effect of requiring a school district to expand its needs analysis to address the projected impact on school facilities of undefined, variant subtypes of residential construction not contemplated in the statute.” The court found such an effect to be contrary with the purpose of the statutes. Further, the law contains exceptions from developer fees for certain types of developments, including government-financed agricultural migrant worker housing. However, the Legislature has created no such exception for privately-financed farmworker housing. This indicates that the Legislature did not intend for projects such as the complex to be exempted from developer fees.

The Summerhill Case

In Summerhill Winchester, LLC, v. Campbell Union School District 30 Cal.App.5th 545, the Appellate Court invalidated the Level 1 developer fees adopted by Campbell Union School District (Campbell). In doing so, the court applied the rule laid out in a prior case, Shapell Industries, Inc. v. Governing Board of the Milpitas Unified School District (1991) 1 Cal.App.4th 218, that a Level 1 fee study must include an analysis of the following three factors: (1) the projection of the total amount of housing to be constructed within the school district; (2) estimation of the number of new students that are expected to result from the new development; and (3) estimation of what it will cost to provide the necessary school facilities for that approximate number of new students.

Regarding the first Shapell element, Campbell’s fee study stated that there were “in excess of 133” residential units that could be constructed over the next five years. The court took issue with the fact that these projections were not based on data from all of the planning departments within Campbell’s boundaries. The court also held that the study’s projection was too vague to support the imposition of fees. According to the court, a projection based on consultation with only some of the local jurisdictions within Campbell’s boundaries and using a phrase such as “in excess of” is “little better than saying that ‘some’ development is anticipated.” This was found to be inadequate because the study did not provide sufficient guidance for Campbell’s Board to determine whether or not new school facilities would be needed due to anticipated development. The court found it irrelevant that the district was already over capacity at all of its schools, and essentially rejected Campbell’s argument that new facilities would be needed to house students generated from development, regardless of the number of such students.

The court also found that the fee study was invalid because it did not provide sufficient evidence for the district’s Board to determine what type of school facilities would be needed to accommodate students generated by development, if any. The court based its decision on a narrow reading of the applicable statutes.

Developers may argue that the court’s decision means that a fee study must now establish what “type” of facilities a school district will construct to house students generated by development. However, prior case law, includingGarrick Development Co. v. Hayward Unified School District (1992) 3 Cal.App.4th 320, held that specific improvement plans or building proposals were not necessary. The court acknowledged that, underGarrick, “the Board did not have to identify specific facilities that would be built or make concrete construction plans.” At the same time, however, the court concluded that “the key missing element in the fee study was what new facilities would be necessary for the new students generated by new development.” These two statements are difficult to reconcile, and create a challenge when school districts decide how specifically their fee studies must describe student housing needs. However, it remains clear that specific school construction projects need not be identified.

The court’s opinion is likely to cause confusion and possibly to disrupt established law. As a result, school districts may wish to review the adequacy of their fee justification studies.

Lozano Smith represented the school district in the litigation and appeal, and requested, on behalf of the district, that the California Supreme Court depublish the case. The request for depublication was supported by CASBO, CASH, and CSBA, and not opposed, but the request was nevertheless denied by the Supreme Court.

Takeaways

Tanimura clarifies that public agencies, when imposing prospective developer fees, need not consider the specific development project, but only the type of development project at issue. The case should also help school districts resist the claims of developers who assert that they should be relieved of fees because few or no students will allegedly be generated by a specific project.

While some may argue for a broader application, the Summerhill decision can be viewed as the court’s application of the three-factorShapell test to a particular fee study. In this regard, the case simply calls for a fact-specific analysis based on already-established precedent. The following are some best practices following the Summerhill case:

  • Avoid use of imprecise language like “at least” when describing projected development.
  • If at all possible, consult with all planning departments within the school district’s jurisdiction.
  • If at all possible, identify the general types of school facility projects that may be constructed to accommodate students (e.g., new school construction, portable additions, a mix of both, etc.). We note that such identification in the fee study is not necessarily binding on the school district when it later implements its facilities plans.

If you have any questions about the Tanimura orSummerhill cases or about developer fees in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. Copies of Lozano Smith’s Developer Fee Handbook are available for purchase from Lozano Smith’s Client Services Department; you can submit your request to clientservices@lozanosmith.com. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Harold M. Freiman

Partner

Devon B. Lincoln

Partner

Kelly M. Rem

Partner

Benjamin Brown

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Legislature Addresses Student Use Of Smartphones At School

October 2019
Number 46

The California Legislature recently passed Assembly Bill (AB) 272, which will become effective January 1, 2020, specifically authorizing school districts to adopt a policy to limit or prohibit student smartphone use, while also granting students certain specific rights to possess and use a smartphone at school. Even though smartphone policies or guidelines are widely used already, this bill provides specific authorization, while also defining some limitations. In particular, AB 272 provides that a student shall not be prohibited from possessing or using a smartphone at school:

  • During an emergency situation or as a response to a perceived threat of danger;
  • When a teacher or administrator gives permission to a student to possess or use a cell phone, subject to reasonable limitations imposed by the person giving permission;
  • When necessary for the health or well-being of a student, as determined by a licensed physician and surgeon; and,
  • When possession or use of the cell phone is required pursuant to a student’s individualized education program (IEP).

Existing law provides that no student may be prohibited from possessing or using an electronic signaling device that is determined by a licensed physician and surgeon to be essential for the health of the student and use of which is limited to purposes related to the health of the student.

It should be noted that the statutory language of AB 272 refers to “smartphones” rather than cell phones, but this distinction may not matter soon as approximately four out of five cell phones used in America are smartphones, a figure that is only growing over time.

Although AB 272 affirms the right of school districts, county offices of education, and charter schools to regulate student possession and use of cell phones and smartphones at school, AB 272 provides for more expansive protections for students when it comes to the use of smartphones, which may present unique challenges for school administrators and teachers. For example, many educational agencies have created board policies or school rules that limit the use of cell phones during classes or the school day, and some even ban them from the campus entirely. This new law does not require that public educational agencies create a policy regarding student cell phone or smartphone possession and use. However, these agencies should review any existing policies, rules, and practices to ensure compliance with AB 272. For some of these educational agencies, this may require changes to how teachers confiscate phones from students who are using them for non-educational purposes, as well as how school sites limit possession, and possibly use, of smartphones at schools.

AB 272 creates Education Code section 48901.7, which, interestingly, is placed within the student discipline portion of the Education Code. However, the new law does not create a clear stand-alone suspendable or expellable violation. Accordingly, a student’s violation of the smartphone policy will likely need to be linked to a related offense, such as using the smartphone to arrange a drug sale or to bully another student.

In creating or updating policy, school officials should be mindful of teachers’ use of smartphones for instructional purposes, students’ free speech rights, and parents’ expectations of instantaneous communications with their students. Input and feedback from these and other stakeholders will help to facilitate any proposed changes to policies, procedures, and practices related to discipline and enforcement. Educational agencies should also consider providing notice to all parents/guardians at the beginning of each school year about any changes to the smartphone policies and practices.

For more information about AB 272 or about student cell phone and smartphone use at schools in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Aimee Perry

Partner

Joshua Whiteside

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Students Suspended For Two Or More Days Must Now Be Provided Homework Assignments

October 2019
Number 64

In an effort to prevent suspended students in grades 1-12 from falling behind in class assignments or homework, Governor Newsom has signed Assembly Bill (AB) 982, requiring all public and charter school teachers to provide homework assignments to suspended students, upon request. Teachers have historically had the option whether or not to require suspended students to complete any assignments and tests missed during the term of their suspension.

AB 982

Beginning January 1, 2020, AB 982 requires a teacher to provide, upon request, homework to any student who has been suspended from school for two or more schooldays. This request must be made by either the suspended student, their parent, legal guardian, or other person holding the right to make educational decisions for the suspended student. If the request for homework is made, the assignments then must be turned in to the teacher by the student either upon the student’s return to school from suspension or within the timeframe originally prescribed by the teacher, whichever is later.

The Legislature explicitly stated that the purpose of AB 982 is to provide the suspended student with the homework that the student would otherwise have been assigned so that the student does not unnecessarily fall behind academically. The Legislature also explicitly stated it did not intend to require a teacher to correct classroom assignments or homework missed while the student is suspended, or to add an additional burden on a teacher’s workload. With this in mind, AB 982 also provides that if a teacher is unable to grade the homework assignment before the end of the academic term, then the assignment shall not be included in the calculation of the student’s overall grade in the class. This added safeguard minimizes the impact on teachers who otherwise would have to grade these potentially delayed assignments, while also reducing the punitive academic impact on the suspended student.

Takeaways

Though this bill does not explicitly require it, school districts and charter schools should consider informing a suspended student and their parent or legal guardian of their right to request the student’s homework if the suspension will last two or more days. Similarly, school districts and charter schools should consider informing all teachers of the new requirements under AB 982, and develop consistent and equitable procedures around grading assignments for suspended students.

For more information on this bill, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Manuel F. Martinez

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Expands Definition Of Domestic Partners To Include Opposite Sex Couples

October 2019
Number 63

In California, registered domestic partners have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under the law” as spouses. (Fam. Code § 297.5, subd. (a).) Existing law limits domestic partnerships, among other requirements, to two groups of individuals: (1) couples of the same sex or (2) couples of the opposite sex, one or both of whom are over the age of 62 and eligible for social security benefits. On July 30, 2019, Governor Newsom signed Senate Bill (SB) 30 which eliminates these criteria for registering as domestic partners. As of January 1, 2020, any couple over the age of 18 (or under 18 with a court order), regardless of gender, can enter into a domestic partnership. This expansion has significant legal implications for California employers, including public entity employers.

Policy and Review of Collective Bargaining Agreements

To the extent an employer has policies, negotiated collective bargaining agreements, or employee handbooks that address domestic partnerships, it is important for employers to review such documents to ensure compliance with SB 30.

Health Benefits and Other Considerations

In light of SB 30, employers may have more employees eligible and interested in enrolling their domestic partner in an employer-sponsored healthcare plan. If such plan, whether self-insured or otherwise, offers health benefits to spouses then it must afford the same health benefits to registered domestic partners, under the same terms and conditions. Employers may, but are not required to, offer healthcare benefits to unregistered domestic partners as well. Employers should review the terms and conditions of their insurance policies/healthcare plans to ensure compliance with SB 30.

Because healthcare benefits are generally included as part of an employee’s wage for tax purposes, absent an exception, there may be related tax implications that employers should be aware of.

For more information about SB 30 and its implications for employers, or to discuss any other labor or employment questions, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Carolyn L. Gemma

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Legislature Takes Another Run At Bond Measure Ballot Language Requirements

October 2019
Number 42

UPDATE: Governor Newsom vetoed SB 268 on October 13, citing concern that the bill, as crafted, would “reduce transparency for local tax and bond measures.” As a result, existing ballot language requirements, including those added by AB 809 and AB 195, will remain in effect for the 2020 elections, and beyond, unless and until the Legislature revisits the issue again in the future.

In an ongoing saga that began with the passage of Assembly Bill (AB) 809 in 2015, the Legislature has, once again, amended bond measure ballot language requirements for local agencies. Senate Bill (SB) 268 would allow local agencies, when submitting to voters a bond measure or a measure that imposes or raises taxes with more than one rate, to choose between two options for the summary statement of the measure. Each option triggers a different form of “tax rate statement” required to be presented to the voters.

Background

The impetus for SB 268 appears to be the varying degrees of puzzlement local agencies and elections officials have expressed since the last time the Legislature amended the summary statement requirements for these types of measures. AB 809, passed in 2015, and AB 195, passed in 2017 (See 2017 Client News Brief No. 82), added, and clarified, respectively, the Elections Code requirement that summary statements for all local ballot measures that impose or raise a tax (including bond measures) must include the amount of money the tax will raise annually and the rate and duration of the tax to be levied.

In the wake of AB 809 and AB 195, many, including the author and proponents of SB 268, have pointed out that local agencies cannot practically state the rate, duration, and annual tax revenue in connection with a general obligation bond measure because those figures cannot be known at the time of an election on the measure. Further and as we noted in our prior news brief, inclusion of the new disclosure requirements in the summary statement, which is limited to 75 words, restricts local agencies’ opportunity to meaningfully communicate the purpose and works to be funded by the measure.

SB 268

SB 268 clears up these problems by providing an option for local agencies proposing a bond or a tax with more than one rate. Going forward, summary statements for bond measures or multiple-rate taxes can either comply with the existing requirement to state the rate, duration, and annual amount raised in the summary statement, or can instead choose to include in the summary statement the words: “See voter guide for tax rate information.”

If the voter guide reference option is selected, the local agency must then broaden the existing tax rate statement requirements to include a substantial amount of additional information including, among other items, descriptions and explanations of the purpose and use of the proceeds to be generated, and the factors affecting variability and duration of tax rates.

Effect on March 2020 Election

SB 268 is not an “Urgency Measure,” meaning that, unless vetoed by Governor Newsom, it will take effect January 1, 2020. However, ballot materials for the March 3, 2020 election must be prepared and filed in advance of January 1, by statute. Contemplating this calendar disconnection, the Legislature expressed its intent that “elections officials prepare ballot materials for the March 3, 2020, primary election in compliance with this act.” It is unclear whether county elections officials, whose statutory deadlines for March 2020 election filings precede the effective date of the bill, will observe the Legislature’s desire that it apply nonetheless.

Lozano Smith has analyzed the challenges posed by SB 268’s applicability to the March 2020 election, and is prepared to address those challenges head-on with a variety of legal strategies.

Lozano Smith has expertise in public finance matters, serving as bond counsel on more than $1 billion in school district and community college district bond issues. Lozano Smith will be conducting School Bond Workshops across the state, covering topics that include:

  • Elections: Timelines and requirements
  • Bonds: Types, validity and tax treatment
  • Roles and Responsibilities: Committees, consultants, and counsel
  • Disclosure and Record-keeping: Regulations and legal considerations
  • Statewide Bond: Matching and impact

For more information about upcoming Lozano Smith events or to schedule a School Bond Workshops for your District, please contact our Client Services department.

For questions regarding SB 268, including its effect on a planned ballot measure, or to discuss any other public finance matters, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.In an ongoing saga that began with the passage of Assembly Bill (AB) 809 in 2015, the Legislature has, once again, amended bond measure ballot language requirements for local agencies. Senate Bill (SB) 268 would allow local agencies, when submitting to voters a bond measure or a measure that imposes or raises taxes with more than one rate, to choose between two options for the summary statement of the measure. Each option triggers a different form of “tax rate statement” required to be presented to the voters.

Written by:

Daniel Maruccia

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

AB 48 Increases Bonding Capacity, Provides Facilities Funding At Multiple Levels, Prioritizes Small School Districts, And Reduces Available Developer Fees For School Districts … But Only Applies If Voters Approve A School Facilities Bond In March

October 2019
Number 62

The California Legislature recently passed, and on October 7 Governor Newsom signed, Assembly Bill (AB) 48, known as the “Public Preschool, K-12, and College Health and Safety Bond Act of 2020.”

AB 48 places a $15 billion statewide K-12 school and college facilities general obligation bond on the March 3, 2020 ballot.

Contingent on voter approval of the statewide bond measure at the Presidential Primary election on March 3, 2020, AB 48 would introduce a slew of significant changes, relative to the funding of school facilities including:

  1. Increasing the bonding capacity of school and community college districts as follows:
    1. For elementary and high school districts – from 1.25% to 2.0% of assessed value of the taxable property within the district.
    2. For unified school districts and community college districts – from 2.5% to 4.0% of assessed value of the taxable property within the district.
  2. Establishing a 2020 School Facilities Fund for the apportionment and disbursement of money, including AB 48 bond proceeds, pursuant to the Leroy F. Greene School Facilities Act of 1998, commonly known as the School Facility Program;
  3. Imposing requirements to submit a five-year school facilities master plan or updated five-year school facilities master plan as a condition for participating in the School Facility Program;
  4. Prioritizing the order in which modernization and new construction applications for participation in the School Facility Program will be processed as follows: to projects that are determined to pose a health of life safety hazard; to projects by school districts requesting financial hardship status; for modernization applications only, to applications requesting a grant for the testing and/or remediation of lead levels in water at school sites; to projects that were submitted but not reviewed in the two immediately preceding quarters; to projects designed to eliminate existing severe overcrowding; and to applications based upon a computation of points as set forth in the Education Code;
  5. Introducing new programs to lessen the burden on rural and lower-income school districts when applying for state funds, including a small school district assistance program to provide advanced funding for design, reserve funds so districts will have the time needed to develop their projects, technical assistance and an increased bonding capacity to allow more small school districts to receive financing assistance, and increasing the threshold total bonding capacity for the financial hardship eligibility so more districts can qualify for projects without having to raise the full local contribution
  6. Authorizing
    1. funding for health and safety projects;
    2. grants for lead testing and remediation;
    3. grants for new construction and modernization projects for seismic mitigation, control, management or abatement of lead, the demolishment and construction of buildings on existing school sites in specified situations and to establish school site-based infrastructure to provide broadband internet access;
  7. Authorizing the use of new construction and modernization grants for the purchase of portable electronic devices with a useful life of more than three years;
  8. Specifying procedures by which small schools can obtain project and construction management, new construction grants, and modernization grants;
  9. Providing districts affected by a disaster with immediate assistance;
  10. Requiring annual notification by school districts to the State Allocation Board of sites that have been acquired for school purposes but remain unused;
  11. Prioritizing health and safety projects at the higher education level, and requiring the University of California (“UC”) and California State University (“CSU”) to adopt five-year affordable student housing plans as conditions for funding; and
  12. Imposing accountability and transparency obligations, such as public hearing and audit requirements, posting project and audit information requirements, on school districts, county offices of education, charter schools, community colleges, the CSU and the UC.

Impact on Developer Fees

In addition to the numerous substantial changes addressed above, AB 48 places new limitations on school districts’ ability to obtain the full school impact fees to which they had previously been entitled, retreating on a compromise between developers and school districts that was reached over two decades ago.

In 1997, following years without a new statewide school bond measure, the Legislature reached a compromise that led to Senate Bill (SB) 50, which placed a successful statewide bond on the ballot in 1998 and new restrictions on developer fees. SB 50 limited the ability of a school district to challenge new development on the basis of inadequate school fees, and introduced the three levels of developer fees that remain in effect to this day. School districts may assess residential developer fees authorized by Education Code sections 17620, et seq. (“Level 1” fees), or a higher “Level 2” or “Level 3” rate authorized by Government Code sections 65995.5 et seq., if the district meets certain criteria. The highest level of fees, Level 3, was intended to go into effect when state facility funding was no longer available. To date, school districts have had only fleeting moments to collect Level 3 fees, which have been variously suspended by the Legislature and challenged in court by the California Building Industry Association.

Under AB 48, if the statewide bond measure in 2020 is successful, school impact fees will be eliminated altogether for multifamily housing developments that are located within one-half mile of a major transit stop, which is defined in the legislation as “a site containing an existing rail transit station, a ferry terminal served by either a bus or rail transit service, or the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods.” For all other multifamily housing, AB 48 reduces the amount of Level 1 and Level 2 fees that can be charged by 20%. These changes are presumably to support more affordable housing, though that goal rests, at least in part, on a potentially faulty assumption that developers will pass the savings on to home buyers. These reductions in fees would remain in effect until January 1, 2026.

Additionally, increasing the local bonding capacity for school districts could potentially reduce school impact fees by making it more difficult for a district to qualify for Level 2 fees. This is because qualification for Level 2 fees is dependent, in part, on a school district’s bonding capacity. In relevant part, to qualify for Level 2 fees, a district must (1) be eligible for state facility funding, and (2) meet two of four criteria – one of which is directly tied to the district’s local bonding capacity (the issuance of debt or incurring obligations for capital outlay in an amount equal to 30 percent of the district’s local bonding capacity). (Gov. Code § 65995.5, subd.(b)(3)(C).) By raising school districts’ bonding capacity, AB 48 would make it more difficult to meet this particular criteria, potentially causing school districts to fall out of Level 2 status in the future.

Finally, if they go into effect, certain of AB 48’s provisions could once again suspend the ability of a school district to impose Level 3 fees even if state facilities funding runs out. This suspension of Level 3 fees would be in place until January 1, 2028.

If the voters approve AB 48 in March, the bill’s treatment of developer fees will retreat from the compromise arrangement of SB 50 in each of the foregoing ways. Developers will keep the benefits of that compromise (limits on ability to challenge development based on insufficient school facilities) while school districts give up the full benefits of Level 2 and Level 3 fees.

Takeaway

Importantly, the many changes proposed by AB 48 will not take effect until and unless the voters approve the Public Preschool, K-12, and College Health and Safety Bond Act of 2020 (the Act) on March 3, 2020. If the Act is not approved by voters on March 3, none of the above will apply.

With respect to the effect of some of the changes that will go into effect only if voters approve the Act: AB 48 will provide facilities funding at multiple levels; the state match for funding will be more aligned with LCFF factors, and will also include a “hold harmless” provision to avoid harm caused by the shifting formula; priorities for funds will be based on need rather than a first-in-line-model; specific focus will be paid to small school districts, potentially adversely impacting suburban and larger districts; and some school districts may be adversely impacted by the limitation on the collection of multi-family residential developer fees.

Lozano Smith will soon be releasing an episode of the Lozano Smith Podcast focusing on AB 48 and its potential impacts on school facilities funding in California. Go to Lozanosmith.com/podcast to access all of Lozano Smith’s podcasts.

If you have any questions about AB 48, public finance or developer fees in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app. Information regarding Lozano Smith’s Developer Fee Handbook for School Facilities can be found Here.

Written by:

Harold M. Freiman

Partner

Daniel Maruccia

Partner

Deepika S. Thompson

Senior Counsel

James N. McCann

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Legislature Postpones Sunset Of Civic Center Act Fee Provisions

October 2019
Number 55

Assembly Bill (AB) 1303, which was recently signed by the Governor, will postpone the sunset of central fee provisions within the Civic Center Act (Act).

The Act generally requires school districts to permit the use of their facilities and grounds for particular purposes. The Act further authorizes, and in some cases requires, school districts to charge users for their use of school facilities. The Legislature originally provided that these provisions would be repealed as of January 1, 2020; however, AB 1303 extends this date to January 1, 2025.

Background

The Act mandates that school districts “authorize the use of school facilities or grounds under [their] control by . . . nonprofit organization[s], or by . . . club[s] or . . . association[s] organized to promote youth and school activities.” “School facilities” are defined as nonclassroom space and “school grounds,” and include, but are not limited to: playing fields, athletic fields, track and field venues, tennis courts, and outdoor basketball courts.

The Act also provides that school districts may, and in certain circumstances must, charge for such use. In particular, school districts may generally charge “an amount not to exceed direct costs” for use of their grounds or facilities. “Direct costs” are defined as the user’s proportional share of supplies, utilities, janitorial services, work performed by school district employees, maintenance, repair, restoration, and refurbishment in connection with the operation and maintenance of the school facilities or grounds. This proportion of costs is based on the extent and nature of the entity’s use.

There are a few notable exceptions to this general rule. If a school district permits the use of school facilities for religious services, the district must charge the user an amount at least equal to the school district’s direct costs. Further, school districts must charge fair rental value for users who utilize school facilities for entertainment purposes or to hold meetings where admission is charged or contributions are solicited and the net receipts are not expended for the welfare of the pupils of the school district or for charity. The Act defines “fair rental value” as the direct costs to the school district plus the amortized costs of the school facilities or grounds used for the duration of the activity.

The Act originally provided that the above provisions would be repealed as of January 1, 2020. However, AB 1303 postpones such repeal until January 1, 2025. The Senate Rules Committee (Committee) observed that this fee provision was originally enacted in 2012 to help school districts remain fiscally viable during the national economic downturn. Now, though the economic climate has improved, the Committee determined that such fees are still necessary to enable districts to ensure that their schools are properly maintained and to prevent injuries that can result from dilapidated facilities.

Takeaways

School districts should be aware that the Legislature has postponed the sunset of the above-described Civic Center Act fee provisions until January 1, 2025. Consequently, school districts may continue to charge users in proportion to the direct costs associated with their use, except with respect to users who utilize school facilities for religious, entertainment, or profit-generating purposes.

For more information about AB 1303, the Civic Center Act, or facilities use matters in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Claudia P. Weaver

Partner

Benjamin Brown

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

School Districts May Develop A Policy Permitting Parents To Administer Medical Marijuana To Students On Campus

October 2019
Number 57

On October 9, 2019, Governor Gavin Newsom signed Senate Bill (SB) 223, which allows local educational agencies to adopt a policy regarding administration of medicinal cannabis to students on campus. The new law, referred to as “Jojo’s Act,” becomes effective on January 1, 2020, and was named after a San Francisco teenager who takes medicinal cannabis to control serious seizures. Jojo’s Act adds section 49414.1 to the California Education Code and authorizes, but does not require, school districts, county offices of education, and charter schools to adopt a policy to permit a parent or guardian to possess and administer medicinal cannabis at a school site to a student who is a “qualified medical cannabis patient” under California law.

Requirements Under Jojo’s Act

Under Jojo’s Act, a school district, county office of education, or charter school may elect to adopt a policy allowing for the administration of medicinal cannabis to a student at school by a parent or guardian. If such a voluntary policy is adopted, Jojo’s Act requires that the policy include the following:

  1. Before administering the medicinal cannabis, the parent or guardian must provide to an employee of the school a valid written medical recommendation for medicinal cannabis for the pupil to be kept on file at the school;
  2. The parent or guardian must sign in at the school site before administering the medicinal cannabis;
  3. The parent or guardian shall not administer the medicinal cannabis in a manner that disrupts the educational environment or exposes other pupils; and
  4. After the parent or guardian administers the medicinal cannabis, the parent or guardian must remove any remaining medicinal cannabis from the school site.

School districts, county offices of education, and charter schools should also consider including and/or addressing the following if a policy is adopted:

  1. “Medicinal cannabis” in a smokeable or vapeable form is prohibited under Jojo’s Act;
  2. Under Jojo’s Act, local educational agencies may rescind the policy at a regularly-scheduled board meeting, or at a special board meeting under certain conditions, for any reason, including if the agency is at risk of losing federal funding due to the policy;
  3. Jojo’s Act does not allow or require school employees, in any way, to administer cannabis to students;
  4. Jojo’s Act provides that any records collected related to the administration of medicinal cannabis to a student must be treated as amedical record subject to all provisions of state and federal law that govern the confidentiality and disclosure ofmedical records; and
  5. Jojo’s Act does not limit the tetrahydrocannabinol (THC) content of medicinal marijuana permitted to be administered at school. Unlike cannabidiol or CBD, which does not create a “high,” THC is the cannabinoid that creates the psychoactive effects of cannabis, which can make a person experience a “high.” Some students who take cannabis for medical purposes require medicinal cannabis with THC content. State law does create limits on the content of THC in cannabis product.

Remaining Questions

Jojo’s Act leaves several questions unanswered, including those related to record keeping, discipline, and administration:

  1. As noted above, Jojo’s Act deems records related to medicinal marijuana administration on school campuses “medical records” rather than student education records. This appears to be the Legislature’s attempt to apply the Health Insurance Portability and Accountability Act (HIPAA) to these particular records, rather than applying the Family Educational Rights and Privacy Act (FERPA). However, HIPAA contains a provision stating that medical records maintained by school districts become education records, which are governed by FERPA rather than HIPAA. Thus, the provision of Jojo’s Act applying HIPAA to these medicinal marijuana records, seemingly conflicts with federal law. It remains to be seen how this will impact school districts.
  2. Notably absent from the Act is any reference to discipline. The Education Code provides that students may be suspended and/or recommended for expulsion when they unlawfully possess, use, or are under the influence of marijuana. (Ed. Code, §§ 48900(c);48915(a).) Jojo’s Act does not address how to reconcile the authorized administration with the prohibition against possession, use, or being under the influence on campus. This conflict requires careful consideration in any policy.
  3. Jojo’s Act does not provide an alternative for students whose parents or guardians cannot come onto campus during the school day to administer medication.

Other Limited Circumstances Authorizing Use of Medicinal Cannabis on Campus

Even without a policy under Jojo’s Act, educational agencies may be required to allow medicinal cannabis use on campus under other limited circumstances. Such circumstances include FDA-approved cannabis-based medications and judicial orders requiring a school district to administer cannabis to a student at school. (See 2018 Client News Brief Number 56; 2018 Client News Brief Number 55.)

Takeaways

The intersection of cannabis, education, disability, and equal access law is quickly developing and changing. We recommend you reach out to legal counsel who understands the nuances of this area of law, or to a Lozano Smith attorney with any questions regarding administration of medicinal cannabis on school campuses, including the possibility of developing a policy under Jojo’s Act.

If you have any questions regarding SB 223, or would like to discuss student rights or discipline matters related to cannabis use, please contact an attorney at one of our eight officeslocated statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Aimee Perry

Partner

Alyssa R. Bivins

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

PERB Articulates Duties Of Employer When Faced With Internal Union Strife

October 2019
Number 56

In City of Arcadia (2019) PERB Dec. No. 2648-M, the Public Employment Relations Board (PERB) grappled with a variety of issues surrounding a public employer’s duties in the face of warring factions within one of its unions, as well as the propriety of “exploding” offers-an offer or proposal that expires on a given date-in the context of labor negotiations.

PERB held that the City unlawfully interfered with internal union affairs when its police chief encouraged a union representative to oust its president, and violated its duty to meet and confer in good faith when it unilaterally set ground rules in advance of negotiations, invited a non-leadership union member to a pre-negotiations meeting without notifying the union’s official representatives, and made an exploding offer without adequate justification.

An Employer Interferes with Internal Union Affairs by Offering an Incentive for a Change in Union Leadership

Bargaining units have a right to choose their leaders without employer interference. In this case, after receiving reports of unprofessional conduct by the union president, the Chief of Police informed the vice president of the Arcadia Police Civilian Employees Association (Association) that he was cancelling the regular labor-management meetings between the City and the Association until the president no longer held that position.

PERB held that this encouragement to remove the union president constituted interference under the Meyers-Milias-Brown Act (MMBA). Suspending the labor-management meeting until a change in union leadership constituted an incentive for the union to oust its president. A reasonable employee would have viewed his comments as inserting the employer into internal union affairs and/or favoring one faction over another, and as promising a benefit if members took a particular action with respect to their leadership.

An Employer Does Not Engage in Interference by Temporarily Recognizing and Bargaining with a Newly Elected Board

An employer must maintain strict neutrality between bargaining units, as well as between competing factions within the same unit. At the same time, the employer remains obligated to deal with the union regardless of internal strife, and may have little choice but to recognize one faction on an interim basis, pending resolution of the internal union dispute. Here, members of the Association voted out existing leadership and replaced them with different members. The new leaders informed the City Manager of the election results and provided supporting documentation. The ousted president informed the City Manager that she disputed the results of the election, but the City Manager stated that he would negotiate with the newly elected Board.

While an employer may violate the MMBA if it favors one internal faction over another in a manner that materially strays from a good faith effort to comply with its duty to deal with the union’s chosen representatives, here PERB held that the City properly maintained its neutrality and complied with its good faith duty to bargain when it temporarily recognized one faction over the other.

An Employer Commits a Per Se Violation of its Duty to Bargain in Good Faith by Unilaterally Imposing Negotiations Ground Rules

It is a per se violation of the employer’s duty to bargain in good faith if it unilaterally imposes ground rules in advance of negotiations. Here, the City Manager informed the bargaining units that negotiations would commence much earlier than anticipated, that the early start date would be paired with an “accelerated” approach capped by a specific deadline and, in the absence of a deal by the deadline, there would be a “cooling off” period during which there would be no negotiations. PERB held that this constituted a per se violation of the duty to negotiate in good faith.

PERB Held that the City Violated its Duty to Bargain in Good Faith Based on Totality of Circumstances

PERB also held that under the totality of circumstances, the City acted in bad faith in its bargaining conduct with the Association. PERB based its holding on three indicia:

  1. The City’s unilateral imposition of ground rules, discussed above;
  2. The City’s undermining of the Association’s selection of itsrepresentatives; and
  3. The City’s “exploding” offer.

PERB held that the City undermined the Association’s selection of its representatives when it invited a former Association Board member who had resigned from her position years earlier, to a pre-negotiations meeting. That employee attended the meeting-which was reserved for union representatives-without the City notifying the union leadership. This act undermined the Association’s selection of representatives by giving the unauthorized member detailed information about negotiations, elevating her at the expense of the designated representatives.

PERB also held that an “exploding” offer (an offer or proposal that expires on a given date), without an adequate explanation for its termination date, indicates bad faith bargaining. Such an offer is a form of regressive bargaining-making proposals that are less generous to the other party than prior offers. These tactics are indicative of bad faith unless supported by adequate explanation of a legitimate purpose for the expiration, such as changed economic conditions or other changed circumstances.

Here, the City indicated to the Association that a “signing bonus” would not be on the table if the Association and City did not strike a deal by the end of November. The City explained that the deadline was necessary because of the City Council election in the spring, and the new Council could have different budgetary goals. PERB rejected this explanation, because there were several months between the deadline and the election, and it was speculative whether the election would lead to a new Council with goals so different as to change the City’s bargaining position.

Takeaways

Public agency employers’ obligations to bargain in good faith do not change when there is internal union strife. In such circumstances, employers should ensure they continue to engage in good faith negotiations, which may require temporary recognition of one faction over another until the internal union disputes are resolved. Employers should also be wary of presenting exploding offers, as such proposals are only lawful if the employer can demonstrate changed economic conditions or other changed circumstances to support its position. It is crucial to note that PERB’s assessment of the lawfulness of employer behavior in the face of internal union strife is very fact specific, so it is important that all employer bargaining team members understand their obligations under such circumstances.

If you have questions regarding this PERB decision, or to discuss any employee bargaining matter or labor in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Angela J. Okamura

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Laws Narrow The Use Of Medical Exemptions For Student Immunizations

October 2019
Number 54

Through Senate Bills (SB) 276 and 714, California lawmakers demonstrated a concerted effort to narrow the use of medical exemptions from immunization requirements by requiring a singular exemption form and consolidating oversight through the California Department of Public Health (CDPH). In creating stricter scrutiny over medical exemptions, SB 276 and 714 continue in the spirit of SB 277, adopted in 2015, which eliminated religious and personal belief exemptions to school vaccine mandates. (See 2015 Client News Brief Number 36.)

By January 1, 2021, the CDPH must develop an electronic, standardized, statewide medical exemption certification form that must be used by licensed physicians and surgeons and must be transmitted directly to the California Immunization Registry (CAIR) established pursuant to Health & Safety Code section 120440. As of January 1, 2021, this standardized form will be the only documentation of a medical exemption that school districts may accept.

In the near-term, parents or guardians may continue to file a written statement by a licensed physician and surgeon to the effect that the child’s physical condition is such that immunization is not considered safe, and that the child will still be exempt from the specified requirements, until January 1, 2021.

Students who have an existing medical exemption, issued before January 1, 2020, may continue with enrollment in school until the child enrolls in the next “grade span.” These are defined as birth to preschool, kindergarten (including T-K) to grade 6, and grades 7-12.

In April 2020, the CDPH clarified that students who have a medical exemption issued during 2020 may also continue with enrollment until the child enrolls in the next grade span.

The bills also add a process for parents and guardians to appeal to the Secretary of California Health and Human Services if a medical exemption is revoked pursuant to section 120372(d). A student whose revocation is appealed shall continue to attend school and not be required to begin the immunization requirements for continued admittance, provided that the appeal is filed within 30 days of revocation of the medical exemption.

In addition, schools and institutions that have 1) an overall immunization rate of less than 95%, 2) waivers from a physician or surgeon who submitted five or more medical exemptions in a calendar year, or 3) not provided reports on vaccination rates to the CDPH, will be subject to, at a minimum, an annual review by the CDPH of all immunization reports.

Takeaways

As of January 1, 2021, school districts will be able to accept only one medical exemption immunization certification form. The identification of only one valid certification form should assist in streamlining medical and registration processes for schools and others.

If you have any questions about SB 276 or 714 or about laws applicable to student immunizations in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, andLinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Nicholas G. Felahi

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

AB 5: New Law Further Limits Employers’ Ability To Classify Workers As Independent Contractors

October 2019
Number 53

Governor Newsom signed Assembly Bill 5 (AB 5) on September 18, 2019, which takes effect on January 1, 2020. AB 5 codifies the California Supreme Court’s decision inDynamex Operations West, Inc. v. Superior Court of Los Angeles (Dynamex) (see 2018 Client News Brief No. 20), which made it more difficult to classify a worker as an independent contractor. This new legislation also creates additional protections for workers.

In Dynamex, the Court held that, for purposes of Industrial Welfare Commission (IWC) wage orders, a worker is presumed to be an employee unless the hiring entity is able to demonstrate that:

(A) The person is free from their control and direction in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B) The person performs work that is outside the usual course of the hiring entity’s business; and

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

AB 5 expands the applicability of this three-part test, commonly referred to as the “ABC test,” to specific sections of the California Labor Code and Unemployment Insurance Code. The bill exempts specific occupations such as licensed architects, lawyers, and private investigators from the ABC test. Instead, those professionals will be governed by the Borello test, which does not contain a rebuttable presumption that a worker is an employee. The Borello test has nine factors and focuses on the amount of “control” the hiring entity has over a worker. Hiring entities are not required to meet all nine factors to show that a worker is an independent contractor. Therefore, it is easier to classify a worker as an independent contractor under Borello. AB 5 provides that, in addition to the specific exemptions, Borello can also be applied when a court determines that the ABC test cannot be applied in a particular circumstance.

AB 5 authorizes the California Attorney General and certain local government officials to seek injunctions against hiring entities on behalf of misclassified workers. Additionally, some of the changes to the Labor Code apply retroactively to existing claims to the extent permitted by law.

Takeaways

AB 5 extends the applicability of Dynamex and the ABC test from IWC wage orders to provisions of the Labor and Unemployment Insurance Codes. The legislation has the potential to increase employer liability because it is partially retroactive to existing claims and creates a new right to seek injunctive relief.

Precisely what impact AB 5 will have on public entities is yet to be determined. First, while most IWC wage orders do not apply in full to public entities, sections of the Labor Code and the Unemployment Insurance Code do apply. Second, AB 5 does not contain an exemption for public entities. Third, adopting the ABC test could lead to greater use of the test by other agencies that have historically relied on the Borello test such as the California Public Employees’ Retirement System (CalPERS). If this occurs, the change may have a significant impact on CalPERS membership rules, including post-retirement work implications for CalPERS retirees attempting to return to work as independent contractors. Therefore, public entity employers with independent contractors should review their classification decisions to ensure workers are correctly classified under the appropriate test.

For more information about AB 5 or worker classification in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Travis J. Lindsey

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Expands Ban On Suspensions For “Willful Defiance” And “Disruption” In Both Public And Charter Schools, Emphasizes Importance Of Alternative Means

October 2019
Number 52

Governor Gavin Newsom recently signed into law Senate Bill (SB) 419, which expands the existing ban on suspending students in grades K-3 for disrupting school activities or committing an act of willful defiance. The ban on such suspensions now extends to grades 4-5 permanently and to grades 6-8 for five years. The new law, which takes effect on July 1, 2020, applies to both traditional public schools and charter schools.

Subdivision (k), of Education Code section 48900, provides that a student may be suspended if he or she “disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties.” Subdivision (k) excludes grades K-3, and provides that such offenses may not be grounds for an expulsion recommendation. The law does not, however, define disruption or willful defiance. SB 419’s broader ban comes in response, in part, to criticism that this category of suspensions is an overly-broad and subjective catchall for any behavior a teacher finds objectionable, such as refusing to remove a hat, talking back, or refusing to follow school rules, and that its use disproportionately affects students of color, students with disabilities, and LGBTQ students.

SB 419 permanently eliminates suspensions for disruption and willful defiance for students in kindergarten to grade 5, and temporarily for grades 6-8 (sunsetting on July 1, 2025, unless a subsequent law extends that date). SB 419 maintains the restriction on expelling any student if the sole basis for the expulsion was a disruption or willful defiance offense. These restrictions now apply to public and charter schools alike. SB 419 also now explicitly encourages school districts’ use of alternative disciplinary practices, including restorative justice practices, trauma-informed practices, social and emotional learning, and schoolwide positive behavior interventions and support.

SB 419 does not change existing law that allows a teacher to suspend a student from his or her own class for the day of the incident and the following day, so long as the student remains in school and a parent-teacher conference is offered as soon as possible. The new restrictions also do not apply to suspensions or recommendations for expulsion based on other grounds, such as acts related to violence, controlled substances, bullying, and vandalism.

SB 419 continues the Legislature’s efforts to reduce the total number of suspensions and expulsions in California’s schools. (See 2014 Client News Brief No. 72, and 2017 Client News Brief No. 65) The statewide action follows outright bans on suspensions for disruption and willful defiance for all grade levels by at least five school districts, including Los Angeles, Oakland, San Francisco, Pasadena, and Azusa. The California Department of Education has reported a nearly 50 percent drop in suspensions statewide in the past six years for all categories of behavior, with willful defiance suspensions dropping even more sharply than suspensions for more serious behavior. In the 2011-2012 school year, willful defiance accounted for about half of the approximately 700,000 suspensions in the state. In the 2017-2018 school year, they made up only one-sixth of the approximately 360,000 suspensions.

School districts and charter schools should review, and potentially revise, their disciplinary policies and procedures, including suspension and expulsion forms, to ensure compliance with SB 419’s new restrictions. In addition, while not mandated by SB 419, school districts should consider updating their policies and procedures regarding the use of alternative means of correction, intervention strategies, and disciplinary optionsbefore imposing a suspension or recommendation for expulsion, given the Legislature’s encouragement and preference for such measures.

For more information about SB 419 or any other student discipline matter, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas R. Manniello

Partner

Erin Frazor

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Law Will Allow Students With IEPs To Take Assistive Technology Devices Home With Them

October 2019
Number 51

Governor Newsom recently signed Assembly Bill (AB) 605, which will require local educational agencies (LEAs) to allow students to use school-purchased assistive technology devices at the student’s home or in other settings when the student’s individualized education plan (IEP) team decides on a case-by-case basis that access to those devices is necessary in order for the student to receive a free appropriate public education (FAPE). This new law takes effect on January 1, 2020.

Current law states that LEAs (including school districts and charter schools) are responsible for providing specialized equipment, including assistive technology devices, for use at school when it is needed to implement a student’s IEP. An “assistive technology device” is defined as any item, piece of equipment or product system that is used to increase, maintain or improve the functional capabilities of a student with exceptional needs. Assistive technology devices come in many forms, and may be low-tech or high-tech, and include items such as wheelchairs, voice-activated computers, large-print books, pencil grips, and many other types of equipment.

Frequently they are used by students with limited or no verbal communication skills. According to the author of AB 605, when such students are required to leave an assistive technology device at school, “they are essentially losing their voice when they go home.”

AB 605, which adds new section 56040.3 to the Education Code, will also require LEAs to continue to provide students with exceptional needs who require the use of assistive technology devices to have continued access to the devices, or comparable devices, for up to two months after the student leaves to enroll in another LEA, or until alternative arrangements can be made.

Going forward, it is important that IEP teams consider whether students with exceptional needs may obtain educational benefit from the use of their school-owned assistive technology devices when away from school, and that staff are aware that these devices may need to be made available for students to use at home and other locations away from school, as determined by the students’ IEPs.

If you have any questions about AB 605, or education of students with exceptional needs in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Department Of Labor Opinion Says Family Medical Leave Allowed For Parental Attendance At IEP Meetings At School

October 2019
Number 50

On August 8, 2019, the U.S. Department of Labor issued an opinion letter (Opinion Letter) stating that the Family Medical Leave Act (FMLA) covers intermittent leave to attend a child’s Individual Education Program (IEP) meeting, so long as the child suffers from a qualifying “serious health condition” under the FMLA. Special education IEP meetings are convened to develop, review, and revise the written document created and implemented to meet the educational needs of a child with a disability.

Under the FMLA, an eligible employee of a covered employer is allowed to take up to twelve weeks of job-protected, unpaid leave each year to “care for a family member with a serious health condition.” “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment and care for a family member. Leave may be intermittent, and can be used to cover both psychical and psychological care, as well as making arrangements for changes in that case. The Opinion Letter informs employers that parental attendance at a qualifying child’s IEP meeting may constitute “care of a family member with a serious health condition” under the FMLA.

The Opinion Letter notes that attendance at an IEP meeting is “essential to [the parent’s] ability to provide appropriate physical or psychological care” for a child. According to the Department of Labor, parents help participants make medical decisions, discuss their child’s well-being and progress with the providers of services, and “ensure the school environment is suitable to their medical, social, and academic needs.” Such contributions constitute “arrangements for changes in care” within the scope of intermittent leave under the FMLA. Notably, a change in care for a family member does not have to involve a facility that provides medical treatment. (Wegelin v. Reading Hosp. & Med. Ctr., 909 F. Supp. 2d 421, 429-30 (E.D. Pa. 2012).)

While a child’s physician does not need to be present at an IEP meeting in order for a parent’s leave to qualify as intermittent FMLA leave, employers can continue to require employees to timely provide a copy of a certification issued by their child’s health care provider that meets the criteria to support the request for leave. It is possible that not every student with an IEP will have a serious medical condition under the FMLA. Therefore, it is important to verify that the FMLA eligibility requirements are met when a request for such leave is made.

Public agency employers should take steps to ensure that supervisors and human resource professionals are informed of this permissible use of intermittent FMLA leave and associated verification parameters. Public agencies should review employee handbooks, policies, and collective bargaining agreements regarding qualifying leave under the FMLA to determine whether any updates are necessary.

If you would like to discuss the Opinion Letter, how to handle requests for FMLA leave, whether your policies need updating, or if you have any other questions as to what constitutes “care for a family member with a serious health condition” under the FMLA, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Michelle N. Silwa

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Governor Newsom Signs Comprehensive Reforms for Charter Schools

October 2019
Number 49

In the largest overhaul of California’s Charter Schools Act (“Act”) since it was enacted in 1992, Governor Gavin Newsom signed AB 1505 and AB 1507 on October 3, 2019. The Act authorizes the establishment and operation of charter schools in California. The closely watched and hotly debated reforms impact most aspects of charter school authorization, including oversight, appeals, and renewals. Enactment of AB 1505 and AB 1507 follows months of negotiations and compromises from both sides in the ongoing charter school debate.

Background

Charter schools operate independently from school districts, but they require oversight from the school district or county board that authorizes them. In the last decade, California has seen unprecedented growth in the number of charter schools. According to the California Department of Education (“CDE”), there were approximately 1,306 charter schools and seven all-charter districts in California at the beginning of the 2018-19 academic year. With this growth has come criticism that the law was not keeping pace with necessary checks and balances on charter school operation and the impacts charter schools have on public school districts. These bills were introduced to correct deficiencies and close loopholes brought to light by litigation, including Anderson Union High School District v. Shasta Secondary Home School (2016) 4 Cal.App.5th 262 handled by Lozano Smith (see Client News Brief), as well as a subsequent Legislative Audit examining charter school operation and oversight, and the work of the Governor’s California Charter School Policy Task Force.

AB 1505

Most provisions of AB 1505 are set to go into effect on July 1, 2020. Major highlights of AB 1505 include the following changes:

  • Petition Approval Criteria. When considering whether or not to grant or deny a petition for a new charter school, a district may consider whether the charter school will serve the interests of the entire community in which the charter school is proposing to locate. Further, if a district meets certain criteria, the district may also consider whether or not it is positioned to absorb the fiscal impact of the proposed charter school.
  • Petition Review Timelines. The timeline for a school district to review an initial charter petition and a renewal petition has been extended. The district must hold a public hearing to consider the level of support for the petition 60 days after the petition is submitted, and the district must now hold a second public hearing to take action on a petition 90 days after the petition is submitted. Additionally, the governing board of a school district or county board of education is now required to publish all staff recommendations and findings regarding a charter petition at least 15 days before the public hearing at which the board will either approve or deny the initial or renewal petition. Petitioners must also be afforded equivalent time to present evidence and testimony to the governing board at the public hearing in which the petition will be approved or denied.
  • Petition Renewal Criteria. Charter petition renewals will be considered under a 3-tiered system whereby authorizers must consider the academic performance of the charter school on the state indicators included in the evaluation rubrics (the “Dashboard”) adopted by the State Board of Education (“SBE”). Under the tiered system, a “high performing” charter school may be renewed for five to seven years, an “average performing” charter school may be renewed for five years, and a “low performing” charter school, generally, may not be renewed. However, under certain conditions, a “low performing” charter school may be renewed for a two year period. Additionally, the requirement to consider increases in pupil academic achievement as the most important factor in determining whether to grant or deny a renewal has been eliminated.
  • Appeal Process. The new law modifies the appeal process for denials of a new charter school petition or renewal of an existing charter at both the county and state level in a variety of ways. For example, a petition submitted on appeal to a county board of education or the SBE containing “new or different material terms” will be immediately remanded back to be reconsidered by the district within 30 days of remand. Additionally, districts and county boards of education are required to prepare and submit an administrative record to the SBE upon request of the petitioners. The SBE may only reverse the denial of a petition or renewal if it finds there was an “abuse of discretion” by the county or district, or both. If a petition is approved on appeal to the SBE, either the district or county office of education will be designated as the authorizing authority, effectively eliminating the SBE as a charter school authorizer.
  • Nonclassroom-Based Charter Schools. The new law creates a 2-year moratorium on the approval of a petition for the establishment of a new charter school offering nonclassroom-based instruction, effective January 1, 2020 to January 1, 2022. According to the California Charter School Policy Task Force Report, the two year freeze on nonclassroom-based charter school will allow advocates to spend the time studying issues related to the establishment of nonclassroom-based charter schools, such as their operational practices and performance, and to make further recommendations to ensure students are receiving appropriate instruction.
  • Teacher Credentialing. Under prior law, charter school teachers were only required to hold a state-approved credential if teaching a Core course. Under the new law, all teachers hired after July 1, 2020 must have the appropriate credential for their certificated assignment regardless of whether they teach a core subject. All teachers employed at a charter school during the 2019-2020 school year without a credential will have until July 1, 2025 to obtain the appropriate credential for their certificated assignment. By July 1, 2020, all charter school teachers must also obtain a certificate of clearance and satisfy the requirements for professional fitness under the Education Code.

AB 1507

AB 1507 makes two major changes to the location requirements for charters schools, effective January 1, 2020.

  • Charter School Location. Under prior law, a charter school that was unable to locate within the geographic boundaries of its authorizing district was permitted to establish one site outside the boundaries of the school district, but within the county in which that school district is located, if specific requirements were satisfied. AB 1507 eliminates this loophole and requires all charter schools to locate within the geographic boundaries of the authorizing district. A charter school lawfully established outside the boundaries of the authorizing district, but within the county, before January 1, 2020, may continue to operate at the site until the charter school submits a renewal petition. At that time, to continue operating at the same location, the charter school must either obtain written approval from the district where the charter school is operating, or submit a renewal petition to the district in which the charter school is located.
  • Resource Centers. Under prior law, a nonclassroom-based charter school was able to establish a resource center in a county adjacent to the county in which the charter school was authorized, if certain conditions were met. The new law eliminates the ability of a nonclassroom-based charter school to establish a resource center in an adjacent county. A charter school that was lawfully operating a resource center outside the geographic boundaries of the authorizing district before January 1, 2020, may continue to operate at the site until the charter school submits a renewal petition-at which time the charter school must obtain written approval from the district where the resource center is located to continue operations at the same site.

Charter School Toolkit

Lozano Smith will soon be publishing an in-depth resource with important background information, answers to frequently asked questions, an implementation checklist, and more, regarding the recent amendments to the Act. If you are interested in receiving the toolkit, please email Client Services.

Takeaways

The current legislation reflects a shift in the charter school debate in this state. Rather than an emphasis on the performance of charter schools compared to district operated schools, the changes in the Act reflect a focus on the fiscal and operational impacts that new and existing charter schools have on public school districts. The enactment of AB 1505 and AB 1507 signals a policy shift in California and marks a victory for school districts that have been advocating for more local control of the approval, renewal, and oversight process. However, as part of the legislative compromise process, some significant new obligations have been placed on districts and will likely have long term impacts on the charter school landscape in California. In the short term, school districts should expect an influx of charter petition submissions in the coming months in anticipation of the comprehensive reforms going into effect on January 1, 2020 and July 1, 2020.

If you would like more information regarding AB 1505 and AB 1507, or if you have any questions regarding charter school authorization and oversight generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our Podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Megan Macy

Partner

Erin M. Hamor

Senior Counsel

Courtney de Groof

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.