New Law Limits School District Collection of Debts from Students and Penalties for Debts

December 2018
Number 85

The California Legislature recently passed Assembly Bill (AB) 1974, which places new prohibitions and restrictions on the collection of debt owed by parents to public schools, including state special schools and charter schools, and school districts, including county offices of education (all referred to herein as school districts). The new law prohibits the practice of punishing students for the failure of their parents to pay debt owed to the school district, adds additional requirements for the collection of student debt, prohibits the sale of such debt, and allows school districts to offer alternative, nonmonetary forms of payment to settle the debt. Importantly, the new law will not impact existing law regarding the imposition of charges for willfully damaged school property or failing to return loaned school property, or the consequences of not paying those charges.

Background

Parents are responsible for the fees and debts incurred by their minor child. School districts can no longer take negative actions against students for their parents’ failure to pay debt. While parents may still be held accountable for the failure to pay permissible student fees (such as fees for transportation to and from school), the student cannot. Schools districts are now barred from imposing the following consequences as a result of the unpaid debt:

  • Denying full credit for any assignments for a class;
  • Denying full and equal participation in classroom activity;
  • Denying access to on-campus educational facilities, including, but not limited to, the library;
  • Denying or withholding grades, transcripts, or a diploma;
  • Limiting/barring participation in an extracurricular activity, club, or sport; and
  • Limiting or excluding from participation in an educational activity, field trip, or school ceremony.

Significantly, the new restrictions do not apply to “debt owed as a result of vandalism or to cover the replacement cost of public school or school district books, supplies, or property loaned to a pupil that the pupil fails to return or that are willfully cut, defaced, or otherwise injured.” This exception relates directly to Education Code section 48904, which permits the imposition of charges under such circumstances, and so long as adequate due process is provided to the student, authorizes the withholding of grades, diploma, and transcripts of a student where the charge has not been paid. The above exception does not apply to a student who is a current or former homeless youth, or current or former foster youth. As such, school districts must ensure against imposition of consequences against these categories of students, even where the debt is imposed for school property which is not returned or willfully damaged.

AB 1974 imposes the following requirements when collecting the debt from parents owed to the school district:

  • Provide an itemized invoice for any amount owed by the parent or guardian before pursuing payment of the debt;
  • Provide a receipt to the parent or guardian or former student for each payment made to the school or district for any amount owed by the parent or guardian on behalf of the student or former student; and
  • The invoice must include references to school policies relating to debt collection and the rights established under Education Code sections 49014 and 49557.5.

In addition, the school district may offer the student or former student, with the permission of the parent or guardian, alternative, nonmonetary forms of compensation to settle the debt. This alternative must be voluntary and conform to all Labor Code provisions. Further, a school district is prohibited from selling the debt owed by a parent or guardian. Finally, the school district may still contract with a debt collection agency to collect the debt, but the debt collection agency cannot report the debt to a credit agency.

Takeaways

When AB 1974 goes into effect on January 1, 2019, public schools, including state special schools and charter schools, school districts, and county offices of education, will not be able to take negative actions against a student, or former student, for debts owed by the student’s parent or guardian-with the exception of debt imposed as a result of vandalism or for failure to return school property, which is itself limited relative to current or former homeless youth, or current or former foster youth. As school districts and county offices of education look forward to 2019, a review of existing debt-collection practices is recommended, which may lead to the need to modify, establish or eliminate existing policies
and practices to ensure compliance with this new law.

For more information about AB 1974 or about school 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

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Legislature Further Limits the Ability to Consider Expunged, Dismissed, or Sealed Convictions in Hiring Decisions

December 2018
Number 84

Senate Bill (SB) 1412, which takes effect on January 1, 2019, builds on prior law limiting consideration of expunged, dismissed, or sealed convictions in hiring decisions. SB 1412 prevents employers from requiring job applicants to disclose certain criminal convictions that have been expunged, dismissed, sealed, or statutorily eradicated. SB 1412 also provides that employers may only consider particular expunged convictions that are enumerated in the law when making hiring decisions. Exceptions to this prohibition remain for employers-like public school districts and certain other public agencies-that are prohibited from hiring individuals with certain convictions even if the conviction has been dismissed, expunged, or sealed.

Background

In recent years, the Legislature has focused on limiting the types of convictions that may be considered by employers when making hiring decisions. For example, in 2016, AB 1843 was passed generally prohibiting employers from seeking or using information about an applicant’s juvenile convictions in hiring decisions. (See 2016 Client News Brief No. 86.)

Separate from the use or consideration of juvenile convictions in hiring, existing law prevents employers from requiring applicants to disclose convictions that have been expunged, dismissed, or sealed, subject to several exceptions. These exceptions include situations where: (1) the employer is required by law to obtain information regarding an applicant’s convictions; (2) the applicant is applying for a job that would require him to possess or use a firearm; (3) the law prohibits an individual convicted of a crime from holding the position, even if the conviction is expunged, sealed, or dismissed; or (4) the law prohibits the employer from hiring an applicant who has been convicted of a crime. Aside from the above exceptions, once a conditional offer of employment has been made to an applicant, an employer may consider an expunged, dismissed, or sealed conviction.

Since January 1, 2018, California’s Fair Employment and Housing Act also prohibits similar conduct, with specified exemptions. (See 2017 Client News Brief No. 80; 2016 Client News Brief No. 86.)

Under the above legal protections for job applicants, concerns were raised that employers have been broadly rejecting applicants with expunged convictions, regardless of the nature of these convictions or their relevance to the job or future job performance. With SB 1412, the Legislature narrows the aforementioned exceptions so employers may only consider expunged, dismissed, sealed, or statutorily eradicated convictions that are enumerated in the law. Specifically, this bill provides that employers may only consider such convictions if: (1) the employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; (2) the applicant would be required to possess or use a firearm in the course of his or her employment; (3) the law prohibits an individualwith that particular conviction from holding the position sought, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; or (4) the employer is prohibited by law from hiring an applicantwho has that particular conviction, regardless of whether that conviction has been expunged, sealed, dismissed, or statutorily eradicated.

Takeaways

Employers should note that the Legislature has instituted additional protections for the consideration of expunged convictions in the applicant screening process. Under the SB 1412, employers can only ask an applicant about or consider expunged, sealed, or dismissed convictions to the extent permitted by law; they cannot simply withdraw an offer merely because an applicant has a conviction that was dismissed, expunged, or sealed. Keep in mind that public school employers are prohibited from hiring individuals convicted of certain crimes, even if such convictions have been dismissed, expunged, or sealed. The laws concerning the use of criminal convictions in hiring public school staff is highly technical and should be carefully reviewed before making a hiring decision based on a conviction, even if it has been dismissed, expunged, or sealed.

If you have any questions about SB 1412, 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:

Gabriela D. Flowers

Partner

Benjamin Brown

Associate

©2017 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 Bills Remove Obstacles to Graduation for Migrant and Immigrant Students

December 2018
Number 83

Assembly Bills (AB) 2121 and 2735 will make it easier for migrant students and English learners to access courses in core curriculum subjects and obtain course credit necessary for graduation. Both bills were signed by Governor Jerry Brown in September 2018. AB 2121 will become effective on January 1, 2019, while AB 2735 will take effect at the beginning of the 2019-2020 school year.

AB 2735

Existing law requires schools to ensure that students with limited English proficiency, or English learners (ELs), participate in the standard instructional program of a school. Schools may do this by either providing ELs with access to the standard instructional program along with English language support, or by placing ELs in separate educational programs intended to allow ELs to develop proficiency in English before being transferred to the standard instructional program. However, as cited by the author of AB 2735, several studies have found that many ELs who have been placed in separate programs become, in essence, trapped in the programs, unable to access courses in math, science, and English language arts,
despite their proficiency in English, until they are reclassified as non-ELs.

AB 2735 was enacted to solve this problem by prohibiting local education agencies, including county offices of education, public school districts, and charter schools, from denying ELs enrollment in core curriculum courses and courses required for high school graduation. This bill applies to ELs in middle and high school. The new law does not apply to students enrolled in “newcomer programs” designed to meet the academic and transitional needs of newly arrived immigrant pupils. AB 2735 creates new California Education Code section 60811.8.

AB 2121

Minimum course requirements for high school graduation are specified by state law and supplemented at the local level. However, Education Code sections 51225.1 and 51225.2 have historically provided a number of exemptions to local graduation requirements, including requiring the acceptance of partial credit, for certain students who move frequently, including foster youth, homeless children or youth, former juvenile court school students, and certain children of military families.

AB 2121 extends these exemptions to “migrant children,” defined to include children who have recently moved from one school district to another in order for the child or the child’s family to secure temporary or seasonal employment in an agricultural or fishing activity. AB 2121 will also extend benefits to children who are participants in a newcomer program.

Charter schools must comply with this statutory scheme, as well.

Takeaways

Both AB 2735 and AB 2121 were enacted to address the disparate rate of high school graduation and academic performance of English learner and immigrant populations, as compared to all other students in California. These new laws will allow these students to more easily access core curriculum course credits, while exempting them from certain local graduation requirements.

School Districts, charter schools, and county offices of education should review their courses, programs, and services offered to English learners to ensure that they do not prohibit English learners from accessing core curriculum subjects in violation of new Education Code section 60811.8. Likewise, public school districts and charter schools should be prepared to provide migrant students and students enrolled in newcomer programs with all of the necessary notifications and information regarding exemptions from local graduation requirements.

For more information on how school districts can prepare for the effects of 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Edward J. Sklar/a>

Partner

©2017 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.

SEC: Bank Loans and Other Private Placements to Trigger 10-Day Continuing Disclosure Reporting

November 2018
Number 82

The Securities Exchange Commission’s (SEC) Rule 15c2-12 requires that an issuer of publicly offered municipal securities, such as bonds or certificates of participation, commit to disclosing certain material events that occur while those securities are outstanding. Now, the SEC has added two new items to the list of events requiring disclosure. They are: (1) an incurrence of a material financial obligation, or an agreement to events of default, remedies, priority rights, or other similar terms of a financial obligation, if material; and (2) events occurring in connection with a separate financial obligation that reflect financial difficulties of the issuer (e.g., default, event of acceleration, termination event, modification of terms, etc.). All such material events must be disclosed within 10 days.

In other words, the existence of a private financing unrelated to the securities, such as a vehicle lease financing, or solar panel lease purchase agreement, or any event resulting from those unrelated financings that suggests “financial difficulties,” must be reported.

What is a “financial obligation”?

The term “financial obligation” is defined as (i) a debt obligation; (ii) a derivative instrument entered into in connection with, or pledged as security or a source of payment for, an existing or planned debt obligation; or (iii) a guarantee of either of the foregoing. Esoteric jargon aside, the term “financial obligation” is commonly read to include private bank loans and other private and direct purchases, municipal leases, capital lease financings, and other types of financial obligations of the issuer. Municipal securities for which a final official statement has already been provided to the Municipal Securities Rulemaking Board (MSRB) are not included in the definition of “financial obligations.” Thus, going forward, issuers must now disclose any new, non-publicly offered loans and equipment financings to the owners of their outstanding publicly-available municipal securities.

The new requirements take effect on February 27, 2019, and are meant to increase disclosure of an issuer’s potential or actual financial difficulties.

Although issuers who adhere to standards of the Governmental Accounting Standards Board and its generally accepted accounting principles likely already include such financial obligations in preparing audited annual financial statements, now such items must be disclosed contemporaneously. All such “material events,” under the Rule, must be disclosed within 10 days of occurrence, by filing notice with the MSRB’s Electronic Municipal Market Access (EMMA).

The absence of meaningful guidance from the SEC regarding which financial obligations are considered “material” under the amendments and, thus, trigger a disclosure requirement, will pose a challenge for issuers.

Agencies who have issued publicly available securities, such as bonds or certificates of participation that remain outstanding, and plan to incur a new financial obligation, such as a capital lease or private bank loan, should consult with counsel to determine whether such event must be disclosed

Lozano Smith serves as bond and disclosure counsel to school districts, community colleges, and other public agencies throughout California and would be happy to provide guidance regarding these developments. If you have any questions regarding initial or continuing disclosure compliance, 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:

Daniel Maruccia

Partner

Kate S. Holding

Associate

©2017 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 Expands Sexual Health Education Resources

November 2018
Number 79

In September 2018, Governor Jerry Brown approved a series of bills that expand on the instruction of comprehensive sexual health education for California public school students.

The California Healthy Youth Act requires that school districts ensure that pupils in grades 7 through 12 receive comprehensive sexual health education, including human immunodeficiency virus (HIV) prevention education, and information on sexual harassment, sexual assault, sexual abuse, and human trafficking. Commencing with the 2019-2020 school year, charter schools will be included in these requirements. (See 2018 CNB No. 57.)

Assembly Bill (AB) 1861 adds the requirement that school districts and charter schools provide pupils in grades 7 through 12 information on how social media and mobile device applications are being used for human trafficking.

AB 1868 authorizes school districts and charter schools to provide optional instruction on the potential risks and consequences of creating and sharing sexually suggestive or sexually explicit materials through cellular telephones, social networking Internet sites, computer networks, or other digital media.

Lastly, Senate Bill (SB) 1104 requires school districts and charter schools to identify the most appropriate methods of informing parents and guardians of pupils in grades 6 through 12 of human trafficking prevention resources and implement the identified methods by January 1, 2020.

The California Department of Education provides information on its website regarding comprehensive sexual health and HIV/AIDS instruction, and is in the process of revising the Health Education Curriculum Framework to be adopted in the spring of 2019.

If you have any questions about these new laws or about sexual education laws 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Roberta L. Rowe

Partner

Jayme A. Duque

Associate

©2017 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 Looming for School Districts to Opt into the Classified Summer Assistance Program

November 2018
Number 80

The 2018 education omnibus trailer bill, Assembly Bill (AB) 1808, was approved by Governor Jerry Brown this summer. Among other things, the bill creates the Classified School Employee Summer Assistance Program for the 2019-2020 school year. The first deadline for this program is January 1, 2019. Therefore, the governing boards of local educational agencies (LEAs) must determine before the end of the 2018 calendar year whether or not to participate in the program.

The Classified School Employee Summer Assistance Program allows a classified employee of a participating LEA who meets specified requirements to withhold an amount up to 10% from his or her monthly paycheck during the 2019-2020 school year to be paid out during the summer recess period. AB 1808 provides state matching funds to participating employees, and requires the California Department of Education (CDE) to apportion funds to participating LEAs to provide the matching funds-up to $1 for each $1 that the participating classified employee has elected to have withheld for his or her monthly paycheck. The program has only been funded for 2019-2020, and it is not clear whether it will continue to be funded in future years.

Classified Employee Eligibility

To be eligible to participate in the program, a classified employee must:

  1. be employed with the LEA for at least one year at the time the employee elects to participate in the Classified School Employee Summer Assistance Program;
  2. be employed by the LEA for fewer than 12 months per fiscal year; and
  3. not earn more than two times the full-time pay for an entire school year of a person earning minimum wage, paid at the state minimum wage, at the time of enrollment.

2019-20 Program Timeline

AB 1808 sets forth the following deadlines concerning the Classified School
Employee Summer Assistance Program:

  • January 1, 2019-LEA must notify classified employees the LEA has elected to participate in the Classified School Employee Summer Assistance Program for the 2019-2020 school year. Once an LEA elects into the program, the LEA is prohibited from reversing its decision to participate for the 2019-2020 school year.
  • March 1, 2019-Employee must notify the LEA, in writing on a form developed by CDE that the employee elects to participate in the Classified School Employee Summer Assistance Program for the 2019-2020 school year.
  • April 1, 2019-LEA must notify the CDE, in writing on a form developed by CDE, that it has elected to participate in the Classified School Employee Summer Assistance Program for the 2019-2020 school year.
  • May 1, 2019-The CDE must notify the LEA, in writing, of the estimated amount of state-matched funding that a participating employee can expect to receive.
  • June 1, 2019-LEA must notify participating employees of the amount of estimated state matched funds participating employee can expect to receive.
  • No later than 30 days after the start of the 2019-2020 school year, an employee may withdraw his or her election to participate in the Classified School Employee Summer Assistance Program or reduce the amount to be withheld from his or her paycheck.
  • July 31, 2020-LEA must request payment from the CDE, in writing on a form developed by CDE, for the amount of employee pay that has been deposited into the Classified School Employee Summer Assistance Program fund.
  • Within 30 days of receiving a request for payment, CDE must apportion funds to participating LEAs.

Next Steps

LEAs must determine before the January 1, 2019 deadline whether or not to participate in the program. Many school districts have received “Demand to Bargain” letters concerning AB 1808 from their local union. LEAs should contact legal counsel regarding which aspects of AB 1808 are subject to negotiations, in order to ensure that any bargaining implications are addressed. We also recommend consulting with legal counsel regarding how and when to obtain board approval for participation in the program.

If you have any questions about this new program, 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:

Sarah Levitan Kaatz

Partner

Jayme A. Duque

Associate

©2017 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 Approves New Public Safety Laws Affecting Cities, Schools and Other Public Agencies

November 2018
Number 81

In September 2018, Governor Jerry Brown signed three new bills addressing public agency response to disasters and emergencies including school violence.

Senate Bill (SB) 833: Emergency Alerts

In response to the unprecedented 2017 wildland fire disasters, SB 833 aims to improve California’s emergency alert system by requiring the Office of Emergency Services (OES) to develop guidelines for alerting and warning the public of an emergency. At a minimum, the Guidelines must include:

  1. Timelines for sending alerts during an emergency;
  2. Practices for sending advance warnings of an impending threat;
  3. Practices for testing, training on, and exercising a city’s or county’s (or joint) alert and warning system;
  4. Consideration for coordinating alerts with neighboring jurisdictions;
  5. Guidelines and protocols for redundancy and utilizing multiple forms of alerts;
  6. Guidelines and protocols for chain of command communications and accounting for staffing patterns to ensure a trained operator is always on call;
  7. Practices for effective notifications to the access and functional needs population;
  8. Message templates; and
  9. Common terminology.

The Guidelines must be developed in consultation with telecommunications carriers, the cable and broadband industry, radio and television broadcasters, the California State Association of Counties, the League of California Cities, the disability community, appropriate federal agencies, and the Standardized Emergency Management System Alert and Warning Specialist Committee. They must be completed by July 1, 2019, and then provided to all cities and counties in the state. Six months after the Guidelines are distributed, OES must develop training that includes:

  • Information regarding the evaluation, purchase, and operation of the Wireless Emergency Alert (WEA) and the Federal Emergency Alert System (EAS) equipment and software;
  • The technical capabilities of the WEA and EAS function within an alert system; and
  • The content of the Guidelines.

Further, to incentivize compliance with the Guidelines, SB 833 authorizes OES to condition certain grant funding on the grantee implementing an alert and warning system consistent with the Guidelines.

While the catalyst for the bill was the 2017 fire season, the Guidelines will likely have application to other natural and manmade disasters and emergencies, including terrorist threats/attacks, active shooters, etc. In addition, the bill and Guidelines are directly intended for “designated alerting authorities” (DAAs), which are agencies and entities that apply and are approved to use the WEA system. Presently, the list of approved DAAs includes cities, counties and other local or regional emergency assistance agencies, but not schools. Nevertheless, the Guidelines will likely be quite instructive for all public agencies, including schools and colleges, in crafting alert systems and strategies, whether wireless or
Cloud-based.

Assembly Bill (AB) 1747: School Safety Planning

All public schools are required to annual develop a comprehensive school safety plan in coordination with specified groups and including specific information. This bill adds the following new requirements:

  • All school staff must be trained on the safety plan. No specific direction is included as to what this training should include or how it should be provided, e.g., in person or on-line.
  • The school must now consult with fire officials and other first responders in the writing and development of the plan. Prior law only specifically required consultation with local law enforcement.
  • The District or school now has an obligation to share the plan with law enforcement, fire officials and other first responders.
  • The plan must include procedures for conducting tactical responses to criminal incidents.
  • The California Department of Education (CDE) must provide general direction to school districts and COEs on what to include in a building disaster plan.
  • CDE must develop and post on its website best practices for reviewing and approving school safety plans.
  • CDE must maintain, update as necessary, and post on its website a compliance checklist for developing school safety plans.

Finally, this bill now obligates charter schools to annually create and update a comprehensive school safety plan.

These changes are largely the result of the growing recognition that greater communication and coordination is needed between local, regional, state and federal agencies to adequately plan for and respond to incidents of school violence.

AB 3205: School Door Locks

For new construction, the law already requires (with some exceptions) school districts to install locks that allow doors to classrooms, and rooms with an occupancy of five or more persons, to be locked from the inside as a condition of receiving certain state funding. AB 3205 extends this requirement to modernization project for which the district seeks state funds if:

  1. The project consists of the modernization of a facility constructed before January 1, 2012;
  2. The application for funding is submitted on or after January 1, 2019; and
  3. The project is submitted to the Division of the State Architect for approval on or after January 1, 2019.

For more information on these bills or to discuss any other school safety requirements, 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:

Trevin E. Sims

Partner

Kyle A. Raney

Associate

©2017 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.