ATTORNEY GENERAL ADDRESSES SCOPE OF BROWN ACT EXCEPTION FOR CLOSED SESSION DISCUSSIONS ABOUT REAL ESTATE NEGOTIATIONS

December 2011
Number 86

On December 27, 2011, the California Attorney General issued an opinion addressing what matters may be discussed in closed session under the Brown Act’s exception for real estate negotiations. (__ Ops.Cal.Atty.Gen. __ (2011, Op. No. 10-206.)) While the Attorney General opinion concluded that this exception is relatively narrow, thus potentially limiting what may be addressed in closed session, it also recognized the reality that discussion of certain topics should not be forced into open session if doing so would reveal information otherwise allowed to be kept confidential under the Brown Act. In the end, the Attorney General left the determination of whether a particular aspect of a real estate transaction may be discussed in closed session to a case-bycase analysis.

Under the Brown Act generally, a quorum of a legislative body must conduct its business in open session. There are a number of statutory exceptions that allow for closed session consideration of particular issues. One such exception provides that:

[A] legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease

(Gov. Code §54956.8.)

Prior to going into such a closed session, the legislative body must identify “its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate.” (Id.) This is ordinarily accomplished by use of the specific “safe harbor” agenda language for conference with real property negotiators as set forth in Government Code section 54954.5(b).

In her opinion, the Attorney General considered the range of topics that can be discussed in closed session under this exception. Emphasizing that the Brown Act’s closed session exceptions must be construed narrowly, the Attorney General found that a discussion under the real estate negotiations exception must be limited to paymentrelated issues, and is not “meant to authorize closed-session discussions of any and all terms of the transaction as a whole.” The Attorney General also looked to appellate court decisions for support of the notion that the real estate negotiations exception “simply cannot be read so broadly as to incorporate any and every topic that might have a bearing on a public real estate transaction.”

While the Attorney General thus avoided a broad reading of the real estate negotiations exception, the opinion also recognizes that the construction of the exception should not be so narrow as to force into open session topics that would otherwise be confidential. To do so would risk exposing the agency’s strategy for price and thus impact the potential financial return to the agency: “Among the purposes at play in this situation is the need to conserve scarce public resources through effective negotiation of real estate transactions.” The opinion goes on to state that “a closed session discussion regarding price or terms of payment must allow a public agency to consider the range of possibilities for payment that the agency might be willing to accept, including how low or how high to start the negotiations with the other party, the sequencing and strategy of offers or counteroffers, as well as various payment alternatives.” The Attorney General also recognized that information intended to assist with determining the value of a property may also be discussed in closed session, “because that information is often essential to the process of arriving at a negotiating price.”

Putting these considerations together, the Attorney General concluded that the real estate negotiations exception allows for closed session discussion of (1) the amount that the local agency is willing to pay or accept; (2) the “form, manner, and timing” of how the payment will be made; and (3) “items that are essential to arriving at the authorized price and payment terms, such that their public disclosure would be tantamount to revealing the information that the exception permits to be kept confidential.” This third category of information appears broad enough to provide public agencies with at least some flexibility when conferring with their real property negotiators in closed session.

This opinion from the Attorney General is advisory only, but provides some insight into how a court might interpret the issue. In the end, the Attorney General concluded that each case would have to be decided on its own facts. As a result, each time a public agency places discussion of a real estate matter on a closed session agenda, it should consider the circumstances carefully, with the unique facts of the particular situation taken into account.

For assistance on Brown Act issues, including regarding real estate negotiations, please contact any of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

Written by:

Harold Freiman
Shareholder
Walnut Creek Office
hfreiman@lozanosmith.com

DevonLincoln
Senior Counsel
Monterey Office
dlincoln@lozanosmith.com

© 2011 Lozano Smith

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ALAMEDA COURTAGAIN UPHOLDS TIERED RATE FOR PARCEL TAX MEASURE

December 2011
Number 85

Backed by voter approval, some school districts levy parcel taxes with tiered-rate, rather than flat-rate, tax structures. Typically, tiered-rate structures have different rates for residential and non-residential use parcels, such as residential rates based on the number of housing units on each parcel, and nonresidential rates based upon the acreage of parcel. Questions have been raised about whether such structures comply with state law requiring that such taxes apply “uniformly” to all taxpayers or all property within a school district. Over the past several years, this issue has been the subject of several trial court decisions inAlamedaCounty, the latest of which was decided recently. Two of those decisions are already up on appeal, and more legal proceedings are anticipated.

In 2010, the Alameda County Superior Court found that a tiered-rate structure complies with the meaning and intent of the “uniformity” requirement of state law. In the consolidated cases of Borikas vs. Alameda Unified School District and Berry v. Alameda Unified School District, taxpayers challenged Alameda Unified School District’s 2008 parcel tax Measure H that taxed residential parcels at $120 per year, commercial/ industrial parcels with buildings of less than 2,000 square feet at $120 per year, and commercial/industrial parcels with buildings of more than 2,000 square feet at $.15 per square foot, up to a maximum of $9,500 per year. The plaintiff taxpayers complained that the parcel tax measure violated the “uniformity” requirement of Government Code section 50079.

The court ruled in favor of the school district, finding that so long as like parcels are treated in a like way and the division of parcels into different classes has a rational basis, the requirement of uniformity and equal protection of the law is met. This ruling is now up on appeal. Lozano Smith has submitted an amicus curiae brief on behalf of CSBA in support of theAlamedaUnifiedSchool Districtand the tiered-rate tax structure.

Another parcel tax measure, Measure A, replaced Measure H upon voter approval earlier this year. It levied a parcel tax of $.32 per square feet, up to a maximum of $7,999 per year, without regard to whether the use was residential or non-residential. Owners of parcels without buildings pay a flat tax of $299 per year. Unlike its predecessor, Measure A does not distinguish between residential and non-residential use; rather, it distinguishes between parcels with buildings and parcels without buildings. Like its predecessor, Measure A also distinguishes between parcels with larger buildings and parcels with smaller buildings (due to application of the cap). Taxpayers challenged this new structure in the case of Nelco, Inc., et al. v. Alameda Unified School District.

As before, the Alameda County Superior Court upheld the division of parcels into different classifications for tax treatment, and ruled that such a tax meets the standard if it applies uniformly to all persons or properties in the same classification.

Because the appeal of the Measure H decision is still pending, we think it is likely that the taxpayers who brought the Nelco case will appeal this latest decision and move to consolidate. Thus, the trial court’s decision will not be the last word on this subject. We will continue to monitor these developments and provide updates as they occur. If there are any questions, please contact one of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

Written by:

Jeffrey Kuhn
Shareholder
Fresno Office
jkuhn@lozanosmith.com

Daniel Maruccia
Shareholder
Sacramento Office
dmaruccia@lozanosmith.com

© 2011 Lozano Smith

THEADADOES NOT REQUIRESCHOOL DISTRICTSTO SEEK WAIVERS TO ACCOMMODATE DISABLED TEACHERS WHO LACK VALID CREDENTIALS

December 2011
Number 84

Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to disabled individuals who are qualified to perform essential job functions. The Ninth Circuit Court of Appeals recently considered the issue of job qualifications in the case of a disabled teacher who failed to maintain her teaching credential.

In Johnson v. Board of Trustees (9th Cir. 2011) ___ F.3d ___, an Idaho school district fired disabled teacher Trish Johnson after she failed to complete the professional development coursework required to maintain a valid teaching credential. Prior to her termination, Ms. Johnson appealed to the school board requesting that they seek a waiver on her behalf from theIdaho state law requiring that all teachers posses valid credentials. Ms. Johnson maintained she was unable to complete her remaining coursework due to a major depressive episode caused by her disability. Finding that Ms. Johnson had been provided five years to complete the coursework and that other appropriately credentialed teachers were available to fill her position, the school district declined to seek a waiver on her behalf.

The Ninth Circuit’s decision in this case turned on the definition of a “qualified individual” under theADAand whether the school board had a duty to seek a waiver of credentialing requirements for Ms. Johnson as a reasonable accommodation of her disability. Relying heavily on the express language contained in guidance issued by the Equal Employment Opportunity Commission (EEOC), the court found that employers are not required to accommodate disabled individuals so that they will meet the job’s qualification standards, unless the job qualification is itself discriminatory in nature or impact. In this case, Ms. Johnson did not allege or provide any evidence that the qualification requirement to maintain a valid teaching credential was discriminatory. Thus, theADAdid not require the school board to seek a waiver as a reasonable accommodation to allow Ms. Johnson to continue her employment.

This decision provides a reminder that school district employers are required to accommodate disabled individuals only if they first meet the job’s qualification standards (unless the job qualification is itself discriminatory in nature or impact), including the job requirement that an existing teacher must maintain a valid teaching credential.

If you have any questions regarding this decision, please contact one of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

Written by:

Darren Kameya
Senior Counsel and Labor & Employment Practice Group Co-Chair
Los Angeles Office
dkameya@lozanosmith.com

Mary Kellogg
Associate
Los Angeles Office
mkellogg@lozanosmith.com

© 2011 Lozano Smith

NEW CHARTER REVOCATION REGULATIONS BECOME EFFECTIVE DECEMBER 16, 2011

December 2011
Number 83

The State Board of Education (SBE) recently approved implementing regulations for Education Code section 47607, effective December 16, 2011, setting forth a detailed process for school districts and county offices of education authorizing charter schools (“Authorities”) to follow when revoking a charter. Additionally, the regulations set forth an expedited process when there is a severe and imminent threat to the health or safety of pupils and detail the appeal process for charter schools to challenge a revocation under all circumstances.

Education Code section 47607(c) permits Authorities to revoke a charter if the Authority finds, through a showing of substantial evidence, that the charter school: (1) committed a material violation of any of the conditions, standards or procedures set forth in the charter; (2) failed to meet or pursue any of the pupil outcomes identified in the charter; (3) failed to meet generally accepted accounting principles, or engage in fiscal mismanagement; or (4) violated any provision of law. However, the statute is vague regarding the revocation process, requiring the Authority to notify the charter school of any violation and give the school a reasonable opportunity to remedy the violation, but providing little other guidance.

The regulations, found at Title 5 of the California Code of Regulations sections 11960 et seq., set forth a very detailed process for such notice and the opportunity to remedy. The highlights of that process include:

(1) At least 72 hours prior to any board meeting in which an Authority will consider issuing a “Notice of Violation” of one or more specific alleged violations of Education Code section 47607(c), the Authority shall provide the charter school with notice and all relevant documents related to the proposed action.

(2) After providing the initial 72 hours notice and review by the Authority’s board, the Authority may issue a Notice of Violation along with a specific remedy period.

(3) Should it choose to respond to the Notice of Violation, the charter school shall have until the end of the remedy period to provide evidence refuting the violation or describing any remedial or proposed remedial action.

(4) At the end of the remedy period, if the Authority has substantial evidence that the charter school has failed to refute or remedy the violation, the Authority shall issue a Notice of Intent to Revoke and shall hold a public hearing concerning the revocation.

(5) No more than 30 days after the public hearing, the Authority shall issue and provide to the SBE a Final Decision revoking or declining to revoke the charter. If the Authority does issue a Final Decision within the timeframe set forth in the regulations, the Notice of Intent to Revoke is void.

Additionally, the regulations set forth a process for a charter school to appeal to the county board of education after revocation by a school district. (Cal.Code Regs., tit. 5, § 11968.5.4.) On appeal, the county board of education is tasked with determining whether the Authority’s factual findings are supported by substantial evidence or whether any procedural deficiency negatively impacted the charter school’s ability to refute or remedy the alleged violation. Furthermore, section 11968.5.5 provides a further right of appeal to the SBE within 30 calendar days based upon the record before the Authority and the county office of education.

The new regulations also provide for an expedited revocation process if there is a severe and imminent threat to pupil health or safety. (Cal.Code Regs., tit. 5, § 11968.5.3.) The regulations define “a severe and imminent threat to pupil health or safety” as that which “occurs when a charter school’s structures, systems or practices are in a condition that poses a severe and imminent threat to the health or safety of pupils while at school, and where the charter school has made no reasonable attempt to remedy the condition or no remedy exists to cure the condition” but “does not include any cosmetic or nonessential repairs or severe threats for which the school has initiated corrective action and has removed the pupils from any immediate danger.” (Cal.Code Regs., tit. 5, § 11965(e)(4) & (5).) Under those circumstances, the Authority may immediately revoke the school’s charter by approving and delivering a Notice of Revocation by Determination of a Severe and Imminent Threat to Pupil Health or Safety to the charter school’s governing body. The charter school may then appeal the revocation to the county board of education or SBE, pursuant to Education Code section 47607(f) and (g).

We note that revoking a charter petition can be a complicated, long and expensive process. If you have any questions regarding the new revocation regulations or charter school issues generally, please contact one of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

Written by:

Edward Sklar
Shareholder and Charter School Practice Group Co-Chair
Walnut Creek Office
esklar@lozanosmith.com

Megan Macy
Shareholder
Sacramento Office
mmacy@lozanosmith.com

© 2011 Lozano Smith

NEW LAW ALLOWSSCHOOL DISTRICTSTO OFFER CAREER TECHNICAL EDUCATION COURSES THAT COUNT TOWARDS HIGH SCHOOL GRADUATION

December 2011
Number 82

Beginning with the 2012-13 school year, school districts may elect to offer career technical education (CTE) courses as an alternative to the high school graduation visual or performing arts or foreign language course requirements. Under the new law, schools that do not currently offer CTE courses are not required to implement new CTE programs.

Assembly Bill (AB) 1330 amends Education Code section 51225.3 to allow CTE courses to serve as an alternative to the performing arts or foreign language courses that are currently required for high school graduation. AB 1330 specifies that in order to qualify, a CTE course must be part of a district-operated CTE program that is aligned with model curriculum standards and framework adopted by the State Board of Education. This can include CTE courses offered through a regional occupational center, or programs operated by a county superintendent of schools or pursuant to a joint powers agreement.

The governing board of a school district electing to offer CTE courses under AB 1330 must, at a regularly scheduled board meeting, provide parents, teachers, students and the public with notice of its intent to offer these courses to fulfill graduation requirements and discuss the impact that offering these courses will have on the availability of courses that meet California State University (CSU) and University of California (UC) admission requirements. The governing board must also discuss the distinction, if any, between the district’s graduation requirements and CSU and UC admission requirements and whether or not the offered CTE courses will satisfy CSU and UC admissions requirements.

AB 1330 also amends Education Code section 48980 by requiring that participating school districts include the following information in their annual notice to parents: (1) information about their district’s high school graduation requirements and how each requirement satisfies, or does not satisfy, subject matter requirements for admission to the CSU and the UC; and (2) a complete list of the CTE courses offered by their district that satisfy CSU and UC admission requirements, and which of the specific college admission requirements these courses satisfy.

The California Department of Education will be tracking AB 1330’s impact on foreign language and performing arts studies, and the law is currently due to sunset based on the occurrence of certain contingencies. Our firm will be tracking any proposed legislation impacting this new law.

For any questions about AB 1330 or career technical education in general, please contact one of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

Written by:

Thomas Manniello
Shareholder and Student Practice Group Co-Chair
Monterey Office
tmanniello@lozanosmith.com

Mary Gates
Paralegal
Monterey Office
mgates@lozanosmith.com

© 2011 Lozano Smith

 

COMMITTEE FORMED TO REVIEW EMPLOYEE HEALTH BENEFITS NOT SUBJECT TO OPEN MEETING PROVISIONS OF THE BROWN ACT

December 2011
Number 81

In a recent decision, a California court of appeal affirmed that a joint labor/ management committee formed for the purpose of reviewing the district’s health benefits program is not a legislative body subject to the open meeting provisions of the Ralph M. Brown Act (Brown Act). The case was decided under Government Code section 3549.1 subdivision (a), which is a part of the Education Employment Relations Act (EERA) and provides that any meetings and negotiations between a public school employer and a recognized or certified employee organization are exempt from the open meeting provisions of the Brown Act.

In Californians Aware, et al. v. Joint Labor/Management Benefits Committee, et al, (November 10, 2011) ___ Cal.App.4th ___ [2011 WL 5921366], theLos Angeles Community College District (District) and its six bargaining units developed the Joint Labor/Management Benefits Committee (JLMBC). The JLMBC was developed pursuant to a Master Benefits Agreement that was entered into by the District and the six unions.

The JLMBC was developed to review the District’s Health Benefits Program and recommend group benefit plans. Specifically, the JLMBC was tasked with filtering out changes that were to be brought to the negotiating table by reaching agreement regarding health benefits among both labor and management members of the JLMBC before submitting proposed changes to the District Board of Trustees. Accordingly, the JLMBC played a role in the collective bargaining process with respect to a mandatory subject of bargaining.

The court acknowledged a “tension” between the open meeting requirements of the Brown Act and the closed-door collective bargaining provisions of the EERA. The court reviewed the requirements of the Brown Act, including that all “legislative bodies” of a local agency must hold open public meetings. (Gov. Code § 54953(a).) The court noted that “legislative body” is defined under the Brown Act as a commission, committee, board, or other body of a local agency. (Gov. Code § 54952.) The court further recognized that, under the EERA, “[A]ny meeting and negotiating discussion between a public school employer and a recognized or certified employee organization” is exempted from Brown Act requirements. (Gov. Code § 3549.1.) The court concluded that the tension is resolved by the explicit language of Government Code section 3549.1 exempting bargaining committees from negotiating in public.

In reaching its conclusion, the court agreed with a formal opinion issued by the California Attorney General on this same issue that concluded that the JLMBC was created as part of, and for the purpose of, furthering the collective bargaining agreement process under the EERA and as such is not subject to open meeting provisions of the Brown Act.

This decision is a reminder that properly formed bargaining committees are not legislative bodies and therefore are not required to comply with the Brown Act.

If you have any questions about this decision, or about labor negotiations or the Brown Act in general, please contact one of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

Written by:

Dulcinea Grantham
Shareholder and Labor & Employment Practice Group Co-Chair
Walnut Creek Office
dgrantham@lozanosmith.com

Andrea Epps
Associate
Los Angeles Office
aepps@lozanosmith.com

© 2011 Lozano Smith

 

AB 1344: NEW LAW SETS LIMITS ON LOCAL AGENCY EMPLOYMENT CONTRACTS

December 2011
Number 80

Governor Jerry Brown recently signed into law Assembly Bill (AB) 1344, one of a series of “Bellbills” introduced during the last legislative session in response to public outrage triggered by the City ofBellcorruption and compensation scandals.

AB 1344 adds and amends various sections of the Elections Code and the Government Code, placing new restrictions on executive employment contracts for “local agencies.” The bill also makes certain changes to the Brown Act designed to promote greater transparency and ethics in local governance.

AB 1344 defines a local agency to include a “school district” and any “other public agency” and further defines “local agency executive” to mean a chief executive officer or department head not represented by an employee organization. Accordingly, school districts and other local educational agencies (LEAs) are subject to the following provisions of the new law, which becomes effective January 1, 2012:

Employment Contract Restrictions. AB 1344 prohibits the governing board of an LEA from executing or renewing any contract for a superintendent or other department head not subject to collective bargaining that includes either: an automatic renewal provision increasing the level of compensation beyond a cost-of-living adjustment set by the California Consumer Price Index, or a cash settlement that exceeds 18 months of the salary and benefits currently allowed under law.

If an LEA governing board enters into or renews a contract with a local agency executive providing for: (1) paid leave for the official pending an investigation, or (2) funds for the legal criminal defense of the official, then the contract must include a provision that such sums will be reimbursed by the official to the local public agency if the official is convicted of a crime involving abuse of office. In addition, every contract entered into between the local agency and an executive after January 1, 2012, must also contain a provision that any cash settlement related to the official’s termination will be reimbursed by the official to the local public agency if the official is convicted of a crime involving abuse of office. If the public agency provides such payments absent a contractual obligation, the official must still reimburse the public agency if he or she is convicted of abuse of office. The terms “abuse of office or position” are defined to include, but are not limited to, waste, fraud, and violation of the law under color of authority.

Brown Act Amendments. AB 1344 amends certain provisions of California’s open meeting laws (“the Brown Act”) to prohibit school districts from calling a special meeting to consider the salary, salary schedule, or “compensation paid in the form of fringe benefits” to a local agency executive. Consequently, after January 1, 2012, any action to approve or renew the contract of a local agency executive must be taken at a regular board meeting and cannot be approved at a special meeting of the board. However, this provision does not prohibit a local agency’s governing board from calling a special meeting to discuss the agency’s budget.

AB 1344 also requires a local agency to post a notice of any regular board meeting on the agency’s website, if it has one, at least 72 hours prior to the meeting, and to post a notice of a special board meeting on its website at least 24 hours prior to the meeting.

As noted above, the new law takes effect on January 1, 2012. It does not apply retroactively, and it only applies to contracts that are renewed or created after January 1, 2012.

If you need assistance reviewing your standard contract language to ensure compliance with AB 1344, please contact one of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

Written by:

David J. Wolfe
Shareholder and Local Government Practice Group Co-Chair
Fresno Office
dwolfe@lozanosmith.com

Claudia P. Weaver
Associate
Monterey Office
cweaver@lozanosmith.com

Louis T. Lozano
Shareholder
Monterey Office
llozano@lozanosmith.com

© 2011 Lozano Smith