School Districts Must Offer Surplus Property to Charter Schools Requesting Notification

July 2012
Number 41

New legislation that became effective on June 27, 2012, gives charter schools interested in surplus school district real property priority to buy or lease such property. Senate Bill (SB) 1016 requires school districts seeking to sell or lease surplus property to offer that property first to any charter school that has submitted a written request to be notified of surplus property offered for sale or lease by the school district. Such offers are required for any property designed to provide instruction or instructional support, and are given priority over offers required by statute to be made to certain other entities.

Surplus property is real property belonging to a school district which is not needed for school classroom buildings. Before a school district can dispose of surplus property, it must generally declare the property to be surplus following input from a community committee (commonly called a “7-11 Committee”) and then must make written offers or solicitations to sell or lease the property to various agencies. If the property remains unsold or unleased after this process, it can be put out to bid to the general public. SB 1016, which became effective upon the Governor’s signature, added section 17457.5 to the Education Code and amended various related statutes. Under the new law, charter schools are not only added to the list of agencies to whom surplus property must be offered – they are advanced to the front of the line, and school districts must now offer the property to the charter schools before offering it to other entities.

Initially, the Governor proposed a budget trailer bill which would have required school districts to convey surplus real property to any interested charter school, without requiring payment, before that property could be offered for sale or lease in a manner consistent with typical surplus property disposal. School districts dodged a bullet when that language was ultimately rejected, since it would have essentially forced districts to offer to give their land away for free to charter schools before they could sell the property at fair market value. Particularly in light of the current fiscal crisis, depriving school districts of a legitimate way to generate funds would have had a negative impact.

The enacted law requires school districts to offer to sell or lease surplus property to charter schools requesting such offers, subject to the following conditions:

1. In the event of a sale of surplus property, the charter school must use the property to provide direct instruction or instructional support for at least five years from the date upon which the property is made available to the charter school (the statute does not define what is meant by “made available”). Otherwise, the charter school must immediately offer the property for sale according to the surplus property rules applicable to school districts, with a cap on the sales price based on the cost of acquisition incurred by the school district that sold the property, rather than that incurred by the charter school. The school district, and each of the entities authorized to receive offers of sale, has standing to enforce this condition, and may recover reasonable attorney’s fees as a prevailing party in any action or proceeding brought to enforce such condition.

2. In the event of a lease, the charter school must use the property to provide direct instruction or instructional support until the real property is returned to the possession of the school district. Failure to comply with this requirement constitutes a breach of the lease, entitling the school district to immediate possession of the property and any damages available under the terms of the lease. The school district and entities authorized to receive offers of sale likewise have standing to enforce this condition, and may recover attorney’ fees as a prevailing party in any such action.

3. The charter school desiring to purchase or lease the property has 60 days after receipt of a written offer to notify the school district of its intent to purchase or lease the property. If a notification is received from more than one charter school, the district can choose which charter school will be the buyer or lessee.

4. The price at which the property is sold cannot exceed the school district’s cost of acquisition, adjusted by increases or decreases in the cost of living, plus the cost of any school facilities construction undertaken by the school district, adjusted by the statewide cost index for class B construction as annually determined by the State Allocation Board. This price cap is virtually the same as that governed by the Naylor Act. Where applicable, the Naylor Act requires school districts to offer to negotiate to sell or lease surplus property that has been used for recreation or park-related purposes to certain entities, although interested charter schools must now be given priority over those entities.

5. Leased surplus property must be leased at an annual rate of not more than 5% of the above-described maximum sales price, adjusted annually by increases or decreases in the cost of living. This price cap is also virtually the same as under the Naylor Act.

The new law is only applicable to real property declared by a school district as surplus property after July 1, 2012. Currently, the law becomes inoperative on June 30, 2013, and is repealed as of January 1, 2014, unless a later enacted statute deletes or extends these dates. As a new legal requirement in the surplus property scheme, application of SB 1016 may result in uncertainties. For example, the Education Code presently does not define “instruction or instructional support”, which could create confusion as districts attempt to determine whether their property was designed for these purposes and is therefore subject to the new requirement. These and other potential unknowns remain to be resolved in the coming months.

An already complex and sometimes ill-fitting statutory scheme has only been made more complicated as a result of this bill. Our attorneys have substantial experience handling issues related to surplus property. If you have any questions regarding these issues, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

Written By

Harold M. Freiman
Shareholder
Walnut Creek Office
hfreiman@lozanosmith.com

Megan Macy
Shareholder
Sacramento Office
mmacy@lozanosmith.com

Kelly M. Rem
Associate
Walnut Creek Office
krem@lozanosmith.com

©2012 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 Affirms that School Employers Must Follow Statutory Nonnegotiable Procedures to Recoup Erroneous Salary Overpayments to Employees

July 2012
Number 40

In a recent decision, the Public Employment Relations Board (PERB) ruled that school districts and bargaining unit representatives cannot collectively bargain procedures to recoup wage overpayments if those procedures contradict state wage garnishment laws, and further held that the issue of recouping salary overpayments is a non-mandatory subject of bargaining under the Educational Employment Relations Act (EERA).

In Berkeley Council of Classified Employees v. Berkeley Unified School District (2012) PERB Decision No. 2268-E (BCCE), PERB concluded that the school district violated the EERA by declaring an impasse over negotiations on the renewal of an overpayment recoupment provision in an expired collective bargaining agreement. Specifically, the expiring provision allowed the district to recoup erroneous salary overpayments by withholding the amount of overpayment from the employee’s wages over the same period of time in which the payroll error occurred. Under the negotiated process, the recoupment occurred without any individual employee consent. The classified employee union (BCCE) unit representative refused to negotiate, claiming that the prior provision was a non-mandatory subject of bargaining that improperly waived the statutory rights of unit members.

The administrative law judge ruled in favor of BCCE at hearing, and the district sought review before PERB. In a split decision, PERB held that the state’s wage garnishment and attachment statutes prohibit a process, negotiated on behalf of a group of employees and without individual employee consent, for recouping wage overpayments by offsetting past overpayments with current and future wages. PERB relied upon the case ofCalifornia State Employees’ Association v. State of California (1988)198 Cal.App.3d 374 (CSEA), in which the court held that the wage garnishment laws prohibit an employer from unilaterally recouping wage overpayments without employee consent, a court order, or other due process.

In BCCE, PERB applied the CSEA decision and held that the wage garnishment laws establish an “inflexible standard” requiring individual employee consent that cannot be altered through collective bargaining. The BCCE decision therefore clarifies that bargaining unit representatives cannot be forced to negotiate alternative procedures for recouping employee overpayments and, even if it is mutually agreeable, the parties cannot agree to a process that contradicts the state wage garnishment laws. In BCCE, PERB distinguished the negotiation of wage deductions for insurance premium increases, which is allowed. Citing Social Services Union v. Board of Supervisors (1990) 222 Cal.App.3d 279, PERB referenced section 224 of the Labor Code which expressly permits a collective bargaining agreement to provide for the deduction of wages to cover health and welfare contributions.

This is a notable PERB decision which may affect existing provisions in collective bargaining agreements. We recommend that you review your current agreements and consult with legal counsel if you believe changes are required as a result of this decision. If you have any questions, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

Written By

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

Jordy Hur
Law Clerk
Sacramento Office
jhur@lozanosmith.com

©2012 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.

Parents May Now Elect to Receive Annual Notice of Parental Rights and Responsibilities Electronically

July 2012
Number 39

Starting in January 1, 2013, parents may elect to receive an electronic version of their school district’s annual notice of parental rights and responsibilities, which is distributed at the beginning of each school year.

In an effort to cut down on printing and distribution costs, Assembly Bill (AB) 2262 amends Education Code section 48981 to allow a parent or guardian to opt to receive an electronic version of the annual notice. For parents or guardians who do not request this option, school districts must continue to provide the annual notice by regular mail or by any other method normally used to communicate in writing with parents or guardians.

Providing access electronically may be accomplished either by posting the annual notice on the school district website or sending it by e-mail. School districts will need to get written permission from parents before providing the annual notice electronically. To accomplish this purpose, we recommend having parents sign and return an electronic notice opt-in form every year. School districts potentially could combine the opt-in form with the acknowledgment of receipt of the annual notice form that is required by Education Code section 48982.

As required by Education Code section 48985, the electronic version of the annual notice also needs to be translated into other languages if 15% or more of the students enrolled in a district school speak a single primary language other than English.

If you would like assistance with implementing this new law or if you have questions about the annual notification requirements in general, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

 

Written By

Devon B. Lincoln
Senior Counsel
Monterey Office
dlincoln@lozanosmith.com

Mary Gates
Paralegal
Monterey Office
mgates@lozanosmith.com

©2012 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.

Louis T. Lozano Named to Super Lawyers

Long-time Attorney and Educator Receives Seventh Consecutive Super Lawyer Honor

Monterey, Calif., (July 19, 2012) – Louis T. Lozano, respected education attorney practicing in Monterey County, has been named by California Super Lawyers magazine as one of the top attorneys in California for 2012. This is the seventh consecutive year that Mr. Lozano has received this honor of being named a Northern California Super Lawyer. Only five percent of attorneys in the state receive this honor. Mr. Lozano was the only recipient of this prestigious recognition in Northern California practicing in the area of Schools and Education law.

Mr. Lozano’s career began as a school teacher in the Oakland Unified School District. For more than 30 years he has been at the forefront of important legal issues in education law including school funding, land use and developer fees. He is best known for his labor negotiation skills and has resolved many serious labor disputes, avoiding costly strikes for his clients.

Regarding this honor, Mr. Lozano says “I have a strong passion and love for public education, which initially brought me to this area of law. It is extremely satisfying to help improve the quality of education for our communities by working closely with school board members and administrators.”

Each year the research team at Super Lawyers undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by attorney-led research staff, a peer review of candidates by practice area, and a good-standing and disciplinary check.

About Lozano Smith

Established in 1988, Lozano Smith is a full-service education and public agency law firm serving hundreds of California’s K-12 and community college districts, universities, and numerous cities, counties, and special districts. The firm’s expertise includes personnel matters, labor relations, real property and construction matters, constitutional issues, special education, student discipline, school funding, charter schools, bond elections, governance and litigation in all areas of representation. Lozano Smith has offices in Fresno, Los Angeles, Monterey, Redding, Sacramento, Santa Rosa, San Diego and Walnut Creek. For more information about Lozano Smith or to see full attorney bios, visit LozanoSmith.com or find us on Facebook at facebook.com/LozanoSmith.

California Supreme Court Addresses Attorney Work Product Privilege for Witness Statements and Identities

July 2012
Number 38

In Coito v. Superior Court of Stanislaus County (June 25, 2012) __ Cal.4th __ (2012 WL 2369186), the California Supreme Court reviewed the attorney work product privilege in the context of (1) recordings of witness interviews conducted by investigators employed by counsel, and (2) information concerning the identity of witnesses from whom counsel had obtained statements. The Court determined that recorded witness statements are entitled as a matter of law to at least qualified work product protection and may also be afforded absolute privilege if they reveal the attorney’s tactics, impressions, or evaluation of the case. In contrast, the identity of witnesses who have provided statements is not automatically entitled to either a qualified or absolute privilege and generally must be disclosed.

After a thorough analysis of the legislative history underlying the statutes governing the work product privilege in California, Code of Civil Procedure sections 2018.030 et seq., the Supreme Court found that witness statements obtained as a result of an interview conducted by an attorney, or by an attorney’s agent at the attorney’s direction, constitute protected work product. Based on the fact that witness statements obtained through an attorney-directed interview would not exist but for the attorney’s initiative, decision, and effort to obtain them, the Court held that these types of statements are always entitled to at least qualified work product protection. In instances where the witness statements are “inextricably intertwined” with explicit comments or notes by the attorney, and therefore reveal the attorney’s thought process, the statements will be protected by an absolute privilege.

The Court then found that disclosing a list of witnesses from whom an attorney has taken recorded statements may sometimes, but not always, reveal the attorney’s impressions of the case. Witness identities are absolutely privileged only if disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case, and qualifiedly privileged only if disclosure would result in opposing counsel taking undue advantage of the attorney’s industry or efforts. Therefore, information identifying witnesses from whom the attorney has obtained statements is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the information usually must be provided.

This decision supports the guiding principles that attorneys work with a certain degree of privacy and should be prohibited from free-riding on the efforts of opposing counsel. In light of the Supreme Court’s ruling, and in order to protect their investigative efforts, employers should give serious consideration to having witness interviews conducted by their counsel or at their counsel’s direction.

If you have any questions regarding the attorney work product doctrine, this decision, or how it impacts any pending litigation, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

Written By

Mark K. Kitabayashi
Shareholder and Litigation Practice Group Chair
Los Angeles Office
mkitabayashi@lozanosmith.com

Anne L. Collins
Associate
Sacramento Office
acollins@lozanosmith.com

©2012 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 Upholds LAUSD’s Refusal to Arbitrate Collective Bargaining Provisions Which Directly Conflict With Charter School Laws

July 2012
Number 37

The California Supreme Court, in United Teachers of Los Angeles v. Los Angeles Unified School District (June 28, 2012) __ Cal.4th __ (2012 WL 2428928), has ruled that a petition to compel arbitration should be denied if the collective bargaining provisions at issue directly conflict with provisions of the Education Code. While the disputed provisions in this case concerned charter schools, the decision provides welcome clarification about the general scope of an arbitrator’s powers under the Education Employment Relations Act (EERA).

In May 2007, Green Dot Charter Schools filed a petition with the Los Angeles Unified School District (LAUSD) to convert one of LAUSD’s schools to a charter school. The petition was approved in September 2007; the following May, the United Teachers of Los Angeles (UTLA) filed a grievance claiming that LAUSD had violated portions of the collective bargaining agreement by failing: (1) to present the complete charter to employees; (2) to give affected employees and the community a reasonable opportunity to review and discuss the plan; (3) to give the union a copy of the proposed charter for review; and (4) to clearly and fully disclose the conditions of employment within the charter school. Among the remedies sought by the union was rescission of the charter granted by the LAUSD governing board. The district refused to arbitrate, citing Education Code section 47611.5, subdivision (e), which provides that the approval of a charter school petition shall not be controlled by a collective bargaining agreement. LAUSD further argued that the entire section of the contract concerning charter school approval was invalid because it required the district to take steps beyond those set forth in the charter school law.

In refusing to arbitrate, LAUSD relied on the California Supreme Court’s 1996 decision in Board of Education v. Round Valley Teachers Assn. 13 Cal.4th 269 (Round Valley), in which the Supreme Court vacated an arbitrator’s award that reinstated a probationary teacher who had been released pursuant to the Education Code but had not been afforded additional due process protections called for under the collective bargaining agreement. InRound Valley, the Court made it clear that the legislature had vested exclusive discretion in governing boards regarding the release of probationary teachers, so the provisions granting additional protections were unlawful and unenforceable.

The trial court in the present case agreed with LAUSD; the Court of Appeal, however, reversed, stating that Round Valley dealt with a post-arbitration dispute about enforcement of the arbitrator’s order, and not with the question of whether a district could refuse in the first instance to arbitrate provisions it believed to be unlawful. In reversing the Court of Appeal, the California Supreme Court interpreted a somewhat convoluted body of case law and made it clear that because labor relations in public schools “significantly intersect with educational goals affecting society as a whole,” contractual provisions that “annul, set aside, or replace provisions of the Education Code cannot be enforced.”

Turning to the portion of the Education Code governing charter schools, the Supreme Court noted that section 47611.5 explicitly forbids control of the charter school approval or denial process by means of a collective bargaining agreement. The Court reviewed the detailed provisions of the Charter School Act (Ed. Code, §§ 47601 et seq.), reasoning that some of the provisions of the agreement might be directed at the sharing of information rather than controlling the approval process, and might therefore be seen as lawful, but adding that UTLA had failed to describe violations with enough specificity for the Court to make that determination. The Court added that while the rescission of charter school approval was beyond an arbitrator’s powers, prospective remedies that did not conflict with the statute might not be, and remanded the case to the trial court with orders to direct UTLA to file an amended petition stating with specificity which collective bargaining provisions were at issue and why those provisions did not replace, annul, or set aside provisions of the Charter School Act.

Lozano Smith filed an amicus brief on behalf of California School Boards Association/Education Legal Alliance in this matter, focusing on the collective bargaining issues that were addressed by the Supreme Court. If you have any questions regarding this decision, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

Written By

Martha Buell Scott
Of Counsel
Monterey Office
mscott@lozanosmith.com

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

©2012 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 that Rescind Certificated Employee Disciplinary Charges After the Hearing is Scheduled May be Liable for the Employee’s Attorneys Fees and Costs

July 2012
Number 35

On June 25, 2012, the California Third District Court of Appeal issued a decision which likely will influence the way school districts proceed with disciplinary charges against certificated employees. In Boliou v. Stockton Unified School District (June 25, 2012) __Cal.App.4th__ (2012 WL 2371061), the court held that once a district’s governing board elects to schedule a hearing in a dismissal against a certificated employee, the Commission on Professional Competence (Commission) must make a final determination in the matter. If the governing board decides to rescind the charges after the hearing is scheduled, the Commission is required to make a finding that the employee should not be dismissed from employment, and that the district is liable to the employee for attorney fees and court costs.

Defendant Stockton Unified School District filed an accusation against David Boliou, a tenured teacher, and recommended Mr. Boliou’s dismissal on the grounds of immoral or unprofessional conduct, evident unfitness for service, and persistent violations of school laws. Mr. Boliou denied the charges, and a hearing was convened before the Commission. The presiding administrative law judge dismissed one of the charges for procedural reasons. Six months later, after the district received some unfavorable rulings and before any evidence had been presented in the case, the governing board of the district voted to rescind the remaining charges against Mr. Boliou. The Commission then dismissed the case against Mr. Boliou with prejudice.

Subsequently, Mr. Boliou sought a court order compelling the Commission to vacate its dismissal order, enter a ruling on the merits of the case in his favor, and award him reasonable attorney fees and costs. Mr. Boliou argued that he was entitled to an official ruling by the Commission that he should not be dismissed from employment. The trial court agreed with Mr. Boliou, reasoning that the governing board could not unilaterally stop the administrative proceedings by rescinding the charges, and that the Commission should have made a finding that Mr. Boliou should not be dismissed. The trial court directed the district to pay Mr. Boliou’s attorney fees and court costs of nearly $125,000.

The district appealed the decision. In determining whether the trial court properly ordered the Commission to rule in Mr. Boliou’s favor and award him attorney fees and costs, the appellate court reviewed the procedures governing the discipline of certificated employees. The court noted that if an employee demands a hearing after receiving notice of the district’s intent to suspend or dismiss, the governing board has two options under section 44943: (1) to schedule a hearing on the matter; or (2) to rescind the charges against the employee. Once the governing board has exercised its option to schedule a hearing, the Education Code provides no mechanism by which it may then prevent the hearing from going forward by rescinding the charges, and the Commission is required under section 44944, subdivision (c), to issue a written decision making one of three determinations: (1) the employee should be dismissed; (2) the employee should be suspended for a specific period of time without pay; or (3) the employee should not be dismissed or suspended.

The court affirmed that once the district’s governing board opted to proceed with a hearing, section 44944 prohibited the Commission from dismissing the charges without making a final determination as to whether Mr. Boliou should be dismissed. Because the governing board dismissed the charges against Mr. Boliou, the Commission was required to find that he should not be dismissed from employment, and the governing board was liable for all expenses associated with the hearing under section 44944, subdivision (e), including Mr. Boliou’s attorney fees and court costs.

At this time, we do not know whether the appellate court’s decision in Boliou v. Stockton Unified will be appealed to the California Supreme Court. However, in light of the court’s decision, districts should ensure that they are carefully following all procedural requirements in the Education Code with respect to the discipline of certificated employees. Districts should also evaluate the strengths and weaknesses of their disciplinary charges before recommending that the governing board schedule a disciplinary hearing. Once an employee requests a hearing and the governing board sets the matter for hearing, the matter must proceed to a final determination by the Commission on Professional Competence. If weakness in the evidence or an unfavorable legal ruling prevents a district from moving forward, the district may be forced to retain the employee and pay his or her attorney fees and court costs. Such a finding by the Commission on Professional Competence may also prevent the district from pursuing the same disciplinary charges against the certificated employee at a later date.

If you have any questions regarding Boliou v. Stockton Unified, how it impacts the certificated dismissal process in your school district, or the issues that flow from this decision, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

 

Written By

Sarah Levitan Kaatz
Shareholder
Monterey Office
skaatz@lozanosmith.com

Jennifer Ulbrich
Associate
Walnut Creek Office
julbrich@lozanosmith.com

©2012 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.