New Law To Require Concussion Training for High School Coaches

August 2012
Number 47

Effective January 1, 2013, high school coaches will be required to receive training on recognizing the signs of concussions and responding to them appropriately. Assembly Bill (AB) 1451 was signed into law by Governor Jerry Brown on August 17, 2012.

A study published in the Journal of Athletic Training found that an estimated 300,000 sport-related traumatic brain injuries, predominantly concussions, occur annually in the United States. In high school sports played by both sexes, girls sustained a higher rate of concussions, and concussions were highest in the sports of football and soccer. To address this concern, AB 1451 amends section 35179.1 of the Education Code to require coaches to complete training in signs and symptoms of concussions when renewing their CPR/First Aid certification every two years.

AB 1451 supplements AB 25, passed in 2011, which provides additional protections for student athletes in relation to concussions and head injuries. (See Lozano Smith Client News Brief No. 58 (Oct. 2011).)

California law specifies the minimum qualifications, certifications, and competencies for athletic coaches, including knowledge of basic first aid, coaching techniques, rules of the sport, as well as child psychology. Lozano Smith has created a Coaching Manual which sets forth these and other legal guidelines, practical suggestions, and model documents to assist districts in the hiring and supervision of athletic coaches.

This comprehensive Coaching Manual has been created with preventive measures at its core. The Coaching Manual also contains many cost-saving and ready-to-use forms and contracts, including:

  • A model board policy and administrative regulation for athletic coaches;
  • Guidelines for conducting a fair and lawful hiring process;
  • Relevant Education Code statutes and Title 5 regulations;
  • Employment contracts;
  • Job descriptions;
  • An evaluation form;
  • An audit checklist to help protect student athletes and reduce district exposure to liability; and
  • General fees, charges, donations and fundraising guidelines.

The Coaching Manual is available to purchase from our website. Updates are provided annually at no cost for two years.

If you have any questions regarding AB 1451 or other issues related to athletic coaches, 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 and Employment Practice Group Co-Chair
Los Angeles Office
dkameya@lozanosmith.com

Regina A. Garza
Associate
Fresno Office
rgarza@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.

Election Season 2012: Legal Guidelines For Political Activity On Public Property

August 2012
Number 46

Election season 2012 is in full swing as campaigns gear up for November elections. Campaign activity often raises issues for cities, school districts and other public agencies related to the proper use of public facilities, equipment, and staff time. Several laws prohibit use of public resources to urge the support or defeat of a candidate for elected office or a ballot measure. (Gov. Code § 8314; Ed. Code § 7054.) At the same time, it is important to respect the rights of employees and community members to express themselves on political matters. The following is a summary of general guidelines for local government agencies in California to ensure that the agency, its employees, and community members do not run afoul of the applicable rules.

More details and additional guidelines on election rules will be discussed during Lozano Smith’s free webinar on Tuesday, September 18, 2012 at 10:00 a.m.

What is allowed?

  • Community members and employees may request the use of meeting rooms to hold meetings, forums, and debates of a political nature. If a debate, such as a candidates’ night, is requested, an agency may grant the request subject to reasonable restrictions on time, place, and manner so long as a candidates’ forum is available to all candidates on an equitable basis.
  • Community members and employees may encourage people to register to vote for an election.
  • Employees may solicit or receive political contributions for candidates and ballot measures outside of work hours and outside of instructional settings.
  • Employees may wear political campaign buttons outside of school instructional settings.
  • Employees may forward unsolicited political mail and materials to appropriate election campaign offices.
  • Employees may engage in political discussions and activities on non-work time.

What is not allowed?

  • Community members and employees may not post or distribute materials on public property that advocate for or against a ballot measure or a candidate, including a candidate for the governing board, unless the government agency’s policy allows political messages to be posted in a particular forum, such as a bulletin board, on an equitable basis.
  • Employees may not conduct political campaign activity during work hours or in an instructional setting.
  • Employees may not use work time to urge voters to register in order to vote for or against a particular ballot measure or a candidate, including a candidate for the governing board or city council.
  • Employees may not solicit or receive political contributions during work hours or in instructional settings.
  • Community members and employees may not use government funds, equipment (phone, computer, copy machine, etc.) services, staff time, email systems, or mailboxes for political campaign activity, even if the government agency is reimbursed.
  • Employees and elected officers may not use the authority of an office or employment to encourage or discourage political activity by any other employee.
  • Employees may not use students to write, address, or distribute campaign materials, or permit student campaign activity during instructional time.

The law provides for civil fines and criminal penalties for violation of these rules, while also prohibiting public agencies from discouraging political activity that complies with the laws on proper uses of public resources. Therefore, it is important to strike the right balance between allowing free expression and prohibiting illegal use of public resources.

This news brief is intended to provide general information on common election-related situations. For more detailed information on election issues, please feel free to contact one of our eight offices located statewide or register for our webinar. You can also visit our website or follow Lozano Smith on Facebook.

Written By

Ruth Mendyk
Shareholder and Facilities and Business Practice Group Co-Chair
Fresno Office
rmendyk@lozanosmith.com

Thomas E. Gauthier
Shareholder
Sacramento Office
tgauthier@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.

Governor Signs Bill Providing Clarity on Foster Youth and Residency Requirements

August 2012
Number 45

On July 13, 2012, Governor Jerry Brown signed into law Assembly Bill (AB) 1573, modifying Education Code section 48204. This bill clarifies and affirms that a foster child who remains in his or her school of origin, as defined by the Education Code, is considered to have met the residency requirements for school attendance.

The change resulting from AB 1573 seeks to clarify any confusion caused by the potential inconsistency between Education Code sections 48200 and 48853. Section 48200 establishes that a student must attend a school within a school district in which the student’s parent or legal guardian resides, unless exempt under law. Between Education Code sections 48853 and 48853.5, however, foster youths may remain in their “school of origin” for the “duration of the jurisdiction of the court,” even if they relocate. “School of origin” refers to the school that the foster child attended when permanently housed or the school in which the foster child was last enrolled, as defined by section 48853.

As amended by AB 1573, section 48204 resolves any confusion that resulted by attempts to harmonize Education Code section 48200 with sections 48853 et seq. Amended section 48204, subdivision (a)(2), establishes that foster youths between the ages of 6 and 18 can remain in their school of origin and still satisfy the residency requirement of Education Code section 48200. This provision expressly confirms that foster youth students who continue their education in their school of origin also continue their residency in the school of origin’s school district, even if they no longer reside within the boundaries of that specific school district. This clarification is especially important when foster youth students are eligible for special education or Section 504 services, as it is now clear that responsibility for individualized education program (IEP) and Section 504 programming will remain with the school district in which the school of origin is located.

If you have any questions regarding AB 1573 or other issues related to foster youth, 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

Sloan R. Simmons
Shareholder and Student Practice Group Co-Chair
Sacramento Office
ssimmons@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.

California Legislature Suspends School Districts’ Ability to Collect Level Three Developer Fees

July 2012
Number 44

On June 27, 2012, the Governor signed Senate Bill (SB) 1016, a budget-related bill which, among other things, suspends school districts’ ability to levy “Level 3” developer fees until December 31, 2014. Although these types of fees represented part of a compromise between the interests of school districts and the building industry when SB 50 was enacted in 1998, and notwithstanding disappearing state bond funds, school districts have yet to actually collect any Level 3 fees.

Under SB 50, school districts have been able to continue levying a fee per square foot of development (commonly called a “Level 1” fee), so long as sufficient justification exists to support that fee. The current Level 1 fees are $3.20 for residential development and $0.51 for commercial. For school districts that meet certain criteria, a “Level 2” residential fee may be imposed that can be higher than the Level 1 fee, based on a specific statutory formula. The Level 2 fee is unique to each school district and must be authorized annually. In concept, Level 2 fees are the equivalent of what the state assumes will total 50% of the cost of providing facilities for students from new development.

SB 50 also resulted in the enactment of Government Code section 65995.7, pursuant to which school districts eligible for Level 2 fees may also be eligible for “Level 3” fees if the State Allocation Board (SAB) certifies that state funds for new school facility construction are no longer available. Level 3 fees are intended to be the equivalent of 100% of the cost of school facilities for new development. If and when state bond funds again become available for facilities, the difference between the Level 2 and Level 3 amounts is to be refunded either to the state or to developers. Thus, Level 3 fees represent a gap filler for when the state is unable to match its share of the cost of facilities for new development. Since its enactment, section 65995.7 has been inconsequential, as the SAB has taken the position that Level 3 fees were not triggered even when many argued that state funds were no longer available for school construction. Also, in 2002, with state funds running out, a legislative amendment disallowed Level 3 fees until the 2004 general election, when another statewide general obligation bond passed.

Effective June 27, 2012, section 65995.7 was again amended to make the authorization for Level 3 fees inoperative through December 31, 2014, regardless of the status of state funding, except under two circumstances. First, if a statewide school facilities bond passes before December 31, 2014, the section will become operative upon certification of the election in which the voters approved the bond. This exception does not appear to be very meaningful, since the passage of a statewide school facilities bond would presumably make it unnecessary for the SAB to certify that state funds are unavailable. Second, if a statewide facilities bond has not been placed on the ballot for the November 4, 2014, statewide general election by August 31, 2014, the section shall again become operative on September 1, 2014. In other words, the ability to collect Level 3 fees would be restored approximately four months earlier than otherwise allowed by the bill.

The passage of SB 50 in 1998 represented a compromise between school districts and the building industry after a prolonged debate and series of court decisions addressing the ability of school districts to receive more than the statutorily designated school mitigation amount. The industry received limitations on their obligations to pay certain fee amounts, in part in exchange for the opportunity of the districts to collect additional fees when state funding was not available for school facilities projects. The Legislature has now taken this opportunity away from the districts in a particularly troublesome economic climate, even as state bond money runs out. Developers thus have maintained all of their benefits from the SB 50 compromise, while school districts have been deprived of one of their key benefits. The reason offered for the suspension of Level 3 fees is the desire to stimulate new development, and hence the economy.

To assist school districts in navigating these and other developer fee issues, Lozano Smith’s Facilities and Business Practice Group publishes its 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. The handbook is being updated to address the most recent amendment of Government Code section 65995.7 and its effect on school districts’ ability to collect Level 3 developer fees.

For information on the Handbook, contact Client Services at clientservices@lozanosmith.com or (800) 445-9430.

If you have any questions regarding developer fees or other facilities and finance 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

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.

Recently Signed Bill Affects Post-Retirement Earnings Limitation for STRS Retirees

July 2012
Number 43

On July 17, 2012, Governor Brown signed into law Assembly Bill (AB) 178, which extends important exemptions to the post-retirement earnings limitation under the State Teachers Retirement System (STRS). The bill may affect how school districts hire retired employees.

State law limits the amount of post-retirement earnings that a STRS retiree can earn while performing creditable service, such as teaching, without experiencing a reduction in benefits. Previous exemptions to the earnings limitation expired on June 30, 2012.

AB 178 modifies how the limitation on post-retirement earnings is calculated, changing the earnings limitation on creditable service performed by STRS retirees to one-half of the median compensation of all members who retired during the fiscal year that ends in the previous calendar year. As a result of this change, the earnings limitation increases from $31,020 in 2011-2012 to $40,011 for 2012-2013.

AB 178 eliminates one exemption to the earnings limitation that applied to STRS retirees who did not perform creditable service for 12 consecutive months. The bill extends certain other exemptions until June 30, 2013, but imposes strict conditions on them.

AB 178 provides that the earnings limitation does not apply to a STRS retiree who serves as a trustee, administrator or fiscal adviser. However, the bill places restrictions on this exemption, allowing it only if the retired member is appointed by the Superintendent of Public Instruction, the Chancellor of the California Community Colleges, or the county superintendent of schools in response to an academic or financial weakness, as defined by applicable law.

Further, this exemption is effective only if: (1) the position was first advertised to current active and inactive STRS members who were qualified for the position, and none of them was available to be appointed; (2) the employer made a good faith effort to hire a retired member who would return to active status for the salary first offered; and (3) the appointing authority failed in both of the above tasks and hired a retired STRS member at the salary first offered. The amended exemption also states that this appointment must be terminated on or before June 30, 2013 and that the salary ultimately paid to the STRS retiree cannot exceed the salary offered to current active members for the position.

The bill clarifies another exemption to the earnings limitation for STRS retirees working for third parties that provide services to a STRS participating employer. This exemption is available only when the STRS retiree is performing a limited-term assignment that does not involve activities normally performed by school employees. This exemption may be used only if the third-party employer is not part of the California public pension system.

AB 178’s other significant change to prior law is that STRS retirees no longer have to wait one year before their service retirement allowance becomes effective if they reinstate to active status and then retire again. Under previous law, STRS retirees would have to wait one year from the termination of their employment for their service retirement allowance to become effective. Finally, for those who retire within one year of reinstatement, AB 178 mandates that the individual must choose the same benefit option and the same beneficiaries as he or she had before reinstatement.

AB 178 continues and modifies certain existing exemptions to the post-retirement earnings limitation, allowing school districts flexibility in hiring STRS retirees. However, it is also important to note that the bill imposes conditions on these exemptions and maintains a limitation on how much STRS retirees can earn before seeing a reduction in benefits. If you have any questions regarding the hiring of STRS retirees, 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

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

Rajesh R. Srinivasan
Law Clerk
Monterey Office
rsrinivasan@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.

New Bill Again Amends Definition Of “Electronic Act” For Purposes Of Bullying Prohibitions

July 2012
Number 42

In an attempt to address specific types of cyberbullying, this week Governor Jerry Brown signed Assembly Bill (AB) 1732, modifying the definition of “electronic act” for purposes of the Education Code’s bullying prohibitions.

Following the implementation of the new bullying policy requirements, which took effect July 1 of this year (see Lozano Smith Client News Brief No. 22), AB 1732 adds further details to make it explicit that “electronic act” includes the social network activity of: (1) creating a credible impersonation of a student with ill intent; (2) creating a false student profile with ill intent; or (3) creating or posting to a “burn page.” Burn pages, a newer phenomenon in popular culture, are Internet sites created to lampoon or ridicule an individual or individuals.

With these additions, Education Code section 48900 expressly provides that a pupil who severely or pervasively engages in such electronic acts may be punished if such an act causes a student to fear harm to his or her person or property, causes substantial harm to a student’s physical or mental health, causes substantial interference with a student’s academic performance, or causes substantial interference with a student’s ability to participate in or benefit from school services, activities, or privileges.

Additionally, AB 1732 provides clarification of the meaning of “pervasive” under the statute, providing that “an electronic act shall not constitute pervasive conduct solely on the basis that it has been transmitted on the Internet or is currently posted on the Internet.”

While these amendments provide greater specificity with regard to the types of online behaviors that may be punished under the bullying provisions of the Education Code, they do not provide guidance regarding the potential jurisdictional questions that districts may face in attempting to address off-campus online activity, i.e., where a school lacks jurisdiction to discipline for off-campus conduct or electronic acts under Education Code section 48900, subdivision (s). Districts faced with such questions are encouraged to seek the guidance of legal counsel because even with these amendments, the question of when a district can punish a student for online activity remains a difficult one to answer.

Lozano Smith has assisted school districts in adopting policies and procedures to meet the Education Code bullying requirements, and can help ensure that this new definition is properly incorporated within districts’ discipline processes. If you have any questions regarding these changes and any required board policy and administrative regulation updates, 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

Sloan R. Simmons
Shareholder and Student Practice Group Co-Chair
Sacramento Office
ssimmons@lozanosmith.com

Benjamin C. Rosenbaum
Associate
Fresno Office
brosenbaum@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.