Governor Approves Bills Affecting the Health and Science Curriculum in Schools, GATE Program Standards, and Observance of the Labor Movement

October 2012
Number 68

On September 26, 2012, Governor Brown signed into law two bills that change pupil curriculum in the areas of organ procurement and tissue donation, as well as school districts’ observance of the labor movement. The Governor also signed into law legislation intended to ensure GATE program identification of gifted children living in disadvantaged situations. The three new laws are effective January 1, 2013.

Organ Procurement and Tissue Donation
Under existing law, the Instructional Quality Commission (IQC) is required to recommend curriculum frameworks for adoption by the State Board of Education (SBE). A “curriculum framework” is a blueprint designed to provide state direction to school districts in the provision of instructional programs. Currently, the topic of organ procurement and tissue donation is not included in the State’s academic content standards. Assembly Bill (AB) 1967 adds section 33542 to the Education Code, and mandates both the IQC and the SBE to ensure that the health and science curriculum frameworks adopted in the course of the next submission cycle include the subject of organ procurement and tissue donation. AB 1967 specifies that the topic of organ procurement and tissue donation shall be included in the science disciplines “as appropriate,” recognizing that this topic may be more appropriate to discuss in a biology class, for example, than in a physics class.

Gifted and Talented Education
Gifted and Talented Education (GATE) programs provide unique, differentiated curriculum opportunities for pupils who are identified as gifted and talented. It is optional for school districts to offer GATE, and districts can apply to the SBE for categorical funding in order to operate such a program in their district. The method of identification of gifted and talented students must be included in the school district’s application to the SBE.

Existing law states the intent of the Legislature to improve the quality of existing programs for gifted and talented pupils and to ensure that pupils from economically disadvantaged and varying cultural backgrounds are provided with full participation in GATE programs. Existing law also requires the SBE to review criteria for programs for gifted and talented pupils proposed by applicant school districts. Thus, a school district’s application is approved or denied based on the quality of the proposed plan in accordance with the criteria adopted by the SBE.

AB 2491 amends Education Code section 52203 by requiring (upon the next revision of the specified criteria) the SBE to formally adopt a standard for pupil identification to ensure the identification procedures of an applicant school district provide economically disadvantaged pupils and pupils of varying cultural backgrounds with full participation in GATE programs. The Legislature acknowledged that there is a problem with under-identification of gifted and talented pupils among students who are poor or have limited English skills. The passage of AB 2491 is intended to encourage better integration of gifted students (regardless of their socioeconomic or cultural backgrounds) who are not in GATE programs, but would otherwise qualify.

Labor History Month
Existing law deems the first week of April to be Labor History Week, and encourages school districts to commemorate that week with appropriate educational exercises that make students aware of the role that the labor movement has played in shaping California and the United States. The Legislature determined that for many school districts, this week was not conducive to such observances. Not only are students often on spring break during the first week of April, but the entire month of April is a busy time for schools and students as they prepare for statewide assessments. AB 2269 amends Education Code, section 51009, and changes existing law by deeming the entire month of May as Labor History Month. By changing the month and extending the length of time of observance, the Legislature provides more flexibility to school districts in determining when to conduct educational activities to commemorate and raise awareness about the labor movement.

If you have any questions about AB 1967, AB 2491, AB 2269, or about any other issues related to pupil curriculum instruction or programs, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

 

Written By

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

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Refusal To Sign Acknowledgement Of Disciplinary Notice Disqualifies Employee From Unemployment Insurance Benefits

October 2012
Number 67

Employees who are terminated for misconduct are generally disqualified from receiving unemployment insurance benefits. A recent court of appeal decision held that misconduct for these purposes can include refusing to sign a disciplinary notice after an employer’s directive to do so. In Paratransit, Inc. v. Unemployment Insurance Appeals Board (2012) 206 Cal.App.4th 1319, the court of appeal found an employee was not entitled to receive unemployment insurance benefits when he refused to follow his employer’s demand to sign an acknowledgement of receipt of a disciplinary notice.

In Paratransit, the employee was a union member who was, consistent with the collective bargaining agreement, presented with a disciplinary memorandum to sign, in compliance with the collective bargaining agreement, after the employee was found to have engaged in misconduct. The memorandum itself expressly stated that a signature only acknowledged receipt of the memorandum. The employer directed the employee to sign the notice, but the employee refused to sign because he believed he should not sign anything without a union representative present. The employer thereafter terminated the employee for his insubordination in failing to sign the notice.

After termination, the employee filed a claim for unemployment insurance benefits. The employee’s original claim was denied and he appealed. The Unemployment Insurance Appeals Board found the employee made a simple mistake in failing to sign the acknowledgement, and was qualified for benefits. The employer appealed this decision. The trial court found the employee disobeyed a lawful and reasonable directive of the employer, which amounted to misconduct, and disqualified the employee from receiving unemployment insurance benefits. The court of appeal agreed. The court of appeal found the employee’s recourse, if any, was not for unemployment benefits, but with the union because of the union’s incorrect advice to not sign anything without a union representative present.

If you have any questions regarding this case or need assistance with issues related to employee discipline, or unemployment insurance benefits, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

Written By

Jenell Van Bindsbergen
Senior Counsel
Fresno Office
jvanbindsbergen@lozanosmith.com

Carrie M. Kurtural
Associate
Fresno Office
ckurtural@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 New Law Increasing Employee Social Media Privacy Rights

October 2012
Number 66

Recently, California law did not expressly prohibit employers from asking employees for their usernames and passwords in order to access and view employee’s personal social media accounts. An employer could demand to view an employee’s Facebook or Twitter account, or any other social networking account, and the employee would have little recourse.

Effective January 1, 2013, Assembly Bill (AB) 1844 changes the law in this area. The bill adds section 980 to the Labor Code, specifically prohibiting employers from demanding or requesting usernames and passwords to the personal social media accounts of employees or job applicants. The new law also prohibits employers from retaliating against employees for failing to provide their usernames or passwords to their personal social media accounts.

This new law does not, however, apply to requests or demands of usernames and passwords to access employer-issued electronic devices. Further, an employer can demand disclosure of usernames and passwords for purposes of an investigation into an employee’s alleged misconduct or violation of law, as long as the information is used solely for the purposes of such investigation.

In light of these changes, employers should carefully review existing policies and practices in this area of the law. Requests for username or password information should only be made for purposes of accessing an employee’s technology or employer-issued technology devices, or in connection with an investigation of an employee’s alleged misconduct or violation of law.

If you have any questions regarding how AB 1844 will impact your employment practices or whether one of the exceptions to this new law applies, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

 

Written By

Jenell Van Bindsbergen
Senior Counsel
Fresno Office
jvanbindsbergen@lozanosmith.com

Carrie M. Kurtural
Associate
Fresno Office
ckurtural@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.

Administrative Hearing Officers May Rule On Pitchess Motions Concerning Relevant Police Officer Personnel Records

October 2012
Number 65

In the mid-1970s, the case of Pitchess v. Superior Court (1974) 11 Cal.3d 531, led to the enactment of a statute that provides, with limited exceptions, for the confidentiality of a correctional officer’s personnel records unless a party can show good cause for disclosure through a motion (a.k.a., a Pitchess motion) to the court. In Riverside County Sheriff’s Department v. Jan Stiglitz, et al. (Sept. 28, 2012) __Cal.App.4th__ (2012 WL 4466333), the court addressed the issue of whether a hearing officer in an administrative appeal of a correctional officer’s termination hearing had the authority to rule on a Pitchess motion for the production of other officers’ personnel records. The court of appeal found the hearing officer had the authority to do so.

A correctional officer was fired for falsifying time records. After filing an administrative appeal, the officer argued in her defense that other officers in the Sheriff’s Department who falsified time records received lesser discipline than termination. To support this defense, the officer filed a Pitchess motion with the hearing officer requesting the discipline records of other officers who engaged in similar conduct. The hearing officer found good cause for the production of those records, and ordered the Department to produce them.

The Department filed a petition an action in trial court challenging the hearing officer’s decision. The trial court agreed and granted the petition.

The court of appeal reversed the trial court ruling and found that an officer’s personnel records may be relevant in a disciplinary hearing where the defense is arguing excessive punishment in comparison to other officers who received lesser discipline in similar circumstances. Further, the court of appeal held that officers have constitutional due process rights that mandate the right to demonstrate the relevance of other correctional officer personnel records in such administrative proceedings.

Following this case, and depending on the facts of a particular case, if an officer files a Pitchess motion requesting correctional officer personnel records in an administrative proceeding, the public agency employer may not be able to argue that the hearing officer does not have the authority to rule on such a motion.

If you have any questions regarding this case or other issues related to police officer discipline, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

 

Written By

Mark K. Kitabayashi
Shareholder
Los Angeles Office
mkitabayashi@lozanosmith.com

Carrie M. Kurtural
Associate
Fresno Office
ckurtural@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 Legislation Expands the Types of “Direct Costs” School Districts May Charge under the Civic Center Act

October 2012
Number 64

The Governor has signed into law Senate Bill (SB) 1404, which amends the Civic Center Act and, until January 1, 2020, expands the types of direct costs that school districts may charge for use of school facilities or grounds.

Existing law under the Civic Center Act (Ed. Code § 38130 et seq.) provides that a school district may charge a fee, which may not exceed the school district’s direct costs, for use of the school facilities or grounds by organizations that promote youth and school activities or provide youth sports league activities. Under existing law, direct costs include the costs of supplies, utilities, janitorial services, other district employees’ services, and district employee salaries that are necessary for the organization’s use of the school facilities or grounds.

In amending Education Code section 38134 through SB 1404, the Legislature recognizes that budget cuts have made it difficult for school districts to maintain their facilities and grounds, and that the maintenance costs often exceeds the operational costs connected with the organization’s use of the school facilities or grounds. SB 1404 expands the definition of direct costs that school districts may charge to include a certain portion of the operating and maintenance costs proportional to the organization’s use of the school facilities or grounds. Direct costs will also include the organization’s share of costs for maintenance, repair, restoration, and refurbishment of school facilities or grounds, which will be proportionate to the organization’s use of the school facilities or grounds.

The newly amended section 38134 also indicates that a user’s proportional share of the costs for maintenance, repair, restoration and refurbishment will be limited to costs associated with non-classroom space and “school grounds,” including but not limited to, playing fields, athletic fields, track and field venues, tennis courts and outdoor basketball courts. Also, classroom-based programs that operate after school hours and instructional organizations that are retained by the school or school district will not be required to bear a share of the cost for maintenance, repair, restoration, and refurbishment.

The amended legislation requires that the Superintendent of Public Instruction implement regulations, which the State Board of Education will adopt, to guide school districts in determining the proportionate share and allowable costs that may be included as direct costs for using school facilities or grounds. Amended section 38134 will be in effect until January 1, 2020.

If you have any questions regarding SB 1404, or other issues related to the Civic Center Act, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

Written By

Claudia P. Weaver
Senior Counsel
Monterey Office
cweaver@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.

Policy Options For Retaining Email Records

October 2012
Number 63

The use of email and other electronic communication between school administrators, professional staff, employees and the public has increased tremendously, raising complex issues with respect to communication, creation of information and systems, and retrieval and storage of electronic records. School districts often experience confusion over which content should be retained or destroyed according to existing district policies and regulations and disclosure rules under various state and federal laws. Similarly, issues arise regarding how much privacy district employees may expect when using its communication systems and equipment.

The current system of State regulations promulgated by the Superintendent of Public Instruction governs the retention and destruction of school district records. This system has been in place for nearly forty years, and does not explicitly address email and other electronic records. Efforts by the California Department of Education in recent years to update the regulations have been stalled. Districts, therefore, will have to continue to work within the existing system for the foreseeable future.

Existing policies in place are generally silent on issues regarding email retention. Attorneys at Lozano Smith are often asked for model policies governing the retention and disposal of email. In response to this demand, Lozano Smith has created an informative document entitled “School District Email Retention.” The document sets forth certain policy options for addressing the complexities raised by the retention of emails and other electronic communications. It offers possible options for adding to existing school board policies and administrative regulations on retention of district records and on employee use of technology.

There is no easy “one size fits all” policy on email retention, and the possibilities and language discussed in our “School District Email Retention” must be tailored to each unique setting. Towards that end, we set out more than one option for possible language that may be appended to a district’s existing policies and regulations on the retention of records, including specifics on:

  • The district’s responsibility and right to disclose electronic communications, with certain exceptions
  • The district’s right to access and monitor employee communications made using its information systems and equipment
  • The expectation of privacy employees may or may not have when using district information systems and equipment
  • The definition of a “District Record,” including electronic communications
  • How long electronic records will be preserved, and in what manner
  • The proper disposal of electronic records
  • Who is responsible for preserving and purging electronic records

We emphasize that this is a developing and unsettled area of law, and that with each advance in technology, further revisions to a board policy may become necessary. Particularly because of the unsettled state of the law, decisions regarding these issues must include public policy considerations, and should be considered broadly by all of the involved decision makers in school districts. We encourage you to consult with your legal counsel, and to coordinate with your policy makers, Superintendent, business officials and IT department before adopting any types of policy changes addressing electronic communications.

If you would like a copy of “School District Email Retention,” please contact Harold Freiman (hfreiman@lozanosmith.com), Devon Lincoln (dlincoln@lozanosmith.com), or Darren Kameya (dkameya@lozanosmith.com). If you have any questions about electronic communication retention, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

 

Written By

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

Darren C. Kameya
Senior Counsel
Los Angeles Office
dkameya@lozanosmith.com

Devon B. Lincoln
Senior Counsel
Monterey Office
dlincoln@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.

Legislative Changes Impact Placement of Foster Children

October 2012
Number 62

On September 26, 2012, Governor Brown signed into law Senate Bill (SB) 121 and SB 1568, both of which further clarify procedures for educational placements of foster children by amending the Education Code. The amendments will become effective on January 1, 2013.

Placement Decisions:

The purpose of SB 121, as noted by the Legislature, is to protect against placement decisions for foster children made outside of the Individualized Education Plan (IEP) process or by those who do not have educational rights relative to foster children.

In amending Education Code section 48853, SB 121 reaffirms and clarifies existing law requiring foster children to attend programs operated by the local education agency (LEA), except under certain circumstances, such as when the child’s parent/guardian unilaterally determines that the child’s best interests call for placement in another program. SB 121 modifies existing law in the instance where the foster child’s parent/guardian makes a unilateral placement decision, and now requires the parent/guardian to submit a written declaration to the LEA setting forth the decision and acknowledging that the new program may not be financed or reimbursed by the LEA. LEAs may provide written notice of the need for a declaration to the parent/guardian. The timing of when the declaration is to be received by the LEA is not specified.

Further, SB 121 clarifies existing law for placement of foster children in programs at non-public, non-sectarian schools when public settings are not appropriate, which may only occur after convening an IEP team meeting. Following amendments to Education Code sections 56157 and 56342.1, the foster child’s IEP must now specify in writing whether placement in a non-public, non-sectarian school is appropriate.

Additionally, SB 121 adds prohibitions on licensed children’s institutions (LCI), within amendments to Education Code sections 56155.7 and 56366.9, against requiring a child to be identified as an individual with special needs as a condition of admission into the LCI, and against referring foster children to programs offered by non-public schools unless the child’s IEP specifies the program is appropriate.

School of Origin:

The purpose of SB 1568, according to the Legislature, is to provide a foster child in high school the opportunity to remain in his/her school of origin (either the school attended when housed under foster care or his/her most recently attended school) after jurisdiction of the court is terminated and the child is no longer under foster care. The Legislature noted that the recent changes will avoid uprooting former foster children in high school by giving them the option of keeping their social and academic structure intact.

In amending Education Code section 48853.5, SB 1568 affirms existing law that a foster child may continue his/her education in his/her school of origin for the duration that the court holds jurisdiction over the child. However, SB 1568 modifies existing law for former foster children in high school, who are now permitted to remain in his/her school of origin up until graduation if jurisdiction of the court is terminated when he/she is already enrolled in high school. Districts are not required to provide transportation to former foster children who remain in high school under this newly-amended code section, unless the student’s IEP calls for transportation as a related service. Former foster children in grades 1 through 8, however, may only finish out the academic year in their school of origin after jurisdiction is terminated, which is consistent with previous laws for all former foster children.

SB 1568 also provides additional duties to LEA-designated educational liaisons for foster children. Existing law provides that liaisons are to assist in enrollment, transfer, placement, and checkout of foster children within the LEA; however, SB 1568 provides that liaisons for foster children may also, if so designated by their superintendent, notify appropriate parties of a foster child’s expulsion proceedings and recommendations.

As both SB 121 and SB 1568 likely will require additional costs mandated by the State, both bills provide provisions to pursue reimbursement of these costs pursuant to statutes within the Government Code.

If you have any questions regarding SB 121 and SB 1568, or other issues related to educational placement of foster children, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

 

Written By

Deborah R. G. Cesario
Shareholder
San Diego Office
dcesario@lozanosmith.com

Matthew Soleimanpour
Associate
San Diego Office
msoleimanpour@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.