Reminders and Developments Regarding AB 1575 and Student Fees

May 2013
Number 24

Assembly Bill (AB) 1575, which added Education Code section 49010 et seq. and now governs practices relating to student fees, charges and deposits, went into effect January 1, 2013. (See Client News Brief No. 58, October 2012.) Now is good time to review certain efforts required by school districts under AB 1575, as well as take inventory of recent developments on this issue relative to the State Board of Education (SBE) and California Department of Education (CDE).

As of March 1, 2013, all school districts were required to ensure that their Uniform Complaint Procedure (UCP) policies, regulations and procedures were modified to address complaints regarding allegedly improper student fees, charges, and deposits under AB 1575. Related to this point, the SBE has proposed regulations to address certain aspects of student fee complaints and remedies under the UCP. (See the Proposed Regulations on the CDE’s website.) Of note, the proposed regulations would provide that “[p]upil fee complaints shall be filed not later than one year from the date the alleged violation occurred.” The public comment period on the proposed regulations closed on May 14, 2013.

Additionally, consistent with its obligations under AB 1575, the CDE has issued non-regulatory guidance regarding pupil fees, deposits and other charges in its Fiscal Management Advisory 12-01. The CDE’s newly issued student fees guidance is generally the same as the guidance published in November 2011. This said, the CDE’s current guidance appears to differ in certain regards with guidance it issued on student fees in 1997. For example, while the CDE’s 1997 guidance permitted schools to require students to purchase their own P.E. uniforms under certain conditions, the new 2013 guidance is not clear on this point. While the CDE’s current student fees guidance is not binding, it is likely to inform the CDE’s adjudication of pupil fee complaint appeals under the UCP process.

Lozano Smith requested specific clarification from the CDE regarding certain issues in its current student fee guidance, including with regard to P.E. uniforms and the scope of permissible fees and charges related to field trips under Education Code section 35330. While the CDE did not directly respond or provide clarification on the issues we raised, CDE officials indicated that they will be resolving student fee issues through the UCP appeal process. The officials also stated the CDE intends to provide updates to school districts regarding the outcomes of such appeals, so that school districts know the CDE’s position on the specific student fee issues addressed through the UCP appeal process.

If you have any questions about permissible or impermissible student fees, necessary revisions to UCP policies and regulations to address student fee complaints, or investigating and responding to student fee complaints, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By
Sloan R. Simmons
Partner
Sacramento Office
ssimmons@lozanosmith.com

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

©2013 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.

United States Supreme Court Addresses Out-of-State Public Records Requests

May 2013
Number 23

In recent years, school districts and local governments have increasingly received California Public Records Act (CPRA) requests from out-of-state entities. This has often raised the question of the extent to which the CPRA applies to out-of-state residents or entities. In a recent decision, the U.S. Supreme Court unanimously held that out-of-state residents do not have a federal constitutional right to obtain public records in the state of Virginia. (McBurney v. Young (Apr. 29, 2013) ___ U.S. ___ [2013 WL 1788080].) While at first blush this decision appears to allow local public entities to deny requests for documents made by an out-of-state person or entity, it is important for California public agencies to be aware that this case has limited application in California where school districts and local governments generally must continue to respond to out-of-state CPRA requests.

In McBurney, two out-of-state residents sought various public records from Virginia under the state’s Freedom of Information Act (FOIA). Unlike California, Virginia’s public records statute grants the right to obtain public documents only to citizens of Virginia. The U.S. Supreme Court, therefore, rejected the out-of-state residents’ public document requests because they were not citizens of Virginia. The Supreme Court concluded that federal constitutional law did not compel a different result.

While the CPRA originally had the same reference to “citizens” as Virginia’s public records statute, the CPRA was amended in 1970. The CPRA now states that “every person in this state” shall have access to certain public documents. California courts have interpreted this phrase to include all persons, regardless of their state of residence. Furthermore, access to public documents in California under the CPRA was elevated to a fundamental right in 1970, and enshrined in the California constitution in 2004 with the passage of Proposition 59. These are important distinctions that were missing in McBurney. Therefore, until a California court rules otherwise, both in and out-of-state persons or entities may utilize the CPRA to access public documents in California.

Lozano Smith has extensive experience advising public entities regarding CPRA requests, including out-of-state requests, mass requests sent to agencies statewide in California, and requests for emails and other electronic documents. If you receive a CPRA request and need assistance in responding, 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
Partner
Walnut Creek Office
hfreiman@lozanosmith.com

Manuel F. Martinez
Associate
Walnut Creek Office
mmartinez@lozanosmith.com

©2013 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.

Court Allows Eminent Domain Action to Proceed Prior to Completion of CEQA Review

April 2013
Number 22

A recent court decision provides authority for public agencies to commence an eminent domain proceeding, in some circumstances, prior to completion of environmental review under the California Environmental Quality Act (CEQA). In Golden Gate Land Holdings, LLC. v. East Bay Regional Park District (April 12, 2013) __ Cal.App.4th __ (2013 WL 1491547) (“Golden Gate Land Holdings“),the Court of Appeal for the First Appellate District held that a park district had improperly claimed that its project was exempt from CEQA. The park district was ordered to conduct CEQA review, but was allowed to proceed with an eminent domain proceeding to acquire property for the project in the meantime, as long as it did not acquire title to the property before completion of the CEQA process. This case represents a potential shift in the law, since prior authorities have held that an agency must complete CEQA review before adopting a resolution of necessity and commencing an eminent domain action to acquire property for public use. Based on these authorities, public agencies typically complete the potentially lengthy environmental review process as a prerequisite to filing their eminent domain actions.

In Golden Gate Land Holdings, the park district approved a resolution of necessity to condemn property for a park project along the San Francisco Bay. The resolution of necessity, which is a legal prerequisite to filing an eminent domain action, made the requisite findings that the public interest and necessity required the taking, the project was planned and located in the manner most compatible with the greatest public good and the least private injury, and the property was necessary for the project. The resolution also concluded that the project was categorically exempt from CEQA as an acquisition of land for purposes of protecting open space and securing future public access to the subject park. (Cal. Code Regs., tit. 14, § 15325.)

The property owner contended that the CEQA exemption did not apply, since the project included the initiation of eminent domain proceedings and the proposed improvements to the land. The Court agreed that the proposed land improvements were not exempt, and that the park district was required to conduct CEQA review, instead of relying on a categorical exemption. However, the Court held that under Public Resources Code section 21168.9, an order mandating compliance with CEQA may be limited to specific project activities found to be in noncompliance if the court makes certain findings. First, the project activity or activities must be able to be segregated from the remainder of the project. Second, the court must find that such segregation will not prejudice complete and full compliance with CEQA. Third, the court must not have found the remainder of the project to be in noncompliance with CEQA. The Golden Gate Land Holdings Court found that the eminent domain proceeding was severable from the actual purchase of the property and construction of the improvements. Since the only project activities found to be in noncompliance with CEQA were the proposed improvements, the district could pursue the “severed” eminent domain action prior to completion of CEQA review, so long as CEQA review was completed before acquisition of the property. Under the eminent domain law, acquisition of the property would occur on recording a final order of condemnation.

This case appears to be a positive development for public agencies by allowing simultaneous undertaking of CEQA analysis and condemnation proceedings. However, public agencies should proceed with caution in applying its holding because the case creates a split of authority among the Courts of Appeal in the state of California. It is unknown if any party to the appellate litigation will seek Supreme Court review based on this split of authority. Also, theGolden Gate Land Holdings Court specifically noted the unique facts of the case as involving a project for open space preservation and recreational improvements, and pointed out that it was undisputed that a full environmental impact report (EIR) was not required to condemn property for open space or park purposes. The Court distinguished other projects, such as residential development, construction of an airport taxiway, and expansion of a water service system. Given these limitations, we recommend caution before attempting to apply the holding to a different set of facts such as acquiring property for a different use.

If you have any questions regarding this Client News Brief, CEQA, or eminent domain law in general, 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
Megan Macy
Partner
Sacramento Office
mmacy@lozanosmith.com

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

©2013 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.

U.S. DOE Opines that Due Process Hearing Officers May Determine Whether a Special Education Student Subjected to Discipline Actually Violated the Student Code of Conduct

April 2013
Number 21

The United States Department of Education’s Office of Special Education Programs (OSEP) recently released a non-binding policy letter indicating that in a special education due process hearing addressing the student discipline process, a hearing officer is permitted to determine whether a student’s behavior actually violated the code of student conduct.

Under the Individuals with Disabilities Education Act (IDEA), if a school district seeks to change the educational placement (generally, the setting in which the child is educated) of a special education student for more than ten school days for disciplinary reasons (e.g., a suspension or expulsion), the district must conduct a manifestation determination review (MDR). At the MDR, the student’s IEP team analyzes whether the student’s conduct was related to his or her disability or occurred as the result of a failure to implement the student’s IEP. If the IEP team finds that the student’s conduct is related to the disability or occurred due to the failure to implement the IEP, the district must, among other actions, return the student to his or her pre-discipline placement.

A student who believes that a school district violated the IDEA’s discipline procedures may file a due process complaint. At the due process hearing, the hearing officer determines whether the change in placement violated the IDEA, or if the MDR was conducted appropriately. Historically, when conducting this analysis, hearing officers in California have not typically analyzed whether the student’s behavior actually violated the code of conduct. The analysis usually pertains only to whether the school district complied with the required MDR procedures.

In Letter to Ramirez, 113 LRP 3448 (OSEP December 5, 2012), OSEP opined that a hearing officer is permitted, but not required, to determine whether a student’s conduct violated school rules. As OSEP explained, a hearing officer may determine whether a change in placement was appropriate, or if the student’s behavior was related to his or her disability. Because the IDEA provides that a change of placement may only be made if the student broke school rules, and that the MDR is conducted only if the student violated a code of conduct, it follows that the hearing officer may determine whether a student’s conduct actually did run afoul of school rules.

Letter to Ramirez has stirred nationwide debate. Student attorneys claim that the policy letter is entirely consistent with the intent of the IDEA, while school attorneys are concerned with the changes that may result. For example, allowing a hearing officer to rule on whether a student violated school rules provides students with another opportunity to argue their innocence, allows hearing officers to second-guess administrators’ decisions, and could increase the time and cost of hearings. In response, OSEP maintains that Letter to Ramirez neither creates new requirements, nor establishes any new powers for hearing officers.

Although Letter to Ramirez is not legally binding, and provides only informal guidance that serves as OSEP’s interpretation of the laws, school districts should take note of OSEP’s position. If this non-binding opinion is relied upon, in a due process hearing regarding discipline issues, the district may also have to address whether the student’s actions actually violated the code of conduct.

For more details on Letter to Ramirez or for assistance with special education discipline procedures, 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
Ricardo R. Silva
Partner
San Diego Office
rsilva@lozanosmith.com

Karin M. Anderson
Associate
San Diego Office
kanderson@lozanosmith.com

©2013 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.

FEHC Delivers New Pregnancy Disability Leave Regulations

April 2013
Number 20

The Fair Employment and Housing Commission (FEHC) has adopted new pregnancy disability leave regulations (PDL Regulations) which could affect you as an employer. The revised PDL Regulations include significant additions, deletions, and modifications. The following provides a brief overview of the most substantive changes.

Four Months Defined. The revised PDL Regulations provide clarification regarding the four months of leave an employee is entitled to receive due to disability because of “pregnancy”.

    • The four months applies to each pregnancy, not to a calendar or work year.

 

    • The four months must be equal to the amount of time the employee would normally work within four calendar months following the commencement date of her leave (one-third of a year equaling 17.3 weeks or 122 days).

 

    • The leave does not have to be continuous. An employee may take the leave on an “intermittent” basis. If any employee takes intermittent leave, the employer must account for that leave time in increments of no more than one hour.

 

  • If an employer has a policy which provides greater benefits, including leave time in excess of four months, for similarly situated employees with other temporary disabilities, then the employer must apply such policy to employees temporarily disabled by pregnancy and grant them the extended benefits.

Disabled by Pregnancy Defined. The definition of “disabled by pregnancy” has been expanded to include a non-exclusive list of conditions, including “morning sickness” or the need to take time off for: prenatal or postnatal care; bed rest; gestational diabetes; pregnancy-induced hypertension; preeclampsia; post-partum depression; childbirth; loss or end of pregnancy; or recovery from childbirth, loss or end of pregnancy.

Reasonable Accommodations Must be Provided. Employers are required to provide reasonable accommodations for a pregnant employee, if requested. A reasonable accommodation is any change in the work environment or in the way a job is customarily done that is effective in enabling an employee to perform the essential functions of the job. Granting reasonable accommodations does not eliminate the employee’s right to take four months of leave. However, if a reduced work schedule is provided, the employer may apply the reduction to the four months as intermittent leave.

Medical Certification Required. Employers may require written medical certification from the employee as a condition of granting reasonable accommodation, a transfer to a less strenuous or hazardous position, or pregnancy disability leave. The PDL Regulations include a form that may be completed by the employee’s healthcare provider to certify the employee’s medical need for the requested transfer, reasonable accommodation or pregnancy disability leave.

Right of Reinstatement. An employee who takes leave is guaranteed a right to return to the same position, or, under certain circumstances, a comparable position. An employer must provide, upon the request of an employee, a written guarantee of reinstatement. In addition to these requirements, the revised PDL Regulations prevent the employer from arguing a “hardship” as a basis for denying reinstatement.

Notice Requirements. Employers are required to provide employees with advanced notice of their rights and obligations, as well as the obligations of the employer. This notice:

    • Must be delivered to any employee who has informed the employer of her pregnancy, or has made inquiries regarding reasonable accommodations, transfers or pregnancy disability leave.

 

    • Must be posted electronically, such as on the webpage of the employer, or in a reasonably conspicuous place where employees congregate

 

  • Must be in the employee handbook if the employer maintains such a document.

Insurance Coverage. Employers are required to maintain and pay for health care coverage for an eligible female employee who takes pregnancy disability leave, at the level of coverage that she would have been provided if she was working.

Perceived Pregnancy. The new PDL Regulations include protections against harassment and discrimination based on “perceived pregnancy”.

These new regulations provide many additional protections to a pregnant employee and clarify previously uncertain terms. Employers need to evaluate each employee situation on a case by case basis. It is advisable to review your policies and employee manuals to ensure conformity with the new regulations.

If you have any questions regarding these new regulations, 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

Tyler B. Dockins
Associate
Monterey Office
tdockins@lozanosmith.com

©2013 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.

Employers Must Clarify a Request to Bargain on Effects of Non-Negotiable Decisions

April 2013
Number 19

The Public Employment Relations Board (PERB) recently expanded an employer’s obligation to act when a union requests to bargain over the effects on a non-negotiable decision, holding that “clarification is essential.”

In California School Employees Association & Its Chapter 477 v. Rio Hondo Community College District (2013) PERB Decision No. 2313 (Rio Hondo), the District informed CSEA that it intended to install security cameras in its new Learning Resource Center. The cameras would capture activities such as bargaining unit members coming and going, entering and leaving a break room, and cleaning public areas of the building. CSEA requested that the District bargain the effects of the decision, stating in its demand that the cameras impacted working conditions such as “performance evaluations and potential discipline.” The District denied the request because it did not clearly identify the specific effects that justified negotiations.

PERB ruled in favor of CSEA, concluding that the District committed an unfair labor practice when it refused to bargain over the effects of a decision to install security cameras. In reaching its ruling, PERB noted that the “proper place to clarify bargaining demands and proposals is at the bargaining table itself.” According to PERB, “[t]his is especially true in effects bargaining, where parties must anticipate the future impact of a non-negotiable decision announced but not yet implemented.” Thus, “refusing an effects bargaining demand without first attempting to clarify ambiguities and or whether matters proposed for bargaining fall within the scope of representation violates the duty to bargain in good faith.” (citing Healdsburg Union High School District, et. al, v. San Mateo City School District (1983) PERB Decision No. 375.)

In the Rio Hondo decision, PERB held that CSEA’s demand to bargain over the effects of a decision was sufficient because it: (a) clearly identified negotiable areas of impact within the scope of representation and (b) clearly indicated a desire to bargain over the effects of the decision rather than the decision itself. Prior to this decision, it was commonly understood that PERB would follow the authority of Newman-Crows Landing Unified School District (1982) PERB Decision No. 223 and its progeny. That precedent appeared to require that a union identify the specific effects of a decision on matters within the scope of representation, without obligating the employer to seek clarification. PERB distinguished the Newman-Crows holding and related cases in reaching this decision. Accordingly, employers now have a duty to seek clarification in response to a demand for “effects bargaining” before taking the position that a union’s demand is unwarranted.

If you have any questions regarding this decision or employee discipline issues in general, 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
Darren C. Kameya
Senior Counsel
Los Angeles Office
dkameya@lozanosmith.com

Mary L. Kellogg
Associate
Los Angeles Office
mkellogg@lozanosmith.com

©2013 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.