California Supreme Court Rules that Public Employers Must Disclose to Unions Home Addresses and Telephone Numbers of All Represented Employees

June 2013
Number 31

In County of Los Angeles v. Service Employees International Union, Local 721 (May 30, 2013___ P.3d___ [2013 WL 2348163]), the California Supreme Court held: (1) unions have a presumptive entitlement to contact information for all employees they represent, including those who have not joined the union; (2) although public employees have a privacy interest in their home addresses and telephone numbers, the balance of interests strongly favors disclosure of this information to the union that represents them; and (3) failure of the employer to provide the information violated the employer’s obligation to bargain in good faith.

Service Employees International Union (SEIU) Local 721 requested from the County of Los Angeles home addresses and telephone numbers for county employees in the bargaining units that SEIU represented. The County rejected the request, and SEIU filed a charge with the Los Angeles County Employee Relations Commission (ERCOM), an organization which performs the same function for the County that the Public Employment Relations Board (PERB) performs for other public employers in California.

ERCOM found that the County had engaged in an unfair labor practice by withholding the home addresses and telephone numbers of county employees. This decision was appealed. The court of appeal reversed, finding that because the employees who had not joined the union were not provided an opportunity to object to the disclosure of their contact information, SEIU was not entitled to the information.

The California Supreme Court reversed, finding the County was obligated to provide the contact information to the union. The court explained that PERB, relying on decisions from the NLRB, has found that a union is entitled to obtain all information necessary and relevant to representing employees in collective bargaining, including names, home addresses and home telephone numbers. Further, PERB has interpreted the obligation to bargain in good faith to require employers to disclose home contact information for all represented employees to the union, regardless of whether they have joined the union or have consented to the disclosure.

The court, deferring to PERB’s interpretation, found that home address and telephone numbers are presumptively relevant to collective bargaining. The employer has the burden of proving the information lacks relevance. In this case, the County had not met this burden, and the contact information sought by SEIU was therefore relevant to the union’s purpose of representing employees. In further reliance on PERB decisions, the court also found the County’s failure to disclose the information violated its obligation to bargain in good faith with SEIU.

Lastly, the court evaluated the public employees’ privacy interests in their home contact information. The court found that the represented, non-member employees have a legally protected privacy interest in their home contact information because they have an interest in avoiding unwanted communication. The court determined that those employees had a reasonable expectation of privacy in this information because the County had a long-standing practice of not disclosing it to the union. Also, the disclosure of home contact information was a serious invasion of privacy as the employees have a non-trivial interest in avoiding unwanted union related mail, phone calls and home visits. However, the court found that the invasion of privacy was justified in this case because the union’s duty is owed to all employees that the union represents, including those that decline to become members. Accordingly, the union must have a way to communicate with represented, non-member employees.

Following County of Los Angeles v. SEIU, public employers are required to disclose home addresses and telephone numbers to the unions representing their employees. However, they may take steps to further protect the privacy interests of their employees. First, public employers may negotiate with unions to implement procedures for providing notice to employees of the required disclosure, and procedures for allowing employees to “opt-out” of the disclosure, thereby preserving the privacy of the employees’ home contact information. Second, public employers may incorporate notice of the disclosure directly into employment contracts, and allow employees to request the information be withheld from the union. Additionally, it is possible that agencies such as PERB or ERCOM may themselves develop and require compliance with notice and opt-out procedures to preserve the confidentiality of employees’ home addresses and telephone numbers.

If you have any questions regarding this decision or disclosure of employee information to unions 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 Twitter, or download our Client News Brief App.

Written By

Calvin House
Of Counsel / Partner at Gutierrez, Preciado & House, LLP
Pasadena Office
calvin.house@gphlawyers.com

Ashley N. Emerzian
Associate
Fresno Office
aemerzian@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.

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Court Clarifies “Basis of Knowledge” for Special Education Student Discipline

June 2013
Number 30

A federal court in California recently considered what constitutes a “basis of knowledge” that could entitle a general education student to special education student discipline protections. (Anaheim Union High School District v. J.E. (C.D. Cal. May 21, 2013 ___F.Supp.2d.___[2013 WL 2359651].)

A general education student is entitled to special education student discipline protections, such as a manifestation determination, if a school district has a basis of knowledge that the student has a disability before the misconduct occurred. Three circumstances can give rise to a basis of knowledge: (1) a parent has expressed concerns in writing that the student requires special education services; (2) a parent has requested a special education evaluation; or (3) a teacher or other staff has expressed concerns about a student’s “pattern of behavior” to the director of special or other supervisory personnel. (20 U.S.C. § 1415(k)(5)(B).)

In Anaheim, the court considered what constitutes a “pattern of behavior.” The court held that a pattern of behavior can include behaviors that do not involve disciplinary issues. For example, a student with autism could exhibit a pattern of behavior, such as not speaking or engaging with others, that does not involve the violation of any rules. The court further held that comments made at a Section 504 meeting can put school districts on notice of a pattern of behavior.

This case establishes that school districts cannot narrowly interpret a “pattern of behavior” when determining whether there is a basis of knowledge that astudent has a disability. When considering whether the district has a “basis of knowledge,” it is important to consider information provided in all contexts, including Section 504 meetings and student study team meetings. Also, districts must not limit “patterns of behavior” to behaviors that are associated with disciplinary incidents.

If you have any questions about this case, 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
Daniel A. Osher
Partner
Monterey Office
dosher@lozanosmith.com

Deborah U. Ettinger
Senior Counsel
Santa Rosa Office
dettinger@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.

Agendas for Legislative Body Meetings Must Include Each Individual Item of Business in Clear and Unambiguous Terms

June 2013
Number 29

In the recent case of San Joaquin Raptor Rescue Center v. County of Merced (May 31, 2013 __Cal.App.4th__ [2013 WL 2378584]), the Court of Appeal held that the Merced County Planning Commission (Commission) violated California’s open meeting laws (the Brown Act) when it discussed and took action on an item that did not clearly and unambiguously appear on its meeting agenda.

The Brown Act requires a legislative body of a local agency to post, at least 72 hours before a regular meeting, “an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting.” The Brown Act prohibits a local agency from taking action or discussing any item not appearing on the posted agenda. In San Joaquin, the Commission posted an agenda including an item regarding the potential approval of an application to subdivide approximately 380 acres of agricultural land. During its meeting, the Commission discussed and approved a California Environmental Quality Act (CEQA) document known as a “mitigated negative declaration” (MND) in connection with the subdivision project. However, the Commission failed to include this item of business in the meeting agenda.

The Commission argued that it was not required to place the discussion and possible approval of the MND on the meeting agenda because the MND was part of the overall subdivision project, which was an item on the agenda. The Court rejected this argument based on the Brown Act’s requirement that an agenda must include a description of “each item of business to be transacted or discussed.” The Court found that the discussion and adoption of the MND was not merely a component of the subdivision project approval, but rather a clearly distinct item of business because it: (1) involved a separate action or determination by the Commission, and (2) concerned discrete significant issues of CEQA compliance and the subdivision project’s environmental impact. Therefore, the Commission was required to disclose this individual item of business on the agenda, and because discussion and action was taken on this item without doing so, the Commission violated the Brown Act.

The Court observed that one of the purposes of the Brown Act is “ensuring that the public is adequately notified of what will be addressed at a meeting in order to facilitate public participation and avoid secret legislation or decision making.” Each item of business should “not be left to speculation or surmise.” In San Joaquin, the Court found the Brown Act violation particularly egregious because it involved CEQA, and decisions to adopt CEQA documents are “always a matter of at least potential public interest since it would concern the local environmental effects of a proposed project.” Further, because CEQA documents are not necessarily considered at the same meeting as consideration of the project, the Court found that the overall effect of leaving the MND off the agenda misled the public as opposed to informing them of items of business to be considered at the meeting.

This case serves as a reminder to local government agencies that, while agenda items only require brief descriptions, each item of business must be specified and the item must be identified in a clear and unambiguous manner. While the San Joaquin Court did not address whether an agency may combine more than one related item of business as part of the same agenda item, to help ensure compliance with the Brown Act, listing the items not only clearly but also separately may be advisable in certain instances.

To assist with Brown Act compliance, Lozano Smith makes available to clients its Brown Act Handbook, which is updated on an annual basis. A copy of the Handbook is available on our website.

If you have any questions regarding this Client News Brief, 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
David J. Wolfe
Partner
Fresno Office
dwolfe@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.

State Board of Education Proposes Amendments to Special Education Regulations

June 2013
Number 28

The California State Board of Education recently issued a notice of its intent to propose changes to the California Code of Regulations pertaining to special education. (See the notice, proposed regulations, and initial statement of reasons on the CDE website.) The proposed changes relate to the administration of special education instruction and related services for students with individualized education programs (IEPs).

The proposed amendments would update and conform state regulations to current state and federal laws. The State Board of Education notes that updating these regulations will “help bring consistency in the provision of special education and related services to children with disabilities and reduce confusion about the intent of the law among educators and service providers,” which may mitigate “the potential for costly due process hearings and civil suits resulting from inadvertent failures to adhere to current code.”

Perhaps the most notable revisions include updating eligibility criteria to be consistent with current law and replacing outdated specific qualification requirements for service providers. The proposed changes would update the regulations regarding eligibility requirements for students with special needs to align the section with current federal and state law. The amendments also propose replacing outdated licensing and credentialing requirements with the requirement that, “Individuals providing [specific] service(s) shall be qualified.” This proposed language acknowledges that educational agencies are responsible for establishing minimum service provider qualifications consistent with professional requirements.

The proposed amendments also include:

  • General changes for clarity and consistency, such as replacing “Department” with “CDE” throughout the regulations;
  • Removing duplicative and redundant definitions as well as content defined or included elsewhere. For example, they propose deleting the definition of “State Board of Education” because it is already defined in Education Code section 56021;
  • Removing regulations that no longer have statutory authority, such as removing the section on “special centers,” which was repealed in 1998 and removed from reference in the continuum of options in 2002;
  • Updating regulations to conform with current state and federal laws. For example, they propose aligning eligibility criteria for children aged birth to younger than three years served by Early Start and through the Individuals with Disabilities Education Act (IDEA);
  • Replacing terms to reflect current usage, including replacing the term “handicapping/handicapped” with “disabling/disabled” or “impaired” as used in federal law;
  • Removing language that is outdated, such as references to deadlines in the past, names of services or agencies no longer used or in existence like the Special Education Hearing Office; and
  • Amending authorities and references to ensure the regulations cross-reference the correct state and federal statutes and regulations.

Stakeholders are encouraged to provide input regarding the proposed changes to the regulations during the public comment period, which closes on July 8, 2013. Further guidance will be issued by our office after any substantive changes to the regulations are formally adopted.

If you have any questions about the SBE’s proposed amendment to Title 5, 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
Sarah L. Garcia
Senior Counsel
Walnut Creek Office
sgarcia@lozanosmith.com

Colleen R. Villarreal
Associate
Sacramento Office
cvillarreal@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.

Office for Civil Rights Issues Warning and Guidance on Retaliation Related to Civil Rights Claim

June 2013
Number 27

Recently, the United States Department of Education’s (DOE) Office for Civil Rights (OCR) issued a Dear Colleague Letter explaining the responsibilities of school districts and postsecondary institutions related to retaliation in the context of civil rights complaints. This letter, the first public guidance issued by the OCR regarding retaliation, was issued due to the significant portion of civil rights complaints received by the OCR that include retaliation claims.

While most managers are aware that federal law prohibits discrimination based on race, color, national origin, sex, disability, or age, they may not be aware that recipients of DOE financial assistance are also prohibited by law from any act of retaliation in the civil rights context. Specifically, it is unlawful to retaliate against an individual for the purpose of interfering with any rights or privileges secured by federal civil rights laws. Prohibited retaliation includes intimidation, threats, coercion, or further discrimination against an individual because he or she has made a complaint, or otherwise testified or participated in an OCR investigation or proceeding.

To ensure equal educational opportunity, the OCR believes it is critical to create an environment where students, parents, teachers, coaches, and others feel that they can report civil rights violations without fear of retaliation. According to the OCR, federal civil rights violations are often only addressed and remedied when such reports are made.

The Dear Colleague Letter details the illegality of retaliatory activity to punish or discourage involvement in the protection of civil rights, and details OCR’s methods of enforcing the non-retaliation laws. If a violation occurs, the OCR will first seek a voluntary commitment to take specific action to remedy the noncompliance, including training, better communication regarding policies and procedures related to civil rights and retaliation, and public outreach regarding these issues. If a recipient of DOE funds engaged in retaliation refuses these voluntary steps, enforcement action may be taken. Enforcement action includes administrative proceedings relating to suspending or terminating funding, or a referral to the Department of Justice for judicial proceedings.

While the letter does not contain any new policy or legal interpretations, it makes clear that the DOE views retaliation as a significant problem. OCR’s issuance of such specific guidance regarding retaliation may indicate an increased focus on this area. The letter provides a good opportunity for school districts and postsecondary institutions to review and update applicable policies and procedures, and to ensure that those policies and procedures are properly communicated and publicized.

For further information regarding OCR’s Dear Colleague Letter, civil rights discrimination and retaliation issues in general, or practical steps that can be taken with regard to these issues, 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
Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

Benjamin C. Rosenbaum
Associate
Fresno Office
brosenbaum@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.

New DSA Construction Oversight Procedures Begin June 1, 2013

May 2013
Number 26

Significant Changes for Construction Management

Beginning June 1, 2013, the Division of State Architects (DSA) will require new procedures and a new series of forms related to the inspection of school district and community college construction projects. Currently, contractors can start work on the second phase of a project before the first phase has been inspected and approved. After June 1, the DSA will require inspection and approval of the contractor’s work on one phase before the contractor may start work on the next phase. Inspection cards will be issued to the inspectors of record who must inspect the work and collect all required documents from the construction team before providing written approval on the card. The stated goal of these new regulations (24 Cal. Code Regs., Part 1, sections 4-330 through 4-344) and procedures (DSA Procedure PR 13-01) is to reduce the number of projects that remain uncertified by the DSA after completion.

This new system is of immediate interest to school districts and community colleges that have projects scheduled to start in the next few weeks. Although the current Form DSA 102 generally must be filed within five days after the award of a construction contract, the DSA has indicated that if Form DSA 102 is filed before June 1, 2013, the new inspection procedures will not immediately apply to that project. However, if the new Form DSA 102-IC is filed on or after June 1, 2013, the new procedures will apply. Accordingly, school districts and community colleges with pending projects should consider filing Form DSA 102 before June 1, 2013 if they wish to remain under the current system of inspection procedures.

Projects that are already underway and have a Form DSA 102 on file can continue under the existing procedures. DSA may plan to transition these projects over to the new system in the future, but they have not indicated any current schedule to do so.

In addition to the inspection card procedures, the new regulations and procedures will also increase inspection obligations of architects and contractors, and eventually create an electronic documentation system. The DSA will also start to charge hourly fees for review of proposed changes to the design documents for the project. As a result, school districts and community colleges may need to update their contract forms for architects, inspectors, construction managers and contractors. Districts and community colleges may also need to amend existing agreements for projects that will begin after June 1, 2013.

Because the new DSA regulations and procedures will significantly and immediately impact management of construction projects, school districts and community colleges should contact their legal counsel to discuss these issues and how best to address them in contract documents and in day-to-day operations.

If you have any questions regarding the new DSA regulations and their impact, 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
Ruth Mendyk
Partner
Fresno Office
rmendyk@lozanosmith.com

Arne Sandberg
Senior Counsel
Walnut Creek Office
asandberg@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.

Deference Given to Commission on Professional Competence Findings in Teacher Termination Case

May 2013
Number 25

A recent decision of the California Court of Appeal has reinforced the notion that a reviewing court is required to give a strong presumption of correctness to decisions by the Commission on Professional Competence (Commission) in certificated employee dismissal cases. This case is important for school districts because it provides useful guidance when considering whether to appeal a Commission’s decision.

In San Diego Unified School District v. Commission on Professional Competence (2013) 214 Cal.App.4th 1120, the San Diego Unified School District (District) initiated dismissal proceedings against a teacher based on allegations that the teacher inappropriately touched a student. The student in question and her mother both testified at the hearing. The Commission unanimously decided that the District failed to prove the charges of evident unfitness to teach, immoral conduct, or persistent violation of District regulations. The Commission based its findings, in part, on concerns regarding the credibility of the student and her mother.

In response to the Commission’s dismissal of the charges against the employee, the District challenged the decision in the trial court. The trial court determined the alleged student-victim’s testimony was credible and vacated the Commission’s decision. The teacher appealed.

The court of appeal reversed the trial court’s decision. The court concluded that the trial court failed to give the necessary weight to the Commission’s credibility determinations. Although the Commission’s decision explained why it discredited the student and her mother, the trial court disregarded its statutory obligation to defer to the Commission’s credibility findings. Additionally, the court determined that the trial court based its decision on only part of the administrative record rather than on a review of all evidence in the administrative record. Finally, the court of appeal determined that the weight of the evidence did not support the lower court’s finding. The appellate court held that there was no substantial or reliable evidence to support the finding that the teacher was unfit to teach, engaged in immoral conduct, or persistently violated District regulations. The court, therefore, upheld the Commission’s determination that there was insufficient evidence to terminate the teacher.

This case provides insight into a reviewing court’s statutory obligation to give appropriate deference to a Commission’s findings with regard to both its decision and also its determinations as to the credibility of witnesses. This decision also shows the uncertainty in predicting the outcome in a teacher dismissal case.

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 Twitter, or download our Client News Brief App.

Written By
Roberta L. Rowe
Partner
Fresno Office
rrowe@lozanosmith.com

Gabriela D. Flowers
Associate
Sacramento Office
gflowers@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.