New Law Clarifies the Process for Filling Student Trustee Vacancies on Community College Governing Boards

October 2013
Number 72

Community college district governing boards are required to be composed of one or more non-voting students who are chosen by the student body pursuant to governing board policy. Assembly Bill (AB) 1030 provides that if a student board member’s seat becomes vacant during his or her term, the governing board may authorize the officers of the student body associations at each college in the district to appoint a student to serve the remainder of the term in accordance with governing board policy.

This bill takes effect in January 2014. For help with community college and governing board 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

Steve Ngo
Senior Counsel
Walnut Creek Office
sngo@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.

Advertisements

New Law Simplifies the Process for Changing Gender and Name on Birth Certificates

October 2013
Number 71

Assembly Bill (AB) 1121, which was signed by the Governor on October 8, 2013, affects the procedures for persons to legally change their gender and name via court order. The new law takes effect January 1, 2014.

Change of Gender
Under existing law, any person who undergoes a clinically appropriate treatment for the purpose of gender transition may petition the court for a judgment and court order recognizing their change of gender. The person seeking to have their gender changed must submit an affidavit from a physician attesting that the person has undergone clinically appropriate treatment for the purpose of gender transition. At the hearing, the court will decide whether to grant the petition. If the petition is granted, a new birth certificate is issued, which replaces any birth certificate previously registered for the person seeking to have their gender changed, and this new birth certificate is the only birth certificate open to public inspection.

Under AB 1121, effective January 1, 2014, the State Registrar will be required to issue a new birth certificate, without a court order, for any person born in California who has undergone a clinically appropriate treatment for the purpose of gender transition, and who submits an affidavit from a physician. This means that in these limited circumstances, persons born in California will not have to go through the court proceedings described above in order to obtain recognition of their change of gender.

Change of Name
Also under existing law, a person seeking to change their name must file a petition with the court. The court then issues an order to all interested persons so that they may file an objection with the court. Additionally, and in most instances, the person seeking to have their name changed must publish a copy of the order in a newspaper of general circulation at least once a week for four weeks. The court can enter an order granting a name change without a hearing if no objection is filed at least two court days before the hearing date.

Effective January 1, 2014, AB 1121 will require, rather than authorize, the court to grant an uncontested name change petition without a hearing. Additionally, AB 1121 exempts any petition for a change of name that is sought in order to conform the person’s name to his or her gender identity from newspaper publication requirements, and requires the petition and court order to indicate the proposed name is confidential rather than reciting the name. Lastly, AB 1121 provides that the current legal name of the person seeking to have their name changed must be kept confidential by the court and not published in any court records or public forum or media, as specified, when the petition is sought to conform the petitioner’s name to his or her gender identity.

For educational agencies, this new law will affect whether and when student records may be changed to reflect the change in the student’s gender and/or name. School districts and community colleges should change a student’s gender or name on permanent district records when it receives a court order or other legal document, such as a birth certificate, indicating a change in the student’s gender or name. Additionally, educational agencies may wish to contact their legal counsel to discuss how this bill may affect their board policies, administrative regulations and/or schoolsite policy regarding name and gender changes on student records, as well as how schoolsites should respond when a student and/or their parent/guardian requests that the student be called by a preferred name and/or pronoun.

If you have any questions regarding AB 1121, 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

Aimee Perry
Associate
Sacramento Office
aperry@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.

SB 177 Amends Existing Law to Require Immediate Enrollment of Homeless Students and Authorizes Such Students to Participate in All Extracurricular Activities

October 2013
Number 70

Governor Brown recently signed Senate Bill (SB) 177 into law, amending and adding provisions to the Education Code regarding the rights of homeless youth. Effective January 1, 2014, SB 177 amends Education Code section 48850 to require schools, including charter schools, to immediately enroll homeless students upon request. SB 177 also provides that homeless students are permitted to fully participate in all extracurricular activities, including interscholastic sports.

Existing law seeks to ensure homeless youth have a meaningful opportunity to meet state academic achievement standards, and are given access to resources, services, and extracurricular and enrichment activities that are available to all students. Consistent with that intent and to aid in the enrollment process, California law currently prohibits schools from requiring proof of residency from a homeless student’s parent. Further, schools are required to accept a declaration of residency executed by an unaccompanied homeless youth in lieu of a declaration of residency executed by the student’s parent or guardian.

Current law also requires a foster child who changes residences pursuant to a court order or decision of a child welfare worker to be immediately deemed to meet all residency requirements for participation in interscholastic sports or other extracurricular activities.

SB 177 makes the provisions regarding foster students and participation in extracurricular activities in Education Code section 48850 applicable to homeless students. Under Education Code section 48850, as amended by SB 177, a homeless student is deemed to meet the residency requirements for participation in extracurricular activities, including interscholastic sports. Additionally, SB 177 amends Education Code section 48850 to require that homeless students who seek enrollment in a school be immediately enrolled in that school. This includes charter schools, although enrollment cannot conflict with current law regarding random drawings for admission. Requiring immediate enrollment of homeless students upon request is intended to help minimize disruptions to the student’s education.

Finally, SB 177 adds Education Code section 44852.5, which requires that each school district’s federally mandated liaison for homeless children and youths ensure that public notice of the educational rights of homeless students is disseminated in the district’s schools.

If you have any questions regarding SB 177 or required updates to your district’s homeless student policies, 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 .

Benjamin C. Rosenbaum
Associate
Fresno Office
brosenbaum@lozanosmith.com

Frances M. Valdez
Associate
Petaluma Office
fvaldez@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.

Should School Districts Go “Peanut-Free”?

October 2013
Number 69

Peanut allergies are on the rise. In fact, according to Food Allergy Research & Education (FARE), the number of children who are allergic to peanuts tripled from 1997 to 2008. Peanut allergies can cause a severe and potentially fatal allergic reaction. Allergic students who come into contact with peanuts can go into anaphylactic shock, making it critical to have epinephrine auto injectors (e.g., EpiPens) close at hand. Districts have an obligation to keep students safe, and failing to properly address student food allergies may result in liability, violate Section 504 of the Rehabilitation Act, or even violate the Individuals with Disabilities Education Act. Many schools create peanut-free zones or tables in cafeterias to help prevent exposure. But what about creating a peanut-free school, or even a peanut-free school district? Is this something districts should consider?

Recently, school districts across California have seen an increase in such requests by parents. This is due, in part, to widespread media reports of tragedies related to peanut allergies. In one highly publicized case this summer, a 13-year old girl with a peanut allergy passed away after eating a rice crispy treat. She was attending a camp with her family, including her physician father. She ate the treat because they typically do not contain peanuts. This one did. She immediately tasted the peanuts, spit out the bite, and let her parents know. Her parents gave her medication, including administering three doses of epinephrine. However, despite her father’s best efforts, the girl ultimately died.

School districts must provide reasonable accommodations to students with severe food allergies to prevent the tragedy described above from occurring at school. Typically, these students qualify for reasonable accommodations under Section 504. Reasonable accommodations with regard to peanut allergies may include peanut-free tables at lunch time, peanut-free classrooms, hand-washing policies, and food-sharing policies. The Office for Civil Rights and the courts have repeatedly upheld these accommodations as reasonable. (See, e.g., Plumas (CA) Unified School District, 55 IDELR 265 (OCR 2010).) The “reasonableness” of the accommodation is directly proportional to the severity of the allergy in question as assessed by medical professionals. Thus, as a reasonable accommodation for a student with an extremely severe, life-threatening peanut allergy, it may be appropriate to create a peanut-free school, or even an entirely nut-free school. According to FARE, an estimated 25-40% of people who have a peanut allergy also are allergic to tree nuts. Further, because peanuts and tree nuts often come into contact with one another during manufacturing and serving processes, allergists recommend that patients with a peanut allergy avoid tree nuts as well.

However, the decision to go peanut-free or entirely nut-free impacts many aspects of running a school district, including:

  • Facilities (e.g., leases for preschool and after school programs);
  • Labor and employment (e.g., what if an employee refuses to follow a peanut-free policy?);
  • Menus and vending machines (e.g., what are the costs of creating a peanut-free menu?);
  • Student issues (e.g., what about the rights of other students?); and
  • Enforcement of peanut-free policies (e.g., how do districts police peanuts brought into school?).

Moreover, in adopting reasonable accommodations, districts must avoid potentially enhancing liability by taking on inappropriate duties. The request for a peanut-free school or district is complex and presents a multitude of issues to consider. As a result, we encourage you to contact your legal counsel to discuss the practical implications of going peanut-free if your district is faced with such a request or has severely allergic students. We also encourage districts to either adopt or revise food allergy board polices and administrative regulations to ensure your district has consistent practices and guidelines throughout its schools. Finally, we encourage an open dialogue on the issue with your parents and the community, as well as programs to educate students and parents on the harms of serious food allergies.

For further detailed information regarding addressing food allergies in school, 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.

Michael Smith
Partner
Fresno Office
msmith@lozanosmith.com

Deborah U. Ettinger
Senior Counsel
Petaluma Office
dettinger@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.

School Districts May Be Required to Refund Certain Surplus Property

October 2013
Number 68

A newly signed bill will require school districts and county offices of education to return moneys received from the state school facilities funding program if the school districts or county offices sell real property that was purchased, modernized, or improved with such moneys in the prior ten years, and if certain other criteria are met. The bill, Assembly Bill (AB) 308, which was recently signed by the Governor, applies only to sales and not leases.

Existing law imposes limits on school districts’ use of funds derived from a sale of surplus property. Generally, and subject to the following exceptions, the funds must be used for (1) capital outlay or (2) costs of maintenance of school district property that the governing board determines will not recur within a five-year period. There are some exceptions to this general rule:

  • Under Education Code section 17462(a), a school district may place the proceeds into its general fund for one-time expenditures, if it determines with the concurrence of the State Allocation Board that it has no anticipated need for additional sites or construction in the next ten years or major deferred maintenance requirements, and it surrenders its state facility funding eligibility for those ten years.
  • Under Education Code section 17463, subject to certain conditions and State Allocation Board concurrence, a school district having an average daily attendance of less than 10,001 in any fiscal year may deposit interest earned on the funds from a sale of surplus property in that fiscal year into the general fund for any general fund purpose, while surrendering state facilities funding for ten years.
  • Under Education Code section 17463.7, school districts may deposit the proceeds from the sale of surplus real property into the general fund for any one-time general fund purpose. This section only applies if the property was purchased entirely with local funds, and is subject to numerous conditions. The State Allocation Board has also required its approval, despite no such approval being mentioned in section 17463.7.

AB 308 adds section 17462.3 to the Education Code. That section authorizes the State Allocation Board to implement a program that would require school districts and county offices of education to return state school facilities funding to the State if the school district or county office of education sells surplus property that was purchased, modernized, or improved using that funding, and if all of the following conditions are met:

1. The real property is not sold to a charter school, another school district, a county office of education, or any agency that will use the property exclusively for the delivery of child care and development services.

2. The proceeds from the sale of the real property are not used for capital outlay.

3. The real property was purchased, or the improvements were constructed or modernized on the real property, within 10 years before the real property is sold.

Although the new law would not apply where proceeds are used for capital outlay, it does not make any reference to use of the proceeds for non-recurring maintenance, as authorized by Education Code section 17462(a). We contacted the office of the bill’s author, and were informed that this omission was intentional, meaning that if the school district uses the proceeds for such maintenance purposes, even though that use is expressly authorized by law, it may be required to refund state facilities funding for property purchased or improvements to facilities on the site in question within 10 years before the sale.

With regard to the other uses of the proceeds that are mentioned above, open questions remain:

  • The new law appears to limit the ability to place the proceeds into the general fund for one-time expenditures with the concurrence of the State Allocation Board under Education Code section 17462(a), since any state funding would have to be returned to the State in those circumstances. However, AB 308 does not expressly address this issue one way or the other.
  • Education Code section 17463.7, allowing school districts to deposit the proceeds into the general fund for any one-time general fund purpose, applies only to property that was purchased entirely with local funds, and thus the new law would not immediately appear to apply. However, there is an open question regarding the law’s effect where that property is later improved or modernized using state facilities funds.
  • The new law does not appear to directly affect Education Code section 17463, which applies to interest on proceeds, although the Legislature again gave no specific guidance on this point.

The moneys that would have to be returned to the State under this program would only be those moneys received within 10 years before the real property is sold. For example, this appears to mean that if property was purchased, modernized, or improved using separate disbursements of state funding, the school district would only be required to refund moneys it received within the 10 years prior to the sale. Also, if only a portion of the real property is sold, a proportionate amount of funds received from the State must be refunded to the State Allocation Board based on the percentage of the real property sold.

The State Allocation Board has not yet adopted the program to govern refunding state facilities funding, as authorized by the new legislation. Until such time, it appears that school districts and county offices of education will not be required to return funds to the State, although this is an issue that should be reviewed with legal counsel. If and when the State Allocation Board does implement such a program, the program may impact school districts that are selling surplus property and determining how to use the proceeds. We will continue to monitor the status and report on this issue.

If you have any questions regarding this Client News Brief, or surplus property 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.

School districts are also invited to review our Checklist for Sale or Lease of School District Surplus Property, which describes the requirements and other rules applicable to the lease or sale of surplus school property in detail. For a copy of the most recent edition of the Checklist, please contact Harold Freiman or Kelly Rem at the email addresses listed above.

Harold M. Freiman
Partner
Walnut Creek Office
hfreiman@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.

New Legislation Imposes Greater Transparency Requirements and Structuring Limitations on General Obligation Bond Financings for CA. School Districts and Community Colleges

October 2013
Number 67

In response to recent negative media attention and heightened political scrutiny of some local agency bonds, Governor Jerry Brown signed important public finance legislation on October 2, 2013. Assembly Bill (AB) 182, effective January 1, 2014, places certain restrictions on the issuance of bonds by school districts and community colleges. As we have brought to your attention in a prior Client News Brief, AB 182 primarily addresses controversial issues concerning the use of bonds that allow for the compounding of interest, including capital appreciation bonds (CABs), to pay for K-12 and community college district facilities construction projects. AB 182 also impacts school district and community college issuance of “current interest bonds” – bonds on which interest is paid to bond holders periodically during the life of the bond to maturity, without compounding. As we have observed since AB 182 was first proposed, several issuers have accelerated their financing timetables to issue bonds before the effective date of AB 182.

As opposed to current interest bonds, CABs are sold at an initial principal value and “accrete” to final principal value at maturity. This structure effectively defers payment of interest and principal during the early life of the CAB and pays bond holders at a later date, typically at maturity. Deferment of payment is often required or desirable for districts that have reached debt service capacity in the near-term. The trade-off for the deferment afforded with CABs is that the effective yield on CABs is often much higher than on current interest bonds. Critics of CABs, including State Treasurer Bill Lockyer and State Superintendent of Public Instruction Tom Torlakson, have pointed to a handful of what have become high-profile financings in the San Diego area where, due to the interest rate and length of term, the total debt service to initial principal ratio was ten-to-one or higher.

Under current law, school districts and community college districts can issue bonds under the Government Code with a maturity of up to 40 years and with an interest rate of up to 12%. Additionally, under current law, CABs are not required to have a mandatory redemption or tender feature (known as a “call right”). Such a call right gives the issuer more flexibility, allowing the issuer of the bond to pay and redeem the bond at a time earlier than final maturity by payment of the outstanding principal amount (and premium, if any), together with interest accrued or, in the case of CABs, any principal accreted, to the date fixed for early redemption or tender. AB 182 limits the way school districts and community college districts may finance their school facilities projects through issuance of general obligation bonds, including placing stricter limits on bond maturity and bond interest rates, mandating debt service-to-principal ratios and mandating redemption or tender for purchase.

Although the final legislation is not as restrictive as when the bill was first introduced, AB 182 will do the following, effective January 1, 2014:

  • Limit all CABs to a maximum term of 25 years and 8% interest.
  • Require all CABs with a term longer than 10 years have a call right no later than 10 years from issuance.
  • Limit the ratio of total debt service to principal to no more than 4:1 on each bond series.
  • Require public disclosure of detailed information about any proposed use of CABs, including but not limited to financing terms and time of maturity, repayment ratio, and estimated change in assessed value of property in the district over the financing term.
  • Require that if the bond sale will include CABs, then the board resolution approving the sale must be presented to the governing board on two consecutive meeting agendas, first as an informational item, and second as an action item.
  • Require that the agenda item for any bond sale, including a CAB, identify if a CAB is proposed and state that the governing board be presented with all of the following: (i) disclosure of the financing term and time of maturity, repayment ratio, and the estimated change in the assessed value of taxable property within the school district or community college district over the term of the bonds; (ii) an analysis containing the total overall cost of the CAB; (iii) a comparison to the overall cost of current interest bonds; (iv) the reason CABs are being recommended; and (v) a copy of the written disclosure made by the underwriter to the district in compliance with Rule G-17 adopted by the federal Municipal Securities Rulemaking Board.
  • Require current interest bonds with a maturity greater than 30 years to comply with the disclosures required of CABs, as discussed above, and further require that the governing board make a finding that the useful life of the facility funded by the current interest bond will equal or exceed the maturity date of the current interest bond.
  • Authorize a one-time waiver to the provisions of AB 182 for any bonds issued by a school district or community college solely for the purpose of retiring bond anticipation notes issued prior to December 31, 2013.

Good business practice dictates that school district and community college administrators and governing boards are adequately advised by their financial advisors, bond counsel and other members of the financing team regarding all available financing options in order to promote informed decision making and provide public transparency. It is always a good idea to ask your financial advisor to give a presentation on financing options and proposed terms, including an overview of the proposed financing structure, advantages of one financing vehicle over another (e.g., CABs versus current interest bonds), likely debt service to principal ratios, proposed call features, and likely interest rates and maturities.

If you have any questions regarding bonds, 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.

Jeffrey L. Kuhn
Senior Counsel
Fresno Office
jkuhn@lozanosmith.com

Daniel Maruccia
Partner
Sacramento Office
dmaruccia@lozanosmith.com

Sean Mick
Law Clerk
Sacramento Office
smick@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.

AB 570 Provides Guidance for Voluntary Enrollment

October 2013
Number 66

Governor Brown recently signed into law Assembly Bill (AB) 570, which expands the parameters of continuation education in California. Continuation education is a high school diploma program designed to meet the needs of students ages 16 through 18, who have not graduated from high school, and are at risk of not graduating from high school. Students enrolled in continuation schools are often credit deficient or need a flexible school schedule due to employment, family obligations, or other circumstances. Prior to the passage of AB 570, students with permission from the designee of the superintendent could voluntarily transfer to a continuation school to receive special attention, such as individual instruction, or could be involuntarily transferred for disciplinary reasons.

AB 570 adds section 48432.3 to the Education Code, which permits the voluntary enrollment of high school students in continuation schools only after a finding that the placement will promote the student’s educational interests. Further, for those districts that permit voluntary transfers to a continuation school, the statute imposes an obligation to establish and adopt policies and procedures to ensure that there are clear criteria to determine which students may voluntarily transfer to a continuation school. The criteria cannot be arbitrarily applied, but must be applied consistently throughout the district. The policies and procedures must ensure the following:

  • That voluntary placement is not used as an alternative to expulsion unless alternative means of correction have been attempted per Education Codesection 48900.5;
  • No specific group of students, including a group based on race, ethnicity, language status, or special needs, is disproportionately enrolled in continuation schools within the school district;
  • A copy of the policies and procedures regarding voluntary transfer to a continuation school is provided to students whose voluntary transfer to a continuation school is under consideration, as well as to their parent;
  • The transfer is voluntary and the student has a right to return to his or her previous school;
  • Upon request from a parent and before the student is transferred, the parent may meet with a counselor, principal, or administrator from the transferor school and the continuation school to determine whether transferring the student is the student’s best option; and
  • To the extent possible, the voluntary transfer to a continuation school should occur within the first four weeks of each semester.

For further information regarding AB 570, or for assistance with establishing and adopting policies and procedures relating to the voluntary transfer of high school students to continuation schools, 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.

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Ileana Butu
Associate
Sacramento Office
ibutu@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.