Creditable Service Election Remedy Now Available From CalSTRS

November 2013
Number 82

Today (November 25, 2013) CalSTRS issued a new Circular Vol. 29, Issue 3 – “Right of Retirement System Election When Changing Positions,” allowing any CalSTRS member who believes that they are, or may have been, employed in a position that is not clearly eligible for CalSTRS membership to have their employer file an election form (ES372) within 180 days in order to ensure that all of their service counts as creditable for retirement purposes.

This remedy comes in light of the statewide confusion created by the CalSTRS Circular Vol. 28, Issue 1 – “Positions Not Eligible for Creditable Service,” which called into question the eligibility of many positions previously thought to be performing service creditable to CalSTRS.

For example, if your district has a credentialed employee who is currently employed as a Human Resources Administrator, that position may not be considered to be performing creditable service work and the district should work with the employee to complete the election form. Other positions which may be at risk include: Chief of Police; Director of Buildings, Grounds and Maintenance; Director of Technology; Director of Payroll Services; Chief Business/Financial Officer.

A form should be completed for current employees to secure their retirement with CalSTRS if there is any doubt about whether any position previously held was performing creditable service work. The Circular does not specifically address the election remedy for retirees who may not have been performing creditable service during a portion of their career. However, the language of the Circular appears broad enough that districts may consider submitting an election form for those retirees that make that request.

Although the law normally requires CalSTRS members to complete an election form informing CalSTRS that they wish to remain in the CalSTRS retirement system within 60 days of moving to a non-creditable service position, CalSTRS is now allowing a one time use of the employer correction procedure beyond the 60 day deadline. The forms will be accepted with an effective date as of the member’s date of hire into the position not performing creditable service.

In addition to completing the election form, the employer must submit a justification letter explaining that the member was not offered the opportunity to timely complete the election form. Additionally, the justification letter must identify the member’s name, CalSTRS client identification number or social security number, the previous position held and current position held. The start and end dates, employer name and report unit code for prior and current positions must also be included. The deadline for completing the election form and submitting the justification letter is Friday, May 23, 2014.

The CalSTRS Circular does not clarify what positions or duties will count as creditable service; however, it represents a major step forward by providing a remedy for the current problem while CalSTRS works with education stakeholders on the legislative front to resolve the confusion prospectively. Lozano Smith and ACSA will continue their partnership with other stakeholder groups to assist with clarifying legislation and implementation of this remedy.

Even if your district is not certain whether it has employees in a position that CalSTRS may consider classified, you may want to ensure timely completion of the election form and the justification letter to eliminate any doubt over your employees’ participation in CalSTRS.

A copy of the CalSTRS Circular can be found here.

The required election form (ES372) can be found here.

If you have any questions about whether your position is performing creditable service work or questions about how to complete the election form, you may contact the CalSTRS Employer Services Helpline at (877) 277-5778 or feel free to contact one of our eight offices located statewide, or contact your ACSA representative. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

In partnership with ACSA, for further information, contact Sal Villasenor.

Written By

Michael Smith
Partner
Fresno Office
msmith@lozanosmith.com

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.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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Don’t Overlook New Requirements Impacting School Facilities under the Local Control Funding Formula

November 2013
Number 81

With all of the attention that has been paid this year to the various impacts of the recent overhaul of the state’s finance system for K-12 schools, known as the Local Control Funding Formula (“LCFF”), sometimes overlooked are new responsibilities relating to school facilities. As a primary component of the LCFF, the governing board of each school district must adopt a Local Control Accountability Plan (“LCAP”) on or before July 1, 2014, and update it on or before July 1 of each year. (Ed. Code § 52060(a), (b).) An LCAP establishes an accountability model for the school district based on outcomes and achievement of goals related to both state and local priority areas. This means that school districts must work annually towards achieving the goals identified in their respective LCAPs. The State Board of Education is required to adopt a template LCAP by March 31, 2014.

One such state priority that must be included in all school districts’ LCAPs is that all school facilities be “maintained in good repair,” as specified in Education Code section 17002, subdivision (d)(1). This is an existing good repair standard previously adopted for lower performing schools that emphasizes maintaining facilities as clean, safe, and functional. Therefore, each school district must specify in their LCAP that they will maintain their facilities up to par with the good repair standard, as well as the actions they plan to take within the year to meet this goal. At the same time, the source of funding for this maintenance is not clearly defined, as funds previously earmarked for facilities maintenance – such as through the Deferred Maintenance Program – have been consolidated into the LCFF allocation. At a minimum, school districts must continue to make required deposits into a Routine Restricted Maintenance Account under Education Code sections 17070.75, et seq.

Until regulations come out implementing this aspect of the LCAP, it will remain unclear how schools will be expected to comply with the good repair standard. Until then, school districts will need to engage in budget planning and consider setting aside resources necessary to meet the good repair standard while keeping in mind the broader goals of LCFF, including equity across student groups, local decision-making and stakeholder involvement, accountability, transparency, and alignment of budgeting with accountability plans.

Other requirements under the LCFF may also have an impact on school facilities. LCFF made fundamental changes to how Proposition 98 revenues are allocated to school districts, county offices of education, and charter schools. It altered Class Size Reduction funding both in terms of structure and penalty. As early as 2014, school districts need to be making progress towards achieving an average class enrollment of not more than 24 pupils for each school site in kindergarten and grades 1-3, unless a collectively bargained alternative annual average class enrollment for each school site is negotiated, or face penalties. (Ed. Code § 42238.02(d)(3)(B).) If necessary, school districts should determine the capacity and conditions of their current facilities in order to ensure that they have sufficient and appropriate facilities to provide new classes if needed to achieve smaller class sizes.

If you have any questions regarding facilities maintenance under LCFF or other related 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

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

Niki Nabavi Nouri
Associate
Walnut Creek Office
nnabavinouri@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.

Lozano Smith-ACSA Joint Alert – Election Remedy for CalSTRS Creditable Service Issue Forthcoming

November 2013
Number 80

On August 29, 2012, CalSTRS issued an Employer Information Circular entitled “Positions Not Eligible for Creditable Service.” This Circular identified several positions as not being eligible for CalSTRS, including “Director of Human Resources.” This Circular gave rise to a wave of uncertainty and angst regarding whether many positions previously considered certificated positions were, in fact, improperly reported to CalSTRS. This Circular followed a CalSTRS audit of San Francisco Community College District which found several employees were not performing creditable service. The CalSTRS audit findings in the SFCC District case are now headed toward hearings. Thus, what work counts as creditable service has become an issue of statewide concern for all K-12 and community college districts.

Since this past spring, Lozano Smith and the Association of California School Administrators (ACSA) have been working closely to seek clarification from CalSTRS on the creditable service issue. The two organizations have engaged CalSTRS in an ongoing dialogue for several months to outline emerging issues following the August 2012 Circular. While numerous issues have been discussed, we have focused on engaging CalSTRS in discussions regarding the need for a remedy to address the growing concerns of administrators who came from positions that were clearly CalSTRS eligible into positions where the employee’s eligibility for CalSTRS service credit is now uncertain. Specifically, Human Resource Administrator positions have been at the forefront of recent discussions.

CalSTRS has now confirmed that it plans to issue a clarifying Circular “in the next few weeks.” That clarifying Circular will contain a remedy allowing some members to elect to remain in CalSTRS, thereby securing their CalSTRS retirement benefit despite the uncertainty regarding whether their current position as a Human Resource Administrator is performing creditable service work.

Some technical details of the election remedy have not yet been clarified by CalSTRS. Those details include: (a) whether the employer or the employee should initiate an election remedy; (b) whether the remedy will be available for retirees or only current employees; and (c) if a deadline to make an election will be put in place and, if so, when it will be.

The election remedy is an incremental step towards addressing growing concerns regarding creditable service issues. Discussions with CalSTRS suggest that a more comprehensive legislative solution may be required in order to clarify what counts as creditable service.

As the dialogue with CalSTRS continues, districts and administrators should be aware that some positions previously considered certificated may, in fact, not be performing creditable service. In the event of an audit, the job description and employee interviews will be important pieces in determining whether the actual duties performed by the employee qualify as creditable service. Therefore, it is advisable to review the job description of any administrative position that is not clearly performing creditable service work to determine if corrective action may be needed.

Additionally, Lozano Smith and ACSA are continuing to work toward a solution that will address the creditable service issue now facing school districts across the state. Coalition building among various stakeholders, including K-12 administrators and their community college counterparts, will continue to be an important part of this goal. To that end, Lozano Smith and ACSA are working to broaden the coalition by involving other interested organizations, including the Association of California Community College Administrators (ACCCA), the Association of Chief Human Resource Officers (ACHRO), the Association of Chief Business Officers (ACBO), the California Association of School Business Officials (CASBO), and the California School Boards Association (CSBA).

If you have any questions regarding whether a position meets the test for CalSTRS eligibility, how to ensure that your job descriptions describe creditable service work, or how to best protect CalSTRS retirement benefits for your district’s administrators, please feel free to contact one of our eight offices located statewide, or contact your ACSA representative. You can also visit our website, follow us on Facebook orTwitter, or download our Client News Brief App.

In partnership with ACSA, for further information, contact Sal Villasenor.

 

Written By

Michael Smith
Partner
Fresno Office
msmith@lozanosmith.com

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.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.

Reminder: Annual Organizational Meetings

November 2013
Number 79

Now is a good time to start thinking about the agenda for your agency’s upcoming annual organizational meeting. The governing board of each school district must hold an annual organizational meeting prior to the close of each calendar year. (Ed. Code § 35143.) During an election year, the meeting must be held within a 15-day window beginning with the date upon which the newly elected members take office. During non-election years, the meeting must be held within the same window, beginning with the date upon which members would have taken office if an election had been held. A trustee serves until the first Friday in December in the year their term expires, with the newly elected trustee taking office thereafter. (Ed. Code §§ 5000, 5017; Elec. Code §10554.) This year, a newly elected trustee will take office on December 6, 2013, making the last day to hold the annual organizational meeting December 20, 2013.

The day and time of the annual organizational meeting must be set at the last regular board meeting prior to December 6, 2013. The annual organizational meeting must be set far enough out to allow the clerk of the board to provide at least 15 days written notice of the meeting to all board members and board members-elect. The governing board must also notify the county superintendent of schools of the annual organizational meeting’s date and time. If the board fails to set a day and time for the annual organizational meeting, the county superintendent of schools will set it.

At the annual meeting, governing boards of school districts will elect a clerk and president. Similarly, each city board of education will elect a president, and all other types of school districts (except community college districts) will elect a clerk.

An exception to the December 20, 2013 cut-off for the annual organizational meeting is available for boards of education whose members are elected pursuant to a city charter. Those boards of education may hold the annual organizational meeting between December 15, 2013 and January 14, 2014, provided rules and regulations allowing this alternative have been adopted by such board. (Ed. Code § 35143.) At the annual meeting, such boards of education must elect a president and vice president who will serve from January 15 until January 14 of the following year, unless removed by a majority vote of the board.

Other housekeeping functions can be accomplished at the annual meeting as well. For instance, this can be a good time to adopt a comprehensive list of designees with authority to sign contracts on behalf of the district. (See Ed. Code §§ 17604, 17605.) The annual meeting is also an appropriate time to review committee assignments for board members. To guard against potential Brown Act violations, the annual meeting provides a good opportunity to advise all members on Brown Act implications for committee meetings. For example, if the committee consists only of a non-quorum of board members and meets on an ad hoc basis, it is not a Brown Act committee. However, if, for example, the board members are appointed by formal board action to serve on a larger district committee, those committee meetings are generally required to comply with the Brown Act.

If you have any questions regarding the annual organizational meeting, election of board members, the Brown Act or related matters, 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

Laurie A. Avedisian
Partner
Fresno Office
lavedisian@lozanosmith.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.

Did Your School District Receive a Prop. 39 Request Today?

November 2013
Number 78

Commonly referred to as Prop. 39, Education Code section 47614 requires that school districts provide facilities to charter schools. Charter schools must request facilities for the 2014-2015 school year, in writing, by Friday, November 1, 2013. Even proposed charter schools can request facilities if they submit a timely request and have their charter approved by March 15, 2014.

Once a school district receives a facilities request from a charter school, the following deadlines are triggered:

December 1 – Deadline for a school district to express, in writing, any objections to the charter school’s projected average daily attendance (ADA). If this deadline passes without objection by the district, the district will likely be required to base its facilities offer on the charter school’s in-district ADA projections.

January 2 – Deadline for the charter school to respond to any objections raised by the school district regarding ADA projections.

February 1 – Deadline for the school district to provide a preliminary offer of facilities to the charter school, along with detailed information about the offer and a draft facilities use agreement.

March 1 – Deadline for the charter school to respond to the preliminary offer.

April 1 – Deadline for a final offer of facilities by the school district.

May 1 – Deadline for acceptance of offer of facilities by charter school.

Given these tight timelines, it is critical that a facilities request be reviewed shortly after receipt to determine the reasonableness of the charter school’s ADA projections and to contemplate the facilities to be offered.

Currently, the California Supreme Court is considering whether school districts may allocate classrooms to charter schools in the same way as they do for other schools in the district. The Supreme Court will review a court of appeal’s holding that school districts may use “norming ratios” as an acceptable method of counting classrooms for Prop. 39 purposes. See our January 2013 News Brief. Los Angeles Unified School District (LAUSD) had adopted “norming ratios” to reflect how many students would be placed in a classroom on a district-wide basis. As a result of ongoing litigation between the California Charter Schools Association and LAUSD, a court of appeal determined that a school district’s use of “norming ratios” in its Prop. 39 calculations was consistent with regulations requiring that school facilities be “shared fairly” between charter schools and district operated schools. Although we do not expect the Supreme Court to make a decision in time to affect the 2014-2015 Prop. 39 process, we will keep you apprised of any developments in this case.

This case, and other recent court decisions, illustrate the complexity of responding to Prop. 39 requests, as well as the need for school districts to invest the time in making rational and balanced facilities offers. If a facilities offer is challenged, a reviewing court will want to see that the school district documented a deliberate and objective analysis prior to making its offer of facilities.

For assistance with processing Prop. 39 facilities requests or with any charter school matter, 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

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Devon B. Lincoln
Partner
Monterey Office
dlincoln@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.

Cyberbullying: New Bill Confirms Schools’ Authority to Discipline for Bullying Taking Place Off Campus by “Electronic Act” in Certain Instances

October 2013
Number 77

Effective January 1, 2014, Assembly Bill (AB) 256 amends the definition of “electronic act” to make it clear that bullying can include electronic conduct occurring both on and off campus. AB 256 provides helpful statutory direction that has been missing from Education Code section 48900 since bullying was first added in 2009. Importantly, however, AB 256 does not automatically grant schools jurisdiction to discipline students for such off campus conduct or expression.

There have been repeated amendments to Education Code section 48900’s bullying provisions over the past few years (see Lozano Smith Client News Brief Nos. 42 (2012), 62 (2011), and 32 (2011)). Since the rise of social networks and the related smart phone boom, districts have had to wrestle with questions regarding the enforcement of discipline when alleged bullying is carried out electronically and off school grounds. The current definition of prohibited “bullying” under the Education Code does not explicitly include electronic acts that occur off campus as an offense for which students may be disciplined. This said, even under this existing law, schools have been permitted to impose discipline for bullying conduct or expression taking place electronically and off campus, so long as they can establish jurisdiction to discipline by showing a sufficient nexus between school and the bullying.

Education Code section 48900, subdivision (r), already states that prohibited bullying includes communication via an electronic act and contains a list of specific types of technologies and electronic acts covered under the law. AB 256 addresses the common reality that students may use these technologies to bully from off campus. AB 256 thus amends the definition of “electronic act” for bullying purposes to include “the creation and transmission originated on or off the schoolsite” of such bullying conduct or expression.

Even with this helpful clarification to the Education Code, enforcing discipline for cyberbullying remains fraught with complicated considerations, including issues of jurisdiction, student free speech and due process rights. Notably, despite the explicit addition regarding off campus conduct, AB 256 does not remove the need to confirm and document the impacts of bullying conduct on school activity or attendance to establish jurisdiction. Districts are still obligated to conduct fact-specific analyses on a case-by-case basis before they discipline for many cyberbullying activities. Discipline for cyberbullying should only be enforced when one of the four statutory harmful effects is present under section 48900, subdivision (r), where the district’s jurisdiction has been established under section 48900, subdivision (s), and where the district can meet the applicable “substantial disruption” or “true threat” free speech standards under which a district may discipline a student based on speech or expression without violating the student’s free speech rights.

Lozano Smith continues to be on the forefront of student discipline law, regularly assisting school districts in adopting policies and procedures to comply with Education Code requirements, and helping to ensure that the constitutional rights of disciplined students are not infringed in the discipline process. If you have any questions regarding these changes and any advisable board policy and administrative regulation updates, 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.

Legislation Combats Corruption In Government By Requiring Forfeiture Of Retirement Benefits By Officials Convicted Of A Felony In The Course Of Official Duty

October 2013
Number 76

Prompted by corruption scandals in the cities of Vernon and Bell, Governor Brown signed into law Senate Bill (SB) 39 on October 12, 2013. This law seeks to prevent public officials convicted of crimes committed in their official capacity from obtaining further benefit from the positions they abused.

In the cases of the cities of Vernon and Bell, several high ranking city officials were convicted of crimes such as fraud and violating California conflict of interest laws. Officials received massive salaries in relatively small towns. They also engaged in voter fraud and other corrupt practices. Despite being convicted of felonies, several officials were still able to receive retirement and pension benefits from the cities.

SB 39 adds section 53244 to the Government Code and provides that a local public official who is convicted of any felony under state or federal law for conduct in the performance of his or her official duties must forfeit any legal claim against a local public agency employer for retirement, pension rights, or benefits other than accrued rights. The law is meant to protect local governments from “disgraced and avaricious” public officials who continue to seek benefits from their former employer.

Several laws have already been enacted in response to the Bell and Vernon scandals. Existing law already requires elected public officials and public employees to forfeit all rights and benefits under a public retirement system (e.g. CalPERS) when the public official is convicted of certain crimes such as bribery or embezzlement. SB 39 similarly requires forfeiture of rights and benefits, but from a local government instead of the state public retirement system.

Assembly Bill 1344 (2011-2012 Reg. Sess.) previously created several restrictions for local government employment contracts and compensation. Along with these existing laws, SB 39 is designed to further fortify local public finances from abuse.

For further information regarding SB 39, or for assistance with establishing and adopting policies and procedures to ensure compliance with the law, 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

©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.