Court Upholds Withholding of Public Employees’ Names in the Latest California Public Records Act Case

August 2014
Number 48

Revealing the identities of public employees is not always required under the California Public Records Act (CPRA), according to a recent court decision. With this case, public entities now have greater clarity on how to balance an individual’s right to privacy against the public’s right to access documents under the CPRA. (Gov. Code, §§ 6250, et seq.)

In previous decisions, such as Marken v. Santa Monica-Malibu Unified School District (2012) 202 Cal.App.4th 1250 (see 2012 Lozano Smith Client News Brief No. 7), courts addressed factors relevant to deciding whether to disclose personnel records in instances of substantial, well-founded allegations of employee misconduct. In the new case, Los Angeles Unified School District v. Superior Court (Los Angeles Times Communications) (July 23, 2014, B251693) 2014 WL 3615855 (referred to as LAUSD), the court provides a convenient bookend to Marken. In LAUSD, the court addresses whether to disclose relatively innocent personnel information, such as employee names, in the absence of alleged misconduct. The LAUSD decision offers public entities greater clarity with regard to identifying, and weighing, the public’s interest in the disclosure of public records.

In LAUSD, the Los Angeles Times (Times) sought records from the Los Angeles Unified School District (LA Unified) that LA Unified uses to measure statistically the effectiveness of teachers. Essentially, each teacher was given a score by LA Unified on how well their students performed academically versus a statistical model that predicted how each student would otherwise be expected to perform. If the statistics were disclosed along with the names of the corresponding teachers, this information could theoretically reveal where the most effective teachers are assigned, and identify the district’s least effective teachers.

Although LA Unified provided the Times with these statistics, the names of the corresponding teachers were withheld. Unsatisfied with the district’s response, the Times filed a writ to compel LA Unified to disclose the teachers’ names. The court of appeal overturned the lower court’s decision, and ruled against the Times, holding that the teachers’ names were properly withheld under the “catchall exemption” of the CPRA (Gov. Code § 6255). Public entities relying on this catchall exemption must, on a case-by-case basis, balance the public’s interest in not disclosing the information against the public’s interest in the information’s disclosure. If the balance is clearly in favor of non-disclosure, a public agency can deny that request.

In support of its decision to withhold the teachers’ names under the catchall exemption, LA Unified relied on the statements of its Superintendent, who had nearly 30 years of experience as an educator, including several years of experience as a Superintendent of other districts. The Superintendent testified that, in his opinion, releasing the teachers’ names would:

  1. Spur unhealthy comparisons among teachers and breed discord in the workplace, leading to resentment, jealousy, bitterness and anger, and proving counterproductive and demoralizing to some teachers;
  2. Discourage recruitment of quality candidates and/or cause existing teachers to leave the district;
  3. Allow competing school districts to steal away the district’s teachers with high statistical scores;
  4. Disrupt a balanced assignment of the teaching staff-which is essential to the operations of the district-because parents would battle to ensure that their own children be assigned to the highest-performing teachers, and away from the lower-rated teachers;
  5. Undermine the authority of teachers with low statistical scores because parents and students alike would lose confidence in them, undercutting their ability to receive and accept guidance and perform their jobs; and
  6. Adversely affect the teacher disciplinary process because teachers subject to such proceedings could compare their statistical results with those of
    other teachers.

The Times argued that many of the Superintendent’s concerns were speculative. However, the court held that the Superintendent qualified as an expert in his field, and that he reasonably predicted a number of outcomes that the public had an interest in avoiding. In this instance, the court emphasized that the newspaper failed to contradict the Superintendent’s testimony. Additionally, the “public’s interest” in disclosure in this case went primarily to the interest of particular parents in knowing how specific teachers perform, as opposed to a broader public interest. Thus the public’s interest in withholding the teachers’ names outweighed the public’s interest in knowing them.

It is important to remember that the court reached its decision in LAUSD based on the specific set of facts before the court, and that any analysis under the CPRA’s catchall exemption must be done on a case-by-case basis. One lesson of LAUSD is that a decision to withhold personnel-related information under the catchall exception of the CPRA should be based on specific, supported grounds. Additionally, the “public interest” in disclosure in this case went primarily to the interest of particular parents in knowing how specific teachers perform, as opposed to a broader public interest. We will continue to monitor this case and report on its progress should there be an appeal or modification.

If you have any questions regarding the LAUSD decision or CPRA requests in general, please 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

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

©2014 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.

Expanded Civic Engagement Opportunities For High School Students Result From New Law

Number 47
August 2014

Assembly Bill (AB) 1817, recently signed into law, provides high school students a greater role in the voter registration process and related elections activities. At the same time, the bill creates the possibility of controversies around election-related discourse on campus.

Under existing state and federal law, a person who is at least 17 years old and meets all voter eligibility requirements may submit an affidavit of registration, which is deemed effective to register the voter upon his or her eighteenth birthday. Students who are already 18 may also register to vote.

Previously, Education Code section 49040 designated the last two full weeks in April as “high school voter weeks” during which time deputy registrars could enter high schools and register eligible students or staff members in designated areas. AB 1817 amends section 49040 by adding the last two weeks in September as periods for voter registration on campus and recharacterizing these periods as “high school voter education weeks.” Now, high school students and staff members have a total of four weeks throughout the school year where they may register to vote on campus.

Further, AB 1817 builds upon the intent to increase voter registration by tapping high school students to promote voter registration on their campuses. Adding Education Code section 49041, AB 1817 allows the administrator of a high school to appoint enrolled students as “voter outreach coordinators.” The newly-created position allows students to organize election-related activities on campus (subject to administrator approval), such as voter registration drives, mock elections, debates, and other election-related activities. Thus, AB 1817 signals the Legislature’s intent to encourage voter registration by allowing high school students greater opportunities to educate fellow classmates and staff members on relevant election issues.

AB 1817 contemplates increased amounts of political discourse on campus, which naturally may touch on sensitive or “hot button” topics given the context of a particular election. Consequently, the election-related activities may give rise to issues involving the First Amendment and protection of speech, the creation of public forums and questions of where the activities may take place on campus, and privacy or technology-related issues depending on the platform for the discourse.

For questions regarding issues involving AB 1817 and political activities, please 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

Elí S. Contreras
Associate
Monterey Office
econtreras@lozanosmith.com

©2014 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 Public Finance Legislation Requires Public Disclosures on Direct Loans

Number 46
August 2014

On July 23, 2014, Governor Jerry Brown signed into law Assembly Bill 2274 (AB 2274), clarifying that governmental issuers of debt must file reports with the California Debt and Investment Advisory Commission (CDIAC) relating to all debt issues. For purposes of CDIAC reporting, “debt issues” include the full range of financing vehicles, from lease financings for copiers to voter-approved bond issues, and everything in between. Two such reports are required for a debt issuance: a pre-sale notice and a final notice, as discussed below. CDIAC provides information, education, and investment assistance to the state, local agencies, and other public finance professionals, and serves as a statistical clearinghouse. AB 2274 becomes effective January 1, 2015.

Under current law, governmental issuers of any new debt sold at private or public sale must submit to CDIAC a preliminary notice of the proposed debt no later than 30 days prior to sale and a final report no later than 45 days after signing a purchase contract with, or accepting a bid from, an underwriter or purchaser of the debt.

Historically, many public finance professionals concluded that certain “non-traditional” indebtedness, such as a direct loan or lease financing with a bank or other lender, was exempted from the CDIAC reporting requirements. CDIAC is reporting an increasing trend toward these non-traditional financings. This has led to concern over a perceived lack of transparency in the California public debt market.

AB 2274 was enacted to address these perceived shortcomings. AB 2274 clarifies that Government Code section 8855 is intended to cover all types of public debt issues, including those privately placed with a single bank, lender or investor. AB 2274 accomplishes this by removing certain terminology that led the bond community to conclude that the reporting requirements were only applicable to bonds, notes, or certificates of participation, which are generally sold after making broad market disclosure, at competitive sale or negotiated under a purchase contract.

Additionally, AB 2274 shortens the timeframe for submission of the final report from 45 days to 21 days from the sale of the debt. According to the legislative committee reports, the shortened timeframe is intended to align CDIAC’s data to be consistent with the data required to be reported by underwriters to the Municipal Securities Rulemaking Board and the Securities Exchange Commission.

If you have any questions regarding bonds, certificates of participation, direct loans, or other financing vehicles, please contact one of our eight offices located statewide. Our firm has assisted many school districts, community colleges,and other public agencies as bond counsel, disclosure counsel, and district counsel. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Daniel Maruccia
Partner
Sacramento Office
dmaruccia@lozanosmith.com

Sean B. Mick
Associate
Sacramento Office
smick@lozanosmith.com

©2014 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.

Securities and Exchange Commission Extends Deadline for Municipal Issuers to Take Advantage of Municipalities Disclosure Initiative

July 2014
Number 45

On July 31, 2014, the Securities and Exchange Commission (SEC), Enforcement Division, announced that it has extended the deadline to its Municipalities Continuing Disclosure Cooperation (MCDC) Initiative, from September 10, 2014, to December 1, 2014. The MCDC Initiative was launched earlier this year by the SEC to allow municipal issuers and underwriters to self-report potential violations of their continuing disclosure obligations. The SEC hopes that the extended deadline will allow greater opportunity for municipal issuers to take advantage of the MCDC Initiative. The deadline is not being extended for underwriters.

According to the Director of the SEC’s Enforcement Division, Andrew Ceresney, “[i]t is clear that many underwriters and issuers are working diligently to take advantage of the initiative within its time period. These adjustments to the program are designed to encourage as much participation as possible, which we expect will ultimately benefit investors by encouraging improved compliance with continuing disclosures by the broadest group of industry participants.”

Under the MCDC Initiative, announced on March 10, 2014, the Enforcement Division agreed to recommend standardized “favorable” settlement terms for municipal issuers and underwriters. In order to receive the offered terms, issuers or underwriters must self-report inaccurate statements in bond offerings about prior compliance with continuing disclosure obligations under the Securities Exchange Act of 1934, including Rule 15c2-12 (the “Rule”). With some exceptions, under the Rule, bond offerings are subject to periodic reporting consisting of the filing of annual reports and prompt reporting of any payment defaults, rating changes, unscheduled redemptions, draws on insurance, liquidity, or reserves for the bonds, and other “material events” affecting the bonds. Municipal issuers, such as cities, counties, school districts and community colleges, enter into a continuing disclosure agreement compliant with the Rule whereby the issuer agrees to furnish such reports and notices.

Settlement terms with the SEC include entry by the issuer into a cease and desist order, full issuer cooperation with the SEC, institution of remedial actions by the issuer to adopt policies and procedures for future compliance with the Rule, and a requirement to bring all continuing disclosure filings up to date. In exchange, the issuer will not pay any monetary penalties.

Careful consideration should be given by any municipal issuer, in consultation with its legal and financial experts, before entry into a settlement under the MCDC Initiative. As reported in the Wall Street Journal, Lozano Smith negotiated the nation’s first settlement under the MCDC Initiative, on behalf of a California school district. Read the article here or here.

Since announcing the MCDC Initiative, the SEC has learned that some municipal underwriters and issuers have experienced difficulties in identifying potential violations for periods when filings were made in the old Nationally Recognized Municipal Securities Information Repository (NRMSIR) system. The NRMSIRs pre-dated the current, and more user-friendly, Electronic Municipal Market Access (EMMA) system. The SEC’s Enforcement Division has stated that it recognizes parties may use reasonably available sources of information to make good faith efforts to identify potential violations but may not be able to identify certain violations during the period of the initiative due to the limitations of the old NRMSIR system. If violations are identified by the Enforcement Division after the expiration of the MCDC initiative, the Enforcement Division has stated that they will consider reasonable, good faith, and documented efforts in deciding whether to recommend enforcement action and, to the extent enforcement action is recommended, in determining relief.

If you have any questions regarding continuing disclosure compliance, the MCDC Initiative, or the potential impact of entry into a settlement agreement with the SEC, please contact one of our eight offices located statewide. Our firm has assisted many school districts, community colleges, and other public agencies as bond counsel, disclosure counsel, and district counsel. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Daniel Maruccia
Partner
Sacramento Office
dmaruccia@lozanosmith.com

Sean B. Mick
Associate
Sacramento Office
smick@lozanosmith.com

©2014 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 Law Limits Full-Contact Football Practices and Adds Requirements in Order for Student-Athletes With Head Injuries to Return to Sport Participation

July 2014
Number 44

Governor Brown recently signed into law Assembly Bill (AB) 2127, which limits the duration and amount of “full-contact” practices for middle school a high school football teams and adds a “graduated return-to play protocol” for student-athletes that have sustained a concussion or head injury. These changes will take effect on January 1, 2015.

AB 2127 adds Education Code section 35179.5, which will prohibit high school and middle school football teams from conducting more than two “full-contact” practices per week during the preseason and regular season. The full-contact portions of a practice cannot exceed 90 minutes in any single day. High school and middle school football teams will also be prohibited from holding any full-contact practices during the off-season. The law defines “full-contact practice” as “a practice where drills or live action is conducted that involves collisions at game speed, where players execute tackles and other activity that is typical of an actual tackle football game.”

AB 2127 also amends Education Code section 49475 to include a new requirement for student-athletes that have sustained a concussion or head injury. Current law requires student-athletes to be removed from sport participation for the remainder of the day if they are suspected to have sustained a conclusion or head injury. Student-athletes may not participate again until they are evaluated by a “licensed health care provider” and receive written clearance. Current law also requires the student-athlete and his or her parent to sign and submit a concussion and head injury information sheet before returning to practice or competition.

While these requirements remain in effect, AB 2127 now requires that student-athletes determined to have sustained a concussion or head injury by a licensed health care provider “complete a graduated return-to-play protocol of no less than seven days under the supervision of a licensed health care provider.” For purposes of Education Code section 49475, AB 2127 defines “licensed health care provider” as a licensed health care provider who is trained in the management of concussions and is acting within the scope of his or her practice. AB 2127 also urges the California Interscholastic Federation to work with the American Academy of Pediatrics and the American Medical Society for Sports Medicine to adopt rules and protocols to implement this law.

Underpinning AB 2127 are legislative findings on the underreporting of concussions and head injuries, the potential long-term brain damage from concussions and head injuries, and the importance of recovery and rehabilitation. Districts should ensure athletic departments, athletic directors, coaches and other relevant staff are aware of these new laws and understand the importance of reporting concussions and head injuries to avoid student injury and liability.

Lozano Smith offers a Coaching Manual, which includes legal guidelines and practical suggestions to assist school districts in hiring and supervisingathletic coaches. The Coaching Manual provides ready-to-use forms and contracts designed to save future costs. Please click here for more information. If you have any questions regarding AB 2127 or other issues related to athletics or extra-curricular activities, please 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

Ashleigh Rollins
Associate
San Diego Office
arollins@lozanosmith.com

©2014 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 Revises Monitoring and Enforcement of the Prevailing Wage Law for All Public Works Projects in California

July 2014
Number 43

When the California Legislature completed final action on the annual state budget in June, it passed the main budget bill, Senate Bill (SB) 852, and sixteen budget trailer bills, including SB 854 which makes changes to monitoring and enforcement of the state’s prevailing wage law by the Department of Industrial Relations (DIR). SB 854 took effect immediately but the changes affecting awarding bodies, contractors, and subcontractors are phased in gradually. Effective immediately, all awarding bodies are required to provide notice to the DIR of any public works contract within five days of the award and must post – or require the prime contractor to post – job site notices.

Background

Labor Code sections 1770 et seq. require the payment of prevailing wages to all workers employed on public works projects. The Director of the DIR is generally tasked with monitoring and enforcing compliance with the state’s prevailing wage law for any public works project paid for in whole or in part out of public funds.

In recent years, awarding bodies have been required to directly pay the DIR’s Compliance Monitoring Unit (CMU) for the costs of monitoring and enforcing compliance with the prevailing wage law as a cost of construction. Implementation of this statutory and regulatory scheme was problematic, however, and SB 854 attempts to address the failings of the outgoing monitoring and enforcement mechanism.

Contractors and Subcontractors

SB 854’s new requirements apply to all public works projects, not just those supported by state funds. SB 854 will require all contractors and subcontractors intending to bid or perform work on public works projects to annually register and pay a fee to the DIR for purposes of monitoring and enforcing compliance with the state’s prevailing wage law. Consequently, the Department will no longer directly charge awarding bodies for prevailing wage monitoring and enforcement by the CMU.

The registration program began July 1, 2014, and all contractors and subcontractors submitting bids on public works projects must be registered by March 1, 2015. However, the requirement for awarding bodies to use only registered contractors and subcontractors on public works projects does not take effect until April 1, 2015.

Through registration, the DIR will collect fees from contractors and subcontractors to fund the DIR’s duties, including oversight of the state’s prevailing wage law, compliance monitoring and enforcement, determinations of prevailing wage and public works coverage, and enforcement appeals hearings. The current fee is $300, though the Director of the DIR has the authority to annually adjust the fee. Contractors and subcontractors are also required to meet minimum qualifications to register, allowing them to bid and work on public works projects. The DIR will post a list of registered contractors and subcontractors on its web site.

Awarding Bodies

All awarding bodies should be aware of the following dates for compliance with the new prevailing wage law requirements of SB 854:

  1. Effective immediately, awarding bodies must submit a contract award notice to the DIR within five days of the award on form “PWC 100”;
  2. Effective immediately, awarding bodies must post – or require the prime contractor to post – job site notices;
  3. Beginning January 1, 2015, awarding bodies must specify in the call for bids and contract documents that the public works project is subject to compliance monitoring and enforcement by the DIR;
  4. Beginning March 1, 2015, awarding bodies must ensure that contractors and subcontractors submitting bids on public works contracts are registered with the DIR; and
  5. Beginning April 1, 2015, awarding bodies must ensure that public works contracts are awarded only to contractors and subcontractors registered with the DIR.

For further information regarding the DIR’s new role and how it affects the administration of public works projects, please 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 Maruccia
Partner
Sacramento Office
dmaruccia@lozanosmith.com

Gary B. Bell
Associate
Fresno Office
gbell@lozanosmith.com

©2014 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.

EEOC Publishes New Guidelines Regarding Pregnancy Discrimination

July 2014
Number 42

The Equal Employment Opportunity Commission (EEOC) recently published Enforcement Guidance: Pregnancy Discrimination and Related Issues (the Guidance) regarding the federal Pregnancy Discrimination Act (PDA). The Guidance is not legally binding on employers, but can assist them in understanding their obligations toward pregnant employees.

The PDA prohibits employers from discriminating against employees on the basis of pregnancy, childbirth, or related medical conditions. The PDA also requires that employers treat women affected by pregnancy, childbirth or related medical conditions the same as non-pregnant employees who are similar in their ability or inability to work. Non-compliance with the PDA may amount to unlawful sex discrimination, which Title VII of the Civil Rights Act of 1964 (Title VII) prohibits.

The Guidance suggests that because Title VII prohibits sex discrimination, under the PDA, discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth, including lactation may be unlawful. Employers may not treat a pregnant employee differently based on stereotypes relating to pregnancy or assumptions regarding her job capabilities or commitment to remain with the company after childbirth.

Notably, the Guidance clarifies that discrimination based on lactation can also violate Title VII, stating that “because lactation is a pregnancy-related medical condition, less favorable treatment of a lactating employee may raise an inference of unlawful discrimination.” Therefore, an employer must provide a lactating or breastfeeding employee the same accommodations provided to other employees with similar medical conditions that may need to be addressed throughout the workday.

Additionally, the Guidance provides that employers may not discriminate against employees based on infertility treatment, other pregnancy-related medical conditions, abortion or use of contraceptives. The Guidance states that not only may an employer not take an adverse employment action against an employee based upon her use of contraception, but that employers may also violate Title VII by not providing health insurance that covers prescription contraceptives. This position may be in conflict with the recent United States Supreme Court case, Burwell v. Hobby Lobby Stores, Inc., __ U.S. __ (2014), which found that closely held companies may decide not to provide health care coverage for prescription contraceptives.

The timing of the Guidance’s release has been brought into question in light of the U.S. Supreme Court’s decision to review the Young v. United Parcel Service, Inc. case where a federal appeals court ruled that the PDA does not require employers to offer light duty to pregnant employees who have work restrictions even if light duty is available to non-pregnant employees. Further, pending before Congress is the Pregnant Workers Fairness Act which seeks to amend the PDA to require employers to grant reasonable accommodations to pregnant employees, an obligation which the Guidance presumes already exists under the PDA.

It is important to note that the Guidance, while informative and persuasive, is not binding legal authority. Employers should be careful to adhere to the obligations established by statutes and case law. Additionally, pregnant employees and employees with pregnancy-related medical issues may have additional rights under other federal laws, such as the Americans with Disabilities Act, the Patient Protection and Affordable Care Act, and the Family and Medical Leave Act. State laws may also grant greater protection than what is provided under the PDA and Title VII. A copy of the Guidance can be found on the EEOC’s website.

If you have questions regarding the EEOC’s Guidance, PDA, Title VII or other employer obligations, please 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

Jessica Gasbarro
Associate
Sacramento Office
jgasbarro@lozanosmith.com

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.