Court Clarifies Status of Former Permanent Certificated Employee Hired as Substitute

November 2014
Number 91

If a permanent certificated employee resigns from a school district and is reemployed within 39 months by the same school district, the school district must restore the employee to permanent status. (Ed. Code § 44931.) If the district hires the former employee as a substitute teacher, is it required to designate the teacher as permanent?

In Edwards v. Lake Elsinore Unified School District (October 30, 2014) __ Cal.App.4th __ 2014 WL 5474984, the court confirmed that Education Code section 44931 does not apply to substitute teachers. Therefore, a former permanent certificated employee rehired as a substitute teacher is not eligible for permanent status.

Substitute teachers are employed from day to day to fill the position of a regular employee who is absent from service on a short-term basis. Lori Edwards was a permanent certificated employee and voluntarily resigned her employment with the Lake Elsinore Unified School District (District) in June 2006. Edwards applied for reemployment as a substitute teacher with the District and was hired for the 2007-2008 school year. Edwards served as a substitute teacher in the classroom of a categorically funded employee who was on medical leave for an indefinite period of time. Edwards taught the entire 2007-2008 school year.

Edwards sued the District and asserted that she had been incorrectly classified as a substitute employee and was entitled to be classified as a permanent employee for the 2007-2008 school year. The court disagreed with Edwards and held that the District had properly classified Edwards as a substitute employee and that Education Code section 44931 does not apply to substitutes.

Edwards also asserted that she was a permanent employee because the school district did not provide her with an employment contract stating she was a substitute employee. The court held that the District was not required to issue a substitute teacher an employment contract under Education Code sections 44916 or 44909. Education Code section 44916 requires that at the time of initial employment, the employee must receive a written statement of employment status. However, the court reasoned that since Edwards was not hired as a temporary employee or a regular (probationary or permanent) employee, Education Code section 44916 did not apply. The court further held that Education Code section 44909 did not apply because Edwards was not hired as a categorically funded employee or to backfill a position vacated by an employee placed in a categorically funded position.

Ultimately, the court found that there was substantial evidence that Edwards was seeking a substitute teacher job and was aware that she was hired as such: Edwards had returned a letter to the District verifying that she was seeking employment as a substitute teacher; the District had provided Edwards with several letters that identified her as a substitute teacher; and the District required substitutes to fill out time sheets that stated, “SUBSTITUTE TIMESHEET” at the top and write in the name of the person whose position they were filling.

In the 2008-2009 school year, the District honored Edwards’ right to preferential reemployment under Education Code section 44918, and rehired her in a regular position. At that point in time, the District classified Edwards as a permanent employee in accordance with Education Code section 44931. Based on this, Edwards also argued that Education Code sections 44918 and 44986 granted her retroactive pay as a permanent employee for the year she served as a substitute teacher. The court rejected both arguments and held that:

  • Education Code section 44918, grants a substitute teacher who serves 75 percent of the school year a preferential reemployment right to a regular position. However, it does not grant the employee retroactive pay or benefits for the year the employee served as a substitute.
  • Under Education Code section 44986, a temporary employee who fills in for a teacher on a leave of absence for a disability is entitled to credit as a probationary employee for all days served if the employment extends beyond the number of days of absence of the employee on disability leave. The court held that Edwards was not entitled to retroactive reclassification, salary, benefits, or seniority based on 44986, because she was not hired as a temporary employee and her employment did not extend beyond the period of absence of the teacher whose position she was filling.

This case provides clarity on the proper classification of substitute employees and former employees whom are rehired as substitute employees. While the case held that school districts are not required to notify substitute teachers of status prior to beginning employment, we recommend that school districts provide all certificated employees, including substitutes, with written notification of their status prior to beginning employment each school year. Substitute employees can be notified of employment status by contract, letter, notice of assignment and/or on time cards.

If you have questions about this case or other issues concerning the classification of employees, 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

Darren C. Kameya
Senior Counsel
Los Angeles Office
dkameya@lozanosmith.com

Desiree Serrano
Associate
Los Angeles Office
dserrano@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.

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OCR Issues New Guidance Regarding Obligations to Provide Equal Access to Educational Resources for All Students

November 2014
Number 90

The U.S. Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter, on October 1, 2014, which provides guidance to school districts on allocating scarce financial resources without discriminating against students on the basis of race, color, or national origin. While “Dear Colleague” letters are non-binding, they telegraph details regarding expectations and enforcement of federal laws by the OCR.

Title VI of the Federal Civil Rights Act of 1964 (Title VI) prohibits discrimination based on race, color, or national origin. The law applies to the operations of every state, school district, and public school in the country that receive federal funding. Title VI prohibits states, school districts, and schools from intentionally treating students differently by providing educational resources based on race, color, or national origin. The Letter emphasizes OCR’s intent and authority to review disparities under Title VI in a range of areas, including:

  • Equal access to educational opportunities, such as Advanced Placement (AP) courses, gifted and talented programs, college-prepatory programs, and extra-curricular activities;
  • Equal access to qualified teachers and school leaders, as measured by factors such as turnover, absenteeism, professional development, and whether the teacher is leading a subject in which he or she holds a degree;
  • Equal access to a fair share of qualified support staff, such as school psychologists, guidance counselors, and paraprofessionals;
  • Equal access to school facilities, as evaluated by factors such as overcrowding, lighting, and accessibility for students with disabilities, as well as the quality of athletic facilities and science labs; and
  • Equal access to technology, including laptops, tablets, the internet, and instructional materials, such as calculators and library books.

In investigating inequitable resource distribution, the Letter indicates that OCR will consider whether states and school districts are actively working to resolve discrepancies in such distribution. The Letter encourages state, district and school leaders to thoroughly examine their available resources and immediately take steps to resolve any discrepancies in resource distribution. This process should focus on enhancing the learning opportunities and experiences of students with the greatest need. States, districts and schools are additionally encouraged to review their statistical reports related to resource equity, as well as the information contained in OCR’s database.

For additional information regarding the OCR’s October 1, 2014 Dear Colleague letter, Title VI and other laws prohibiting discrimination, or specifically on non-discriminatory resource allocation, 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

©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.

Bullying of Students with Disabilities Triggers Affirmative Obligations Under Section 504 and the IDEA

November 2014
Number 89

The Office for Civil Rights (OCR) issued a “Dear Colleague” letter (OCR Letter) on October 21, 2014, guiding schools on how to respond to harassment or bullying complaints involving students with disabilities who receive special education or related services under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973 (Section 504). While “Dear Colleague” letters are non-binding, they communicate details regarding expectations and enforcement of federal laws by the OCR.

In this OCR Letter, which is available here, OCR reaffirms and augments past guidance and clarifies that bullying of students with disabilities may affect the free appropriate public education (FAPE) of those students under both the IDEA and Section 504. In addition, OCR provides insight into its analysis of complaints alleging bullying of students with disabilities and outlines helpful hypothetical examples.

OCR reiterates that a school district has an obligation to address disability-based harassment and must remedy any bullying which results in a denial of FAPE under either the IDEA or Section 504. OCR sets forth the following criteria for when it would find a disability-based harassment violation:

  1. whether the student was bullied on the basis of his or her disability;
  2. whether the conduct was sufficiently serious to create a hostile environment for the student;
  3. whether the school knew or should have known about the conduct; and
  4. whether the school failed to take “prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring, and, as appropriate, remedy its effects.”

OCR indicated that if all of these factors are met, then OCR would find there was disability-based harassment violation and would have a basis to further investigate a denial of FAPE. However, even without the presence of every factor, OCR may still consider whether there was a denial of FAPE requiring a remedy. Accordingly, a school district must go a step further to determine whether the student’s receipt of a FAPE under the IDEA or Section 504 was affected by the bullying. If so, the school must remedy those effects.

To further explain its analysis, OCR provides three hypothetical examples. In the first hypothetical, peers taunted a student with ADHD and a speech disability when he made impulsive remarks in a high-pitched tone. As a result, the student withdrew from interacting with other students and also missed multiple speech sessions. The student’s teacher failed to report the bullying and the student’s speech therapist failed to report his absences. In this hypothetical, OCR would find disability-based harassment and a FAPE violation.

In the second hypothetical, a student with depression and Post-Traumatic Stress Disorder (PTSD) received counseling as part of her Section 504 services. The student was teased for living in a homeless shelter and being poor. As a result, her grades dropped and she began to avoid counseling. The counselor reported this to the principal and the principal followed up with staff, but no 504 meeting was scheduled. OCR indicates that while there was no disability-based harassment, there was a FAPE violation since the student suffered adverse changes sufficient to necessitate a prompt 504 Plan review.

Finally, the third example is possibly the most illustrative, with OCR finding no disability-based harassment and no FAPE violation. In this hypothetical, the student was allergic to peanuts and had a Section 504 plan. Peers taunted the student chanting, “It’s time to eat peanuts!” while another student drank from the student’s water bottle saying, “I had a peanut butter sandwich for lunch today, and I just finished it.” Crying and afraid to go back to the cafeteria or ride the bus, the student reported the incident. The taunting students were interviewed and counseled, and a Section 504 meeting was promptly convened. Although the bullying was based on the student’s disability, the school took prompt and reasonable steps to address it. For these reasons, OCR indicates that it would not find disability-based harassment nor a FAPE violation.

OCR recognizes that there are no “hard and fast rules” regarding whether the bullying of a student with a disability is having an effect on FAPE. To aid in the analysis, OCR describes potential signs, including adverse changes in academic performance, adverse changes in behavior, or increased absences. As a best practice, OCR specifically recommends that school districts “promptly convene the IEP team or the Section 504 team to determine whether, and to what extent: (1) the student’s education needs have change; (2) the bullying impacted the student’s receipt of IDEA FAPE services of Section 504 FAPE services; and (3) additional or different services, if any, are needed, to ensure any needed changes are made promptly.”

For further information regarding the October 21, 2014 Dear Colleague Letter, bullying of students with disabilities under the IDEA or Section 504, or student bullying and FAPE 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

Sarah L. Garcia
Senior Counsel
Walnut Creek Office
sgarcia@lozanosmith.com

Colleen R. Villarreal
Associate
Sacramento Office
cvillarreal@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.

Recent Fines for Failure to Disclose Gifts on Form 700 Serve as a Reminder to Public Officials

November 2014
Number 88

The Fair Political Practices Commission (FPPC) is the state agency responsible for administering and enforcing California’s Political Reform Act. (Gov. Code § 81000, et seq.) Recently, the FPPC has been active in issuing fines to local government officials for failing to report gifts of meals and ballgame tickets on their Statement of Economic Interests, also known as Form 700. Accordingly, now more than ever is a good time to review the Political Reform Act’s disclosure requirements and to ensure proper reporting of income, business investments, real property, and gifts.

Some elected and appointed officials must file full disclosure of all economic interests. These officials are listed in Government Code section 87200 and include many elected local government officials, top administrators, and officials who manage public investments. In addition, the Political Reform Act requires that public employees holding designated positions listed in their agency’s conflict of interest code file a Form 700. These “designated employees” are those who are involved in decision-making that may foreseeably have a material effect on the employee’s financial interests.

Filers must disclose annually the required information on Form 700, within thirty days of assuming office, and within 30 days of leaving office. A candidate for an elective office must also file a Form 700.

Under the Political Reform Act, a gift is a payment or anything of value that provides a personal benefit when the recipient does not provide full payment or services in return for the value of the benefit received. Although there are many gift exceptions, the definition of a gift is broad and includes all types of meals, tickets, entertainment, and some forms of travel.

Filers must disclose gifts received from a single source totaling $50 or more in value per calendar year. The Political Reform Act also places an annual limit on gifts received from a single source, which is currently $440 per calendar year. The gift limit, however, will be adjusted starting January 1, 2015. Separate gifts received from the same source and during the same calendar year must be aggregated in value for reporting purposes.

Here are several practical tips to help with compliance:

  1. Understand your disclosure obligation. Obtain your disclosure categories from your agency – they are located in your agency’s conflict of interest code and are not contained in Form 700. Persons with broad decision-making authority must disclose more interests than those in positions with limited discretion. For example, you may be required to disclose only investments, business positions, income or gifts from businesses of the type that contract with your agency, or you may not be required to disclose real property interests. Not all economic interests are disclosed unless your agency’s conflict of interest code specifies full disclosure.
  2. A recipient of a gift is responsible for disclosing its fair market value. You can ask the donor for the value of the gift, but if it is unknown you must still give a good faith estimate.
  3. Travel payments are complicated. Carefully determine disclosure obligations whenever a third party other than your employer pays for travel, even if it is business-related.
  4. The gift and disclosure regulations contain many exceptions and special rules. Take some time to review the Fair Political Practices Commission fact sheets regarding Form 700, gifts, and other topics of interest. Consult FPPC staff or legal counsel as needed. Please note that one can amend Form 700 as often as necessary if inadvertent problems arise.

If a filer fails to properly disclose economic interests on Form 700, they can be subject to substantial fines and, in rare cases, criminal prosecution. As its recent activity demonstrates, the FPPC is likely to continue its scrutiny of public officials’ gift disclosures.

If you have any questions regarding Form 700 reporting requirements or the Political Reform Act, 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

Thomas E. Gauthier
Partner
Sacramento Office
tgauthier@lozanosmith.com

Toni A. Gibbs
Associate
Walnut Creek Office
tgibbs@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.

Legislature Permits Alcoholic Beverages at Certain School Facilities When Students Are Not on Campus

November 2014
Number 87

The Legislature recently amended the law to permit the consumption of alcoholic beverages at facilities owned and operated by various educational agencies, including school districts and community college districts. This change provides additional latitude for educational agencies to make their facilities available to community groups and individuals for fundraising and other private events that could provide additional revenue. Permitting the consumption of alcoholic beverages as allowed under this new law, however, may potentially increase exposure to liabilities associated with the consumption of alcohol.

Business and Professions Code section 25608 sets forth the general rule that possessing, consuming, selling or giving alcoholic beverages in or on public school grounds is a misdemeanor. The original law had sixteen different exceptions to the general rule, allowing for the possession, use or acquisition of alcoholic beverages in specific factual circumstances. The new legislation, Assembly Bill (AB) 2073, which becomes effective January 1, 2015, adds another exception that allows alcoholic beverages to be consumed at special events held on school facilities where a license or permit has been acquired and when students are not on the grounds. The new language also expands the definition of “facilities” to include, but not be limited to, office complexes, conference centers, or retreat facilities.

Although at first glance this new provision may appear to be an easy way to allow booster groups and others to serve alcohol on district grounds, when you look at the exception more closely, there are strings attached. For example, in order to qualify under this exception, a user would have to obtain the appropriate state and local permits for the consumption of alcohol on public premises. The exception provides wide latitude regarding the facilities on which alcohol could be consumed. The exception does not appear to be limited only to school facilities, but is explicitly extended to other operated and owned facilities, including retreat centers. Outdoor spaces would also presumably qualify under this exception, although it is not expressly addressed in the law. The language of the statute is vague as to the requirement that students not be present. Unless the event is held at a closed, off-campus facility, there may be some risk. Furthermore, the requirement that students not be present appears to conflict with other more lenient provisions specific to community college districts. To the extent that this language raises such questions it will be important to consult with legal counsel.

Before permitting user groups to consume alcohol on educational agency premises, agencies should consider the potential liability associated with consumption of alcohol on facilities it owns, such as personal injury or property damage. We recommend educational agencies work with legal counsel to revise any existing facilities use agreements and liability waivers to permit the consumption of alcohol. Further, we recommend public agencies consult with their insurance carriers to ensure that existing policies provide necessary coverage.

To assist school district clients, Lozano Smith’s Facilities and Business Practice Group and Community College Practice Group can provide current facility use templates. If you need an updated agreement to address these matters, 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

Megan Macy
Partner
Sacramento Office
mmacy@lozanosmith.com

Anne L. Collins
Senior Counsel
Sacramento Office
acollins@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.

Legislature Addresses Shortage Of Tuberculosis Tests

November 2014
Number 86

Governor Brown recently signed Assembly Bill (AB) 1667 into law to amend the procedures for tuberculosis (TB) testing in California schools. Current law requires certificated and classified employees to undergo a TB skin test. Beginning January 1, 2015, these employees will instead be required to submit to a TB risk assessment. If the TB risk assessment identifies risk factors, the person would then be required to submit to a TB test. An employee can always choose a physical examination instead of the TB risk assessment.

AB 1667 specifically allows the governing board of a school district, upon a recommendation from the local health office, to require more extensive or more frequent physical examinations than the TB risk assessment.

The intent of the bill is to bring school districts’ testing procedures in line with the federal Center for Disease Control’s recommendations to limit TB testing only to those persons that have specified risk factors. As Lozano Smith previously reported, there is a nationwide shortage of antigens used for TB testing. The bill applies to both private and public schools. The required TB risk assessment questionnaire will be developed by the State Department of Public Health, which has stated that the questionnaire should be available for distribution at the end of November 2014.

If you have questions about the new TB testing procedures, 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

Dulcinea Grantham
Partner
Walnut Creek Office
dgrantham@lozanosmith.com

George J. Vasquez
Associate
Fresno Office
gvasquez@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.

Local Educational Agencies Must Provide Staff Training on How to Recognize and Report Suspected Child Abuse and Neglect

November 2014
Number 85

For years, mandated reporters were held legally responsible for reporting suspected instances of child abuse or neglect regardless of whether the employee was trained on what to look for or on the process for reporting. With the recent passage of Assembly Bill (AB) 1432, mandated reporters in the field of education must now receive annual training on how to fulfill their legal obligation to help protect children.

Under the new law, both the California Department of Education (CDE) and local educational agencies will have new responsibilities in the training of mandated reporters. As of January 1, 2015, a new version of Education Code section 44691 will charge the CDE with developing and disseminating information on how to recognize and report suspected child abuse. This information will be directed towards school districts, county offices of education, charter schools and state special schools and diagnostic centers. The CDE will also be responsible for developing an online training module that can be used by local educational agencies to train their staff as to their mandated reporting obligations.

AB 1432 states that within the first six weeks of each school year or of new employment, educational agencies must provide annual training to their employees who are mandated reporters. Educational agencies either must use the online training module developed by the CDE or they must report to the CDE the kind of training that is being used in its place. In either situation, the annual training must include information explaining that failure to report an incident of known or reasonably suspected child abuse or neglect, as required by Penal Code section 11166, is a misdemeanor punishable by up to six months in county jail, or by fine of one thousand dollars, or by both imprisonment and a fine.

The new law does not address whether these further obligations will be reimbursed, but states that the Commission on State Mandates will make that determination pursuant to law. The new law is also ambiguous regarding when employees in certain circumstances need to complete their training. For instance, AB 1432 does not expressly address whether a new employee who completed the required training at a previous school district is required to complete the training within the first six weeks of arriving at a new school district. A strict reading of AB 1432 suggests new employees may need to complete the second training. Another ambiguity has to do with the specific time frame in which the training must occur. The new statute states that “all persons required to receive training pursuant to this section [must] provide proof of completing the training within the first six weeks. . . .” Does this mean that the training has to be completed in the six week period, or that both the training and the providing of proof have to happen within the six week period? Additionally, can the training take place just prior to the start of the school year, or must it literally take place within six weeks after the school year begins?

We have discussed these situations with the office for the author of AB 1432, and they indicate that the intent of the new law is to require one current training, and school districts should be free to make decisions regarding how to achieve that result. Although the author’s intent does not necessarily reflect how a court may interpret the new law, it at least suggests that an employee who has received training from a prior employer within the required timeframe may not need a second training that year. Regarding the other questions, educational agencies may wish to consult with legal counsel regarding implementation of the new law.

As the CDE develops the new training module, school administrators should start preparing to comply with these new obligations, which will affect most school district employees.

If you have any questions about the new law, or mandated child abuse reporting 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.