State Department of Education Issues a Reminder that Parents Can Not be Forced to Volunteer at School

February 2015
Number 11

For some parents, volunteering at their child’s school is a luxury they cannot afford. At many charter schools, however, it has been alleged that volunteering is required of families, and some families feel forced to perform service or risk penalties such as disenrollment. According to a recent advisory by the California Department of Education (“CDE”), these practices should end.

The CDE’s advisory seems to have been issued in response to a recent study by Public Advocates Inc., titled “Charging for Access: How California Charter Schools Exclude Vulnerable Students By Imposing Illegal Family Work Quotas”. In their study, Public Advocates allege that at least a third of the California charter schools they polled have illegal parental service requirements. The CDE has made it clear that students, and their families, are entitled to a free public education without having to volunteer against their will.

The CDE first addressed this issue, as well as the overall issue of student fees, in a 2012 advisory. In 2012, the CDE issued “Fiscal Management Advisory 12-02“, which stated that course credit or privileges related to educational activities should not be offered in exchange for money or donations of goods or services from a pupil or a pupil’s parents or guardians.

Nearly three years later, the CDE has now decided to augment that advice. In “Fiscal Management Advisory 15-01“, the CDE stated that forcing parents to volunteer as a condition of enrollment, or for otherwise receiving an educational benefit, is contrary to state laws prohibiting impermissible student fees. School districts, county offices of education and charter schools may not impose parental service requirements. However, students and parents are still free to volunteer at their school so long as their choice to volunteer is not a prerequisite to access to educational activities. Although the CDE’s recent advisory was issued to all public schools, the primary focus appears to be on charter schools.

In light of the new advisory, school districts and county offices of education that authorize charter schools should pay particular attention to charter school policies and/or practices where families are expected to volunteer as a condition of enrollment or matriculation.

Our attorneys have substantial experience handling all aspects of charter school issues. If you have any questions regarding these issues, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

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

©2015 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.

Public Agencies May Not Withhold Retention Without A Dispute Regarding Contractor Performance

February 2015
Number 10

In light of a recent court of appeal decision, all public agencies are cautioned to examine carefully their retention practices at project closeout. The court in FTR International, Inc. v. Rio School Dist. (Jan. 27, 2015) 2015 Cal.App.Lexis 68, concluded that a dispute over the contract price does not entitle a public agency to withhold funds due to the prime contractor. In the event of a dispute, a public entity may only withhold funds from retention as security against existing mechanics liens or stop notices and to provide reasonable assurance that the contractor will properly complete the work or repair defects.

The FTR International court refused to follow the conclusions reached by another appellate court in Martin Brothers Construction, Inc. v. Thompson Pacific Construction, Inc. (2009) 179 Cal.App.4th 1401, which dealt with a different, but related, subsection of Public Contract Code section 7107. In Martin Brothers, the court blessed a prime contractor’s aggressive withholding of funds from a subcontractor on a public works project. As predicted in our 2010 CNB, the FTR International court has reached a different conclusion as to permissibility of a public agency’s retained payment amounts during a contract dispute.

In FTR International, the Rio School District (District) in 1999 engaged the contractor firm FTR International, Inc. (FTR) to construct a school for the District. During construction, FTR submitted approximately 150 change orders, claiming that the plans provided by the District were misleading or inadequate. For the most part, the District denied the change orders. The school was completed in 2001, and a notice of completion was filed by the District in August of that year. As provided in the construction contract, the District retained 10 percent of each progress payment, aggregating to over $675,000 in retention. The District held the retained amount because of stop notices that had been filed by FTR’s subcontractors and FTR’s dispute over change orders and contract price. After the stop notices were released, the District refused to pay the retention to FTR. Unable to reach agreement on the amounts owed under the contract, FTR filed suit against the District.

Under subdivision (c) of Public Contract Code section 7107, prompt payment of retention is required, although the public agency is permitted to withhold retention from a prime contractor in the event of a dispute. Subdivision (f) of section 7107 also permits the assessment of a two percent per month penalty against a public agency for amounts improperly withheld from the contractor, and an award of attorney’s fees and costs to the prevailing party.

The trial court found that the District had no justification for retaining the funds after the stop notices were released. The trial court awarded FTR over $9 million, which included, among other things, the 10 percent retention amount, the section 7107 two percent penalty (totaling more than $1.5 million), and attorney fees of $3.85 million. The District appealed.

On appeal, the District argued that it was entitled to withhold the 10 percent because there was a “good faith dispute” between the parties and that any such dispute permitted retention under section 7107. The good faith dispute was essentially over the contract price.

The appellate court in FTR International affirmed the trial court’s holding, holding that the purpose of retention is to “provide security against potential mechanics liens and to insure [sic] the contractor will complete the work properly and repair defects.” With the removal of the stop notices, and without the other limited justifications for retention present, the appellate court reasoned that the District did not have a purpose for retaining the 10% payments. The appellate court viewed section 7107 as a remedial statute which must be construed to promote its purpose, namely to deter public entities from improperly withholding retention payments. In addition, the appellate court awarded FTR, as the prevailing party, attorney’s fees.

FTR International establishes that the term “dispute” in subdivision (c) of section 7107 may not be construed broadly so that whenever there exists a claim by or against a public agency in connection with a public works project, the public entity may withhold funds from retention already earned, without incurring late payment penalties. In order to withhold the retention, the nature of the dispute must be limited to the public policy purposes of section 7107. The court expressly states that the public policy purposes include only “providing security against mechanics liens and deficiencies in the contractor’s performance.” As the myriad of other situations that may face public agencies in a public works contract were not squarely before the FTR International court, it is unclear what other disputes may qualify as a proper public purpose, such as an owner’s liquidated damages claims or particular contractor performance issues.

If you have any questions regarding this decision, or about handling contractor claims or disputes in general, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Megan Macy
Partner
Sacramento Office
mmacy@lozanosmith.com

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

©2015 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: Form 700 Must Be Disclosed Upon Request

February 2015
Number 9

With the approaching April 1st deadline for filing the annual Statement of Economic Interests, also known as “Form 700,” required pursuant to the California Political Reform Act, public agencies should keep in mind that there are specific disclosure requirements for such filings under the Political Reform Act, which makes those filings available to the public almost immediately following filing.

The Political Reform Act requires several categories of public officials and public employees to file reports and statements, including Form 700. While Form 700 is a public record, it is subject to specific disclosure requirements which differ from the disclosure required under the California Public Records Act. According to the Fair Political Practices Commission (FPPC), the state body charged with regulation and oversight of the Political Reform Act, the disclosure requirements applicable to filings such as the Form 700 trump the disclosure requirements under the Public Records Act.

Under the Political Reform Act, required filings, such as the Form 700, must be open for public inspection and reproduction during the regular business hours of the public agency, commencing as soon as practicable and no later than the second business day following the day the filing was received. (Gov. Code, § 81008.) The FPPC has determined that public agencies must produce the Form 700 upon request or as soon as possible during the agency’s regular business hours, and that disclosure of the Form 700 is not subject to the ten day response window that is generally applicable under the Public Records Act.

Several other specific conditions apply to the disclosure and reproduction of filings under the Political Reform Act. A public agency may not place restrictions on a person desiring to inspect or reproduce filings, such as the Form 700, including any requirement that the requesting party identify themselves. Additionally, a public agency may charge a five dollar retrieval fee for requested copies of filings which are five or more years old, but a public agency may not charge more than ten cents per page for copying any requested filings. Public agencies should take caution not to exceed this amount by, for example, applying a higher cost per page amount that is ordinarily charged for reproduction of records under the Public Records Act. (See Gov. Code § 6253 (b).)

If you have questions about compliance with the Political Reform Act or the Public Records Act, please feel free to contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

David J. Wolfe
Partner
Fresno Office
dwolfe@lozanosmith.com

Tyler B. Dockins
Associate
San Diego Office
tdockins@lozanosmith.com

©2015 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 Consolidates and Amends Design-Build Requirements

February 2015
Number 8

To consolidate and amend the numerous design-build statutes for certain public agencies that have been enacted over many years, the Legislature passed Senate Bill (SB) 785 in 2014, with some elements becoming effective January 1, 2015. This law repealed existing design-build statutes for cities, counties, waste and recycling facilities, the Santa Clara County Transit District, the Los Angeles County Transportation Commission, and redevelopment agencies.

In their stead, SB 785 created a new chapter of the Public Contract Code (PCC) for local agency design-build projects (PCC §§ 22160 et seq.) which remains in effect until January 1, 2025. The new design-build requirements are similar to those of the repealed statutes, but differ in at least a few respects depending on the agency concerned. You may wish to consult with legal counsel regarding the details of the new requirements that may apply to your particular agency and project.

The new design-build requirements apply only to certain types of local agencies and projects:

  • Cities and counties, for projects such as buildings and related improvements, sanitation wastewater treatment facilities, and park and recreation facilities, but not construction of other infrastructure; as well as construction of regional and local wastewater treatment facilities, regional and local solid waste facilities, and regional and local water recycling facilities.
  • Special districts that operate wastewater facilities, solid waste management facilities, water recycling facilities, or fire protection facilities, for projects such as construction of regional and local wastewater treatment facilities, regional and local solid waste facilities, regional and local water recycling facilities, or fire protection facilities.
  • Any transit district, municipal operator, consolidated agency, joint powers authority formed to provide transit service, any county transportation commission, or other agency responsible for the construction of transit projects, for transit capital projects (other than state highway construction or local street or road projects) that begin project solicitation on or after January 1, 2015.

Under the new design-build framework, qualifying projects generally may use design-build if the project is valued at over $1 million, except for projects on the state highway system. The contract may be awarded by on the basis of either the lowest bid or the best value to the agency. However, no cost threshold exists for a transit district project relating to technology and equipment designed to enhance safety, disaster preparedness, and homeland security efforts.

The procurement process remains similar to many of the repealed statutes. The local agency must first prepare a set of documents setting forth the scope and estimated price of the project, after which the agency must prepare and issue a request for qualifications in order to pre-qualify or “”short-list”” the design-build entities. In order to be pre-qualified, a design-build entity must provide an enforceable commitment that the entity and its subcontractors at every tier will use a skilled and trained workforce to perform all work on the project that falls within an apprenticeable occupation.

Based on the previously-prepared set of documents as described above, the agency must then prepare a request for proposals that invites the pre-qualified entities to submit competitive sealed proposals. If the agency is using lowest bid to select a contractor, the contract must be awarded to the lowest responsible bidder. For projects using the best value method of selecting a design-build entity, the statute describes a detailed procedure for evaluating the proposals and negotiating with the entities.

If you have any questions regarding the details of this new law, or design-build construction projects in general, please feel free to contact one of our nine 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

Arne Sandberg
Senior Counsel
Walnut Creek Office
asandberg@lozanosmith.com

©2015 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.

Student Plaintiffs Seek Review by the United States Supreme Court in American Flag T-Shirt and Student Free Speech Case

February 2015
Number 7

As reported by Lozano Smith in March 2014, in February of last year the U.S. Ninth Circuit Court of Appeals issued its original ruling in Dariano v. Morgan Hill Unified School District, a case that posed the question of whether an administrator violated students’ constitutional rights by requiring them to remove American flag clothing on Cinco de Mayo. In its original opinion, the Ninth Circuit held that the administrators did not violate the students’ free speech rights in the case, basing its decision upon: (1) the foreseeable threat of violence that day to the students wearing such apparel; and (2) the school’s history of gang and race-related violence at the school, including a similar threat of violence on Cinco de Mayo the prior school year.

In September of 2014, the Ninth Circuit amended its original opinion in Dariano. While the Court’s amended opinion maintained its holding that the plaintiff students’ free speech rights were not violated, the Court expanded its reasoning to discuss the “heckler’s veto” doctrine. Under federal case law, the heckler’s veto doctrine usually does not allow the censoring of speech just because other groups might react unpleasantly to the speech. In its amended opinion, the Court reasoned that the heckler’s veto doctrine does not apply in the context of a public school. Under Dariano, if school administrators can reasonably determine that a future disruption or future violence might occur (under Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503), they can prohibit the speech that might trigger such disruption or violence, regardless of how peaceful the speaker might be.

Recently, the plaintiffs in Dariano filed a petition for certiorari with the United States Supreme Court, requesting that the high court take up the case. Since that time, various interested parties have begun to weigh in. Among others, former student plaintiffs from the Supreme Court’s landmark Tinker decision, Mary Beth and Todd Tinker, filed a brief in support of the plaintiffs encouraging the Supreme Court to grant review and reverse the Ninth Circuit’s opinion. In the coming months, the school district will have the opportunity to respond to the students’ request for Supreme Court review. If the Supreme Court takes up the case it will be heard in the fall of 2015. It has been over five years since the Supreme Court decided a case directly applicable to the nation’s schools, and not since 2007, with the Court’s decision in Morse v. Frederick (2007) 551 U.S. 393, regarding the ability to regulate student speech promoting illegal drug use, has the Court issued an opinion regarding student free speech rights.

For further information about this case, or student free speech rights in general, please feel free to contact one of our nine 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

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

©2015 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.

Employer’s Duty to Provide Reasonable Accommodations to Disabled Employees Reinforced by Court

February 2015
Number 6

An employer’s duty to engage in an interactive dialogue process and provide reasonable accommodations to a disabled employee was reaffirmed in a recent case, Swanson v. Morongo Unified School District (Nov. 26, 2014) 2014 Cal.App.Lexis 1183. In this case, which is relevant for school and municipal employers alike, the court of appeal held that a disabled employee could sue her employer for its refusal to reassign her as a reasonable accommodation.

The California Fair Housing and Employment Act (FEHA) (Gov. Code, § 12940, et seq.) makes it unlawful for an employer to discriminate against an employee or applicant for employment on the basis of the employee’s known medical condition or disability. FEHA places an affirmative duty on employers to provide reasonable accommodations to a disabled employee or applicant. A reasonable accommodation is defined as “any modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” The FEHA requires an employer to engage in an ongoing interactive dialogue with an employee to determine effective reasonable accommodations, in response an employee’s request. Further, an employer has a duty to reassign a disabled employee if an already-funded, vacant position at the same level exists. The employer also has an obligation to provide the disabled employee preference for a vacant position over non-disabled employees.

During the 2006-2007 school year, Lauralyn Swanson taught in Morongo Unified School District and received excellent performance evaluations. In the summer of 2007, Ms. Swanson was diagnosed with breast cancer and subsequently informed her employer of her condition. Ms. Swanson began chemotherapy and radiation treatment in the fall of 2007 and was on medical leave until early March 2008. She did not receive an evaluation but her principal wrote a positive recommendation. In June 2008, the school district reassigned Ms. Swanson to a position teaching fifth grade. Ms. Swanson objected, stating her health would prevent her from taking on additional work to prepare for the new assignment. Ms. Swanson requested reassignment to a vacant position at the second grade level because she had recent experience teaching second grade. The District denied her request, assigning a different teacher to the second grade position, and giving Ms. Swanson a position at the kindergarten level. Ms. Swanson expressed concerns about teaching the kindergarten class because of her weak immune system and the threat of illness posed by teaching kindergarteners.

In the fall of 2008, Ms. Swanson again took a medical leave and was hospitalized, which she attributed to her kindergarten teaching assignment. Ms. Swanson did not return to work until December 2008. Upon her return, Ms. Swanson received a series of poor evaluations and was not rehired for the following school year. Ms. Swanson brought suit, claiming the school district unlawfully discriminated against her by not renewing her teaching contract and failed to reasonably accommodate her disability or engage in the interactive dialogue process.

The school district argued that it could choose not to renew Ms. Swanson’s contract for any reason because Ms. Swanson was a probationary teacher with no right to have her contract renewed. The court of appeal disagreed, finding that a school district’s authority to not renew a probationary teacher’s contract did not permit the school district to unlawfully discriminate against Ms. Swanson. According to the court, the school district failed to provide evidence that the kindergarten and fifth grade assignments were reasonable accommodations, or that the second grade assignment was not available or otherwise not a reasonable accommodation. Further, the school district failed to provide any evidence that it engaged in the interactive dialogue process with Ms. Swanson once it was notified of her disability.

This case reaffirms both a school district’s and municipal employer’s duty to provide reasonable accommodations to a disabled employee and engage in an ongoing interactive dialogue. For school districts, it is important to remember that a decision not to renew a teaching contract or to non-reelect a probationary employee must be based on a nondiscriminatory reason.

For questions regarding this decision, 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

Amanda E. Ruiz
Associate
Fresno Office
aruiz@lozanosmith.com

©2015 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.

Court Reverses Attorneys Fee Award to Public Agency in Public Records Act Case Regarding Emails and Electronic Data [For School Districts]

February 2015
Number 5

The latest appellate court decision addressing the Public Records Act has confirmed both how difficult it is for a public agency to recover its attorneys fees when litigating a dispute under that Act, and how unsettled the legal issues remain regarding public scrutiny of electronic communications. In Bertoli v. City of Sebastopol (January 30, 2015) 2015 Cal.App. Lexis 98, the court of appeal overturned a trial court’s finding that litigation under the California Public Records Act (CPRA) was “clearly frivolous” and its award of costs and attorneys fees to the City. The court of appeal reached this conclusion despite its recognition that the CPRA requests in question were “overly aggressive, unfocused, and poorly drafted.”

In Bertoli, a CPRA request was made for, among other items, copies of emails or other electronically stored data contained on the computer hard drives of past and present City officials and employees, including on both City-owned computers and private electronic devices. The request sought voluminous records. The City made space available in the City break room for document review, which included 20 days over the course of three months and the review of 65,000 pages of potentially relevant documents from 400 separate files. The requesting parties ultimately designated 16,000 pages for scanning.

Despite the City’s extensive efforts, the requesting parties believed that potentially responsive electronic data still existed and proposed that a private third-party collection company search all City-owned computers, servers, and electronic storage devices, as well as any personal computers used by City employees to perform City work outside of the office. The City declined the offer, stating in part that the writings of individual councilmembers on their personal accounts were not disclosable under the CPRA because an individual government official is not a “local agency” under the CPRA.

The requesting parties then filed suit demanding that the City produce all electronically stored information, including emails, responsive to their CPRA request. This would have included searching some 109 computers, laptops, and other electronic storage devices. The trial court ruled that the City had sufficiently complied with the CPRA request. The court recognized that the City had shown a “remarkable degree of openness and cooperation” in responding to the CPRA request, and characterized the relief sought by the requesting party as an “unprecedented fishing expedition” that would require an “an extravagant use of limited city resources.” The City filed a request for attorneys fees and costs pursuant to Government Code section 6259, subdivision(d), which allows a court to award costs and fees to a public agency in a CPRA case when a plaintiff’s case is “clearly frivolous.” The trial court agreed with the City’s characterization of the case as clearly frivolous and subsequently awarded the City costs and attorneys fees in the amount of $44,630.

The court of appeal declined an earlier request to reverse the trial court’s ruling on the substance of the CPRA dispute. As a result, the City was found to have complied with the CPRA. The court confirmed that a public agency need only disclose public records that can be located “with reasonable effort,” and that the agency “cannot be subjected to a ‘limitless’ disclosure obligation.”

However, while the trial court’s ruling that the City had complied with the CPRA was not disturbed, the court of appeal reversed the trial court’s finding that the CPRA request was clearly frivolous, and thus overturned the award of attorneys fees and costs to the City. The court emphasized that in order to show that a CPRA case was clearly frivolous, the plaintiff’s case must be entirely without merit. Because of the unsettled state of the law regarding application of the CPRA to emails and other electronic communications, the court of appeal concluded that the agency could not demonstrate that a reasonable attorney would not have pursued the matter.

The court of appeal’s decision rested largely on its observation that the question of whether councilmember’s emails, sent from their personal computers, are in fact disclosable under the CPRA is an “open issue.” The trial court had concluded that such emails were not governed by the CPRA. The court of appeal, describing the law in this area as “in flux,” discussed the recent case of City of San Jose v. Superior Court, which has previously been addressed in Lozano Smith news briefs. (See News Brief No. 21, April 2014). In City of San Jose, a trial court had concluded that emails sent or received on private electronic devices by the Mayor, City Council and City staff, were subject to the CPRA if they dealt with City business. An appellate court then reversed that decision, concluding that such emails were not records held by the City, and that they were therefore not subject to the CPRA. The California Supreme Court thereafter granted review, and has yet to issue a final ruling in that case. Particularly in light of the Supreme Court’s pending review in the City of San Jose case, Bertoli concluded that the law remained unsettled, making it difficult to establish that the plaintiffs had been “clearly frivolous” in pursuing the issue.

This case demonstrates that issues around the increasing number of CPRA requests for emails remain unsettled. It remains important for public agencies to consider how they will use, retain and disclose emails and other electronically stored information. Lozano Smith’s Technology and Innovation Practice Group offers a free informative document for school districts entitled “School District Email Retention,” that addresses policy options for retention of emails. If you would like a copy of “School District Email Retention,” please contact Harold Freiman.

Our Technology and Innovation Practice Group monitors issues such as the application of CPRA to electronic communications, legal issues regarding cloud computing, and the implementation of new technologies in schools. We will continue to track the City of SanJose case very closely, and will report as soon as a decision is rendered in that matter. Until these matters are settled, Bertoli confirms that there is a limit to how far a public agency must go in responding to requests for emails and electronically stored information, although the City in this case demonstrated that making an extensive, good faith effort to respond is still central to compliance with the CPRA. Bertoli also indicates that a public agency will have difficulty demonstrating that even the most overburdensome and aggressive requests for electronic data are frivolous.

For further information about this case and the treatment of electronic documents and emails under the CPRA, 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

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

©2015 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.