New Requirements for Assigning High School Students to Certain Courses

November 2015
Number 74

Recent legislation imposes new requirements before school districts can assign high school students to certain courses. Beginning with the 2016-2017 school year, school districts may not assign students in grades 9-12 to “course periods without educational content” without written parent consent and related documentation. Similar requirements apply before a school district may assign students in grades 9-12 to take certain courses for the second time.

Assembly Bill (AB) 1012 was introduced in response to the class action lawsuit (Cruz v. California, No. RG-14727139 (Alameda Cnty Super Ct) filed in May 2014 which alleged that students enrolled in certain courses were not receiving meaningful instruction in violation of the California Constitution’s guarantee of an equal education opportunity. Some of the courses at issue were entitled “Inside Work Experience,” “Service,” “Home” and “Teaching Assistant.” After AB 1012 was signed by the Governor, the parties settled the lawsuit on November 5, 2015.

Effective January 1, 2016, AB 1012 adds sections 51228.1, 51228.2 and 51228.3 to the Education Code. Section 51228.1 provides that school districts are not allowed to assign students in grades 9-12 to “course periods without educational content” for more than one week in a semester beginning in the 2016-2017 school year without written parent consent and related documentation.

“Course periods without educational content” are defined to include course periods where: 1) a student is released early from school, 2) a student is assigned to a service, instructional work experience or to a course to assist a certificated employee, but is not expected to complete curricular assignments, or 3) where the student is not assigned to any course during the class period. However, section 51228.1 may not be interpreted to limit a district’s ability to authorize dual enrollment in community college, to offer independent study, or to provide courses of work-based learning or work experience and similar opportunities.

Education Code section 51228.2 provides that school districts also cannot, without written parent consent and related documentation, enroll students in classes they have previously completed and received a grade which is satisfactory to receive a high school diploma and to attend California public institutions of postsecondary education. There is an exception for courses that have been designed to be taken more than once because students are exposed to a new curriculum year to year and therefore are expected to receive educational value from taking the course again.

As noted above, Education Code sections 51228.1 and 51228.2 both allow for a student’s enrollment in the specified courses, provided there is written consent from the parent, guardian, educational rights holder, or the student, if he or she is 18 years or older. Both of these sections also require that a school official determine that the student will benefit from being assigned to the particular course and that the principal or assistant principal of the school has stated in writing, for the relevant school year, that no pupils are assigned to the specified courses unless the first two requirements have been met.

Education Code sections 51228.1 and 51228.2 do not apply to students enrolled in an alternative school, a community day school, a continuation high school or an opportunity school.

AB 1012 also adds Education Code section 51228.3, which provides that complaints alleging that a school district has not complied with these new requirements must be considered under the district’s Uniform Complaint Procedures, with a right to appeal to the California Department of Education.

The new Education Code sections require the State Superintendent to develop regulations for adoption by the State Board to establish procedures, including the form of the written statements required of the parents and school administrators. The terms of the Cruz settlement provide that, prior to May 15, 2016, the California Department of Education will issue a policy notice to all school districts outlining the requirements of AB 1012 for assigning students to “courses without educational content” and “repeated courses.” However, the reality of the school registration schedule will likely require districts to develop protocols in the very near future. Towards that end, Lozano Smith is continuing to work towards clarifying the parameters and outlining the statements required for the upcoming registration season.

For additional information regarding implementing these new registration requirements for the 2016-2017 school year, please 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

Ruth Mendyk
Partner
Fresno Office
rmendyk@lozanosmith.com

Ameet K. Nagra
Associate
Fresno Office
anagra@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.

Recent Legislation Addresses 9th Grade Mathematics Placement, Mascot Names, and Other Issues Impacting California Students

November 2015
Number 73

Governor Jerry Brown recently signed into law several Assembly Bills and Senate Bills impacting school district campuses. These bills are summarized below.

Senate Bill 359: the California Mathematics Placement Act of 2015

By January 1, 2016, school districts must adopt a fair, objective and transparent mathematics placement policy for students entering the 9th grade. Senate Bill (SB) 359 was drafted in response to research by the Noyce Foundation which revealed that students of color, despite performing well in 8th grade Algebra courses, were often held back from taking the subsequent math course, Geometry, as they entered 9th grade, resulting in “math misplacement” of those students. The study revealed, without stating expressly, that this created disparate treatment of African American and Latino students.

SB 359 requires that Districts use objective academic measures (i.e., statewide assessments, etc.) in determining student placement in mathematics. Additionally, the bill provides several safeguards to ensure that students are not placed in incorrect math classes for their skill level, such as a placement check point within the first month of the school year, as well as clear and timely recourse for each student or parent who questions in their mathematics placement. The bill attempts to address the overarching problem that improper placement of students in mathematics courses, as early as the 9th grade, can have a long lasting impact on both their professional development and college eligibility.

Assembly Bill 30: The California Racial Mascots Act

Assembly Bill (AB) 30 goes into effect on January 1, 2017, and prohibits public schools from using the term “Redskins” as a school or athletic team name, mascot or nickname. AB 30 explains that the term “Redskins” is discriminatory towards Native Americans and the use of the term in public school sports is a barrier to both equality and understanding for all residents. While AB 30 prohibits public schools from using the term “Redskins,” the bill provides some leeway for schools phasing in this new requirement. For example, AB 30 allows schools to use uniforms or materials with the term “Redskins” as long as the school meets four requirements: (1) the school selects a new school or athletic team name, mascot or nickname; (2) prior to January 1, 2019, schools may acquire or purchase only up to 20% of the total number of uniforms to replace damaged or lost uniforms during the 2016-2017 school year that bear the Redskins name; (3) the school refrain from using the term “Redskins” on any materials distributed or sold to students or employees (i.e. yearbooks, newspapers); and (4) the school refrain from setting up any marquee, sign or other new or replacement fixture with the “Redskins” name. However, schools are not required to take down existing structures until the next time they are replaced in the normal course of maintenance.

Senate Bill 707: Restrictions on Concealed Carry Permit Holders

Prior to SB 707, concealed carry permit holders could carry their handguns on school (K-12) and college campuses without obtaining prior written permission from the Superintendent or designee. SB 707 amends the Gun-Free School Zone Act of 1995 to prevent concealed carry permit holders from possessing their handguns on school (K-12) and college campuses, without such written permission. The bill carves out exceptions to carrying handguns on school and college campuses for active, retired and reserve law enforcement officers. Furthermore, with certain exceptions for peace officers and others, the bill establishes restrictions on carrying ammunition on school and college campuses.

Violations of this new law carry stiff penalties, including felony convictions that may lead to several years of prison time.

AB 306: Transfers for Children of Military Personnel

AB 306 makes it easier for children of active military personnel to transfer to schools other than the one that the student has been assigned to based on his or her place of residence. Currently, a successful inter-district transfer of students requires a two step acceptance process: (1) the district where the student wants to transfer must agree to accept the student; and (2) the district of residence (where the student is transferring from) must allow for the transfer to take place. AB 306 prohibits school districts of residence from denying the transfer of a student who is the child of an active duty parent, so long as the school district receiving the student has approved the transfer.

AB 302: Accommodation for Parenting Teens

AB 302 has made it easier for students with small children to continue attending regular high school. The bill requires high schools to provide lactating students with access to a private, secure room, other than a restroom, to express breast milk, breast-feed an infant child, or address other needs related to breast-feeding. Schools are also required to allow these students to bring breast pumps or any other similar equipment on campus and must provide students space to store their expressed milk. Schools are further required to provide these students with a reasonable break time to accommodate their lactation schedule, and students must not incur any academic penalties as a result of using these accommodations.

The new law also allows students to file complaints under the Uniform Complaint Procedures for failure to comply with these requirements.

If you have questions about 9th Grade Mathematics Placement, Mascot Names or any other issues impacting California studentplease 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

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Inna Volkova
Associate
Fresno Office
ivolkova@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 Statutes Affect Local Agency Public Works Projects

November 2015
Number 72

New legislation will impact public works projects for local public agencies, including cities, school districts, and counties. In light of these changes, public agencies will want to closely review their public works bidding and construction documents to ensure they are updated in accordance with these new laws.

Liquidated Damages – Government Code section 53069.85 currently allows liquidated damage provisions in local agency public works contracts to compensate the owner for costs caused by contractor delay in lieu of actual delay damages. Most public works contracts include a liquidated damages clause, which typically states a dollar amount that will be assessed for each day of delay. The dollar amount is calculated by the public agency before entering the contract based on estimated actual delay damages and the likely inconvenience to the public of any delay. If no liquidated damages provision is included in a contract, the owner would still be able to recover actual delay damages incurred.

Effective January 1, 2016, Public Contract Code (PCC) section 7203, added by Assembly Bill (AB) 552, will require liquidated damages provisions in every local agency public works contract, and recovery of actual delay damages will be barred. The legislation also restricts the owner from charging liquidated damages after the filing of a notice of completion or, in the absence of such notice, the public agency’s acceptance of the public work as complete.

Prevailing Wages – For public works projects awarded on or after July 1, 2016, Labor Code section 1720.9 (created by AB 219) adds hauling and delivery of ready-mixed concrete to the definition of “public works” for purposes of prevailing wages. “Hauling and delivery” means the duties of the ready mixer driver, including the return trip to the factory or plant.

Prequalification and Lease-Leaseback (school districts only) – For details about AB 566 that affects mandatory prequalification and lease-leaseback projects as of January 1, 2016, please see see Client News Brief No. 51, September 2015, on the Lozano Smith website.

If you have any questions about these or other public works issues, or if you have any interest in Lozano Smith’s form construction contract documents that are updated annually to conform to changes in the law and the construction industry, please 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

Megan Macy
Partner
Sacramento Office
mmacy@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.

New Bill Overhauls the Design-Build Construction Delivery Method for School Districts

November 2015
Number 71

Although the ‘design-build’ construction delivery method has been available to California school districts for several years, this method has been used somewhat infrequently, as districts have opted for more traditional construction methods, like design-bid-build (Public Contract Code § 20111,et seq.), or alternatives like lease-leaseback (Education Code § 17406). The Legislature recently amended the current laws governing the design-build method for school districts. The changes make the method more accessible and more streamlined, and to give school districts more flexibility. However, the Legislature also imposed a new requirement of a skilled and trained workforce.

Design-build is a construction delivery method by which an owner retains a single entity to provide architectural, engineering, and construction services under a single contract. Although Education Code section 17250.10 et seq. has permitted school districts to utilize the design-build method since 2000, the method has not been widely used. Under present law, school districts are only authorized to use design-build for those construction projects exceeding $2.5 million. Current law also requires a district to make a formal written finding that use of the design-build method will accomplish certain objectives, and requires a district to establish a process to prequalify bidders using a standard questionnaire developed by the Department of Industrial Relations. Also, while the district has some leeway in awarding a contract under design-build (and can consider more than just lowest price), a school district is still required to use the following designated factors to represent at least 50% of the total weight or consideration given to any criteria used by the district: price, technical expertise, life-cycle costs over 15 years or more, skilled labor force availability, and acceptable safety record.

On October 10, 2015, Governor Jerry Brown signed Assembly Bill (AB) 1358, which makes several changes to the design-build method specific to school districts. The changes brought by AB 1358 apply to any request for proposal (RFP) issued on or after on July 1, 2016. Most notably, AB 1358 lowers the threshold from $2.5 million to $1 million, expanding the pool of projects eligible to be awarded through design-build. AB 1358 also somewhat simplifies the process for letting and awarding design-build contracts. First, a district’s governing board is no longer required to make specific written findings regarding the benefits of using the design-build method. Second, a district is allowed to develop its own prequalification questionnaire and rating system. Third, AB 1358 gives more freedom to a district when awarding the contract on factors others than lowest price. While a school district is still required to consider certain factors (price, technical design and construction experience, and life-cycle costs over 15 or more years), the district now has discretion on how these factors are weighted and what other factors, if any, the district should consider.

Another significant change brought by AB 1358 is the addition of a “skilled and trained workforce” requirement. Specifically, any entity seeking prequalification for a school district’s design-build project must provide an enforceable commitment to the district that the entity, and every subcontractor at every tier, will use a skilled and trained workforce to perform all work on the project. This enforceable commitment can be made by the design-build entity in one of three ways: (i) stating in the contract that it will comply with the labor requirements, with monthly written confirmation from the contractor, and with payments to the contractor ceasing if the confirmation is not received; (ii) agreeing to become a party to the school district’s project labor agreement for the project, if one already exists; or (iii) entering a new project labor agreement for the project. This new requirement is similar to recent changes made to lease-leaseback projects, which also become subject to a ‘skilled and trained workforce’ obligation. (For a further discussion of recent changes to lease-leaseback and lease-to-own agreements, see Client News Brief No. 51, September 2015.)

Even though school districts have been slow to use design-build contracts, other public agencies have used the design-build method and found it advantageous. Given the current uncertainty surrounding lease-leaseback construction agreements, and the fact that some school districts have sought alternatives to the design-bid-build method, AB 1358 may allow the design-build method to become a viable and beneficial construction delivery method for California school districts moving forward, as long as school districts are also prepared to accept the new labor requirements.

If you have questions regarding the implications of AB 1358, or have any planned or anticipated construction projects and would like to discuss construction delivery methods, please 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

Devon B. Lincoln
Partner
Monterey Office
dlincoln@lozanosmith.com

Travis E. Cochran
Associate
Monterey Office
tcochran@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.

School and Community College Districts Must Negotiate Calendar Changes and Generally May Not Rely Upon Operational Necessity As a Defense

November 2015
Number 69

Serving the public is the main business of public agencies, and school and college districts must publish a reliable and predictable schedule of instruction each school year so that students, staff, and the community may plan around it. This has always created tension for public school employers as they must plan the non-negotiable instructional calendar for students and also bargain over the negotiable work year calendar for staff members.

In a recent decision, the Public Employment Relations Board (PERB) held that a community college district (District) violated the Educational Employment Relations Act (EERA) when it adopted and implemented a revised academic calendar without exhausting the EERA’s statutory bargaining and impasse process. (Pasadena Area Community College District (2015) PERB Dec. No. 2444). The decision reminds us about which aspects of a school calendar are negotiable, and when a district may unilaterally implement a calendar.

For many years, the District utilized a traditional semester system which included Fall and Spring semesters and Winter and Summer intercessions. In May 2012, the District’s governing board adopted a proposal by the college’s calendar committee to continue using the semester system for 2012-2013. During faculty association (Association) bargaining sessions, the District proposed a switch to the trimester system for 2012-2013 in order to increase revenues. The trimester system would eliminate the Winter intercession.

At the time that the District proposed the trimester system, it offered to negotiate the impacts, or effects, of the calendar change while the Association demanded to bargain over the decision itself. After holding two bargaining sessions where the trimester issue was on the table and before any agreement was reached, on August 29, 2012 the District’s Board of Trustees adopted a revised tentative academic calendar for 2012-2013. The new calendar incorporated the trimester system starting on January 7, 2013, and set October 1, 2012 as the date of “operational necessity” when the District could implement the proposed calendar even without the Association’s agreement. The parties met in September 2012 but reached no agreement. On October 1, 2012, the District implemented the proposed 2012-2013 calendar.

The Association filed an unfair labor practice charge with PERB, alleging that the District’s adoption of the 2012-2013 trimester calendar was an unlawful unilateral action on a negotiable subject. PERB found in favor of the Association.

Under the EERA, an employer commits a “per se” violation of its duty to meet and negotiate with a unit representative when it unilaterally establishes any term or condition of employment within the scope of representation prior to completion of the bilateral negotiations process. With regard to the scope of representation claim, the District asserted that it had adopted an academic calendar, rather than a work calendar, and that prior PERB decisions allow for such action if it is adjusted to accommodate a negotiated work calendar.

PERB rejected the District’s defense, finding that while the District may have a prerogative to generally determine the hours of instruction and the distribution of working days, “the school calendar is within the scope of negotiations.” PERB also rejected the District’s assertion that it had only adopted a student calendar while continuing to negotiate in good faith over the work calendar. While this has been condoned in prior PERB decisions, PERB noted that in this case, the District’s actions constituted a simultaneous adoption of both student and work calendars that left no room for post-adoption bargaining. PERB held that the implementation of a trimester calendar forced such “dramatic differences” onto the work calendar that it necessarily encroached upon collective bargaining rights.

PERB also rejected two of the District’s other arguments. First, PERB found that the Association had not waived the right to negotiate through its participation in the calendar committee (which had recommended the semester calendar) or by refusing to accept the District’s proposals at the bargaining table. Second, PERB found that the District’s need to plan for the coming school year did not constitute an operational or business necessity that justified the District’s unilateral action. According to the decision, the District could not establish an operational or business necessity defense unless “an actual financial emergency which leaves no real alternative to the action taken and allows no time for meaningful negotiations before taking action.”

While PERB conceded that October 1, 2012 may have been the date of operational necessity if it had no 2012-2013 calendar in place for the 2013 Spring semester, PERB found that the Board’s May 2012 adoption of a semester-based calendar provided an existing default for the District to use. In this context, PERB found that the District’s desire to start the trimester calendar in January 2013, and the District’s prerequisite need to start planning for it as of October 1, 2012, did not constitute a business necessity. According to PERB, such circumstances “[did] not convert the District’s desire into a business necessity and [did] not absolve the District of its bargaining obligation.”

This decision is instructive regarding the scope of bargaining for public school and community college employers, and the limitations on the ability to engage in unilateral actions on the basis of operational or business necessity.

If you have any questions regarding this decision, please 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

Darren C. Kameya
Partner
Los Angeles Office
dkameya@lozanosmith.com

Inna Volkova
Associate
Fresno Office
ivolkova@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.

Taxpayer Organization Lacks Standing To Bring Conflict Of Interest Lawsuit; Court’s Decision Questions Part of Recent Lease-Leaseback Case

November 2015
Number 68

The fourth district court of appeal recently addressed the question of whether taxpayer organizations have standing to sue to invalidate an agreement due to an alleged conflict of interest under Government Code section 1090. In San Bernardino County v. Superior Court (San Bernardino) (August 17, 2015) 239 Cal. App. 4th 679, the court held that taxpayer organizations may not sue to void an agreement under Government Code section 1090 unless they are parties to the agreement or are appropriately challenging the agreement under some other, independent legal theory.

In San Bernardino, two taxpayer organizations challenged a $102 million dollar settlement agreement between the County of San Bernardino, the San Bernardino County Flood Control District (collectively “County”), and Colonies Partners, L.P. The settlement agreement was based on the allegation that the County took 67 acres of Colonies’ land for use as part of a regional flood-control facility. A trial court validated the settlement agreement in March, 2007. However, four years later, the San Bernardino County District Attorney’s Office secured a felony bribery conviction against a former county supervisor for bribes received from Colonies in exchange for his vote approving the settlement agreement. Shortly thereafter, the taxpayer organizations brought suit, seeking to have the settlement agreement declared void in violation of Government Code section 1090 because of the former supervisor’s personal financial interest.

Government Code section 1090 forbids public officers from being financially interested in any contract made by them in their official capacity. However, San Bernardino concluded that nothing in section 1090, et seq., grants non-parties to government contracts the right to sue on behalf of a public entity to void contracts made in violation of section 1090. As a result, the appellate court found that the taxpayer organizations, which were not parties to the agreement, lacked standing under Government Code section 1090 to void the agreement on the County’s behalf. The court left open the possibility that under a different fact pattern, taxpayer organizations could have standing to sue under Government Code section 1090; for example, where the organizations represent individual members who suffer loss or injury resulting from the public entity’s actions.

The taxpayer organizations alternatively argued they had standing to void the agreement based on Code of Civil Procedure section 526a, which gives citizens standing to prevent the illegal expenditure or waste of public funds by a public entity, and under common law. However, the court found that taxpayer suits are authorized only if the public entity is under a duty to act and refuses to do so. Because a public entity is not duty-bound to pursue particular legal claims, taxpayer organizations lack standing under section 526a and the common law to force public entities to file certain types of lawsuits. Taxpayer organizations cannot compel government entities to take a particular course of action unless the public entity already has a legal duty to do so.

It is worth noting that the fifth district court of appeal in Davis v. Fresno Unified School District (June 1, 2015) 237 Cal. App. 4th 261, allowed a third party lawsuit under section 1090 to move forward. In Davis, a contractor and the school district entered into a “lease-leaseback” agreement for construction of school facilities. The contractor was alleged to have served as a pre-construction consultant and then later was hired as the contractor. A third party sued, alleging among other issues that hiring the same entity to provide pre-construction services and then to do the work under contract violated section 1090. The court of appeals reversed a decision to dismiss that lawsuit, and concluded that the third party could raise the section 1090 conflict issue. (See Client News Brief No. 30, June 2015). The fourth district’s decision in San Bernardino appears to be in conflict with Davis. While San Bernardino attempted to distinguish the holding of Davis on procedural grounds, the court also concluded that to the extent Davis “may be read as treating Government Code section 1090 as an independent source of standing” to bring a third party lawsuit, the court “do[es] not find that interpretation persuasive and decline[s] to adopt it.” Because a split in appellate authority now appears to exist regarding whether third parties can bring a third party lawsuit under section 1090, consultation with legal counsel may be appropriate when considering related issues.

If you have any questions regarding Government Code section 1090, conflicts of interest, or the rights of taxpayer organizations relative to public agencies organization, please 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

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

Carey Hawkins Ash
Associate
Sacramento Office
cash@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.

Recent Legislation Addresses Cheerleading, District Training Requirements to Protect Students, and Changes to the Uniform Complaint Procedures

November 2015
Number 70

In October 2015, Governor Jerry Brown signed into law five new bills that all go into effect January 1, 2016, enacting important changes to the Education Code on issues affecting student rights and services. These bills address mandatory training for school counselors, classification of competition cheerleading as a sport, additions to the Safe Place to Learn Act, guidance regarding child abuse and training, and an expansion of the Uniform Complaint Procedures to cover issues related to foster children and homeless youth.

SB 451: Pupil Instruction and Services
Senate Bill (SB) 451 amends Section 49600 of the Education Code to add specific requirements for school counseling programs in districts which have chosen to provide comprehensive school counseling programs. Counselors will be required to engage in continued professional development related to career and vocational counseling, including strategies for students pursuing postsecondary, career technical education, multiple pathway, college, and global career opportunities. SB 451 also lists additional counseling services that may be added. These additional services, which are stated as legislative intent and are not specifically mandated, include: engaging and advocating for all students; implementing programs to promote student academic, career, and personal growth; promoting a safe learning environment; and using research-based strategies to reduce stigma, conflict, and bullying. Districts that wish to expand the services that their counselors provide may need to bargain this with the applicable employee union.

AB 949: Physical Education Related to Cheerleading
Assembly Bill (AB) 949 requires the California Interscholastic Federation (CIF) to develop guidelines, procedures, and safety standards for the purpose of classifying competition cheer as an interscholastic sport by no later than July 1, 2017. This new law adds Section 33353.7 to the Education Code and will allow school districts to count competition cheer towards a school’s Title IX compliance once the United States Department of Education’s Office for Civil Rights deems competition cheer complaint with its definition of a sport.

AB 827: Safe Place to Learn Act
Currently, the Safe Place to Learn Act requires that each school district afford all persons in public schools, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other specified characteristic, equal rights and opportunities in the educational institutions of the state. As part of the regular monitoring process, the California Department of Education (CDE) is tasked with assessing whether local educational agencies (LEAs) have adopted policies that prohibit discrimination, harassment, intimidation, and bullying. AB 827 amends Education Code section 234.1 to require CDE, as part of its compliance monitoring, to assess whether LEAs have provided information to certified schoolsite employees serving grades seven through twelve on school and community resources related to the support of lesbian, gay, bisexual, transgender, and questioning (LGBTQ) students.

AB 1058: Child Abuse Prevention and Training
AB 1058 amends Section 44691 of the Education Code and focuses on child abuse on school grounds or by school personnel and requires CDE to establish best practices for district employees to follow regarding prevention of child abuse, including sexual abuse of children on school grounds, by school personnel, or in school-sponsored programs. The bill encourages, but does not require, school districts, county offices of education and charter schools to participate in child abuse prevention training at least once every three years regarding the prevention of abuse at school or by school personnel.

AB 379: Foster Youth and Homeless Children and the Uniform Complaint Procedures
AB 379 expands the Uniform Complaint Procedures (UCP) to encompass complaints regarding the rights of foster youth and homeless children. Specifically, complaints alleging violations of certain educational rights afforded to students in foster care and students who are homeless are now subject to the UCP process with an appeal to CDE. This bill amends Sections 48853, 48853.5, 49069.5, 51225.1, and 51225.2 of the Education Code.

If you have any questions about these recent bills, please 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

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

Jennifer Baldassari
Associate
Walnut Creek Office
jbaldassari@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.

Referendum to Repeal Immunization Bill Fails to Qualify for Ballot

November 2015
Number 67

A referendum that would have repealed Senate Bill (SB) 277, which eliminates personal belief and religious exemptions for school vaccine requirements, recently failed to qualify for the November 2016 ballot. This means that SB 277 will go into effect on January 1, 2016, although its requirements do not fully take effect until July 1, 2016.

As previously reported (See Client News Brief No. 36, July 2015), SB 277 was signed into law on June 30, 2015, and became the strictest mandatory vaccination law in the country. Opponents of the new law almost immediately began gathering signatures to place a referendum on the November 2016 ballot that would repeal SB 277. Had the referendum qualified for the ballot, the implementation of SB 277 would have been stayed pending the results of the November 2016 election. However, the opponents of the new law failed to submit the required number of valid signatures before the deadline, and on October 9, 2015 the Secretary of State’s office announced that the referendum had failed to qualify. Therefore, there will be no stay, and SB 277 will go into effect next year.

Under current law, immunizations are required for students entering public or private elementary or secondary school or day care, and for students advancing to 7th grade. Current law allows exemptions for medical reasons or for religious or personal beliefs. SB 277 eliminates the personal and religious belief exemptions for students entering school or before advancing to 7th grade, beginning on July 1, 2016.

Students enrolling in school before January 1, 2016 may still use the personal and religious belief exemption. In addition, a student with a personal or religious belief waiver on file will still be allowed to enroll throughout the “grade span” they are in as of January 1, 2016. The defined “grade spans” are: (1) birth through preschool, (2) Kindergarten through 6th grade, and 7th grade through 12th grade. However, under SB 277, students advancing to the next “grade span” after July 1, 2016 will not be able to use the personal belief exemption.

Although some SB 277 opponents have indicated that they will seek to place an initiative on the November 2016 ballot that would restore the religious and personal belief exemptions, an initiative would not serve to stay the implementation of SB 277. Thus, even if the initiative were to qualify for the ballot, SB 277 will still take effect next year.

If you have any questions regarding the new immunization requirements or other student obligations, please 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

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.

PERB Further Expands Employee Rights to Union Representation

November 2015
Number 66

The Public Employment Relations Board (PERB) recently held that a public school employer violated the Educational Employment Relations Act (EERA) by interfering with an employee’s right to have union representation present during a meeting with her supervisor. (Capistrano Unified School District (2015) PERB Decision No. 2440.) In this case, the union alleged the district violated the employee’s right to union representation by proceeding with the meeting despite the employee’s request to have a union representative present. While the district did not believe the meeting to be investigatory or disciplinary, PERB found the employee had a right to representation.

The employee, Teresa Hause, worked in the food services department at the Niguel Hills Middle School. Ms. Hause had a strained relationship with her supervisor, John Chamberlin and, in the past, Ms. Hause was counseled by Mr. Chamberlin for not following directives.

In April 2011, the District began implementing a new food services accounting and inventory system. On the day the program was to begin, Ms. Hause did not implement the new program as directed. When Mr. Chamberlin called Ms. Hause and directed her to follow his instructions, Ms. Hause criticized the program and hung up on Mr. Chamberlin. Mr. Chamberlin followed up with an unannounced visit to Niguel Hills. Mr. Chamberlin testified he did not intend to discipline Ms. Hause during this meeting. However, Ms. Hause told Mr. Chamberlin that, if the meeting was going to be disciplinary, she wanted a union representative present. Mr. Chamberlin did not take any action in response to this request. Instead, after Mr. Chamberlin asked Ms. Hause several times to repeat his directives, Ms. Hause restated the directives and confirmed she was following them. Following this meeting, the District issued Ms. Hause a written reprimand.

Based on these facts, the California School Employees Association (CSEA) filed an unfair practice charge, and PERB issued a complaint alleging the District interfered with Ms. Hause’s right to union representation in violation of EERA section 3542.5. A formal hearing was held and the administrative law judge (ALJ) concluded the District had violated EERA by denying Ms. Hause’s request for representation. On appeal, the PERB Board agreed with the ALJ’s determination.

PERB held that EERA includes broad rights to employees to participate in employee organizations for the purpose of representation on all matters of employer-employee relations. PERB found that an investigatory or disciplinary interview falls within the broad definition of “all matters of employer-employee” relations and therefore guarantees public school employees representational rights that are at least as broad as those afforded private-sector employees. However, PERB does not extend the right to representation to “every run-of-the-mill shop floor conversation” between employer and employee.

In this decision, PERB reminds us that the rights of employees under the EERA are broader than those provided under federal labor laws. PERB emphasized that California law extends the right of representation beyond disciplinary meetings to employer-initiated meetings held under “highly unusual circumstances” — even though the meeting is not clearly “investigative” or “disciplinary” in nature. Even when an employer does not contemplate discipline in the meeting, it still may be “investigatory” if it elicits incriminating evidence against the employee. Here, PERB found the meeting to be investigatory because questions about Ms. Hause’s compliance with directives were aimed at eliciting admissions that could impact Ms. Hause’s employment in light of her ongoing criticism of the program and history of insubordination.

This decision follows PERB’s recent extension of an employee’s representation rights to interactive meetings regarding disability accommodations. (Sonoma County Superior Court (2015) PERB Decision No. 2409-C.) The final outcome of the Sonoma decision is presently unclear because further proceedings in this matter are ongoing, but both decisions clearly indicate that PERB is adopting an expanded view of the right to representation in public employment.

School and community college employers should be cautious when dealing with employee requests for union representation at meetings that, at first blush, may not appear to be disciplinary in nature. If representation is requested, employers should also keep in mind that PERB will not allow an employee to unreasonably delay a meeting simply because his/her representative of choice is unavailable.

If you have questions about these recent PERB decisions, or about employee rights in general, please 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

Darren C. Kameya
Partner
Los Angeles Office
dkameya@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.

PERB Addresses Claim That an Association Attempted to Cause an Employer to Violate the EERA

November 2015
Number 65

In Santa Maria Joint Union High School District v. Santa Maria Joint Union High School District Faculty Association (PERB Decision No. 2445), the PERB Board (Board) considered a school district’s claim that a union attempted to cause it to violate Section 3543.5 of the Educational Employment Relations Act (EERA). While the EERA prohibits a public school employer from retaliating against a bargaining unit member for engaging in protected activities, it also prohibits a bargaining unit representative from causing an employer to engage in such retaliation. In this case, the Board narrowly applied this prohibition to situations where the unit representative causes the employer to unwittingly take action in furtherance of the representative’s plan.

The Santa Maria Joint Union High School District (District) alleged that the Santa Maria Joint Union High School District Faculty Association (Association) tried to cause the District to take negative action against an employee because of his participation in the Association’s activities. The employee, Glenn Goldin, was a special education teacher at Santa Maria High School (SMHS), but he also provided services to students at all four of the District’s high school campuses.

Mr. Goldin was an outspoken critic of the Association leadership. In March 2014, he was nominated by his SMHS peers as a candidate for chairperson of the special education department at SMHS. Elections for department chairpersons were conducted by the Association, and Mr. Goldin was declared ineligible due to his District-wide service. The District disputed the Association’s declaration and ordered the election to be held with Mr. Goldin’s name on the ballot. Mr. Goldin was elected as a department co-chair in the District-ordered election, but the Association held its own election and another person was elected as the chairperson.

The Association filed grievances and a PERB charge against the District alleging that it held an improper election and illegally interfered with the Association’s role in conducting the election. The District responded by filing an unfair practice charge asserting that the Association’s grievances and PERB charge constituted an attempt to force the District to rescind Mr. Goldin’s appointment as a co-chair and his right to a co-chair stipend.

The EERA prohibits a union from causing or attempting to cause an employer to commit unfair practices, including any reprisals, discrimination, or retaliation against employees for exercising protected rights. Here, the District asserted that the Association attempted to cause the District to take adverse action against an employee because of the employee’s exercise of the right to participate in an employee organization.

In this decision, the Board applied two levels of analysis to evaluate the merits of the District’s charge. First, the District was required to establish that rescinding Mr. Goldin’s title and stipend would constitute unlawful retaliation by showing that: (1) Mr. Goldin exercised rights under the EERA; (2) the District had knowledge of the exercise of those rights; (3) the District took adverse action against Mr. Goldin; and (4) the action was taken because of Mr. Goldin’s exercise of rights. In this case, the Board held that any action to remove Mr. Goldin from the chairperson position would not be “because of” Mr. Goldin’s exercise of rights and thus would not constitute a violation of the EERA. Rather, the District’s action would be taken in response to the Association’s claims of a contract violation or unfair labor practice.

Additionally, the Board found that the District’s claim would not pass the second level of analysis, because the District must show that the Association’s actions (filing multiple grievances and an unfair practice charge) affirmatively caused or consciously attempted to make the District its unwitting accomplice in retaliating against Mr. Goldin. As a matter of public policy, the Board refused to find that filing grievances or PERB charges constitute an attempt to cause an employer to violate the EERA. The Board further found no evidence that the Association’s actions were based upon a retaliatory or improper motive.

The Board also faulted the District for actively inserting itself into the controversy and then claiming that the Association’s requested remedy would constitute retaliation against Mr. Goldin. In reviewing these types of claims, the Board has previously required a district to show that its only possible response to an association-created situation would be to engage in an unfair labor practice. (Tustin Unified School District (1987) PERB Dec. No. 626E.) Following precedent, the Board found that the Association had not forced the District into the controversial situation.

This decision provides useful guidance for school employers to determine if an employee organization has committed an unfair practice by causing, or attempting to cause, the employer to engage in an unfair labor practice. Such issues may arise during collective bargaining, disciplinary meetings, and other settings involving representational and organizational rights. For further information about this decision or for questions regarding the EERA or unfair practices, please 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

Darren C. Kameya
Partner
Los Angeles Office
dkameya@lozanosmith.com

Maryn Oyoung
Associate
Walnut Creek Office
moyoung@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.

PERB Upholds Union’s Right to Receive Information Despite Employees’ “Opt Out”

October 2015
Number 64

The Public Employment Relations Board (PERB) recently held that a school district violated the Educational Employment Relations Act (EERA) by failing to fully respond to a union’s request for information despite the fact that some employees opted out of the release of their information and the union did not reassert its request when it did not receive all the information.

In Los Angeles Unified School District (2015) PERB Decision 2438, the District reassigned teachers who were being investigated for serious misconduct to one of its six educational service centers (ESC). The teachers were expected to work at the ESCs and earned their full compensation. The union demanded to bargain over the hours and duties of teachers assigned to the ESCs and requested their names and work locations. The union stated it needed this information to communicate with the teachers to see if they needed help and to develop proposals to change the working conditions in the ESCs.

The District asserted that teachers assigned to the ESCs had a privacy interest in that assignment and told the union that it would only comply with its request after it informed the teachers that they could “opt out” of having their information released. The District argued that providing names of teachers assigned to the ESCs would essentially disclose they were under a District or criminal investigation for serious misconduct. The union objected to the opt-out procedure emphasizing it was not seeking any discipline or investigation records from the District and the union also offered to enter into a confidentiality agreement requiring them to maintain the information as confidential. The District decided to inform all 276 teachers assigned to the ESCs of the union’s request and allow them the opportunity to opt out from the release of their assigned information. After 15 teachers opted out, the District provided the union the names and work locations of 261 teachers. The union did not restate its request for the names and work locations of the 15 teachers who opted out. Instead, the union filed an unfair practice charge.

In considering a union request for information that implicates employees’ privacy interest, PERB applies a balancing test, placing the burden on the employer to demonstrate whether this interest outweighs the union’s need for information. In Los Angeles Unified School District, PERB found that the information the union requested was “necessary and relevant,” but also agreed with the District that employees’ had a privacy interest in their assignment to ESCs.

PERB held the District did not demonstrate that its employees’ privacy interest outweighed the union’s need for information. PERB specifically considered all of the following: 1) the union did not seek discipline or investigation records from the District; 2) the union offered to enter into a confidentiality agreement which the District refused to consider without any explanation; 3) the teachers did not experience a significant invasion of privacy because if they did not want to communicate with the union they could inform the union that or ignore the communication; and 4) the District had not always treated the information the union requested confidentially since it disclosed the identity of a teacher assigned to an ESC to the media. PERB found that even if the District assured employees their assignment to an ESC would be confidential, such assurance would not necessarily override the union’s right to the information.

PERB also held that the union did not have to reassert its request for information after the District refused to provide it information about the 15 employees who opted out. PERB found that the District knew that the union wanted the names and work locations of all the employees assigned to the ESCs and that the union objected to the opt-out process so partial compliance was not sufficient. In addition, PERB held that the District was not entitled to implement an opt-out process without negotiating that process with the union. PERB also found it significant that the union was willing to enter into a confidentiality agreement with the District

This case demonstrates that the significant burden on employers in establishing that employees’ privacy concerns outweigh a union’s need for information, especially when a union is not seeking discipline or investigation records. Districts should be cautious when asserting employee privacy rights as basis for denying a request for information to ensure that such assertions will withstand PERB scrutiny. If the District elects to use an opt-out process, and employees opt-out, that opt-out alone may not provide the District a sufficient basis to withhold documents or information. Employers may also be liable for failing to provide a union requested information, even if the union does not reassert its request. Important to this case was that the union’s request for information was clear and it objected to the use of the opt-out process. Lastly, employers should also be cautious when providing employees an opportunity to opt-out before responding to a union’s request for information, without first negotiating such process with the union.

For further information about this decision, please 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

Dulcinea Grantham
Partner
Walnut Creek Office
dgrantham@lozanosmith.com

Ameet K. Nagra
Associate
Fresno Office
anagra@lozanosmith.comm

©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.

Appellate Court Rules that a Report Prepared By a Third-Party, Non-Governmental Entity Is a Public Record

October 2015
Number 63

In Pasadena Police Officers Association v. Superior Court (PPOA), (2015) 240 Cal. App. 4th 268, the California Court of Appeal held that an investigative report commissioned by the City of Pasadena but drafted by third party is a public record subject to disclosure under the California Public Records Act (CPRA). Additionally, the appellate court closely scrutinized redactions to the report, which were based on a recognized exemption to the CPRA, and held that the trial court had overreached.

The Legislature enacted the CPRA to promote transparency in government by determining that all records maintained by a public agency that pertain to the public’s business are open to inspection. The CPRA contains a limited list of document categories which are exempt from disclosure. Courts broadly construe the CPRA in favor of transparency and interpret its exemptions narrowly. Given this principle, if a public record contains both disclosable and privileged information, courts will generally require disclosure of the public record after the privileged portions have been redacted.

At issue in PPOA is a CPRA exemption that prevents the disclosure of documents otherwise privileged by federal or state law. (Gov. Code § 6254(k).) Specifically, a series of California laws, known as the Pitchess statutes, protect certain police personnel records from disclosure.

In PPOA, the City of Pasadena commissioned an independent third party to conduct a review of the Pasadena Police Department in the wake of an officer involved shooting. The third party report examined and discussed two internal investigations conducted by the Pasadena Police Department, a criminal investigation and an internal affairs investigation that contained personnel information. After the City was asked to release the independent report through a CPRA request, the Pasadena Police Officers Association argued that the entire investigative report was exempt from disclosure because it constituted confidential police personnel information under the Pitchess statutes. The trial court ordered the report to be released, but redacted several portions that it believed were derived from confidential police personnel records.

The appellate court upheld the trial court’s determination that the independent report was a public record subject to disclosure, reasoning that the CPRA’s policy favoring transparency is heightened when the information sought involves the conduct of police officers. The appellate court clarified the principle that the Pitchess statutes protect disciplinary records and information derived from police personnel files from disclosure under the CPRA, even when that privileged information is contained in an otherwise public record. Given this finding, the appellate court closely scrutinized the portions of the report that the trial court had redacted and concluded that the trial court’s redactions were overbroad because they included information that was not explicitly exempted from disclosure. The appellate court remanded the case to the trial court, with instructions that it limit its redactions to content that specifically related to protected police personnel files as described in the Pitchess statutes.

The court’s holding puts public agencies on notice that even reports created for a public entity by a third party may be considered disclosable public records. Public agencies should not rely upon blanket arguments that a document is exempt from disclosure. Instead, public
agencies may wish to look critically at the content within a document and determine whether any CRPA exemptions apply. As PPOA demonstrates, courts are apt to carefully review documents and favor disclosure wherever possible.

For further information about this case and the California Public Records Act’s requirements and exemptions, please 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

William P. Curley III
Senior Counsel
Los Angeles Office
wcurley@lozanosmith.com

Eric Barba
Associate
Walnut Creek Office
ebarba@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 Requirements for Nonvoting and Preferential Voting Pupil Board Members

October 2015
Number 62

Effective January 1, 2016, Senate Bill (SB) 532 reinforces pupil governing board memberships.

Applicable only to school districts that operate a high school, SB 532 requires that:

  • Upon receipt of a petition, the governing board must appoint a qualified pupil petitioner to the board within 60 days of receipt of the petition or at the next regularly scheduled board meeting if no meeting is held within 60 days; and
  • In order to remove the nonvoting or preferential voting pupil member, there must be a public notice on the agenda of a motion to eliminate the pupil member, and the motion would require a majority vote of all voting board members.

Under current law, students of school districts that operate a high school may petition the governing board of that district to allow one or more nonvoting or preferential voting pupil members. Upon receipt of the petition, the governing board must allow the student or students meeting certain requirements to serve on the governing board and be recognized as a full member of the board at meetings.

If the Commission on State Mandates determines SB 532 contains costs mandated by the state, school districts will be eligible for reimbursement.

In order to maintain compliance with the new requirements under SB 532, a school district operating a high school should carefully review and update its current board policies and regulations and notify its current governing board members of the applicable changes.

If you have questions regarding these new requirements or other school district governing board obligations, please 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

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

Jessi T. Gasbarro
Associate
Sacramento Office
jgasbarro@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 Laws Suspend High School Exit Exam Requirements

October 2015
Number 61

On October 7, 2015, Governor Brown signed Senate Bill (SB) 172 into law, suspending the administration of the California High School Exit Examination through the 2017-2018 school year. Under SB 172 students will no longer be required to pass the exit exam as a condition of graduating high school. Further, any student who previously completed grade 12 and met all graduation requirements, other than the passing the exit exam, will be granted a diploma of graduation. SB 172 followed in the wake of SB 725, which exempted all current grade 12 students from having to pass the exit exam as a condition of graduating in the 2014-2015 school year.

Commencing with the 2003-2004 school year and each year thereafter, students completing grade 12 were required to pass the exit exam as a condition of receiving a diploma. The primary purpose of the exit exam was to improve student achievement in public high schools and to ensure that graduating students could demonstrate grade level competency in reading, writing, and mathematics. The exit exam was aligned to the content standards for English language arts and mathematics that were developed pursuant to a package of education reform bills adopted in 1999. In 2010, the State Board of Education adopted the Common Core State Standards, which led to the development of new statewide assessments that aligned with these newly adopted common core standards. The exit exam, aligned to the old standards, will need to be substantially revised to align with the common core standards.

SB 172 makes four significant changes to existing law. First, it suspends the administration of the exit exam for the 2015-2016, 2016-2017, and 2017-2018 school years. Second, it suspends the requirement that each student pass the exit exam as a condition of graduating from high school. Third, SB 172 requires the governing board of any school district, county office of education, or charter school, to grant a high school diploma of graduation to any student who completed grade 12 in the 2003-2004 school year, or any subsequent school year, and met all applicable graduation requirements but did not pass the exit exam. Fourth, the bill requires the State Superintendent to convene an advisory panel to provide recommendations on the continuation of a high school exit examination, and alternative pathways to satisfy high school graduation requirements.

It is estimated that in the current year, nearly 249,000 students could not pass the exit exam before the end of grade 12. Although it is unclear how many of these students did not graduate solely because they could not pass the exit exam, it is clear that many of those students will now be entitled to receive a high school diploma. In this way, SB 172 could open the door for students who were previously precluded from applying to most four-year universities and vocational training programs, joining the military, seeking federal financial aid, or applying for jobs that require a high school diploma. In the meantime, lawmakers and educators from around the State will attempt to determine if a new version of the exit exam can and/or will be implemented, or if the exit exam will be eliminated altogether.

If you have any questions regarding the implications of SB 172, or would like assistance in further understanding or complying with SB 172, please 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

Roberta L. Rowe
Partner
Fresno Office
rrowe@lozanosmith.com

Travis E. Cochran
Associate
Monterey Office
tcochran@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.

Charter School Prop. 39 Facilities Requests are Due November 1

October 2015
Number 60

Commonly referred to as “Prop. 39”, Education Code section 47614 requires that school districts provide facilities to charter schools. Charter schools must request facilities for the 2016-2017 school year, in writing, by November 1, 2015. Because Prop 39 triggers certain obligations for a school district, it is best to be prepared for the upcoming facilities request season.

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

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

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

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

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

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

Given these tight timelines, it is critical that a facilities request be reviewed shortly after receipt to determine the reasonableness of the charter school’s ADA projections and to contemplate the facilities to be offered. Also keep in mind that in certain circumstances, even proposed charter schools may request facilities, so a request from a school that has not yet been approved is a possibility.

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

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Carrie M. Rasmussen
Associate
Sacramento Office
crasmussen@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.