New Law Requires Legal Consult Prior to Custodial Interrogation of Minor under Age 16

November 2017
Number 78

Beginning January 1, 2018, minors under the age of 16 must consult with legal counsel prior to a custodial interrogation and before waiving their Miranda rights.

Existing law requires a peace officer to advise minors of their rights by providing a Miranda warning. But if the minor or parent waives those rights, officers can interrogate the minor. Senate Bill (SB) 395, which adds section 625.6 to the Welfare and Institutions Code, will prohibit a law enforcement officer from conducting a custodial interrogation of or accepting a waiver of Miranda rights by a minor 15 or younger until the minor has had an opportunity to consult with legal counsel. This consultation must occur in person, by telephone or by video conference and may not be waived.

SB 395 requires a court to consider the impact of a peace officer’s failure to provide such legal consultation in determining the admissibility of statements the minor made during or after a custodial interrogation.

SB 395 provides limited exceptions to its consultation requirement. The new law does not require probation officers to comply with its requirements and also excludes questions related to obtaining information believed to be necessary to protect life or property from an imminent threat.

SB 395 creates new issues for police and other public agencies, including schools, when dealing with minors and illegal or inappropriate conduct. School districts that rely upon interviews of students by school district police department officers or contract school resource officers (SRO) in relation to student discipline proceedings may wish to review those practices for conformance with the new law, which covers potential criminal misconduct occurring on school campuses. In particular, school districts may wish to review how and when a law enforcement officer or an SRO may become involved with investigations of student misconduct.

Lozano Smith is currently working with our law enforcement, municipal, school district and community college district clients to address these and other issues related to the enactment of SB 395. If you have questions or need more information on how the new law impacts your agency, please contact the authors of this Client News Brief or an attorney at 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:

Jenell Van Bindsbergen

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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New Laws Ease Residency and Coursework Requirements for Children of Active Duty Military Personnel

November 2017
Number 77

A pair of new laws intended to ease residency and coursework requirements for students in military families will go into effect on January 1, 2018. Senate Bill (SB) 455 expands on prior legislation to permit students whose parents are on active duty military orders to remotely enroll in school, while Assembly Bill (AB) 365 extends coursework exemptions for other groups of transient students to children of active duty members of the military.

SB 455: Updated Residency Rules for Students in Military Families

A prior bill, SB 1455, went into effect on January 1, 2017. SB 1455 allowed some transferring military families to remotely register their children in school prior to being physically located within the boundaries of their new school district. (Ed. Code, § 48204.3.) Under this existing law, a student complies with school district residency requirements if the student’s parent was transferred or is pending transfer to a military installation located within the boundaries of the school district while on active military duty pursuant to an official military order, so long as proof of residence is provided within 10 days of the documented arrival date.

A problem arose, however, in that the law does not cover families that intend to live and enroll in school outside of the school district in which the military installation in question is located. SB 455 addresses this problem by amending section 48204.3 to provide that children in military families meet the residency requirements for attendance in a school district if the student’s parent, while on active-duty orders, is transferred or is pending transfer to a military installation anywhere in the state. Now, military families on active duty orders will be permitted to remotely enroll in any school district where they will reside regardless of whether the military installation is within school district boundaries.

AB 365: Changes Coursework Requirements for Children of Active Military Personnel

Due to their frequent transfers between school districts, foster youth, homeless students, and former juvenile court school students often struggled to graduate on time due to local coursework requirements that exceed those mandated by state law. By enacting AB 365, state lawmakers extended a coursework exemption and other related provisions that already applied to students in these transient populations to children of active duty military personnel.

Under AB 365, Education Code sections 51225.1 and 51225.2 were amended to provide that foster youth, homeless students, children of active duty military personnel, and former juvenile court school students who transfer between schools any time after the completion of their second year of high school are exempt from all coursework and other requirements that exceed statewide coursework requirements.

The exemption does not apply if the student is reasonably able to complete the additional requirements in time to graduate by the end of his or her fourth year of high school. If a school district determines a student is reasonably able to complete the coursework required for graduation within five years, the district is required to inform the student of the option of remaining in high school for a fifth year, and of the effect that doing so may have on the student’s ability to get into college.

State law also requires school districts to accept satisfactory coursework these students completed at other schools, even if the student did not finish the course. School districts are required to give full or partial credit for the completed coursework and may not require a student to retake a course if the student has satisfactorily completed the entire course in a public school, a juvenile court school, or a nonpublic, nonsectarian school or agency. In addition, these students cannot be prevented from taking or retaking courses to meet the eligibility requirements for admission to either the California State University or University of California systems.

For more information on SB 455 and AB 365 or on enrollment and coursework requirements for students in military families in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas A. Manniello

Partner

Klye A. Raney

Associate

©2017 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.

Part-Time Playground Positions to Join Classified Service

November 2017
Number 76

School districts’ part-time playground positions will join the classified service when Assembly Bill (AB) 670 becomes effective on January 1, 2018.

Under the new law, part-time playground positions, including noon-duty aides, yard aides, noon-time assistants, and playground aides, will no longer be exempt from the classified service. The law will only apply to school districts that have not incorporated a merit system.

AB 670 provides employees in part-time playground positions the following rights:

  • Status: Playground employees will no longer be considered “at-will,” but instead will have a probationary employment period and gain permanency like other classified employees.
  • Termination: These employees are now entitled to due process in termination proceedings consistent with the Education Code and school district policy.
  • Seniority: Employers will need to determine the date to be considered the first day in probationary status and to properly establish seniority dates for these employees.
  • Layoff and Reemployment Rights: Employees will be entitled to all statutory rights related to layoff and reemployment.
  • Leave Rights: Employees are entitled to all rights of classified service as provided by law including leaves, vacation pay and holidays.

The inclusion of part-time playground positions in classified service does not automatically result in these positions becoming part of a classified bargaining unit. A union may need to seek a unit modification to include these positions with the bargaining unit depending on the existing language of the school district’s classified collective bargaining agreement. The unit modification process will provide school district employers with the opportunity to negotiate the conditions of employment for these positions. School districts should review the language of their collective bargaining agreements to determine the status of part-time playground positions in the bargaining unit.

School districts should analyze the impact of these changes on health benefits and the applicable rights to these benefits by law and any applicable collective bargaining agreement. Districts should also examine what additional rights employees will be entitled to under the collective bargaining agreement to anticipate whether there are any items to be negotiated specific to these positions.

For more information on AB 670 or its impacts on classified service, please contact the authors of this Client News Brief or an attorney at 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

Janae D Lopes

Associate

©2017 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 Placing Community College Employees on Paid Leave

November 2017
Number 73

Assembly Bill (AB) 1651 adds a new hurdle community college districts must clear before placing an academic employee on paid administrative leave. AB 1651 specifies new requirements for placing academic employees on paid administrative leave, including two days’ advance notice of such a placement unless an exception applies. The bill becomes effective January 1, 2018.

Academic employees are individuals employed by a community college district in academic positions that require minimum qualifications.

Under existing law, community college districts generally have discretion to place an academic employee on paid administrative leave without advance notice. AB 1651 adds Education Code section 87623, which requires community college districts to notify academic employees in writing about the general nature of the allegations of misconduct at least two business days before placing them on paid administrative leave. This requirement will not apply if there is a “serious risk of physical danger or other necessity arising from the specific allegations.” If this limited exception applies, then the employer may immediately place the employee on paid administrative leave. Within five business days of placing an academic employee on paid administrative leave without advance notice, the community college district must notify the employee of the general nature of the allegations made against him or her.

This new law also addresses time limits for completing an investigation into alleged misconduct and for initiating disciplinary proceedings. AB 1651 provides that a community college district should complete its investigation and initiate disciplinary proceedings or reinstate the employee within 90 days of placing the employee on paid administrative leave. Because the statute uses the word “should” instead of “shall,” this appears to be a recommendation as opposed to a mandatory time limit. However, AB 1651 allows the California Community Colleges’ Board of Governors to specify by regulation a required amount of time in which a community college district is expected to comply with investigating and initiating disciplinary proceedings. This means that a required time limit for complying with this portion may be forthcoming.

AB 1651 also makes clear that its requirements do not supersede the rights of labor organizations or employees under the Educational Employment Relations Act.

If you have any questions about AB 1651 or its impact on the paid administrative leave process, please contact the authors of this Client News Brief or an attorney in our Technology and Innovation Practice Groupor at 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:

Michelle J. Cannon

Partner

Aria Link

Associate

©2017 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.

Legislative Update: Bill Eases Fee Collection for Storm Water Systems

November 2017
Number 74

A new law will make it easier for local governments to raise the revenue necessary to maintain and upgrade storm water management systems. Senate Bill (SB) 231 becomes effective on January 1, 2018.

Proposition 218

Proposition 218 limits local governments’ ability to impose new or increased fees or charges. The California Constitution defines a “fee” or “charge” as “any levy other than an ad valorem tax, a special tax, or an assessment, imposed by an agency upon a parcel or upon a person as an incident of property ownership, including a user fee or charge for a property related service.” Prior to imposing a new or increased fee or charge, local governments are required to provide notice to the property owners or ratepayers that would be responsible for the fee or charge. The proposed new or increased fee or charge can be blocked by the submission of written protests from a majority of property owners. This is commonly known as the “majority protest process.”

Proposition 218 requires, in addition to the majority protest process, that new or increased fees or charges be approved by either a majority vote of the property owners or a two-thirds vote of the electorate in the affected
area. The exception to this voter approval requirement is for fees or charges for “sewer, water, and refuse collection services.”

SB 231

In the case of Howard Jarvis Taxpayers Ass’n v. City of Salinas (2002) 98 Cal.App.4th 1351, the Court of Appeal considered, among other things, whether a storm drainage fee was subject to the voter approval requirement. The court held that the exception to the voter approval requirement for fees or charges for sewer services did not apply because the term “sewer” as defined in the Proposition 218 Omnibus Implementation Act was limited to “sanitary sewage.” SB 231 is a direct response to theCity of Salinas decision.

SB 231 creates a new, expansive definition of “sewer” for the purposes of Proposition 218 that explicitly includes storm water systems. The new definition is contained in the Proposition 218 Omnibus Implementation Act. SB 231 also contains findings that state the Legislature’s disapproval of the City of Salinas decision. This change will make it easier for local government to raise the revenue necessary to maintain proper storm water management systems.

For more information on SB 231 or on Proposition 218 in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

David J. Wolfe

Partner

Nicholas J. Clair

Associate

©2017 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 Restrictions on Disclosure of Video and Audio Recordings

November 2017
Number 72

A new law will restrict the public disclosure of video and audio recordings created during the commission or investigation of rape, incest, sexual assault, domestic violence, or child abuse that depicts the face, intimate
body part, or voice of a victim of the incident. Assembly Bill (AB) 459 goes into effect on January 1, 2018.

The California Public Records Act (CPRA) requires public agencies to respond to a records request within 10 days, and to make eligible public records promptly available to a requester who pays the costs associated with duplication. Video and audio data are generally considered public records that are subject to disclosure, unless they are exempt under the express provisions of the CPRA or the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.

Over the past several years, peace officers’ use of body-worn cameras has become a frequent topic of public debate. Advocates stress public benefits such as improved evidence documentation and greater transparency, while others express concerns regarding potential invasions of privacy and violations of trust. AB 459 addresses the possibility that such recordings, which may contain sensitive, personal, or violent imagery or audio, could be distributed to the public, and is designed to provide victims of sexual or domestic violence with greater confidence that such footage will not be released.

AB 459 adds section 6254.4.5 to the Government Code, which specifies that the CPRA “does not require disclosure of an audio or video recording that was created during the commission or investigation of the crime of rape, incest, sexual assault, domestic violence, or child abuse that depicts the face, intimate body part, or voice of a victim of the incident depicted in the recording.” A public agency may withhold any such video or audio recording by showing that the public interest served by not disclosing the recording clearly outweighs the public interest served by disclosure of the recording. When balancing the public interest served by disclosure, AB 459 sets forth the two factors the public agency must consider:

  • The constitutional right to privacy of the person or persons depicted in the recording; and
  • Whether the potential harm to the victim caused by disclosing the recording may be mitigated by redacting the recording to obscure images showing intimate body parts and personally identifying characteristics of the victim or by distorting portions of the recording containing the victim’s voice, provided that the redaction does not prevent a viewer from being able to fully and accurately perceive the events captured on the recording.

Notably, AB 459 also explicitly allows a victim of sexual assault or domestic violence, or his or her parent or guardian (if the victim is a minor), next of kin, or legally authorized designee, to obtain a copy of any such recordings. Such a disclosure to a victim or family member does not require that the recording be made available to the public.

Lozano Smith will provide additional details about how AB 459 is applied and interpreted as public agencies begin utilizing these new standards. For more information on AB 459, please contact the authors of this Client News Brief or an attorney in our Charter Schools Practice Group or at 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:

Penelope R. Glover

Senior Counsel

Ellen N. Denham

Associate

©2017 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 Schools Facilities Request Deadlines Looming

October 2017
Number 71

Commonly referred to as “Prop. 39,” Education Code section 47614 requires that, in certain circumstances, school districts must provide facilities to charter schools. Pursuant to Prop. 39, charter schools must request facilities for the 2018-2019 school year, in writing, by November 1, 2017. Because Prop. 39 triggers certain obligations for a school district, it is best to be prepared for the upcoming facilities request season.

A charter school’s timely facilities request to a school district triggers the following deadlines:

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 the school district to provide a final facilities offer.

May 1: Deadline for the charter school to accept the district’s final facilities offer.

Given these tight timelines, it is critical that a Prop. 39 facilities request be reviewed shortly after receipt to determine the reasonableness of the charter school’s ADA projections and to consider what facilities will be offered. School districts should also keep in mind that in certain circumstances, even proposed charter schools may request facilities, so it is possible to receive a request from a school that has not yet been approved.

For assistance with processing Prop. 39 facilities requests or with any charter school matter, please contact the authors of this Client News Brief or an attorney in our Charter Schools Practice Group or at 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 J. Sklar

Partner

Jerrad M. Mills

Associate

©2017 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.