Field Trip Immunity Does Not Apply to a Community College’s Hosting of an Intercollegiate Athletic Event

August 2018
Number 44

Community college districts are generally immune from liability for injuries sustained in the course of field trips and excursions under the California Code of Regulations, title 5, section 55220. However, inAnselmo v. Grossmont-Cuyamaca Community College District, an appellate court determined that such immunity does not apply to an injury sustained during an intercollegiate athletic tournament.

Background

In this case, a community college hosted an intercollegiate beach volleyball tournament at its campus. During the competition, a beach volleyball player, who attended a different community college district, was injured when she dove into the sand and hit her knee on a rock.

The student filed a complaint against the college, claiming that she was injured due to a dangerous condition that existed at the college’s facility. The college sought to dismiss the case, contending that the field trips and excursions immunity under section 55220 applied.

The court disagreed with the college and concluded that section 55220 did not apply to this situation. The court determined that the college did not conduct the student’s field trip or excursion (i.e., direct or manage the actual travel). Rather, it provided the sports facility that the student traveled to with her team. As the host of the intercollegiate athletic competition, the college had an ongoing responsibility to provide reasonably safe premises to all teams participating in the tournament, including the visiting beach volleyball players.

Takeaways

Field trips and excursions immunity has specific and limited application for community college districts. While the court did not expressly state that such limitations apply to immunity provided to K-12 school districts, it did note the similarities in the statutory immunity language for K-12 districts. Finally, this case highlights the importance of public entities maintaining their property in a safe condition.

If you have any questions regarding the Anselmo case or field trip immunity 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:

Edward J. Sklar

Partner

Aria G. 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.

Advertisements

Mayor-Sponsored Pension Reform Ballot Measure Triggered Meet and Confer Requirement, Court Rules

August 2018
Number 43

When a public official with responsibility for labor relations sponsors a ballot measure affecting workers’ terms and conditions of employment, the duty to meet and confer arises, the California Supreme Court recently ruled. (Boling v. Public Employment Relations Board)

Background

In 2010, San Diego Mayor Jerry Sanders developed a citizen’s initiative to eliminate traditional pensions for new hires. Sanders told the press that his purpose for pursuing pension reform through a citizen’s initiative rather than through a measure proposed by City Council was to avoid the meet and confer process.

The City of San Diego is a charter city with a “strong mayor” form of government. As mayor, Sanders’ responsibilities include acting as the city’s chief executive officer, serving as its designated bargaining agent, and recommending measures to the City Council. (In other cities, these duties may be assigned to a city manager.)

Sanders actively developed and promoted the initiative in his official capacity. He issued news releases bearing his official title, approved a “message from Mayor Jerry Sanders” soliciting signatures for the initiative, and recommended to the Council that pensions be replaced with 401(k)-style plans. His staff also assisted in developing the proposal and gathering signatures for the initiative.

After the initiative garnered sufficient support to qualify for the ballot, the San Diego Municipal Employees Association wrote to Sanders, demanding that the city meet and confer on the grounds that Sanders had promoted the initiative in his official capacity. When the city refused, the union filed an unfair labor practice charge with the Public Employment Relations Board (PERB) alleging violations of the Meyers-Milias-Brown Act (MMBA).

PERB ruled in the union’s favor, finding that the city had engaged in an unfair labor practice in failing to meet and confer and that Sanders had acted in his official capacity in supporting the initiative. The Court of Appeal reversed, determining that the MMBA’s meet and confer requirements only to apply to proposals considered by a governing body.

In overturning the appellate court’s decision, the California Supreme Court found that the MMBA imposes a duty to meet and confer not just on the governing board, but also on “administrative officers or other representatives.”

As the city’s chief executive officer and bargaining agent, Sanders had a duty to meet and confer with the union regarding any matter that would affect the terms and conditions of employment, even though the policy was being pursued through a citizen’s initiative. The Court reasoned that “[a]llowing public officials to purposefully evade the meet-and-confer requirements of the MMBA by officially sponsoring a citizens’ initiative would seriously undermine the policies served by the statute: fostering full communication between public employers and employees, as well as improving personnel management and employer-employee relations.”

The Supreme Court also held that the appellate court should have given deferential treatment to PERB’s decision, noting that the lower court should have “followed PERB’s interpretation unless … clearly erroneous.”

Takeaways

Local city and county officials with labor relations responsibilities should be cautious when it comes to promoting in their official capacities ballot measures that affect represented workers’ terms and conditions of employment, as this may give rise to the duty to meet and confer.

If officials choose to promote ballot measures affecting the terms and conditions of employment of their agency’s employees, they should make clear they are doing so in their individual capacities. They should not use staff time or agency resources to develop policy, promote policy, or solicit signatures. To do otherwise may give rise to a duty to meet and confer.

For more information about this decision or about meet and confer obligations 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:

Jenell Van Bindsbergen

Partner

Meera H. Bhatt

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.

Lawmakers Approve Overhaul of Community College District Funding System

August 2018
Number 42

State lawmakers have approved an overhaul of the funding system for California’s community colleges. The new Student-Focused Funding Formula for general purpose apportionments will be phased in over three school years, starting in 2018-19. The formula aims to equalize access and improve outcomes for community college students by tying a portion of annual funding to student equity and success.

The formula was included in a budget trailer bill, Assembly Bill (AB) 1809, which was part of the budget package Governor Jerry Brown signed on June 27, 2018. The bill added Education Code section 84750.4, which spells out the specifics of the formula. The final version of the formula approved by lawmakers reflects a compromise with Governor Brown, who proposed a new funding formula in January 2018. The Governor’s original proposal would have devoted a greater share of funding to student equity and success measures and would have been fully effective this school year.

Under the final version, 70 percent of state apportionment funding for most credit-based full-time equivalent students (FTEs) will be based on enrollment alone, while 30 percent will be tied to student equity and success measures. By the 2020-21 fiscal year, 60 percent of state apportionment funding for community college districts will be based on enrollment alone, while 40 percent will be tied to student equity and success measures.

The student equity funding will be provided in the form of a supplemental allocation based on the number of low-income students a college district serves. The other major funding component will be provided as a “student success allocation” based on degrees and certificates earned, transfers to four-year colleges and universities and other factors. Additional funding will be set aside for college districts whose low-income students attain such successes.

This new student equity and success funding will be allocated on a points-based system that ties points to certain student characteristics. The points will be tied to specific funding rates.

For college districts whose funding would drop under the new formula, there is a “hold harmless” provision that maintains a funding floor for the next two fiscal years at 2017-18 levels, plus cost of living adjustments. For the 2020-21 fiscal year and beyond, college districts will receive the higher of either (1) the amount based on the new formula or (2) the 2017-18 base allocation rate, whichever is higher.

The law additionally maintains higher base allocation rates for 10 specific community college districts that had higher base allocation rates in place during the 2017-18 school year, though these amounts will be subject to decrease over the three-year phase-in period.

AB 1809 also requires each college district’s governing board to certify that it will adopt local goals aligned with the California Community Colleges’ Vision for Success plan by January 1, 2019. This plan includes a goal of increasing the number of students who obtain degrees and jobs in their field of study and transfers to four-year state colleges or universities.

Unlike the funding allocated under the Local Control Funding Formula to K-12 school districts, this formula does not explicitly require community college districts to spend supplemental and student success allocations to directly benefit the specific student populations upon which the allocations are based. However, it does require each college district to align its comprehensive plan with its local goals and to align its budget with that plan.

Takeaways

As made clear by the statutory provisions enacting the new funding formula, community college district leaders should be prepared to analyze the short-and long-term fiscal impacts of this new funding plan on their students and on supporting programs and services. District leaders may also wish to reach out to legal counsel to explore the potential legal ramifications of the new formula and the impacts it may be expected to have on each college’s staffing and programmatic offerings.

For more information on the Student-Focused Funding Formula and how it will affect your district, 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:

Darren C. Kameya

Partner

Steve Ngo

Senior Counsel

©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.

Public Entities May Rely on Claimant’s False Representations of Timeliness on Claim Forms

August 2018
Number 41

In Estill v. County of Shasta, the Court of Appeal has ruled that a public entity has no duty under the Government Claims Act to advise a claimant that they may seek leave to file a late claim within 45 days, where the claim appears to be timely on its face.

Background

Renee Estill, a former employee of the Shasta County Sherriff’s Office, submitted a government claim form to Shasta County on February 23, 2012. In the claim form, she alleged that her coworkers discussed a confidential internal investigation of which she was the subject, and spread rumors about her based on the investigation. Estill repeatedly represented on the form that she first became aware of the alleged incidents on September 9, 2011. The county accepted the claim as timely, and denied the claim on the merits without warning Estill to seek leave to present a late claim.

After Estill filed suit, the county learned at her deposition that she was actually aware of the alleged incidents in 2009. The county’s motion for summary judgment was granted by the trial court based on Estill’s claim being untimely filed. Following the judgment, Estill requested and was granted a new trial. Estill asserted that the county waived its defense of untimeliness when it failed to warn Estill that she should seek leave to present a late claim pursuant to Government Code section 911.3(b). The county appealed.

The Court of Appeal ruled in favor of the county and found that a claimant may be prevented from asserting that a public entity has waived its defense of untimeliness when the reason the public entity fails to notify the claimant that a claim is untimely results from the claimant’s representations on the government claim form.

The Government Claims Act allows a claimant to sue a public entity, including local government agencies, public school districts, and community college districts, after meeting certain procedural requirements. One requirement is that a claimant must file his or her claim with the governmental entity within six months of the “accrual” (learning of the alleged wrongdoing that caused injury to the claimant) of the injury. Under Government Code section 911.3, a waiver of the six month timeliness requirement occurs when the governmental entity does not advise a claimant within 45 days of the presentation of an untimely claim that leave may be sought to file that late claim.

In this case, Estill first became “aware” of the alleged wrongdoing in 2009, but represented on her government claim form that she did not become aware until 2011. The court reasoned that because Estill withheld information that would alert the county that she might have been aware of the incident prior to 2011, she intended for the county to rely on her representations that her claim was timely filed, which the county did. The court continued that it would be unfair to allow Estill to subsequently assert that under section 911.3, subdivision (b), the county waived its timeliness defense by accepting her repeated representations at face value, especially when there was no indication the representations were untrue.

Takeaways

This new ruling allows any public entity to accept the representations of timeliness on a government claim form at face value and to deny the claim on its merits, while also preserving its defense of untimeliness if it learns at a later date that the claim was untimely. Furthermore, a public entity may rely on the representations in the claim form without conducting its own investigation into the timeliness of the claim, so long as the claimant does not provide information that the claim might be untimely.

For more information about the Estill case or about the Government Claims Act 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:

Jenell Van Bindsbergen

Partner

Mark Murray

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.

Lawmakers Declare April 10 Dolores Huerta Day

August 2018
Number 40

The Legislature has declared that April 10 is Dolores Huerta Day. Assembly Bill (AB) 2644, which dedicates the day to the activist and labor leader, becomes effective January 1, 2019.

The new law encourages public schools and other educational institutions to observe this day by conducting activities that commemorate the life and accomplishments of Dolores Huerta. However, the legislation does not create a new mandatory paid holiday.

Huerta is known for working to improve social and economic conditions for farmworkers and for defending civil rights. She has received many honors for her civil rights work, including receiving the Eleanor Roosevelt Human Rights Award in 1998 and being inducted into the California Hall of Fame in 2013.

For more information about AB 2644 or about days of special significance 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:

Sarah Levitan Kaatz

Partner

Carolyn L. Gemma

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 Law Clarifies Limits on Employer Use of Applicant Salary History

August 2018
Number 39

A new law clarifies recently enacted rules prohibiting employers from asking job applicants about their salary history. The changes included in Assembly Bill (AB) 2282, which becomes effective on January 1, 2019, eliminate some ambiguity concerning an employer’s limitations with regard to requesting an applicant’s salary history information.

Background

In 2017 lawmakers approved AB 168, which limits what employers, including public entity employers, can request from applicants in terms of salary history information and also how that information can be used. (See 2017 Client News Brief No. 68.) It added section 432.3 to the Labor Code, which prohibits employers from asking a job applicant for salary history information and from using an applicant’s salary history information as a factor in determining whether to offer the applicant employment or what salary to offer the applicant, except in specified circumstances.

AB 168 did permit employers to obtain salary history information that is legally required to be disclosed to the public, such as information that is subject to the California Public Records Act or federal Freedom of Information Act. Employers may also consider salary history information if the applicant voluntarily provides it.

AB 2282, makes the following changes to the above stated law:

  • An “applicant” or “applicant for employment” means “an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.”
  • A “reasonable request” means “a request made after an applicant has completed an initial interview with the employer.”
  • “Pay scale” means a “salary or hourly wage range.”
  • Employers may ask an applicant about his or her salary expectation for the position for which the applicant is applying.

Takeaways

Existing law prohibits an employer from paying any employee at a wage rate less than the wage rate paid to employees of the opposite sex for substantially similar work, under substantially similar working conditions, unless the employer demonstrates that one or more of the following factors, reasonably applied, account for the entire wage differential:

  • A seniority system;
  • A merit system;
  • A system that measures earning by quantity or quality of production; and/or
  • Education, training or experience not attributed to gender that fulfills a legitimate business purpose.

The Ninth Circuit Court of Appeals recently ruled that using an employee’s prior salary as a basis for establishing their initial salary is a violation of the federal Equal Pay Act. (See 2018 Client News Brief No. 25.) AB 2282 clarifies and reiterates that although prior salary cannot justify any disparity in compensation, an employer can make a compensation decision based on an employee’s current salary when the resulting wage differential is justified by one or more of the above stated factors. AB 2282 provides employers a safety net when there are legitimate business reasons for a wage differential between genders.

For more information about AB 2282 or about the use of salary history in the employment process 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:

Sarah Levitan Kaatz

Partner

Carolyn L. Gemma

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.

The FBI and Secret Service Issue New Guidance on Addressing School Violence and Active Shooters

August 2018
Number 38

The Federal Bureau of Investigations (FBI) and the United States Secret Service’s National Threat Assessment Center (NTAC) have released two important documents that offer insight into the pre-attack behavior of shooters and advice to help prevent targeted school violence through the use of threat assessments.

The FBI report

The FBI report, which was issued in June, is part of an FBI initiative to understand why shootings in confined and populated areas, like schools, occur and how they can be prevented. The report attempts to identify specific pre-attack behaviors in order to help law enforcement, school officials, and others better identify, assess and manage individuals who may be on a path to violence.

The report makes 10 key findings. Notable among them as they relate to schools:

  • The 63 active shooters examined did not appear to be uniform in any way such that they could be readily identified prior to attacking based on demographics alone.
  • Active shooters averaged four to five pre-attack observable, concerning behaviors (e.g., strange interpersonal interactions, recklessness, violent media usage, impulsivity, firearm behavior, and physical aggression).
  • Active shooters under age 18 were more likely to have these concerning behaviors observed by student peers and teachers than their own family members at home.
  • The most common response by an individual observing a concerning behavior was to either approach the eventual shooter directly or do nothing.

The FBI intends the report to serve as a resource for schools and others to develop better threat assessment and mitigation strategies, including early and prompt threat assessment of students.

The NTAC Guide

NTAC is a branch of the Secret Service that conducts research, training, and consultation on threat assessments to prevent non-random acts of targeted violence. The NTAC guide, released in July, is the first phase of a federal initiative to provide updated research and guidance regarding prevention of school-based violence. Its purpose is to provide a model threat assessment process for schools, where the goal of threat assessment is (1) to identify students of concern, (2) assess their risk for engaging in violence or other harmful activities, and (3) identify intervention strategies to manage that risk. The guide provides a multi-step process for creating a comprehensive, targeted violence prevention plan that achieves this goal. The steps include:

  • Forming a multidisciplinary threat assessment team;
  • Defining prohibited and concerning behaviors;
  • Establishing a central reporting mechanism;
  • Determining the threshold for law enforcement intervention;
  • Establishing assessment procedures;
  • Developing risk management options;
  • Creating and promoting a safe school climate; and
  • Providing training to all stakeholders.

The guide cautions that there is no specific profile of a student attacker. Rather than focusing solely on a student’s personality traits or school performance, the guide suggests that much more can be learned about a student’s risk for violence by working through this threat assessment process.

Takeaways

Both documents are important new resources in addressing the unfortunate reality of violence in schools. School officials should consider the documents’ recommendations in conjunction with the annual school safety plan process, which includes a threat assessment component. Officials, however, should keep in mind that many of the recommendations in the report and guide may be subject to federal or state legal requirements, such as state law limits on school monitoring of student social media activity.

Finally, Assembly Bill (AB) 1747, which is making its way through the state Legislature, would make related changes to the requirements for school safety plans. In its current form, the bill would require schools to perform annual active shooter drills and require the tactical response portion of safety plans to include specific procedures for gun incidents at schools and school-related activities. Additionally, AB 1747 would mandate charter schools to develop comprehensive school safety plans. Lozano Smith is actively monitoring this legislation and will be prepared to offer specific guidance if it becomes law.

The FBI report, titled A Study of Pre-Attack Behaviors of Active Shooters in the United States Between 2000 and 2013, and NTAC operational guide, titled Enhancing School Safety Using a Threat Assessment Model: An Operational Guide for Preventing Targeted School Violence, can be found on the Public Safety Practice Group page of our website.

For more information about these new resources, legal requirements for school safety plans, or other school safety issues, 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:

Trevin E. Sims

Partner

Joshua Whiteside

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.