New Law Aims to Protect Public Employers and Unions from State Lawsuits to Recover “Fair Share” Fees

September 2018
Number 54

A new law provides public employers and public sector unions with legal immunity under state law from claims to recover the deduction of mandatory agency fees, or “fair share” fees, collected before the United States Supreme Court issued its decision in Janus v. AFSCME on June 27, 2018. Senate Bill (SB) 846 is effective immediately.

Background

Prior to the Janus decision, the United States Supreme Court previously held that it was constitutional for public sector unions to collect agency fees from nonunion members to defray the cost of collective bargaining and other activities, so long as nonunion members were not required to pay for a union’s political or ideological activities. In Janus, the United States Supreme Court overturned this precedent and held that public employees may not be compelled to pay fair share fees to public sector unions, as such fees violate the First Amendment. (See 2018 Client News Brief No. 27.)

SB 846, which adds section 1159 to the Government Code, seeks to provide legal protection to public employers and public sector unions that relied on prior Supreme Court precedent and state law when deducting and collecting fair share fees. SB 846 provides that public employers and employee organizations are not liable under state law for “requiring, deducting, receiving or retaining” fair share fees from public employees if the fees were legally permitted at the time and paid prior to June 27, 2018. SB 846 states that this new statute clarifies current state law, and does not change it. In addition, Government Code section 1159 applies to claims and actions that are pending on the effective date of the statute, in addition to claims and actions filed after that date.

Takeaways

Since the Janus decision, employees aided by organizations opposed to agency fees have filed lawsuits seeking the return of the employees’ fair share fees from the unions. As SB 846 is limited to claims or actions under state law, it does not impact lawsuits filed in federal court alleging a violation of federal law.

If you have any questions about SB 846, 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:

Dulcinea Grantham

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.

California Attorney General Advisory Affirms Public Sector Labor Rights and Obligations

September 2018
Number 53

As the United States Supreme Court’s Janus ruling continues to reverberate throughout the nation, California public sector employers can look to Attorney General Xavier Becerra’s August 31, 2018 advisory for guidance regarding labor rights and employer obligations that still apply in California’s public workplaces.

The two-page advisory “re-affirms” California’s “full support” for California labor rights, particularly the following public sector statutory rights:

  • The employees’ right to form, join, and participate in the activities of their union for purposes of representation on wages, hours, and other conditions of employment;
  • The employee’s right to refrain from joining or participating in the activities of a union, or to cancel or change deductions to the union; and
  • The employee’s right to file an unfair practice charge with the Public Employment Relations Board (PERB).

California public agency employers are advised that followingJanus, it still remains unlawful to do the following:

  • Retaliate or discriminate against, or threaten to retaliate or discriminate against, employees for exercising their protected rights to engage in collective action;
  • Interfere with employees’ exercise of their protected rights to engage in collective action, or deter or discourage employees or applicants for public-sector jobs from joining a union;
  • Refuse to meet and confer in good faith with a union; and
  • Interfere with the formation or administration of a union, or support or show preferential treatment for a union.

This new advisory reflects the Attorney General’s position that althoughJanus-a decision with which he “adamantly disagree[s]”-prohibits all public sector employers from automatically deducting a mandatory agency fee from the salary or wages of non-member public employees who do not affirmatively choose to financially support the union, California still supports the collective bargaining process and maintains its right to manage its own public sector workforce.

If you would like more information about the advisory or about collective bargaining rights 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:

Dulcinea Grantham

Partner

Roxana E. Khan

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.

California Bans For-Profit Charter Schools

September 2018
Number 52

Governor Jerry Brown has signed new legislation banning for-profit corporations, for-profit educational management organizations, and for-profit charter management organizations from operating charter schools in California. Assembly Bill (AB) 406 takes effect July 1, 2019.

Background

Amidst a growing nationwide movement to privatize public schools, for-profit corporations known as educational management organizations (EMOs) and charter management organizations (CMOs) are on the rise. These organizations make public education their business, establishing charter schools that are required to contract with the for-profit corporations for all or a majority of services, and taking a percentage of the taxpayer dollars that fund these schools as profit.

Until now, California law has expressly allowed public charter schools to be operated by non-profit corporations, but has stood silent on whether a charter school may be operated by a for-profit corporation. Absent any clear prohibition, according to the California Senate Education Committee, for-profit corporations now operate as many as 34 charter schools statewide, delivering public education to over 25,000 students.

AB 406, signed into law on September 7, amends the Education Code to provide a definitive prohibition where current law is silent. Under AB 406, a public charter school may not be operated as, or by, a for-profit corporation, including an EMO or CMO. For the purposes of AB 406, the Legislature assigned a broad definition to the term “operate,” and a for-profit corporation may not do any of the following in relation to a charter school:

  • Nominate, appoint, or remove charter school board members or officers;
  • Employ, supervise, or dismiss charter school employees;
  • Manage a charter school’s day-to-day operations as its administrative manager;
  • Independently approve, deny, or manage the budget or expenditures of a charter school; or
  • Provide services to a charter school before the school’s governing body has properly approved a contract for such services.

Takeaways

After the law goes into effect, petitioners submitting new or renewal charter petitions may not propose to be operated by a for-profit corporation. A charter school also may not enter into a subcontract to avoid the requirements of AB 406. In enacting this law, the Legislature is attempting to ensure public schools do not use taxpayer dollars to generate profits for corporations. It is not yet clear whether AB 406 will effectively encompass all possible organizational structures a for-profit corporation could adopt, and whether this bill will have its intended effect of eliminating for-profit corporate management of the day-to-day operations of California charter schools.

Charter school operators and authorizers should examine the organizational structure of charter schools within their purview to determine if current operations might be impacted upon renewal by AB 406. Although AB 406 is not immediately effective, local educational agencies reviewing either new or renewal charter petitions on or after July 1, 2019 should carefully review all elements of a petition, including those related to governance structure, operations, and board bylaws, to ensure the proposed new or renewal charter school meets all requirements under the law, and does not impermissibly assign operational oversight to a for-profit corporation. Charter authorizers may also need to consider the impacts of significant changes to the governance structure of a charter school’s operation, and may wish to consult with their legal counsel.

For more information about AB 406 or about the Charter Schools 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:

Manuel F. Martinez

Partner

Erin M. Hamor

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.

Court Reaffirms Governing Board’s Ability to Impose Reasonable Limits on Public Comment

September 2018
Number 51

A California appellate court recently reaffirmed the limitations a governing board of a public entity can impose on public comments during a board meeting (Ribakoff v. City of Long Beach).

Background

As was his frequent practice, Joe Ribakoff attended a Long Beach Public Transportation Company (LBTC) board meeting as an interested citizen. LBTC’s lone shareholder is the City of Long Beach, and LBTC operates as a public entity. During the public comment period, Ribakoff spoke for the three minutes that an LBTC board ordinance grants members of the public to address the board. When Ribakoff attempted to speak a second time, after the close of public comment, he was denied the opportunity to speak further and his microphone was cut off. An LBTC representative testified that Ribakoff became argumentative and appeared to approach the dais where the board was seated. A police officer was summoned and told Ribakoff that if he disrupted the meeting again, he would be arrested for violation of a city ordinance prohibiting disturbance or interruption of a board meeting.

Ribakoff sued the board, arguing that the board meeting disturbance ordinance violates the First Amendment, and that its three-minute speaking limit violates the Brown Act and the First Amendment.

To support his argument that the ordinance’s prohibition on disturbance or interruption of a board meeting violated the First Amendment, Ribakoff pointed to precedent that says an ordinance is unconstitutional if interpreted to allow an arrest based on the content of the disruption. However, that precedent also found that an ordinance is constitutional if it is construed to be a content-neutral “time and place” restriction. The court construed the challenged ordinance to be a legitimate “time and place” regulation that only penalized speech based on whether it was disrupting the meeting, not on what was being said.

The Brown Act permits a public agency’s governing board to adopt reasonable time limitations to ensure adequate opportunity for public comment, but prohibits the board from censoring public criticism of it. Ribakoff argued that the three minute limit is not reasonable because the board used it for a purpose other than time limitation-it allowed the board to censor his criticism. However, the court found no evidence to support this argument. The board did not stop Ribakoff from speaking during his initial three minutes, despite his critical statements. It was only when he attempted to speak after his three minutes had expired that he was restrained from speaking further.

Ribakoff also claimed that the time limit is unreasonable because the three-minute limitation applies only to public comment and not the board or its invited speakers. The court disagreed, pointing out the difference in purpose between public comments and board or invited presenter speech. When the board or its invited presenters speak, it is for the benefit of the public. The board regulates the number and length of these presentations, and ensures that they do not take more time than necessary. Conversely, public comment is potentially unlimited depending on how many members of the public are at the meeting, so a reasonable time limitation is justified.

The court recognized that board meetings are open to the public, yet are still governmental processes with an agenda and a purpose. Therefore, limitations for the purposes of keeping the board meeting on schedule and on topic are justified.

Takeaways

  • Boards are generally not permitted to adopt rules that limit public comment based on the content of the comment. But it is not a free speech violation to limit comments to the topic at hand.
  • Cities or other entities with police power may adopt ordinances that authorize penalties for members of the public when their behavior-and not the content of their expression-impairs the conduct of the meeting.
  • Boards may adopt reasonable time limitations on public comment.
  • Boards may have different time limitations for public comment versus board members or invited speakers.

For questions regarding the Ribakoff decision or about public comment or board meetings 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:

Harold M. Freiman

Partner

Jordan R. Fong

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.

Court Limits Enforcement of Public Sleeping Ordinances

September 2018
Number 50

A federal appeals court has held that a city could not enforce local ordinances that prohibit homeless persons from sleeping outside when shelter is not available. Municipalities with similar ordinances may be affected by the Ninth Circuit Court of Appeals’ decision in Martin v. City of Boise.

Background

At a time when homelessness is an issue that cities and counties are increasingly called to address, a common trend is to prohibit sleeping and camping on the sidewalk, in parks, and in other public places. The City of Boise enacted ordinances to do just that. The ordinances prohibit the use of “any of the streets, sidewalks, parks, or public places as a camping place at any time” where “camping” is defined as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence” and “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private” without permission.

Several homeless residents challenged enforcement of the Boise ordinances. The factual basis for their claim was fairly straightforward: Plaintiffs are homeless; there is not enough room at the homeless shelters for all of the city’s homeless; plaintiffs and other homeless persons have no choice but to sleep outside and in public when the shelters are full; therefore, plaintiffs and other homeless persons are forced to violate the city’s ordinances. Their claim rested on the Eighth Amendment’s prohibition against cruel and unusual punishment. Specifically, the Amendment’s “substantive limits on what the government may criminalize” was at issue.

The court examined prior U.S. Supreme Court cases concerning narcotics addiction and public drunkenness, as well as the since-vacated Ninth Circuit decision in Jones v. City of Los Angeles that restrained enforcement of an ordinance that prohibited sitting, lying, and sleeping in public. The court adopted the reasoning of its prior ruling inJones, finding Boise’s ordinances effectively criminalize the status of being homeless, as opposed to undesirable conduct that can be prohibited.

The Martin court concluded that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” “[A]s long as there is no option of sleeping indoors,” the court ruled, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

Takeaways

Despite the ruling, there is likely a future for sleeping and camping ordinances. The court declared that “[its] holding is a narrow one” and made some important qualifications regarding its ruling. Some clues are also found in the text of the decision. For example, the court’s regular reference to “public property” suggests that sleeping and camping ordinances may still be enforced when the conduct occurs on private property, regardless of shelter space.

The court further made clear, albeit in a footnote, that the ruling “does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it.” Moreover, it did not say a city can never prohibit sleeping in public when there is insufficient shelter space. Without making an express decision on this point, the court said that “an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible,” and, “an ordinance barring the obstruction of public rights of way or the erection of certain structures” may be acceptable. This may mean that permitting outdoor sleeping in designated places and times will permit widespread enforcement of such an ordinance elsewhere.

Throughout Martin, the court focused on the natural and necessary act of sleeping, stating that “the two ordinances criminalize the simple act of sleeping outside on public property.” This raises an interesting point about camping ordinances. The court was critical of the city’s enforcement of the camping ordinance against homeless persons “with some elementary bedding,” sleeping “with blankets,” or when other indicators of “camping” are absent. It appears that the problem did not lie with the camping prohibition itself, which would prevent the act of constructing a camp or other shelter, but with sleeping and taking basic precautions in order to sleep outside.

The court stated that its ruling does not require cities to provide homeless shelters. But, when there are more homeless people than available shelter beds, the ordinances will be unenforceable. Practical unavailability of shelter beds may also impact enforcement. During the litigation, Boise instituted a “no space, no enforcement” protocol where the shelters would self-report if they were full so the ordinances would not be enforced that night. However, one shelter had a policy of not turning away anyone seeking shelter and never reported that it was full. As a result, the exception was never actually triggered. There was also evidence of limits on the number of consecutive days someone could stay at one shelter before a mandatory stay-away period. Additionally, due to the time of day that beds were assigned and preferences given to returning guests, a shelter with available room might stop making assignments for the night before prospective guests learn they are unable to get a bed at the other shelter, leaving them with no place to go.

The city reportedly will appeal the panel decision to the full Ninth Circuit. Until new decisions are issued, this ruling applies and municipalities that prohibit sleeping or camping in public places should review their ordinances and consult legal counsel concerning continued enforcement.

If you would like more information about the Martin decision or have any questions regarding municipal sleeping or camping ordinances, 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 orTwitter or download our Client News Brief App.

Written by:

Jennel Van Bindsbergen

Partner

Wesley L. Carlson

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 Dates for Education Officials to Assume Office, Effective January 1

September 2018
Number 49

A new law will change the date that members of a county board of education, school district governing board, or community college district governing board take office. Assembly Bill (AB) 2449, which resolves clashing Education Code and Elections Code provisions, becomes effective on January 1, 2019.

Background

Existing Education Code provisions require newly-elected county board of education members to be seated on the last Friday in November and newly-elected school and community college district board members to be seated on the first Friday in December. The Elections Code provides that during even-year elections, county election officials have up to 30 days after Election Day to certify voting results. Thus, certification of the vote could occur after the dates for seating new board members. This conflict has up until now created a conundrum for governing boards, which were forced to either abide by the Education Code and seat new members before election results were certified or ignore the Education Code and wait for the completion of the certification process to seat new board members.

AB 2449 amends sections 1007, 1009, 5017, and 72027 of the Education Code to resolve this conflict. The law will change the date on which newly-elected county, school, and community college board members must be seated to the second Friday in December in the year of election. There is an exception for members of the county board of education elected in a primary election: They take office on the first day of July. The new law also changes the date of the organizational meeting, from on or after the last Friday in November to on or after the second Friday in December, except for the county boards of education whose members are elected in the primary election. Those boards’ organizational meetings will occur on or after the first day of July. Finally, the bill changes the date on which governing board members vacate office from the first Friday in December to the second Friday in December.

Takeaways

School districts, community college districts, and county boards of education should note the new dates for seating new board members, vacating office, and holding organizational meetings, effective January 1, 2019. These changes will not affect the upcoming 2018 elections.

If you have any questions about AB 2449, 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:

Louis T. Lozano

Partner

Benjamin Brown

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.

Public Records Act Does Not Require Creation of Generalized Electronic Data

September 2018
Number 48

A California appellate court has ruled that public agencies are not required to provide anonymized data in response to California Public Records Act (CPRA) requests when doing so would require the public agency to create new data.

Background

The CPRA requires public entities to disclose public records unless there is a specific legal exemption. The courts have previously affirmed that the CPRA does not require public agencies to create new records to satisfy a CPRA request. However, in some circumstances public agencies are required by statute to compile or extract data from electronic records, provided that the requester pays for any associated programming or computer services costs.

Sander v. State Bar of California

In Sander v. State Bar of California, decided on August 23, researchers made a CPRA request for information from the State Bar of California related to applicants to the California Bar Examination, such as applicant race, law school, year of graduation, and undergraduate grade point average, in order to study bar passage rates among racial and ethnic groups. The researchers proposed four methods by which the State Bar could provide access to this data without violating the privacy interests of the applicants. The first method was for the State Bar to create a physical “data enclave” where the public could access and analyze the data under State Bar supervision after it had been stripped of personal identifiers and other sensitive information. The other three proposed methods involved providing anonymized data through various means. All of the methods of anonymizing the data involved some level of “generalizing” the data, such as replacing specific grade point averages with averages or ranges and replacing law school names with law school classifications.

The Court of Appeal affirmed the general principal that the CPRA requires public agencies to provide access to their existing records but does not require the creation of new records to satisfy a request. While public agencies are required to search, extract, compile, or redact electronically stored data, the court held that a request that requires a public agency to create new data is outside of the CPRA. The court also held that nothing in the CPRA required the State Bar to create a supervised “data enclave”.

Takeaways

  • Public agencies are not required to create new records in response to CPRA requests.
  • While public agencies are required to search, extract, compile, or redact electronically stored data, public agencies do not have to create new data in response to CPRA requests.
  • Public agencies are not required to anonymize data by replacing existing data with new, “generalized” data.

From a broader standpoint, this case supports public agencies that are asked to alter or manipulate existing documents or data to meet the demands of a public records requestor. As observed by the Sander court, a public agency “cannot be required to create a new record by changing the substantive content of an existing records or replacing existing data with new data”.

If you have any questions about Sander, or about the CPRA 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:

Harold M. Freiman

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.