New Law Expands the Four-Year Evidentiary Window in Permanent Certificated Discipline Cases Involving Allegations of Sexual Misconduct

October 2018
Number 62

Assembly Bill (AB) 2128, effective January 1, 2019, will allow evidence and testimony outside the current four-year time window when a certificated employee is accused of sexual misconduct with a student or minor.

Generally, Education Code section 44944 prohibits testimony, evidence, or a dismissal or suspension decision relating to matters that occurred more than four years before the date a permanent certificated employee is served with a notice of disciplinary action. While there are exceptions to this rule when allegations of sex offenses and acts of child abuse and neglect are charged against a permanent certificated employee, existing law does not expressly allow consideration of testimony or evidence for other misconduct of a sexual nature, if the evidence relates to matters that occurred more than four years prior.

AB 2128 exempts from the four-year window testimony, evidence, or a dismissal or suspension decision regarding allegations of behavior or communication of a sexual nature with a student that is beyond the scope or requirements of the educational program, for purposes of a disciplinary proceeding based on similar conduct. The new law will also exempt testimony, evidence, or a dismissal or suspension decision regarding allegations of specified offenses involving lewd and lascivious acts and certain types of contact or communication with minors, for purposes of any disciplinary proceeding.

It should be noted that separate and apart from AB 2128, in Atwater Elementary School District v. California Department of General Services (2007) 41 Cal.4th 227, the California Supreme Court held that, with regard to Education Code section 44944, “the four-year time limitation is not absolute” and consideration of allegations outside the four-year window may be permitted if the employing school district demonstrates that an equitable tolling doctrine applies. AB 2128 simply provides express grounds permitting consideration of certain older evidence and testimony without having to prove and rely upon an equitable tolling theory.

Takeaways

AB 2128 provides additional opportunities for school districts that initiate disciplinary proceedings against permanent certificated employees to demonstrate patterns of inappropriate behavior with students.

For more information about this new law or about the certificated discipline 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 orTwitter or download ourClient News Brief App.

Written by:

Gabriela D. Flowers

Partner

Jayme A. Duque

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

Legislature Enhances Minor Witness Protections in Employee Discipline Proceedings

October 2018
Number 63

Assembly Bill (AB) 2234, which becomes effective January 1, 2019, provides a comprehensive set of requirements for the presentation of testimony by minor witnesses at administrative disciplinary proceedings initiated under the egregious misconduct hearing process for permanent certificated employees, and for discipline hearings involving allegations of egregious misconduct for permanent classified employees of merit or non-merit system school districts. As a reminder, in 2014 the legislature passed AB 215, which made significant changes to the permanent certificated dismissal and suspension process. Among these changes was to provide an expedited hearing process when a certificated employee is charged exclusively with egregious misconduct, a specific type of immoral conduct defined in the Education Code.

The new bill, AB 2234, authorizes an administrative law judge (ALJ) to allow a minor witness to testify at specified disciplinary proceedings by two-way closed-circuit television instead of being present in the hearing room with the employee. The ALJ must make specific findings set forth in the Education Code to make such an order.

Minors who are witnesses in these disciplinary proceedings must also be assigned a support person to be present with them while they testify. It is presumed that a parent or guardian is qualified to serve as the student’s support person. However, an ALJ can select and appoint a support person if the ALJ determines that the minor’s parent or guardian is not qualified.

AB 2234 also requires the ALJ to take special care to protect minor witnesses or dependent persons with a substantial cognitive impairment from undue harassment or embarrassment, and to restrict the unnecessary repetition of questions. Further, the bill requires ALJs to take special care to ensure that questions are stated in a form that is appropriate to the age and cognitive level of the witness.

While ALJs already possess the discretion to accommodate testifying minor witnesses in a manner that ensures accurate and complete testimony, AB 2234 makes clear this discretion is available in permanent certificated dismissal cases under the egregious misconduct hearing process and in the permanent classified discipline process where allegations of egregious misconduct are alleged.

AB 2234 also requires school districts to take specified action to ensure the confidentiality of student information upon issuance of a court order or subpoena for pupil contact information of minor witnesses. In this situation, AB 2234 requires the school district to make a reasonable effort to enter into an agreement with the entity that obtained the court order or subpoena, requiring that the pupil’s contact information be maintained in a confidential manner. The bill specifies that a party that obtains pupil contact information shall not use or disseminate that information for any purpose except as authorized by the court order or subpoena.

It is important to note that AB 2234 requires appointment of an ALJ where allegations against a permanent classified employee include egregious misconduct involving a minor. This new law may require school districts to review board policies and collective bargaining agreements to determine whether the discipline hearing process for permanent classified employees requires revision to comply with AB 2234.

For more information about this new law or about the employee discipline 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:

Gabriela D. Flowers

Partner

Jayme A. Duque

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 Requires Paid Time Off for Union Stewards and Officers

October 2018
Number 65

Effective January 1, 2019, Senate Bill (SB) 1085 requires public agency employers in California to grant, upon the request of a union, “reasonable” paid leaves of absence to employees serving as stewards or officers of the union or of any statewide or national employee organization with which the union is affiliated.

While on such leave, employees must suffer no loss of compensation or benefits and retain reinstatement rights, meaning they have the right to return to the same position and work location held before the leave, or if this is not feasible, a substantially similar position without loss of seniority, rank, or classification. Benefits while on leave also include retirement fund contributions and service credit. Unions must reimburse the employer within 30 days for all compensation paid to employees while on leave, unless negotiated otherwise.

“Steward” is defined very broadly as:

[A]ny employee designated by the exclusive representative as a representative for unit employees, whether for the unit as a whole or at a particular site, department, or other division of the employer’s operations, regardless of whether the employee is referred to by the exclusive representative as a steward or by a different title.

In other words, the designation of an employee as a “steward” for purposes of this new law is left up to the union, or potentially up to the negotiation process.

The bill faced opposition from many public agency employer groups who argued that it creates a highly expansive form of protected leave for employees without consideration of the potential burdens on employers. Opponents further argued that such leave is traditionally negotiated at the bargaining table where both parties are better positioned to have their interests equally represented.

The new law also provides that employers are not liable for any acts, omissions, or injuries by employees on leave. In the event that liability arises, the union is required to indemnify the employer and hold the employer harmless.

The actual procedures for requesting and granting leave are still left up to negotiations and the mutual agreement of the employer and the union. Generally, the law as written contains significant ambiguities that will likely need to be resolved at the bargaining table, such as what is considered “reasonable.”

This new State legislation may have been intended to counter the effect of the decision issued in Janus v. AFSCME earlier this year. (See 2018 Client News Brief No. 27.) In Janus, the United States Supreme Court held that public

employees may not be compelled to pay fair share fees to public sector unions, as such fees violate the First Amendment. SB 1085 offers a layer of protection for labor organizing at a time when unions are feeling threatened and fear low participation rates.

Existing Law

Protected paid time off for public employees for labor-related reasons is not a new concept. The paid time off granted by SB 1085 is in addition to leave entitlements provided to employees by negotiated agreement and by the various collective bargaining laws in California. Most of the public sector collective bargaining laws in California guarantee employee representatives the right to receive reasonable periods of release time without loss of compensation when meeting and negotiating or conferring and for purposes of processing grievances. This includes, but is not limited to, the Educational Employment Relations Act (EERA) (covering K-12 and community college public school districts), the Higher Education Employer-Employee Relations Act (HEERA) (covering public institutions of higher education), the Ralph C. Dills Act (covering state government employees), and the Meyers-Milias-Brown Act (MMBA) (covering local public agencies). Going beyond these minimum release time entitlements, the Education Code also requires public school or community college districts to grant paid time off to specified represented employees to serve as elected officers or attend important organizational activities; and the MMBA provides paid time off for public agency employees to testify or appear in certain conferences, hearings, and general matters before a personnel or merit commission.

SB 1085 addresses what some may identify as an inconsistency with regard to existing statutory paid time off allowances by creating an entitlement that applies uniformly to stewards of public employee unions (however steward may be defined for the particular organization).

Next Step: Negotiation

With some exception, SB 1085 leaves the technical details up to the employer and union and does not invalidate existing negotiated agreements, which must be reopened for negotiations on the subject of this new leave entitlement upon request of the union.

Public agency employers are encouraged to review their existing collective bargaining agreements to determine if existing language conflicts or can be harmonized with SB 1085 and consider their interests in anticipation of the inevitable requests and proposals that will likely come in from the unions representing their employees.

If you have any questions about SB 1085, 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 R. Manniello

Partner

Niki Nabavi Nouri

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 Requires Districts to Pay Employees on Parental Leave at Least 50% of Their Salaries

October 2018
Number 64

Starting January 1, 2019, California school and community college districts will be required to pay certificated, classified, and academic employees eligible for parental leave under recently enacted laws at least 50% of their salaries once they exhaust their sick leave and begin taking differential leave. This requirement applies regardless of the rate districts pay substitute employees to fill in for the employees on parental leave. The new law is a result of Assembly Bill (AB) 2012, which was approved by Governor Brown on September 30, 2018, and is the latest in a series of bills which expanded protections for employees taking parental leave.

Current Law

Prior to AB 2012, employees electing to take up to twelve weeks of parental leave under recently enacted additions to the California Education Code must first exhaust their paid sick leave, after which time they are compensated according to their districts’ established practices for differential leave. (See Client News Brief No. 56 &, Client News Brief No. 84.)

Currently, there are two systems available for establishing the pay rate for employees on differential leave, whether the leave is due to parental leave, illness or accident. Under the first system, school and community college districts pay certificated and academic employees the difference between their regular salaries and the amount the districts pay or would have paid a substitute hired to fill in for the employee during his or her absence. For classified employees, this system requires that that districts actually hire a substitute employee in order to deduct a portion of the employee’s regular salary. This system allows employees to potentially receive only a small percentage of their salary while on differential leave
if the substitute’s rate of pay is close to the employee’s regular salary.

Alternatively, some school and community college districts have negotiated a system under which employees on extended sick are compensated at no less than 50% of their regular salary, regardless of the rate paid to a substitute.

New Law

AB 2012 amends the law to require that, regardless of the type of pay system used by school and community college district to compensate employees on extended illness and accident leave, all certificated, academic and classified employees taking up to 12 weeks of parental leave must be paid no less than 50% of their regular salary. Employees will still be required to exhaust their fully paid sick leave before receiving differential pay for parental leave.

Takeaways

AB 2012 only affects the differential pay system for employees on parental leave. School and community college districts should maintain their current

system for determining the pay rate of employees on differential leave due to illness or accident. Furthermore, to the extent districts have a practice of providing employees on parental leave with more than 50% of their salary, districts should continue to maintain their current practice. AB 2012 is not intended to decrease the amount of compensation provided to employees on parental leave.

If you have any questions about AB 2012 or parental leave laws applicable to California school and community college districts, 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 Twitteror download our Client News Brief App.

Written by:

Dulcinea Grantham

Partner

Jennifer Ulbrich

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 Rejects Developer-Sponsored Initiatives

October 2018
Number 61

A California appellate court has ruled that development agreements may not be approved through voter initiatives. Development agreements are contracts between a local agency and a property owner or developer.

In Center for Community Action and Environmental Justice v. City of Moreno Valley et al., the California Court of Appeal for the Fourth Appellate District held that it was the Legislature’s intent to exclusively delegate approval of
development agreements to local legislative bodies and that such approval is subject to voter referendum, but not voter initiative.

Background

In August 2015, the Moreno Valley City Council adopted an ordinance approving a development agreement for the development of the World Logistics Center project, which was proposed by Highland Fairview. Environmental groups sued, alleging the project failed to comply with the California Environmental Quality Act (CEQA). The developer, Highland Fairview, subsequently backed and supported the filing with the city of an initiative petition that would repeal the ordinance approving the
development agreement and approve substantially the same development agreement. Once the initiative qualified for the ballot, the city council had the option of adopting the initiative without change, or submitting it to the voters for approval. The city council chose to adopt the initiative, instead of submitting it to the voters. In these instances, cities are powerless and cannot reject an initiative or require alterations to a project.

The environmental groups challenged the city council’s adoption of the initiative, contending that the adoption of a development agreement by an initiative violated the development agreement statute (Gov. Code, § 65864, et seq.) and article II, section 12 of the California Constitution. The trial court denied the groups’ petitions. The Court of Appeal reversed, directing the trial court to issue a writ of mandate instructing the city council to set aside its adoption of the initiative.

In reviewing the legislative history and the express statutory language of the development agreement statute, the Court of Appeal concluded there was clear evidence that the Legislature intended to exclusively delegate approval of development agreements to governing bodies and to preclude their adoption by initiative. According to the court, as a negotiated contract between a developer and a municipality, a development agreement was incompatible with the initiative process, in which the measure is proposed by the voters and, if approved, cannot be changed.

Takeaways

The City of Moreno Valley decision offers important judicial guidance on the longstanding practice of developers using the initiative process to circumvent the traditional local legislative process. Because voter initiatives can only be revised by another vote of the people, initiatives developed and sponsored by developers significantly impede a city council’s ability to regulate a project. The development agreement statute contemplates negotiation between a local government and developer. An initiative, on the other hand, cannot be changed before adoption, making it impossible for the city council to secure assurances from the developer and benefits for local residents.

Since the California Supreme Court’s 2014 decision inTuolumne Jobs & Small Business Alliance v. Superior Court, which held that that an initiative is not subject to the California Environmental Quality Act, California cities and counties have seen a dramatic increase in development projects proposed by developer sponsored initiatives. At least for the moment, the City of Moreno Valley decision will put an end to this practice and restore negotiation power over development projects to local governments.

For more information about the City of Moreno Valley decision or about development agreements 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:

William P. Curley, III

Partner

Jose Montoya

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 Laws Increase State Control of Addiction Treatment Facilities, Require Student Athlete Opioid Warning

October 2018
Number 58

On September 26, Governor Jerry Brown signed a package of bills designed to enhance state regulation of licensed alcohol and drug abuse recovery or treatment facilities (RTFs). Governor Brown also signed Senate Bill (SB) 1109, which aims to better inform the public of the risks associated with the use of opioids. These bills take effect January 1, 2019 unless otherwise noted.

Senate Bill (SB) 992: Disclosure of Business Relationships; Developing Plans to Address Resident Relapse

SB 992 expands the types of facilities subject to licensing and regulatory requirements by broadening the definition of “alcoholism or drug abuse recovery or treatment facility” to include facilities that provide residential nonmedical services for less than 24 hours per day. Additionally, SB 992 requires all RTFs and certified outpatient programs to publicly disclose ownership of, financial interest in, or control over recovery residences, which include residential dwellings commonly referred to as “sober living homes,” “sober living environments,” or “unlicensed alcohol and drug free residences.” RTFs must develop plans to address resident relapses, including details regarding how the resident’s treatment stay and treatment plan will be adjusted to address the relapse episode and how the resident will be treated and supervised while under the influence. It is unclear where the plans will be kept or who will enforce use of the plans.

Assembly Bill (AB) 3162: Facility Licenses and Increased Penalties for Unlicensed Operations

AB 3162 makes initial licenses to operate a new RTF provisional for one year and revocable by the Department of Health Care Services for good cause. It also requires licensed services offered or provided by an RTF to be specified on the license and provided exclusively within either the licensed facility or any facility identified on a single license by street address. AB 3162 also increases the civil penalty assessed by the Department of Health Care Services for providing recovery, treatment, or detoxification services without a license from $200 per day to $2,000 per day, and increases the penalties for a violation of the licensing and regulatory provisions from $25 to $50 per day for each violation to $250 to $500 per day for each violation.

SB 823: Evidence-Based Standard of Care for Licensed Facilities

RTFs currently vary in their level of service provided. SB 823 requires the Department of Health Care Services to adopt the American Society of Addiction Medicine’s treatment criteria, or an equivalent evidence-based standard, as the minimum standard of care for RTFs by January 1, 2023. The Department of Health Care Services will require RTFs to maintain those standards with respect to the level of care to be provided by the facilities.

SB 1228: Ban on Patient Brokering

SB 1228 prohibits RTFs and other alcohol or drug programs certified by the Department of Health Care Services and their employees from patient brokering, a practice in which patients are recruited to go to a treatment facility in exchange for cash payments, drugs, or other items of value. The Department of Health Care Services may investigate allegations of patient brokering and may, upon finding a violation, assess a penalty or impose other enforcement mechanisms. RTFs or other programs that engage in patient brokering may be fined or have their license or certification suspended or revoked. RTF or program employees who engage in patient brokering may be recommended for disciplinary action, such as termination of employment and suspension and revocation of licensure or certification.

SB 1109: Opioid Factsheet to Youth Athletes

SB 1109 requires school districts, charter schools, private schools, and youth sports organizations offering an athletic program, other than as part of the regular school day or as part of physical education, to annually give the Opioid Factsheet for Patients published by the Centers for Disease Control and Prevention to each athlete. The athlete and, if the athlete is under 17, the athlete’s parent or guardian, must sign and return a document acknowledging receipt of the factsheet before the athlete begins practice or competition. Youth sports organizations include local government agencies that sponsor or conduct amateur sports competitions, training, camps, or clubs in which persons 17 years of age or younger participate.

If you have any questions about these new laws, 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:

William P. Curley, III

Partner

Jose Montoya

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 Laws Restrict Law Enforcement Agencies’ Right to Withhold Recordings Relating to “Critical Incidents”

October 2018
Number 60

After years of failed attempts, the Legislature has passed, and Governor Brown has signed into law, two bills that remove the longstanding layers of protection and confidentiality for certain law enforcement records. Senate Bill (SB) 1421, which becomes effective January 1, 2019, increases public access to certain records relating to allegations of misconduct by law enforcement. Assembly Bill (AB) 748, effective July 1, 2019, subjects body camera footage to public records requests.
These laws will be applicable to all public entities employing peace officers or custodial officers, including cities, counties and school districts.

Background

For more than four decades, records relating to citizen complaints against law enforcement officers that are held by the officers’ employing agency have only been made available in a civil or criminal matter, after a showing of cause established in a “Pitchess” motion or through an officer’s voluntary waiver. The courts have supported the protection of peace officer personnel files over the years. In 2006, the California Supreme Court ruled that the record of an officer’s administrative disciplinary appeal from a sustained finding of misconduct was confidential and could not be disclosed to the public. However, the confidential status of these records is about to change.

SB 1421 expands the public’s right, through the California Public Records Act (CPRA), to request and receive records related to reports, investigations, or findings of:

  • An incident involving an officer’s discharge of a firearm at a person;
  • An incident in which the use of force by an officer against a person resulted in death or great bodily injury;
  • An incident in which a finding that an officer engaged in sexual assault involving a member of the public was sustained; and
  • Any record relating to a sustained finding that an officer was dishonest relating to the reporting, investigation, or prosecution of a crime, or relating to the misconduct of another officer.

While SB 1421 permits the redaction of certain personal information and allows a public agency to withhold records when their release would create a reasonable safety concern, and also while an investigation into the use of force is ongoing, the new law will change who has access to information historically found to be confidential.

Separately, AB 748 will require law enforcement agencies to release, upon request, video or audio recording footage of a “critical incident” within 45 days of the incident. A critical incident is defined as a recording that depicts:

  • An incident involving an officer’s discharge of a firearm at a person, or
  • An incident in which the use of force by an officer against a person resulted in death or great bodily injury.

AB 748 provides limited exceptions to the requirement that such video or audio footage be released. In an effort to balance transparency with law enforcement’s ability to conduct effective investigations and the right to privacy, a law enforcement agency may withhold such footage for up to one year if it can “demonstrate that disclosure would substantially interfere with the investigation.” An agency may withhold such footage for longer than one year if it can establish by “clear and convincing” evidence that substantial interference would occur if the information is released.

The new law will also allow an agency, when it can demonstrate that release would violate the subject’s reasonable expectation of privacy, to blur, obscure and redact the recordings, so long as the changes do not interfere with the public’s ability to “fully, completely, and accurately comprehend the events captured in the recording.”

Takeaways

As early as January 1, 2019, the right to obtain copies of law enforcement agency records pertaining to citizen complaints and recordings of “critical incidents” will be expanded under the CPRA, barring certain limited exceptions. It is not yet clear what facts may pass scrutiny for these exceptions to apply. Public agencies should review their current policies regarding CPRA, body camera footage, video and other recordings to determine what changes will be necessary to comply with these new laws.

For more information about SB 1421, AB 748 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:

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.