Legislature Expands Sexual Health Education Resources

November 2018
Number 79

In September 2018, Governor Jerry Brown approved a series of bills that expand on the instruction of comprehensive sexual health education for California public school students.

The California Healthy Youth Act requires that school districts ensure that pupils in grades 7 through 12 receive comprehensive sexual health education, including human immunodeficiency virus (HIV) prevention education, and information on sexual harassment, sexual assault, sexual abuse, and human trafficking. Commencing with the 2019-2020 school year, charter schools will be included in these requirements. (See 2018 CNB No. 57.)

Assembly Bill (AB) 1861 adds the requirement that school districts and charter schools provide pupils in grades 7 through 12 information on how social media and mobile device applications are being used for human trafficking.

AB 1868 authorizes school districts and charter schools to provide optional instruction on the potential risks and consequences of creating and sharing sexually suggestive or sexually explicit materials through cellular telephones, social networking Internet sites, computer networks, or other digital media.

Lastly, Senate Bill (SB) 1104 requires school districts and charter schools to identify the most appropriate methods of informing parents and guardians of pupils in grades 6 through 12 of human trafficking prevention resources and implement the identified methods by January 1, 2020.

The California Department of Education provides information on its website regarding comprehensive sexual health and HIV/AIDS instruction, and is in the process of revising the Health Education Curriculum Framework to be adopted in the spring of 2019.

If you have any questions about these new laws or about sexual education laws 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:

Roberta L. Rowe

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.

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Deadline Looming for School Districts to Opt into the Classified Summer Assistance Program

November 2018
Number 80

The 2018 education omnibus trailer bill, Assembly Bill (AB) 1808, was approved by Governor Jerry Brown this summer. Among other things, the bill creates the Classified School Employee Summer Assistance Program for the 2019-2020 school year. The first deadline for this program is January 1, 2019. Therefore, the governing boards of local educational agencies (LEAs) must determine before the end of the 2018 calendar year whether or not to participate in the program.

The Classified School Employee Summer Assistance Program allows a classified employee of a participating LEA who meets specified requirements to withhold an amount up to 10% from his or her monthly paycheck during the 2019-2020 school year to be paid out during the summer recess period. AB 1808 provides state matching funds to participating employees, and requires the California Department of Education (CDE) to apportion funds to participating LEAs to provide the matching funds-up to $1 for each $1 that the participating classified employee has elected to have withheld for his or her monthly paycheck. The program has only been funded for 2019-2020, and it is not clear whether it will continue to be funded in future years.

Classified Employee Eligibility

To be eligible to participate in the program, a classified employee must:

  1. be employed with the LEA for at least one year at the time the employee elects to participate in the Classified School Employee Summer Assistance Program;
  2. be employed by the LEA for fewer than 12 months per fiscal year; and
  3. not earn more than two times the full-time pay for an entire school year of a person earning minimum wage, paid at the state minimum wage, at the time of enrollment.

2019-20 Program Timeline

AB 1808 sets forth the following deadlines concerning the Classified School
Employee Summer Assistance Program:

  • January 1, 2019-LEA must notify classified employees the LEA has elected to participate in the Classified School Employee Summer Assistance Program for the 2019-2020 school year. Once an LEA elects into the program, the LEA is prohibited from reversing its decision to participate for the 2019-2020 school year.
  • March 1, 2019-Employee must notify the LEA, in writing on a form developed by CDE that the employee elects to participate in the Classified School Employee Summer Assistance Program for the 2019-2020 school year.
  • April 1, 2019-LEA must notify the CDE, in writing on a form developed by CDE, that it has elected to participate in the Classified School Employee Summer Assistance Program for the 2019-2020 school year.
  • May 1, 2019-The CDE must notify the LEA, in writing, of the estimated amount of state-matched funding that a participating employee can expect to receive.
  • June 1, 2019-LEA must notify participating employees of the amount of estimated state matched funds participating employee can expect to receive.
  • No later than 30 days after the start of the 2019-2020 school year, an employee may withdraw his or her election to participate in the Classified School Employee Summer Assistance Program or reduce the amount to be withheld from his or her paycheck.
  • July 31, 2020-LEA must request payment from the CDE, in writing on a form developed by CDE, for the amount of employee pay that has been deposited into the Classified School Employee Summer Assistance Program fund.
  • Within 30 days of receiving a request for payment, CDE must apportion funds to participating LEAs.

Next Steps

LEAs must determine before the January 1, 2019 deadline whether or not to participate in the program. Many school districts have received “Demand to Bargain” letters concerning AB 1808 from their local union. LEAs should contact legal counsel regarding which aspects of AB 1808 are subject to negotiations, in order to ensure that any bargaining implications are addressed. We also recommend consulting with legal counsel regarding how and when to obtain board approval for participation in the program.

If you have any questions about this new program, 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

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.

Governor Approves New Public Safety Laws Affecting Cities, Schools and Other Public Agencies

November 2018
Number 81

In September 2018, Governor Jerry Brown signed three new bills addressing public agency response to disasters and emergencies including school violence.

Senate Bill (SB) 833: Emergency Alerts

In response to the unprecedented 2017 wildland fire disasters, SB 833 aims to improve California’s emergency alert system by requiring the Office of Emergency Services (OES) to develop guidelines for alerting and warning the public of an emergency. At a minimum, the Guidelines must include:

  1. Timelines for sending alerts during an emergency;
  2. Practices for sending advance warnings of an impending threat;
  3. Practices for testing, training on, and exercising a city’s or county’s (or joint) alert and warning system;
  4. Consideration for coordinating alerts with neighboring jurisdictions;
  5. Guidelines and protocols for redundancy and utilizing multiple forms of alerts;
  6. Guidelines and protocols for chain of command communications and accounting for staffing patterns to ensure a trained operator is always on call;
  7. Practices for effective notifications to the access and functional needs population;
  8. Message templates; and
  9. Common terminology.

The Guidelines must be developed in consultation with telecommunications carriers, the cable and broadband industry, radio and television broadcasters, the California State Association of Counties, the League of California Cities, the disability community, appropriate federal agencies, and the Standardized Emergency Management System Alert and Warning Specialist Committee. They must be completed by July 1, 2019, and then provided to all cities and counties in the state. Six months after the Guidelines are distributed, OES must develop training that includes:

  • Information regarding the evaluation, purchase, and operation of the Wireless Emergency Alert (WEA) and the Federal Emergency Alert System (EAS) equipment and software;
  • The technical capabilities of the WEA and EAS function within an alert system; and
  • The content of the Guidelines.

Further, to incentivize compliance with the Guidelines, SB 833 authorizes OES to condition certain grant funding on the grantee implementing an alert and warning system consistent with the Guidelines.

While the catalyst for the bill was the 2017 fire season, the Guidelines will likely have application to other natural and manmade disasters and emergencies, including terrorist threats/attacks, active shooters, etc. In addition, the bill and Guidelines are directly intended for “designated alerting authorities” (DAAs), which are agencies and entities that apply and are approved to use the WEA system. Presently, the list of approved DAAs includes cities, counties and other local or regional emergency assistance agencies, but not schools. Nevertheless, the Guidelines will likely be quite instructive for all public agencies, including schools and colleges, in crafting alert systems and strategies, whether wireless or
Cloud-based.

Assembly Bill (AB) 1747: School Safety Planning

All public schools are required to annual develop a comprehensive school safety plan in coordination with specified groups and including specific information. This bill adds the following new requirements:

  • All school staff must be trained on the safety plan. No specific direction is included as to what this training should include or how it should be provided, e.g., in person or on-line.
  • The school must now consult with fire officials and other first responders in the writing and development of the plan. Prior law only specifically required consultation with local law enforcement.
  • The District or school now has an obligation to share the plan with law enforcement, fire officials and other first responders.
  • The plan must include procedures for conducting tactical responses to criminal incidents.
  • The California Department of Education (CDE) must provide general direction to school districts and COEs on what to include in a building disaster plan.
  • CDE must develop and post on its website best practices for reviewing and approving school safety plans.
  • CDE must maintain, update as necessary, and post on its website a compliance checklist for developing school safety plans.

Finally, this bill now obligates charter schools to annually create and update a comprehensive school safety plan.

These changes are largely the result of the growing recognition that greater communication and coordination is needed between local, regional, state and federal agencies to adequately plan for and respond to incidents of school violence.

AB 3205: School Door Locks

For new construction, the law already requires (with some exceptions) school districts to install locks that allow doors to classrooms, and rooms with an occupancy of five or more persons, to be locked from the inside as a condition of receiving certain state funding. AB 3205 extends this requirement to modernization project for which the district seeks state funds if:

  1. The project consists of the modernization of a facility constructed before January 1, 2012;
  2. The application for funding is submitted on or after January 1, 2019; and
  3. The project is submitted to the Division of the State Architect for approval on or after January 1, 2019.

For more information on these bills or to discuss any other school safety requirements, 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

Kyle 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.

New Laws Aim to Address Bullying and Suicide Prevention

November 2018
Number 78

Governor Jerry Brown recently signed a series of bills aimed at preventing bullying and suicide. These new laws require school districts to: 1) adopt procedures for bullying prevention; 2) provide suicide prevention hotline information on student identification cards; and 3) review and update policies on suicide prevention at least every five years.

AB 2291 – Bullying Prevention Training and Resources

In an effort to curb bullying and harassment in schools, Assembly Bill (AB) 2291 amends section 32283.5 of the Education Code to require the California Department of Education (CDE) to post on its website its training module and annually post an updated list of other available online training resources related to bullying or bullying prevention.

School districts, charter schools and county offices of education will also be required to make the CDE training module available to certificated school site employees and all other school site employees who have regular interaction with students.

Additionally, local educational agencies (LEAs) will be required to adopt procedures for preventing acts of bullying by December 31, 2019, per the newly codified Education Code section 234.4.

The procedures for bullying prevention would likely fit within LEAs’ existing prevention policies on bullying or within their comprehensive school safety plan. Existing law already encourages all school safety plans to include policies and procedures aimed at the prevention of bullying. Education Code section 234.1 already requires school boards adopt a bullying policy, since July 1, 2012. (See 2012 Client News Brief No. 22.)

SB 972 – Suicide Prevention Hotline on Student Identification Cards

Beginning July 1, 2019, Senate Bill (SB) 972 will require schools serving students in grades 7 through 12 and in higher education issue student identification cards to print a suicide prevention hotline number on the cards.

SB 972 adds section 215.5 to the Education Code, specifically providing that the National Suicide Prevention Lifeline, the Crisis Text Line or a local suicide prevention hotline telephone number can be printed on either side of the identification card. In addition, higher education institutions are also authorized to print the campus police or security telephone number, or the local nonemergency telephone number.

Schools with students in grades 7 through 12 and higher education institutions which already have a supply of unissued, noncompliant identification cards as of January 1, 2019, may continue to issue the noncompliant identification cards until the supply is depleted.

AB 2639 – Review Suicide Prevention Policies

AB 2639 builds upon AB 2246 (see 2016 CNB No. 82) which required schools to adopt suicide prevention policies prior to the commencement of the 2017-2018 school year. The new law, found at Education Code section 215, requires governing boards of LEAs that serve students in grades 7 through 12 to review their policies on suicide prevention at least every five years. Based on the original adoption deadline of July 1, 2017, districts should plan to review and update their policies no later than July 1, 2022.

The Legislature intends that suicide prevention policies be reviewed and updated regularly to ensure that those policies remain relevant and address youth suicide prevention.

Takeaways

Bullying prevention training posted on the CDE website will need to be made available to certificated school site employees and all other school site employees who have regular interaction with students. LEAs will need to adopt procedures for preventing acts of bullying by December 31, 2019.

Schools with students in grades 7 through 12 and higher education institutions that issue student identification cards will need to have a suicide prevention hotline number printed on the cards by July 1, 2019.

LEAs will need to review and, if necessary, update their suicide prevention policies at least every five years.

If you have any questions about bullying and suicide prevention, or wish to discuss these new legal requirements, 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:

Ruth E. Mendyk

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.

School Resource Officers Try to Teach Students a Lesson – and It Backfires

November 2018
Number 77

In Scott v. County of San Bernardino (9th Cir.) 903 F.3d 943, the Ninth Circuit Court of Appeals affirmed a district court’s summary judgment in favor of three students in an action alleging that two Sheriff’s deputies arrested a group of middle school students in violation of their Fourth Amendment rights and state law. The group of female students were handcuffed, arrested, and transported to the Sheriff’s station after a series of bullying and assault incidents between the students. The court found the arrest was unreasonable under the Fourth Amendment and lacked probable cause under state law, therefore violating state law against false arrest.

Background

The students had been involved in a series of incidents involving bullying and assault. The assistant principal asked a school resource officer, a Sheriff’s deputy, to counsel the students regarding the ongoing feud. The counseling session between the deputy and the students was recorded by the deputy. The audio tape of the incident reveals some whispering and quiet giggling, but mostly silence. After the deputy concluded the students were being unresponsive and disrespectful, he threatened to take them to jail to “prove a point that he wasn’t playing around” and to “make them mature faster.” All of the students were arrested, regardless of whether they were the alleged aggressors or the purported victims. The deputy then called for backup and together the two deputies handcuffed, arrested, and transported the students to the San Bernardino County Sheriff’s Department. The school did not take any disciplinary action against the students and no criminal charges were filed.

Under the Fourth Amendment, the school setting requires some easing of the restrictions to which searches/seizure by public authorities are ordinarily subject, and thus school officials may, under certain circumstances, conduct warrantless searches of students “under their authority.” In order to determine whether a search/seizure is permissible, two factors must be reviewed:

(1) Whether the action was justified at its inception; and

(2) Whether the seizure actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.

Here, the arrest was unjustified because the deputies were only given generalized information about the students fighting. The Fourth Amendment requires particularized suspicion, and in this instance, there were no exigent circumstances that allowed for any exceptions. Here, the deputy clearly stated the motivation was to “prove a point” and to make students “mature a lot faster.” Furthermore, the seizure was not reasonably related in scope to the circumstances which justified the interference in the first place. The audio recording revealed some whispering and giggling, but mostly silence, which is not enough to justify the handcuffing, arrest, and transportation of the middle school girls.

Additionally, the deputies making the arrest were not entitled to qualified immunity, because they violated a constitutional right that was clearly established at the time of the violation. The seizure must not be excessively intrusive in light of the age and sex of the student, and the nature of the infraction. The court held that no officer could have reasonably believed that the law authorizes the arrest of middle school students in order to prove a point. The arrests were unreasonable and the deputies were denied qualified immunity.

Finally, Defendants tried to argue that they had probable cause to arrest the students under Penal Code section 415(1), which does not apply to school grounds. (Section 415.5 applies to unlawful fighting within any building or upon school grounds of any school, but expressly exempts registered students from its scope.) Defendants claimed the students’ behavior justified the arrest, because there was reason to believe the students were about to fight, however, the deputies did not have any evidence that the plaintiffs would be the aggressors. In fact, the deputy had minimally inquired about the facts and solely wanted to teach the girls a lesson. Thus, there was no sufficient probable cause for the deputies’ actions.

Takeaways

School administrators should be careful when involving law enforcement personnel in routine school discipline matters. The power to arrest a student or to charge him or her with a crime comes with great responsibility and should be used sparingly.

If you have any questions about this case, 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 R. Manniello

Partner

Marisa Montenegro

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.

FCC Threatens Public Agencies’ Local Control Over Next-Gen Cellular Deployment

November 2018
Number 76

In anticipation of the wave of next-generation cellular technology, the Federal Communications Commission (FCC) adopted a Declaratory Ruling and Third Report and Order significantly preempting state and local control over the use of public rights of way for the deployment of “small wireless facilities” (i.e., micro cellular antennas and equipment). The preemption order was published in the Federal Register on October 15, 2018, and will become effective on January 14, 2019, unless a petition for reconsideration or judicial review is filed. The FCC’s preemption has broad-ranging impacts on local jurisdictions’ ability to impose both application and recurring fees. It also dramatically reduces timeframes for application review (especially for multi-site applications), and places important restrictions on aesthetic and historical preservation regulations. Although the FCC does not directly address school districts or county offices of education – agencies that often site cell towers on their properties – failure of these entities to abide the FCC’s new state and local restrictions would likely invite the FCC to extend its preemption to these entities in the future, especially where the school agency has already established facilities.

Scope of Preemption

From 2006 to 2016, the wireless industry constructed approximately 308,000 “macro cell sites” across the country. Macro cell sites use technology that allows the cellular signal to traverse long distances, so the cell towers can be located hundreds of feet, if not miles, apart. Due to the exponentially fast-growing demand for wireless services, the need to ensure adequate bandwidth to accommodate that demand is compelling the wireless industry to “densify” cellular networks using fifth-generation (5G) ultra-high-frequency wave technology. Because the signals do not travel as far, 5G deployment will require many more “small cell” facilities than previously constructed.

In comments to the FCC, wireless carriers estimated they will need to construct at least 3 to 10 small cells for every macro cell previously built. Taken in the aggregate, some carriers estimate that the industry will need to construct hundreds of thousands of small cell facilities, more than doubling the number of macro cells that were constructed nationwide in the last decade. To put that in context, imagine processing 3 to 10 times the number of cell siting applications your agency processed in the last decade with significantly lower review and attachment fees, and doing it in much shorter timeframes.

The overall objective of the FCC’s preemption order is to restrict state and local measures that “materially inhibit” small cell facilities deployment. The FCC has concluded that states and cities have several regulatory tools they use to “materially inhibit” such deployment: purportedly unreasonable application fees, supposedly excessive recurring fees for access to or pole attachments in the public rights of way, lengthy review times, and onerous zoning and permitting requirements, which include, but are not limited to, minimum-spacing requirements between cells, undergrounding requirements, and ambiguous aesthetics review and regulation. The FCC addressed each of these types of regulations.

Application Review and Recurring Attachment Fees

The FCC’s order unambiguously preempts some state and local fees and creates “safe harbors” for others so long as they are set below “presumptively reasonable” rates. The FCC determined, for instance, that “per-facility fees” – as opposed to per-application fees for applications that propose multiple sites – are “effective prohibitions” on deployment that are now preempted. Similarly, “gross revenue fees” for occupying public rights of way (such as requiring the carrier to pay five percent of gross revenues derived from the site) are also preempted.

Although the FCC acknowledged that local jurisdictions may have unique community needs and that one fee structure will not meet the needs of all agencies, it established a framework for determining whether an agency’s fees are legal (i.e., if the fees do not meet all of these conditions, they are deemed illegal). That framework requires that the fees:

  • Reasonably approximate actual costs;
  • Are based only on objectively reasonable costs (e.g., excessive contractor or consultant fees are not “objectively reasonable” and may not be factored into the fees a local agency may charge); and
  • Are no higher than those charged similarly situated users of the right of way.

The FCC did not find it necessary to set a particular accounting or costing method for determining whether particular fees meet these criteria, but it will hold local agencies to these criteria.

As an alternative, the FCC established that, if a jurisdiction was to charges fees equal to or lower than a certain threshold, it would constitute a “safe harbor” against any legal challenges of reasonableness. The “safe harbor” would cover fees that are equal to or lower than:

  • A non-recurring application review fee of $500.00 for proposed construction of up to five small cells, plus $100.00 for each additional cell proposed in that application;
  • A $1000 non-recurring charge where proposed construction involves the deployment of a new pole in the public right of way; and
  • An annual recurring charge of $270 per micro cell for right-of-way access or pole attachment fees.

Application Review Times

In 2009, the FCC established what are called “Shot Clocks,” which are “presumptively reasonable periods” for local agency review of and action on a proposed wireless facility application. Those Shot Clocks allowed 90 days for review of applications proposing to collocate wireless equipment on existing poles with other equipment attachments, and 150 days for reviewing new siting applications. If an agency did not act within the Shot Clock period, that inaction was deemed a “failure to act” and the carrier could seek legal redress immediately in the courts.

In its preemption order, the FCC shortened the Shot Clocks for small wireless facilities applications while increasing the ease with which the carrier can secure injunctive relief directing the local agency to issue the permits if the agency “fails to act” timely. Specifically, the FCC reduced the application processing times from 90 to 60 days for applications proposing to collocate on existing poles, and from 150 to 90 days for reviewing new siting applications. In addition, the FCC stated that, not only would the carrier have the same access to court redress for an agency’s failure to act within the Shot Clock deadline, but the inaction is now defined as a “presumptive prohibition” against deployment, which allows for expeditious granting of injunctive relief directing the issuance of the permit(s).

Where this shortened review period becomes especially challenging at the local level is when carriers “batch” applications for processing. “Batched applications” involve two scenarios where a single application proposes multiple sites, or multiple applications for single sites are filed at the same time. Regardless of the number of sites proposed in batched applications, the Shot Clock deadlines remain the same: 60 days for collocated facilities and 90 days for new siting. The FCC’s reasoning is that, even if each siting application was filed separately but simultaneously, the deadlines would be the same for processing regardless. The only allowable exception would be where the local agency can show that the batch of applications resulted in a “legitimate overload on the agency’s resources.”

In addition, the local jurisdiction should be aware that the review period begins on the day the application is submitted, regardless of whether it is later deemed to be incomplete. If the local agency notifies the applicant within 30 days of the initial submission that the application is incomplete, the Shot Clock is paused until the carrier submits the necessary supplemental information. If the application is still incomplete after the supplemental filing, the local agency must notify the applicant within 10 days of the supplemental submission, at which point the Shot Clock will be tolled again. The FCC order does anticipate that these restrictive provisions will apply unless the agency and the carrier agree to a different tolling arrangement.

Other, Non-Fee Land Use Requirements

As noted above, local agencies have many cell siting concerns that are unrelated to siting application fees and processing times. These concerns include aesthetic considerations – like avoiding unsightly overhead clutter – undergrounding of facilities, and historical preservation. First, the FCC ordered that any local requirement that all small wireless facilities must be undergrounded is an effective prohibition against deployment and is, therefore, preempted. All other non-fee land use requirements will be evaluated regarding whether they “materially inhibit” deployment. The only “safe harbor” for non-fee land use requirements is where they (1) preserve and advance “Universal Service,” (2) protect public safety and welfare, (3) ensure the quality of telecommunications service(s), or (4) safeguard consumer rights. To the extent a community wishes to maintain aesthetic review of these applications, it must clearly articulate the criteria by which the application will be judged, and it must publish those criteria in advance of an application being filed.

Non-Discriminatory Treatment

The FCC also prohibited discriminatory treatment between different types of right-of-way users, including macro cell versus small cell facilities. The FCC set out two types of discriminatory treatment that it specifically prohibits. First, a local agency may not charge new entrants right-of-way fees that it does not charge incumbent users. Second, the range of fees charged to one type of user (e.g., small wireless facilities users) cannot deviate significantly from the range of fees charged to other users with similar right-of-way uses (e.g., utility users versus small cell users). These non-discrimination concerns apply to both one-time, non-recurring charges and to recurring use fees.

Takeaways

All local agencies that regulate land use for cell siting, including counties, cities, and school districts that already have cell towers, must reevaluate their siting practices to conform to the FCC’s preemption order or face the further loss of local control over the public rights of way. Our team of land use and technology attorneys can assist with your review and update of siting practices to include development of a “safe harbor” fee structure, establishing process times that meet or beat the “Shot Clock,” tolling agreements that may relieve some of the Shot Clock pressure, and aesthetic review criteria that will withstand legal scrutiny.

For more information on the FCC’s action or for land-use or cellular facilities questions generally, 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

Lee Burdick

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.

New Law Updates Bidding Preferences for Various Public Agencies

November 2018
Number 75

The Legislature has significantly expanded local agencies’ ability to use a small business preferences on a public works projects, and has expanded the use of preferences for small businesses, disabled veterans businesses and social enterprises in some counties. This new law seems to indicate the Legislature is responding to the desire of local agencies to support local businesses.

Assembly Bill (AB) 2762, signed by Governor Jerry Brown, increases the small business preference from five percent to seven percent for all local agencies, including counties, cities, school districts, and other districts. The bill limits the value of a preference to a maximum of $150,000 on any contract, no matter the value of that contract. The small business preference authorizes a local agency, in facilitating contract awards to small businesses, to provide for a small business preference in construction, the procurement of goods, or the delivery of services.

AB 2762 also authorizes local agencies in the counties of Alameda, Contra Costa, Lake, Los Angeles, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma, to adopt preferences for disabled veteran businesses and social enterprises, and provides for the preferences to be a maximum of seven percent for an individual preference and up to fifteen percent for a single bid having two or more preferences. In these counties, an agency’s ability to use a small business preference is not different from agencies outside those counties.

This new law defines a social enterprise to include a nonprofit or for-profit business whose primary purpose is to benefit the economic, environmental, or social health of the community and which uses the methods and disciplines of business and the power of the marketplace to advance its social, environmental, and human justice agendas. The business must also have been in operation for at least one year providing transitional or permanent employment to a transitional workforce or providing social, environmental, or human justice services.

Under AB 2762, each local agency within the specified counties that chooses to utilize a disabled veteran business or social enterprise preference is authorized to define a disabled veteran business and social enterprise and to define their eligibility for the purposes of these preferences and goals. The statute granting authority in certain counties to utilize preferences is set to expire in 2024. However, the statute permitting small business preferences by all local agencies in the state has no expiration date.

To help local agencies meet these preferences, the new law permits a prime contractor, with the approval of the local agency, and subject to meeting specified conditions, to substitute one subcontractor for another, if doing so will help meet the preference adopted by the agency. This provision seems to create a scenario where a subcontractor could be substituted solely in the interest of meeting the agency’s adopted preference, but the new law explicitly states that subcontractors are still afforded all the protections of the Subletting and Subcontracting Fair Practices Act.

Takeaways

AB 2762 demonstrates a greater interest by the Legislature in allowing public agencies to adopt preferences for certain types of businesses. Agencies wishing to adopt such preferences should first review their existing policies and bidding practices for any needed updates to comply with the new law.

For more information on AB 2762, or preferences in bidding generally, including for assistance in drafting policies and bid documents to implement preferences, 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:

Devon B. Lincoln

Partner

Alyse A. Pacheco

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.