Sunshine Laws To Begin Shining On Charter Schools: Charter Schools Subject To Public Transparency Laws

January 2019
Number 7

The California Attorney General recently issued a long-awaited opinion addressing the applicability of certain “sunshine” laws to charter schools. Specifically, the Attorney General concluded that California charter schools and their governing bodies are subject to the Ralph M. Brown Act (Brown Act), the California Public Records Act (Public Records Act), Government Code section 1090 and the Political Reform act of 1974. The opinion further states that the books and records of schools chartered by either a school district or a county board of education are subject to review and inspection by a grand jury.

Background

By design, California charter schools are explicitly exempt from many laws that apply to school districts. However, the laws addressed by the Attorney General opinion are some of the broadest public integrity laws in the state, and have never explicitly exempted charter schools. It should be noted that the request for this opinion was made seven years ago. It is our understanding that the Attorney General was waiting for the Legislature to answer these questions. Under Governors Schwarzenegger and Brown, the Legislature adopted bills stating that charter schools did need to comply with the Brown Act, Public Records Act, and conflicts of interest laws, only to have such bills vetoed by both Governors.

The Ralph M. Brown Act and the California Public Records Act

The Brown Act guarantees the public’s right to attend and participate in meetings of local legislative bodies. The Public Records Act establishes that the records of public agencies generally must be disclosed to the public when requested. The majority of charter school petitions in California state that the school will comply with the Public Records Act and Brown Act. However, prior to this opinion, there was frequent debate as to whether charter schools were, in fact, required by law to comply with these Acts.

In answering the question, the Attorney General observed that the Education Code contains a section establishing charter schools as school districts. Interpreting this principle liberally, the Attorney General determined that both Acts apply to charter schools in the same way that they apply to school districts or other local public agencies. The Attorney General’s reasoning was that both charter schools and school districts rely on public money. Therefore, both have an obligation to be transparent.

Government Code Section 1090

Government Code section 1090 is a broad prohibition against self-dealing in public contracts by public officials. Over time, the scope of section 1090 has expanded to include any agency or public official of the state. However, whether this conflict of interest law is applicable to charter schools has been the subject of significant debate over the past several years. Relying on prior case law, the Attorney General opined that the term “any agency or official” should be liberally interpreted to include charter schools and their officials. Therefore, members of charter schools’ governing boards should be deemed to be public officials in the meaning of section 1090, and are subject to the provisions of the statute.

Political Reform Act of 1974

The purpose of the Political Reform Act is to ensure that public officials perform their duties with impartiality and disclose any financial interests which may impact their vote. In 1998, the Fair Political Practices Commission (FPPC), which is charged with interpreting the Political Reform Act, concluded that board members of a charter school’s nonprofit corporation were subject to the Political Reform Act’s provisions on conflicts of interest. The Attorney General, in this opinion, gives deference to the FPPC in its decision that the governing body of a charter school that is organized as a corporation is subject to this law. Due to the prior FPPC opinions on this issue, many of California’s charter schools already operate in compliance with the Political Reform Act.

Books and Records in Grand Jury Proceedings

Generally, the books and records of school districts and county boards of education are subject to review during grand jury proceedings in accordance with California Penal Code section 933.6. The Attorney General opinion concludes that “any nonprofit corporation established by or operated on behalf of a public entity” which includes any charter school chartered by a local school district or county board of education, is subject to section 933.6.

However, the opinion concludes that charter schools that are chartered by the State Board of Education are not subject to grand jury review. This is because the State Board of Education is considered a state agency and not a local public entity for purposes of section 933.6. While these charter schools’ books and records would not be subject to grand jury proceedings, they would still be subject to audit by the California State Auditor.

Takeaways

In summary, the Attorney General’s long-awaited opinion states definitively that public integrity laws applicable to other local educational agencies are also applicable to charter schools. While Attorney General opinions are advisory, and not binding, they provide guidance and insight as to how a court could interpret various issues, and therefore are given great deference.

As a result, this opinion will likely prompt stricter adherence by charter schools with laws from which some have argued exempted charter schools. Moving forward, charter schools should independently conform their policies and practices to the Attorney General’s guidance that these laws apply to them. Additionally, an authorizing school district or county board of education should evaluate, and amend if necessary, its policies and procedures to ensure its charter schools’ compliance with these laws as part of the authorizer’s oversight responsibilities.

For additional information regarding the Attorney General’s opinion and its potential impact on charter schools and school 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 Twitter or download our Client News Brief App.

Written by:

Edward J. Sklar

Partner

Gayle L. Ketchie

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.

Employees’ Representation Rights Now Expand Beyond Oral Interviews

January 2019
Number 6

Three recent decisions by the Public Employment Relation Board (PERB) have expanded or highlighted employees’ rights to union representation when employees are asked to prepare a written statement or are searched unclothed.

Written Statements

In San Bernardino Community College District (2018) PERB Dec. No. 2599, PERB expanded the right to union representation to those circumstances where an employee is asked to provide a written statement. In this case, an employee was questioned by a community service officer (CSO) in the District’s police department concerning the employee’s location during the employee’s work shift. After verbally answering the CSO’s questions, the employee requested a union representative. The CSO agreed that the employee had a right to a union representative, but directed the employee to draft a written statement before he was relieved of duty. In its decision, PERB reiterated the rationale for the right to union representation in an investigatory interview, explaining:

The right to representation in an investigatory interview is based on the following rationale: A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.

PERB rejected the employer’s argument that the right to union representation only attached during an oral interview. Instead, PERB held that the right extended to a written statement as well because the employee reasonably believed that his written statement, like a verbal statement, could also be used for disciplinary purpose.

In County of San Joaquin (Sheriff’s Department) (2018) PERB Dec. No. 2619, PERB ordered the employer to rescind and expunge the disciplinary action taken as a result of the employee’s insistence on union representation at a meeting with his supervisor where the employee was asked to prepare a written statement. The employee made repeated requests for union representation, but was denied. The employee’s refusal to prepare the written statement without union representation escalated into an internal affairs investigation for insubordination, which concluded in discipline. PERB held that an employee is entitled to union representation prior to providing a written statement which the employee reasonable believed could result in disciplinary action, and that absent his request for union representation the employee would not have been disciplined. PERB also took the additional step of ordering the employer to rescind and expunge the disciplinary action taken as a result of the employee’s insistence on union representation.

Body Searches

InState of California Department of Corrections & Rehabilitation (2018) PERB Dec. No. 2598, PERB expanded the right to union representation to include unclothed body searches. In this case, the employer was tipped off by an inmate claiming that the employee was going to bring narcotic powder into the prison. A criminal investigation was initiated, during which the employee was told that the investigators would search her bags, vehicle, and person. The employee consented to the search of her bags and vehicle, but when the employee was told to remove her clothes for an unclothed body search, the employee demanded the presence of a union representative, a supervisor, or someone from peer support. The employer denied the employee a right to union representation twice on the basis that (1) she was “only being searched, not questioned,” and (2) she signed a consent-to-search form when she was first hired. PERB held that an invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right to union representation. Further, PERB held that if an employer rejects an employee’s request for union representation, the employee cannot be found to have voluntarily waived his or her right to union representation. Moreover, an employee does not waive his or her right to union representation by signing an acknowledgement of the employer’s rule that he or she is subject to search at any time while on the employer’s grounds.

This case further emphasizes that PERB believes employees’ rights to union representation extend beyond oral questioning. Further, PERB is protective of employees when interpreting the waiver of employees’ rights to union representation.

Takeaways

These three cases demonstrate that PERB believes a public employee has a right to union representation when an employer conducts an invasive search or requires an employee to prepare a written statement that may lead to discipline. In light of these cases, public employers should evaluate their investigation procedures and directives. When an investigation calls for an invasive search, or an employee is directed to prepare a written statement which could lead to the discipline of the employee, public employers should provide employees the right to union representation.

For additional information regarding the three PERB decisions, please contact the authors of this Client News Brief, an attorney at one of our eight offices located statewide, or an attorney in Lozano Smith’s Investigative Services team. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea Grantham

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 OCR Case Processing Manual – Significant Changes For Public School Civil Rights Enforcement

January 2019
Number 5

The U.S. Department of Education’s Office for Civil Rights (OCR) made a second round of revisions to its Case Processing Manual (CPM), effective November 19, 2018. The CPM outlines the procedures OCR uses to investigate and resolve complaints under the civil rights laws which it enforces. The CPM last underwent revisions in March of 2015 and March of 2018. The most recent changes are wide ranging and include how OCR will evaluate, investigate and resolve complaints. Key revisions include the following:

  • Requires OCR to interpret its statutes and regulations consistent with the requirements of the First Amendment, and to comport with the First Amendment when investigating and resolving complaints. This means that
    OCR will not interpret any statute or regulation to impinge upon rights protected under the First Amendment or to require recipients to encroach upon the exercise of such rights;
  • Restores appeals for complainants, who can appeal findings of insufficient evidence, as well as certain types of dismissals, and provides recipients with the opportunity to respond to appeals;
  • Eliminates section 108(t) from the earlier CPM, which had provided that OCR would dismiss a complaint that is part of a pattern of complaints that places an unreasonable burden on OCR’s resources; and
  • Requires OCR to have more than statistical data alone to warrant opening an investigation. Statistical data can be considered with other facts and circumstances to support the opening of an investigation.

The November 2018 CPM revision also retained several important changes fromits March 2018 revision such as:

  • Investigation and resolution activities must focus on the individual allegation(s) stated by the complainant;
  • OCR will undertake systemic investigations only where it is appropriate to do so in light of the allegations or based on facts ascertained in the investigation; and
  • A focus on increased opportunities for the resolution of complaints through the Rapid Resolution Process (RRP) and the Facilitated Resolution Between the Parties (FRBP) process, which permit the parties to resolve a complaint themselves with OCR’s facilitation.

Lastly, OCR is implementing post-case closure Quality Assurance Reviews to assure consistency and quality in case processing among the 12 regional OCR offices. OCR will use the reviews to identify areas where further internal training is necessary, and to identify and share best practices among its regional offices.

Takeaways

The revised CPM will likely impact current and future investigations conducted by OCR. School districts can also expect OCR to be more receptive to defenses to complaints of bullying, discrimination, harassment etc., where the defense is based on free speech. While it is unclear how each regional office will interpret the changes to the CPM, school districts currently dealing with a civil rights complaint investigated by OCR should consult with counsel to determine whether the revisions are relevant to the matter.

For additional information regarding OCR’s November 2018 CPM revision, 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:

Sloan R. Simmons

Partner

Brenda E. Arzate

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.

Bid Thresholds Raised For 2019

January 2019
Number 4

According to the California Department of Education Office of Financial Accountability and Information Services, pursuant to Public Contract Code section 20111(a), the bid threshold for K-12 school districts’ purchases of equipment, materials, supplies and services (except construction services) has been adjusted to $92,600, effective January 1, 2019. The notice may be viewed here.

The California Community Colleges Chancellor’s Office is expected to announce a similar adjustment to the bid threshold for community college districts’ purchases of equipment, materials, supplies and services (except construction services), pursuant to Public Contracts Code section 20651(a), sometime in the next few days. Once released, that information will be available here.

The bid limit for construction projects remains at $15,000.

The bid thresholds for cities, counties and special districts are not affected by the bid limits discussed above.

On a related note, the Legislature increased the bid limits under the California Uniform Public Construction Cost Accounting Act (CUPCCAA), effective January 1, 2019. (See 2018 Client News Brief No. 47) The increase in the bid limits affects school districts, cities, counties and all other public entities that have adopted CUPCCAA.

For more information on the new bid limits or bidding in general, please contact the author 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.

New Law Entitles Students To Wear Tribal Regalia Or Recognized Objects Of Religious, Ceremonial Or Cultural Significance As An Adornment At School Graduation Ceremonies

January 2019
Number 1

Effective January 1 2019, a new law in California establishes students’ right to wear tribal regalia or recognized objects of religious or cultural significance as an adornment at school graduation ceremonies.

Background

Generally speaking, federal and state law permits school districts, county offices of education and charter schools (local educational agencies, or LEAs) to develop and enforce reasonable dress code policies. Existing law has been understood to permit LEAs the discretion to adopt “no adornment” policies at graduation ceremonies, as a way to maintain traditional graduation decorum. Under a “no adornment” graduation attire policy, LEAs could prohibit students from adorning the required cap and gown attire for commencement ceremonies with other attire or garb beyond that approved for the ceremony (such as approved sashes signifying certain school-related accolades). The primary legal basis for LEA control in this area is that the required graduation attire for commencement ceremonies is not a matter of student expression, but rather “school speech.”

Assembly Bill (AB) 1248, however, adds section 35183.1 to the Education Code, and changes the rules when it comes to graduation ceremony dress codes. AB 1248 aims to ensure that students are permitted to adorn the required graduation cap and gown so that they may express themselves through their recognized cultural traditions, while simultaneously celebrating their educational achievements. For example, AB 1248 makes clear that Native American students are now permitted to wear an eagle feather at graduation ceremonies, as an expression of their cultural and spiritual beliefs.

While students will now have the right to wear “religious, ceremonial, or cultural” adornments at their school graduation ceremony, LEAs still retain the authority to prohibit an item that is likely to cause a substantial disruption of, or interference with, the graduation ceremony. This continuing LEA authority should give LEA officials the flexibility to impose size and other limits on student adornments, so that such adornments do not cause disruption of the ceremony. Additionally, it is important to note that the new law defines “adornment” as “something attached to, or worn with, but not replacing, the cap and gown customarily worn at school graduation ceremonies,” and defines “cultural” as “recognized practices and traditions of a certain group of people.” The definition of “cultural” appears to signal that the new law is not intended to permit students to merely adorn they graduation cap and gown with any expression of their choosing. Yet, ambiguity in the law in this respect will require LEAs to be thoughtful on how they align their policies and practices in this area, and risks school officials needing to act as arbiter of what student adornment satisfies the definition of “cultural” and what does not.

Takeaways

LEAs should review their policies and practices related to graduation and in particular the required dress codes. Among other options for LEAs to consider is to require students to obtain advance approval from school officials before being permitted to wear adornments at graduation ceremonies. By implementing such a policy, schools can make advanced determinations as to whether a student’s adornment request is likely to cause a substantial disruption, or interference with, the graduation ceremony.

If you have any questions about AB 1248 or about student issues 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:

Sloan R. Simmons

Partner

Kristy J. Boyes

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.

Changes To Skilled And Trained Workforce Requirements For Public Works Projects

January 2019
Number 2

Recent legislation modifies the skilled and trained workforce requirement for certain public works projects, shifting much of the burden for compliance to subcontractors. The new law also authorizes the California Labor Commissioner to investigate suspected violations of the statute and impose civil penalties in specified circumstances.

Background

In recent years, contractors have been required to utilize a “skilled and trained workforce” for “design-build” and “lease-leaseback” public works projects (see 2015 Client News Brief No. 8;2015 Client News Brief No. 71; and 2016 Client News Brief No. 63.) These requirements do not apply to publicly bid projects. Also, the skilled and trained workforce requirements may not apply if the public entity has entered into a project labor agreement covering the project.

These skilled and trained workforce requirements include two elements. First, all of the workers performing work in designated apprenticeable occupations must have “at least as many hours of on-the-job experience as would be required to graduate from an apprenticeship program…;.” Second, a minimum percentage of that workforce must be graduates of an apprenticeable program for the applicable occupation. This minimum threshold was originally set at 30% but is set to increase to 60% by 2020 for some trades. Other trades, including bricklayers, carpenters, drywall installers, plasterers, roofers, and stone masons, will remain at 30%.

Under current law, a contractor is required to provide monthly reports to the project owner that demonstrate compliance with these skilled and trained workforce requirements. In the event the contractor fails to provide the report or the report does not demonstrate compliance with the percentage requirements, the project owner must withhold all further payments until the contractor provides a plan to achieve substantial compliance. As a result, noncompliance by one subcontractor, for even a small portion of work, has had the potential to hold up payment to the contractor for all of the work on the project.

Assembly Bill 3018

Effective January 1, 2019, Assembly Bill (AB) 3018 amends Public Contract Code sections 2601 and 2602, and adds new section 2603, shifting some of the responsibility for skilled and trained workforce compliance to subcontractors. If the general contractor fails to comply with the monthly report requirements as a result of one noncompliant subcontractor, the project owner is required withhold 150% of the value of the monthly billing for that subcontractor only, until that subcontractor demonstrates a plan to achieve substantial compliance, or until the subcontractor is substituted out in accordance with applicable law. The contractor is permitted (but not required) to withhold payment from the subcontractor. However, now the project owner will be permitted to pay the contractor for the other work on the project performed by the contractor or by other subcontractors.

AB 3018 also gives the Labor Commissioner authority to investigate suspected violations of the skilled and trained workforce requirements and impose a separate civil penalty up to $5,000 per month on non-compliant contractors. In situations where the Labor Commissioner finds that violations of the skilled and trained workforce requirements are willful, the contractor or subcontractor may be temporarily disqualified from bidding on public works projects.

Takeaways

These changes to the skilled and trained workforce requirements shift the consequence of noncompliance to the responsible party. As a result, AB 3018 may make design-build and lease-leaseback projects more attractive for prospective general contractors. However, the increased burden on subcontractors to demonstrate compliance and the Labor Commissioner’s oversight may deter subcontractors from participating in such projects. Public entities in regions of the state where there are a limited number of graduates from apprenticeship programs should carefully consider these changes before proceeding with a delivery method subject to skilled and trained workforce requirements.

If you have any questions about the skilled and trained workforce 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:

Claudia P. Weaver

Partner

Shawn A. VanWagenen

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 Laws Grant Diplomas To Terminally Ill And Students That Have Departed California

January 2019
Number 3

Governor Jerry Brown recently signed a pair of laws related to granting honorary or retroactive high school diplomas for particular groups of students. Assembly Bill (AB) 2109 authorizes the granting of honorary diplomas to students who are terminally ill and, AB 3022 authorizes the retroactive granting of high school diplomas to students who have departed California against their will.

AB 2109: Diplomas for Terminally Ill Students

Existing law allows the granting of honorary high school diplomas to foreign exchange students who have not completed the course of study ordinarily required.

AB 2109 extends this law to allow honorary diplomas to be granted to students who are terminally ill. A diploma granted under these circumstances must be clearly distinguishable from the regular diploma awarded upon graduation.

AB 3022: Diplomas for Students Forced to Depart California

Existing law authorizes the retroactive granting of high school diplomas to individuals whose education was interrupted due to internment during World War II, and to veterans of World War II, the Korean War, or the Vietnam War, when certain conditions are met.

AB 3022 authorizes retroactive granting of high school diplomas to individuals who have been forced to depart California against their will. Circumstances under which an eligible student may have departed California include being transferred to another state while in custody of a government agency, being ordered to voluntarily depart or be removed by a government agency, including pursuant to federal immigration law, or additional circumstances determined by a school district to be consistent with the purpose of the law.

To meet the criteria, a student must have been enrolled in grade 12 at the time his or her education was interrupted, must have not received a diploma due to that interruption, and must have been in good academic standing at the time of departure. In making the determination regarding academic standing, educational agencies must consider any coursework that may have been completed outside of the United States or through online or virtual courses.

Takeaways

These new laws allow educational agencies to recognize a student’s hard work and achievements under specific circumstances where they would ordinarily not be acknowledged. Educational agencies may choose to enact policies or procedures for identifying current or former students who may be eligible for honorary or retroactive diplomas under the new laws.

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:

Sarah L. Garcia

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.