Ninth Circuit Addresses Impact Of Dismissals And Settlement Of Due Process Complaints On The IDEA’s Administrative Remedy Exhaustion Requirement

October 2019
Number 43

The recent opinion of the Ninth Circuit Court of Appeals in Paul G. v. Monterey Peninsula Unified School District clarifies that dismissal or settlement of a special education due process hearing inadvance of a hearing and final administrative decision from the Office of Administrative Hearings (OAH), does not satisfy the requirement that a plaintiff exhaust administrative remedies under the Individuals with Disabilities Act (IDEA) before initiating a lawsuit in federal court asserting claims which could be redressed by the IDEA. In Paul G., the Ninth Circuit held that an adult student with autism could not sue his school district or state educational agency under the Americans with Disabilities Act (ADA) or Section 504 of the Rehabilitation Act of 1973 (Section 504), for failing to make an in-state residential placement available to him without having first exhausted IDEA administrative remedies, that none of the exceptions to exhaustion of administrative remedies applied, and that settlement of his special education due process case did not satisfy the exhaustion requirement.

Background

Student Paul G. was an adult special education student with autism who began having episodes of violent and threatening behavior. After unsuccessful efforts to find an appropriate educational placement for Paul, the school district offered to place him in a residential facility. However, no residential facility in California would accept the student because he was 18 years old. Paul enrolled in an out-of-state residential facility, but later became homesick, and returned home.

The student subsequently filed for due process with OAH against both the school district and the California Department of Education (CDE), alleging that the lack of an in-state residential facility for adults denied him a free appropriate public education (FAPE) under the IDEA. As a remedy, the student sought a residential placement in California and an order directing the CDE to develop in-state residential facilities for adult students. OAH dismissed the claims against the CDE, ruling that OAH did not have jurisdiction to order the creation of facilities, and that the school district, not the CDE, was responsible for education decisions affecting the student. Thereafter, the student entered into a settlement agreement with the school district, causing OAH to dismiss the case, without the due process complaint proceeding to hearing or OAH ruling on the merits of the student’s IDEA claim.

The student then initiated a lawsuit in federal court, alleging the CDE violated the ADA and Section 504, and seeking monetary damages for those alleged wrongs. The central theme of his complaint was that to receive a FAPE, he required an in-state residential placement, and the CDE had failed to provide him a residential placement in California. The United States District Court dismissed the student’s case, due to his failure to exhaust the IDEA’s administrative remedies, and the student appealed to the Ninth Circuit.

The Court’s Opinion

The Ninth Circuit considered whether the student was required to exhaust the IDEA’s administrative remedies under the circumstances, and if so, whether an exception to the exhaustion requirement applied. When a plaintiff seeks relief under the IDEA or under any other statute where the relief sought would also be available under the IDEA, the plaintiff must exhaust the IDEA’s administrative procedures before filing a civil action. Exhaustion is not required when use of the administrative process would be futile, the claim arises from policy or practice of general applicability that is contrary to law, or it is improbable that adequate relief can be obtained by pursuing administrative remedies.

The student argued that because his federal claims were brought under the ADA and Section 504, and not the IDEA, the exhaustion of remedies requirement for IDEA claims did not apply. Applying the United States Supreme Court’s test in Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), the Ninth Circuit addressed this argument by analyzing whether his ADA and Section 504 claims could have been brought against a public facility that was not a school, or whether an adult employee or visitor could present the same grievance against the school. The court concluded that the answer to both these tests is no, because the relief Paul sought was fundamentally educational – access to a particular kind of school as required by his individualized education program (IEP). Therefore, even though the student brought suit under the ADA and Section 504, and not the IDEA, the student was required to exhaust administrative remedies because the relief sought was available under the IDEA. The Ninth Circuit also determined that none of the exceptions to the exhaustion requirement applied, thus concluding the student could not maintain this action after he failed to seek a final administrative decision regarding his alleged need for in-state residential education under the IDEA.

Takeaways

Paul G. is the first Ninth Circuit opinion to address exhaustion since the Supreme Court’s Fry decision
in 2017. In light of this decision, local educational agencies should carefully scrutinize any ADA or Section 504 claims that appear to seek relief that is fundamentally educational and related to a student’s unique needs. Further, a plaintiff may be unable to maintain a civil suit against a local educational agency if there is a dismissal or settlement prior to a final administrative decision.

If you have any questions about this case or special education matters 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

Sloan R. Simmons

Partner

Amanda E. Ruiz

Senior Counsel

Amanda J. Cordova

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Supreme Court Holds Firefighting Immunity Under California’s Government Claims Act Is A Waivable Affirmative Defense

October 2019
Number 45

In Quigley v. Garden Valley Fire Protection District, the California Supreme Court rejected the midtrial dismissal of a lawsuit involving a firefighter who suffered severe and permanent injuries after she was run over by a water truck while sleeping at a base camp. The court held that a firefighting immunity under Government Code section 850.4, part of California’s Government Claims Act (GCA) (Gov. Code, § 810 et seq.) is an affirmative defense which must be raised before trial and may be waived absent timely assertion.

Background

Plaintiff Rebecca Quigley was a U.S. Forest Service firefighter and part of a team assigned to assist with a large fire which broke out in the Plumas National Forest in September 2009. While Quigley was fighting the fire, she had to sleep at a base camp with other firefighters. One night, while Quigley was sleeping in a field in her sleeping bag, an employee of an independent contractor who was servicing a nearby shower unit drove his truck onto the field where Quigley was sleeping, severely injuring her. Quigley sued Garden Valley Fire Protection District, Chester Fire Protection District, and their employees for damages based upon claims of negligence, failure to warn, and dangerous condition of public property.

During the trial, defense counsel filed a motion for nonsuit arguing, for the first time, that the defendants were entitled to immunity under Government Code section 850.4, which grants public agencies and public employees immunity against claims for injuries caused by fighting fires. The trial court granted the motion, rejecting Quigley’s argument that the defendants waived the immunity defense when they failed to invoke immunity in their answer to her complaint. The trial court specifically ruled that Government Code section 850.4 immunity-one of several governmental immunities provided for under the Government Claims Act -is jurisdictional and therefore could be raised by a defendant at any time, including during trial. On appeal, the Court of Appeal affirmed the nonsuit in favor of the defendants and found that the defendants were immune from liability based upon a broad interpretation of section 850.4, and that such immunity is jurisdictional and thus can be raised at any time.

The Court’s Opinion

On review, the California Supreme Court considered whether the subject governmental immunity provision, section 850.4, constituted an affirmative defense, which a defendant must timely raise, or whether such immunity was absolute so that it served as a limitation on the fundamental jurisdiction of the courts. Affirmative defenses are considered waived if not timely asserted. In reaching its conclusion, the state high court affirmed that section 850.4 in fact confers an absolute immunity from liability.However, the court distinguished absolute immunity from a question of fundamental jurisdiction, and found the section 850.4 also operates as an affirmative defense. In other words, even as an absolute immunity, section 850.4 is only effective as a shield from liability if a defendant invokes the immunity before trial as an affirmative defense.

The court found that there existed a factual dispute as to whether the defendants timely invoked firefighting immunity when they raised an affirmative defense in their answer which broadly cited all the applicable immunity provisions “from Sections 810 to 996.6, inclusive” of the Government Claims Act. The court remanded the case back to the appellate court for further adjudication on this issue.

Takeaways

Quigley is significant in that it clarifies that defendants must timely invoke the absolute firefighting immunity provided for by Government Code section 850.4 in order to reap the benefits of the affirmative defense. Critically, it is likely that the court’s analysis in this respect will apply to the timely assertion of the other governmental immunity defenses provided for under the Government Claims Act.

If you have any questions about the Quigley case or about government claims 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Lauren A. Lyman

Associate

©2019 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.

Significant New Developer Fee Cases

October 2019
Number 44

As part of an uptick of cases in recent years regarding school impact fees, two recent cases argued by Lozano Smith on behalf of school districts have been decided by the California Sixth District Court of Appeal, with mixed results. The court ruled in relation to an “adults only” agricultural worker housing project that, when imposing prospective developer fees on development projects, school districts need not establish a reasonable relationship between the fee and the specific project in question. Instead, districts are merely required to establish a nexus between the fee and the general type of project that is at issue (e.g. residential, commercial, industrial). This favorable outcome came after the same appellate court, straying from prior precedent that supported deference to local agencies, issued a published decision invalidating a school district’s developer fee justification study. The court held that the study in question was invalid because it did not provide sufficient analysis to demonstrate that the school district would have to house new students generated from development in new facilities. Both cases are part of a trend toward greater judicial scrutiny of school districts’ imposition of developer fees.

School districts in California are authorized by law to impose fees on development projects, referred to as “developer fees” or “school impact fees.” There are three separate levels of fees that can be charged, each of which are subject to different legal requirements. The first case below addresses whether a school district must analyze the potential residential population of a particular development, as projected by the developer, before imposing fees on that particular development. The second case addresses the legal requirements for preparing a Level I fee justification study.

The Tanimura Case

Tanimura & Antle Fresh Foods v. Salinas Union High School District, 34 Cal.App.5th 775, addressed a dispute regarding Level 2 developer fees. The Salinas Union High School District (Salinas) had imposed a developer fee on a 100-unit agricultural employee housing complex commissioned by Tanimura & Antle Fresh Foods, Inc. (Tanimura) within Salinas. The complex, per the terms of its development permit issued by the Monterey County Board of Supervisors, was designed to house only agricultural workers, without dependents.

In recent years, many school districts have contended with developers who argue that fees should not be imposed on their projects because the developers expect that few or no potential school age students will live in the finished project. These arguments have been made, for instance, regarding housing intended for agricultural workers, college students, or young professionals. This case affirms that a school district need not consider the developer’s intended residents for a particular project, and can instead analyze the impact of residential housing projects across the district when imposing developer fees on residential projects.

In relation to its agricultural worker housing project, Tanimura sued for a refund of its fees, alleging that the developer fees imposed by Salinas were not reasonably related to a need for school facilities, as required by statute. Tanimura cited the project’s prohibition on dependents, arguing that, as no children would reside in the complex, its construction would not generate an increased burden on the district’s facilities. The Government Code requires a public agency, before imposing prospective developer fees, to establish the purpose of the fee, the agency’s use for the funds, a reasonable relationship between the fee’s use and the type of development project on which it will be imposed, and a reasonable relationship between the need for public facilities and the type of development project on which the fee is imposed. The trial court held in favor of Tanimura, reasoning that “case law-and common sense-preclude the application of an overbroad label in a fee study that does not account for a project’s actual impact.” The court opined that Salinas was required to account for the fact that no children would be permitted to live at the complex, and in failing to do so had not met the nexus requirement of the Government Code.

In a victory for school districts, and following argument by Lozano Smith (acting as co-counsel in this matter), the Court of Appeal reversed. The court held that, when establishing a nexus between developer fees and a development project, a public agency need not consider the specific project in question; its calculus is limited to the general type of project at issue (e.g., residential, commercial, or industrial). As applied here, Salinas was not required to consider the complex’s prohibition on dependents in its fee analysis. The district’s treatment of the complex as a generic, residential development was lawful.

The court asserted that its interpretation was the only “commonsense” reading of the statute that avoided practical absurdities. To adopt Tanimura’s position, the court held, “would have the practical effect of requiring a school district to expand its needs analysis to address the projected impact on school facilities of undefined, variant subtypes of residential construction not contemplated in the statute.” The court found such an effect to be contrary with the purpose of the statutes. Further, the law contains exceptions from developer fees for certain types of developments, including government-financed agricultural migrant worker housing. However, the Legislature has created no such exception for privately-financed farmworker housing. This indicates that the Legislature did not intend for projects such as the complex to be exempted from developer fees.

The Summerhill Case

In Summerhill Winchester, LLC, v. Campbell Union School District 30 Cal.App.5th 545, the Appellate Court invalidated the Level 1 developer fees adopted by Campbell Union School District (Campbell). In doing so, the court applied the rule laid out in a prior case, Shapell Industries, Inc. v. Governing Board of the Milpitas Unified School District (1991) 1 Cal.App.4th 218, that a Level 1 fee study must include an analysis of the following three factors: (1) the projection of the total amount of housing to be constructed within the school district; (2) estimation of the number of new students that are expected to result from the new development; and (3) estimation of what it will cost to provide the necessary school facilities for that approximate number of new students.

Regarding the first Shapell element, Campbell’s fee study stated that there were “in excess of 133” residential units that could be constructed over the next five years. The court took issue with the fact that these projections were not based on data from all of the planning departments within Campbell’s boundaries. The court also held that the study’s projection was too vague to support the imposition of fees. According to the court, a projection based on consultation with only some of the local jurisdictions within Campbell’s boundaries and using a phrase such as “in excess of” is “little better than saying that ‘some’ development is anticipated.” This was found to be inadequate because the study did not provide sufficient guidance for Campbell’s Board to determine whether or not new school facilities would be needed due to anticipated development. The court found it irrelevant that the district was already over capacity at all of its schools, and essentially rejected Campbell’s argument that new facilities would be needed to house students generated from development, regardless of the number of such students.

The court also found that the fee study was invalid because it did not provide sufficient evidence for the district’s Board to determine what type of school facilities would be needed to accommodate students generated by development, if any. The court based its decision on a narrow reading of the applicable statutes.

Developers may argue that the court’s decision means that a fee study must now establish what “type” of facilities a school district will construct to house students generated by development. However, prior case law, includingGarrick Development Co. v. Hayward Unified School District (1992) 3 Cal.App.4th 320, held that specific improvement plans or building proposals were not necessary. The court acknowledged that, underGarrick, “the Board did not have to identify specific facilities that would be built or make concrete construction plans.” At the same time, however, the court concluded that “the key missing element in the fee study was what new facilities would be necessary for the new students generated by new development.” These two statements are difficult to reconcile, and create a challenge when school districts decide how specifically their fee studies must describe student housing needs. However, it remains clear that specific school construction projects need not be identified.

The court’s opinion is likely to cause confusion and possibly to disrupt established law. As a result, school districts may wish to review the adequacy of their fee justification studies.

Lozano Smith represented the school district in the litigation and appeal, and requested, on behalf of the district, that the California Supreme Court depublish the case. The request for depublication was supported by CASBO, CASH, and CSBA, and not opposed, but the request was nevertheless denied by the Supreme Court.

Takeaways

Tanimura clarifies that public agencies, when imposing prospective developer fees, need not consider the specific development project, but only the type of development project at issue. The case should also help school districts resist the claims of developers who assert that they should be relieved of fees because few or no students will allegedly be generated by a specific project.

While some may argue for a broader application, the Summerhill decision can be viewed as the court’s application of the three-factorShapell test to a particular fee study. In this regard, the case simply calls for a fact-specific analysis based on already-established precedent. The following are some best practices following the Summerhill case:

  • Avoid use of imprecise language like “at least” when describing projected development.
  • If at all possible, consult with all planning departments within the school district’s jurisdiction.
  • If at all possible, identify the general types of school facility projects that may be constructed to accommodate students (e.g., new school construction, portable additions, a mix of both, etc.). We note that such identification in the fee study is not necessarily binding on the school district when it later implements its facilities plans.

If you have any questions about the Tanimura orSummerhill cases or about developer fees in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. Copies of Lozano Smith’s Developer Fee Handbook are available for purchase from Lozano Smith’s Client Services Department; you can submit your request to clientservices@lozanosmith.com. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Harold M. Freiman

Partner

Devon B. Lincoln

Partner

Kelly M. Rem

Partner

Benjamin Brown

Associate

©2019 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.

Legislature Addresses Student Use Of Smartphones At School

October 2019
Number 46

The California Legislature recently passed Assembly Bill (AB) 272, which will become effective January 1, 2020, specifically authorizing school districts to adopt a policy to limit or prohibit student smartphone use, while also granting students certain specific rights to possess and use a smartphone at school. Even though smartphone policies or guidelines are widely used already, this bill provides specific authorization, while also defining some limitations. In particular, AB 272 provides that a student shall not be prohibited from possessing or using a smartphone at school:

  • During an emergency situation or as a response to a perceived threat of danger;
  • When a teacher or administrator gives permission to a student to possess or use a cell phone, subject to reasonable limitations imposed by the person giving permission;
  • When necessary for the health or well-being of a student, as determined by a licensed physician and surgeon; and,
  • When possession or use of the cell phone is required pursuant to a student’s individualized education program (IEP).

Existing law provides that no student may be prohibited from possessing or using an electronic signaling device that is determined by a licensed physician and surgeon to be essential for the health of the student and use of which is limited to purposes related to the health of the student.

It should be noted that the statutory language of AB 272 refers to “smartphones” rather than cell phones, but this distinction may not matter soon as approximately four out of five cell phones used in America are smartphones, a figure that is only growing over time.

Although AB 272 affirms the right of school districts, county offices of education, and charter schools to regulate student possession and use of cell phones and smartphones at school, AB 272 provides for more expansive protections for students when it comes to the use of smartphones, which may present unique challenges for school administrators and teachers. For example, many educational agencies have created board policies or school rules that limit the use of cell phones during classes or the school day, and some even ban them from the campus entirely. This new law does not require that public educational agencies create a policy regarding student cell phone or smartphone possession and use. However, these agencies should review any existing policies, rules, and practices to ensure compliance with AB 272. For some of these educational agencies, this may require changes to how teachers confiscate phones from students who are using them for non-educational purposes, as well as how school sites limit possession, and possibly use, of smartphones at schools.

AB 272 creates Education Code section 48901.7, which, interestingly, is placed within the student discipline portion of the Education Code. However, the new law does not create a clear stand-alone suspendable or expellable violation. Accordingly, a student’s violation of the smartphone policy will likely need to be linked to a related offense, such as using the smartphone to arrange a drug sale or to bully another student.

In creating or updating policy, school officials should be mindful of teachers’ use of smartphones for instructional purposes, students’ free speech rights, and parents’ expectations of instantaneous communications with their students. Input and feedback from these and other stakeholders will help to facilitate any proposed changes to policies, procedures, and practices related to discipline and enforcement. Educational agencies should also consider providing notice to all parents/guardians at the beginning of each school year about any changes to the smartphone policies and practices.

For more information about AB 272 or about student cell phone and smartphone use at schools 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Aimee Perry

Partner

Joshua Whiteside

Associate

©2019 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.

Students Suspended For Two Or More Days Must Now Be Provided Homework Assignments

October 2019
Number 64

In an effort to prevent suspended students in grades 1-12 from falling behind in class assignments or homework, Governor Newsom has signed Assembly Bill (AB) 982, requiring all public and charter school teachers to provide homework assignments to suspended students, upon request. Teachers have historically had the option whether or not to require suspended students to complete any assignments and tests missed during the term of their suspension.

AB 982

Beginning January 1, 2020, AB 982 requires a teacher to provide, upon request, homework to any student who has been suspended from school for two or more schooldays. This request must be made by either the suspended student, their parent, legal guardian, or other person holding the right to make educational decisions for the suspended student. If the request for homework is made, the assignments then must be turned in to the teacher by the student either upon the student’s return to school from suspension or within the timeframe originally prescribed by the teacher, whichever is later.

The Legislature explicitly stated that the purpose of AB 982 is to provide the suspended student with the homework that the student would otherwise have been assigned so that the student does not unnecessarily fall behind academically. The Legislature also explicitly stated it did not intend to require a teacher to correct classroom assignments or homework missed while the student is suspended, or to add an additional burden on a teacher’s workload. With this in mind, AB 982 also provides that if a teacher is unable to grade the homework assignment before the end of the academic term, then the assignment shall not be included in the calculation of the student’s overall grade in the class. This added safeguard minimizes the impact on teachers who otherwise would have to grade these potentially delayed assignments, while also reducing the punitive academic impact on the suspended student.

Takeaways

Though this bill does not explicitly require it, school districts and charter schools should consider informing a suspended student and their parent or legal guardian of their right to request the student’s homework if the suspension will last two or more days. Similarly, school districts and charter schools should consider informing all teachers of the new requirements under AB 982, and develop consistent and equitable procedures around grading assignments for suspended students.

For more information on this bill, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Manuel F. Martinez

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Expands Definition Of Domestic Partners To Include Opposite Sex Couples

October 2019
Number 63

In California, registered domestic partners have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under the law” as spouses. (Fam. Code § 297.5, subd. (a).) Existing law limits domestic partnerships, among other requirements, to two groups of individuals: (1) couples of the same sex or (2) couples of the opposite sex, one or both of whom are over the age of 62 and eligible for social security benefits. On July 30, 2019, Governor Newsom signed Senate Bill (SB) 30 which eliminates these criteria for registering as domestic partners. As of January 1, 2020, any couple over the age of 18 (or under 18 with a court order), regardless of gender, can enter into a domestic partnership. This expansion has significant legal implications for California employers, including public entity employers.

Policy and Review of Collective Bargaining Agreements

To the extent an employer has policies, negotiated collective bargaining agreements, or employee handbooks that address domestic partnerships, it is important for employers to review such documents to ensure compliance with SB 30.

Health Benefits and Other Considerations

In light of SB 30, employers may have more employees eligible and interested in enrolling their domestic partner in an employer-sponsored healthcare plan. If such plan, whether self-insured or otherwise, offers health benefits to spouses then it must afford the same health benefits to registered domestic partners, under the same terms and conditions. Employers may, but are not required to, offer healthcare benefits to unregistered domestic partners as well. Employers should review the terms and conditions of their insurance policies/healthcare plans to ensure compliance with SB 30.

Because healthcare benefits are generally included as part of an employee’s wage for tax purposes, absent an exception, there may be related tax implications that employers should be aware of.

For more information about SB 30 and its implications for employers, or to discuss any other labor or employment questions, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Carolyn L. Gemma

Associate

©2019 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.

Legislature Takes Another Run At Bond Measure Ballot Language Requirements

October 2019
Number 42

UPDATE: Governor Newsom vetoed SB 268 on October 13, citing concern that the bill, as crafted, would “reduce transparency for local tax and bond measures.” As a result, existing ballot language requirements, including those added by AB 809 and AB 195, will remain in effect for the 2020 elections, and beyond, unless and until the Legislature revisits the issue again in the future.

In an ongoing saga that began with the passage of Assembly Bill (AB) 809 in 2015, the Legislature has, once again, amended bond measure ballot language requirements for local agencies. Senate Bill (SB) 268 would allow local agencies, when submitting to voters a bond measure or a measure that imposes or raises taxes with more than one rate, to choose between two options for the summary statement of the measure. Each option triggers a different form of “tax rate statement” required to be presented to the voters.

Background

The impetus for SB 268 appears to be the varying degrees of puzzlement local agencies and elections officials have expressed since the last time the Legislature amended the summary statement requirements for these types of measures. AB 809, passed in 2015, and AB 195, passed in 2017 (See 2017 Client News Brief No. 82), added, and clarified, respectively, the Elections Code requirement that summary statements for all local ballot measures that impose or raise a tax (including bond measures) must include the amount of money the tax will raise annually and the rate and duration of the tax to be levied.

In the wake of AB 809 and AB 195, many, including the author and proponents of SB 268, have pointed out that local agencies cannot practically state the rate, duration, and annual tax revenue in connection with a general obligation bond measure because those figures cannot be known at the time of an election on the measure. Further and as we noted in our prior news brief, inclusion of the new disclosure requirements in the summary statement, which is limited to 75 words, restricts local agencies’ opportunity to meaningfully communicate the purpose and works to be funded by the measure.

SB 268

SB 268 clears up these problems by providing an option for local agencies proposing a bond or a tax with more than one rate. Going forward, summary statements for bond measures or multiple-rate taxes can either comply with the existing requirement to state the rate, duration, and annual amount raised in the summary statement, or can instead choose to include in the summary statement the words: “See voter guide for tax rate information.”

If the voter guide reference option is selected, the local agency must then broaden the existing tax rate statement requirements to include a substantial amount of additional information including, among other items, descriptions and explanations of the purpose and use of the proceeds to be generated, and the factors affecting variability and duration of tax rates.

Effect on March 2020 Election

SB 268 is not an “Urgency Measure,” meaning that, unless vetoed by Governor Newsom, it will take effect January 1, 2020. However, ballot materials for the March 3, 2020 election must be prepared and filed in advance of January 1, by statute. Contemplating this calendar disconnection, the Legislature expressed its intent that “elections officials prepare ballot materials for the March 3, 2020, primary election in compliance with this act.” It is unclear whether county elections officials, whose statutory deadlines for March 2020 election filings precede the effective date of the bill, will observe the Legislature’s desire that it apply nonetheless.

Lozano Smith has analyzed the challenges posed by SB 268’s applicability to the March 2020 election, and is prepared to address those challenges head-on with a variety of legal strategies.

Lozano Smith has expertise in public finance matters, serving as bond counsel on more than $1 billion in school district and community college district bond issues. Lozano Smith will be conducting School Bond Workshops across the state, covering topics that include:

  • Elections: Timelines and requirements
  • Bonds: Types, validity and tax treatment
  • Roles and Responsibilities: Committees, consultants, and counsel
  • Disclosure and Record-keeping: Regulations and legal considerations
  • Statewide Bond: Matching and impact

For more information about upcoming Lozano Smith events or to schedule a School Bond Workshops for your District, please contact our Client Services department.

For questions regarding SB 268, including its effect on a planned ballot measure, or to discuss any other public finance matters, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.In an ongoing saga that began with the passage of Assembly Bill (AB) 809 in 2015, the Legislature has, once again, amended bond measure ballot language requirements for local agencies. Senate Bill (SB) 268 would allow local agencies, when submitting to voters a bond measure or a measure that imposes or raises taxes with more than one rate, to choose between two options for the summary statement of the measure. Each option triggers a different form of “tax rate statement” required to be presented to the voters.

Written by:

Daniel Maruccia

Partner

©2019 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.

AB 48 Increases Bonding Capacity, Provides Facilities Funding At Multiple Levels, Prioritizes Small School Districts, And Reduces Available Developer Fees For School Districts … But Only Applies If Voters Approve A School Facilities Bond In March

October 2019
Number 62

The California Legislature recently passed, and on October 7 Governor Newsom signed, Assembly Bill (AB) 48, known as the “Public Preschool, K-12, and College Health and Safety Bond Act of 2020.”

AB 48 places a $15 billion statewide K-12 school and college facilities general obligation bond on the March 3, 2020 ballot.

Contingent on voter approval of the statewide bond measure at the Presidential Primary election on March 3, 2020, AB 48 would introduce a slew of significant changes, relative to the funding of school facilities including:

  1. Increasing the bonding capacity of school and community college districts as follows:
    1. For elementary and high school districts – from 1.25% to 2.0% of assessed value of the taxable property within the district.
    2. For unified school districts and community college districts – from 2.5% to 4.0% of assessed value of the taxable property within the district.
  2. Establishing a 2020 School Facilities Fund for the apportionment and disbursement of money, including AB 48 bond proceeds, pursuant to the Leroy F. Greene School Facilities Act of 1998, commonly known as the School Facility Program;
  3. Imposing requirements to submit a five-year school facilities master plan or updated five-year school facilities master plan as a condition for participating in the School Facility Program;
  4. Prioritizing the order in which modernization and new construction applications for participation in the School Facility Program will be processed as follows: to projects that are determined to pose a health of life safety hazard; to projects by school districts requesting financial hardship status; for modernization applications only, to applications requesting a grant for the testing and/or remediation of lead levels in water at school sites; to projects that were submitted but not reviewed in the two immediately preceding quarters; to projects designed to eliminate existing severe overcrowding; and to applications based upon a computation of points as set forth in the Education Code;
  5. Introducing new programs to lessen the burden on rural and lower-income school districts when applying for state funds, including a small school district assistance program to provide advanced funding for design, reserve funds so districts will have the time needed to develop their projects, technical assistance and an increased bonding capacity to allow more small school districts to receive financing assistance, and increasing the threshold total bonding capacity for the financial hardship eligibility so more districts can qualify for projects without having to raise the full local contribution
  6. Authorizing
    1. funding for health and safety projects;
    2. grants for lead testing and remediation;
    3. grants for new construction and modernization projects for seismic mitigation, control, management or abatement of lead, the demolishment and construction of buildings on existing school sites in specified situations and to establish school site-based infrastructure to provide broadband internet access;
  7. Authorizing the use of new construction and modernization grants for the purchase of portable electronic devices with a useful life of more than three years;
  8. Specifying procedures by which small schools can obtain project and construction management, new construction grants, and modernization grants;
  9. Providing districts affected by a disaster with immediate assistance;
  10. Requiring annual notification by school districts to the State Allocation Board of sites that have been acquired for school purposes but remain unused;
  11. Prioritizing health and safety projects at the higher education level, and requiring the University of California (“UC”) and California State University (“CSU”) to adopt five-year affordable student housing plans as conditions for funding; and
  12. Imposing accountability and transparency obligations, such as public hearing and audit requirements, posting project and audit information requirements, on school districts, county offices of education, charter schools, community colleges, the CSU and the UC.

Impact on Developer Fees

In addition to the numerous substantial changes addressed above, AB 48 places new limitations on school districts’ ability to obtain the full school impact fees to which they had previously been entitled, retreating on a compromise between developers and school districts that was reached over two decades ago.

In 1997, following years without a new statewide school bond measure, the Legislature reached a compromise that led to Senate Bill (SB) 50, which placed a successful statewide bond on the ballot in 1998 and new restrictions on developer fees. SB 50 limited the ability of a school district to challenge new development on the basis of inadequate school fees, and introduced the three levels of developer fees that remain in effect to this day. School districts may assess residential developer fees authorized by Education Code sections 17620, et seq. (“Level 1” fees), or a higher “Level 2” or “Level 3” rate authorized by Government Code sections 65995.5 et seq., if the district meets certain criteria. The highest level of fees, Level 3, was intended to go into effect when state facility funding was no longer available. To date, school districts have had only fleeting moments to collect Level 3 fees, which have been variously suspended by the Legislature and challenged in court by the California Building Industry Association.

Under AB 48, if the statewide bond measure in 2020 is successful, school impact fees will be eliminated altogether for multifamily housing developments that are located within one-half mile of a major transit stop, which is defined in the legislation as “a site containing an existing rail transit station, a ferry terminal served by either a bus or rail transit service, or the intersection of two or more major bus routes with a frequency of service interval of 15 minutes or less during the morning and afternoon peak commute periods.” For all other multifamily housing, AB 48 reduces the amount of Level 1 and Level 2 fees that can be charged by 20%. These changes are presumably to support more affordable housing, though that goal rests, at least in part, on a potentially faulty assumption that developers will pass the savings on to home buyers. These reductions in fees would remain in effect until January 1, 2026.

Additionally, increasing the local bonding capacity for school districts could potentially reduce school impact fees by making it more difficult for a district to qualify for Level 2 fees. This is because qualification for Level 2 fees is dependent, in part, on a school district’s bonding capacity. In relevant part, to qualify for Level 2 fees, a district must (1) be eligible for state facility funding, and (2) meet two of four criteria – one of which is directly tied to the district’s local bonding capacity (the issuance of debt or incurring obligations for capital outlay in an amount equal to 30 percent of the district’s local bonding capacity). (Gov. Code § 65995.5, subd.(b)(3)(C).) By raising school districts’ bonding capacity, AB 48 would make it more difficult to meet this particular criteria, potentially causing school districts to fall out of Level 2 status in the future.

Finally, if they go into effect, certain of AB 48’s provisions could once again suspend the ability of a school district to impose Level 3 fees even if state facilities funding runs out. This suspension of Level 3 fees would be in place until January 1, 2028.

If the voters approve AB 48 in March, the bill’s treatment of developer fees will retreat from the compromise arrangement of SB 50 in each of the foregoing ways. Developers will keep the benefits of that compromise (limits on ability to challenge development based on insufficient school facilities) while school districts give up the full benefits of Level 2 and Level 3 fees.

Takeaway

Importantly, the many changes proposed by AB 48 will not take effect until and unless the voters approve the Public Preschool, K-12, and College Health and Safety Bond Act of 2020 (the Act) on March 3, 2020. If the Act is not approved by voters on March 3, none of the above will apply.

With respect to the effect of some of the changes that will go into effect only if voters approve the Act: AB 48 will provide facilities funding at multiple levels; the state match for funding will be more aligned with LCFF factors, and will also include a “hold harmless” provision to avoid harm caused by the shifting formula; priorities for funds will be based on need rather than a first-in-line-model; specific focus will be paid to small school districts, potentially adversely impacting suburban and larger districts; and some school districts may be adversely impacted by the limitation on the collection of multi-family residential developer fees.

Lozano Smith will soon be releasing an episode of the Lozano Smith Podcast focusing on AB 48 and its potential impacts on school facilities funding in California. Go to Lozanosmith.com/podcast to access all of Lozano Smith’s podcasts.

If you have any questions about AB 48, public finance or developer fees 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 subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app. Information regarding Lozano Smith’s Developer Fee Handbook for School Facilities can be found Here.

Written by:

Harold M. Freiman

Partner

Daniel Maruccia

Partner

Deepika S. Thompson

Senior Counsel

James N. McCann

Associate

©2019 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.

Legislature Postpones Sunset Of Civic Center Act Fee Provisions

October 2019
Number 55

Assembly Bill (AB) 1303, which was recently signed by the Governor, will postpone the sunset of central fee provisions within the Civic Center Act (Act).

The Act generally requires school districts to permit the use of their facilities and grounds for particular purposes. The Act further authorizes, and in some cases requires, school districts to charge users for their use of school facilities. The Legislature originally provided that these provisions would be repealed as of January 1, 2020; however, AB 1303 extends this date to January 1, 2025.

Background

The Act mandates that school districts “authorize the use of school facilities or grounds under [their] control by . . . nonprofit organization[s], or by . . . club[s] or . . . association[s] organized to promote youth and school activities.” “School facilities” are defined as nonclassroom space and “school grounds,” and include, but are not limited to: playing fields, athletic fields, track and field venues, tennis courts, and outdoor basketball courts.

The Act also provides that school districts may, and in certain circumstances must, charge for such use. In particular, school districts may generally charge “an amount not to exceed direct costs” for use of their grounds or facilities. “Direct costs” are defined as the user’s proportional share of supplies, utilities, janitorial services, work performed by school district employees, maintenance, repair, restoration, and refurbishment in connection with the operation and maintenance of the school facilities or grounds. This proportion of costs is based on the extent and nature of the entity’s use.

There are a few notable exceptions to this general rule. If a school district permits the use of school facilities for religious services, the district must charge the user an amount at least equal to the school district’s direct costs. Further, school districts must charge fair rental value for users who utilize school facilities for entertainment purposes or to hold meetings where admission is charged or contributions are solicited and the net receipts are not expended for the welfare of the pupils of the school district or for charity. The Act defines “fair rental value” as the direct costs to the school district plus the amortized costs of the school facilities or grounds used for the duration of the activity.

The Act originally provided that the above provisions would be repealed as of January 1, 2020. However, AB 1303 postpones such repeal until January 1, 2025. The Senate Rules Committee (Committee) observed that this fee provision was originally enacted in 2012 to help school districts remain fiscally viable during the national economic downturn. Now, though the economic climate has improved, the Committee determined that such fees are still necessary to enable districts to ensure that their schools are properly maintained and to prevent injuries that can result from dilapidated facilities.

Takeaways

School districts should be aware that the Legislature has postponed the sunset of the above-described Civic Center Act fee provisions until January 1, 2025. Consequently, school districts may continue to charge users in proportion to the direct costs associated with their use, except with respect to users who utilize school facilities for religious, entertainment, or profit-generating purposes.

For more information about AB 1303, the Civic Center Act, or facilities use matters 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Claudia P. Weaver

Partner

Benjamin Brown

Associate

©2019 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 Districts May Develop A Policy Permitting Parents To Administer Medical Marijuana To Students On Campus

October 2019
Number 57

On October 9, 2019, Governor Gavin Newsom signed Senate Bill (SB) 223, which allows local educational agencies to adopt a policy regarding administration of medicinal cannabis to students on campus. The new law, referred to as “Jojo’s Act,” becomes effective on January 1, 2020, and was named after a San Francisco teenager who takes medicinal cannabis to control serious seizures. Jojo’s Act adds section 49414.1 to the California Education Code and authorizes, but does not require, school districts, county offices of education, and charter schools to adopt a policy to permit a parent or guardian to possess and administer medicinal cannabis at a school site to a student who is a “qualified medical cannabis patient” under California law.

Requirements Under Jojo’s Act

Under Jojo’s Act, a school district, county office of education, or charter school may elect to adopt a policy allowing for the administration of medicinal cannabis to a student at school by a parent or guardian. If such a voluntary policy is adopted, Jojo’s Act requires that the policy include the following:

  1. Before administering the medicinal cannabis, the parent or guardian must provide to an employee of the school a valid written medical recommendation for medicinal cannabis for the pupil to be kept on file at the school;
  2. The parent or guardian must sign in at the school site before administering the medicinal cannabis;
  3. The parent or guardian shall not administer the medicinal cannabis in a manner that disrupts the educational environment or exposes other pupils; and
  4. After the parent or guardian administers the medicinal cannabis, the parent or guardian must remove any remaining medicinal cannabis from the school site.

School districts, county offices of education, and charter schools should also consider including and/or addressing the following if a policy is adopted:

  1. “Medicinal cannabis” in a smokeable or vapeable form is prohibited under Jojo’s Act;
  2. Under Jojo’s Act, local educational agencies may rescind the policy at a regularly-scheduled board meeting, or at a special board meeting under certain conditions, for any reason, including if the agency is at risk of losing federal funding due to the policy;
  3. Jojo’s Act does not allow or require school employees, in any way, to administer cannabis to students;
  4. Jojo’s Act provides that any records collected related to the administration of medicinal cannabis to a student must be treated as amedical record subject to all provisions of state and federal law that govern the confidentiality and disclosure ofmedical records; and
  5. Jojo’s Act does not limit the tetrahydrocannabinol (THC) content of medicinal marijuana permitted to be administered at school. Unlike cannabidiol or CBD, which does not create a “high,” THC is the cannabinoid that creates the psychoactive effects of cannabis, which can make a person experience a “high.” Some students who take cannabis for medical purposes require medicinal cannabis with THC content. State law does create limits on the content of THC in cannabis product.

Remaining Questions

Jojo’s Act leaves several questions unanswered, including those related to record keeping, discipline, and administration:

  1. As noted above, Jojo’s Act deems records related to medicinal marijuana administration on school campuses “medical records” rather than student education records. This appears to be the Legislature’s attempt to apply the Health Insurance Portability and Accountability Act (HIPAA) to these particular records, rather than applying the Family Educational Rights and Privacy Act (FERPA). However, HIPAA contains a provision stating that medical records maintained by school districts become education records, which are governed by FERPA rather than HIPAA. Thus, the provision of Jojo’s Act applying HIPAA to these medicinal marijuana records, seemingly conflicts with federal law. It remains to be seen how this will impact school districts.
  2. Notably absent from the Act is any reference to discipline. The Education Code provides that students may be suspended and/or recommended for expulsion when they unlawfully possess, use, or are under the influence of marijuana. (Ed. Code, §§ 48900(c);48915(a).) Jojo’s Act does not address how to reconcile the authorized administration with the prohibition against possession, use, or being under the influence on campus. This conflict requires careful consideration in any policy.
  3. Jojo’s Act does not provide an alternative for students whose parents or guardians cannot come onto campus during the school day to administer medication.

Other Limited Circumstances Authorizing Use of Medicinal Cannabis on Campus

Even without a policy under Jojo’s Act, educational agencies may be required to allow medicinal cannabis use on campus under other limited circumstances. Such circumstances include FDA-approved cannabis-based medications and judicial orders requiring a school district to administer cannabis to a student at school. (See 2018 Client News Brief Number 56; 2018 Client News Brief Number 55.)

Takeaways

The intersection of cannabis, education, disability, and equal access law is quickly developing and changing. We recommend you reach out to legal counsel who understands the nuances of this area of law, or to a Lozano Smith attorney with any questions regarding administration of medicinal cannabis on school campuses, including the possibility of developing a policy under Jojo’s Act.

If you have any questions regarding SB 223, or would like to discuss student rights or discipline matters related to cannabis use, please contact an attorney at one of our eight officeslocated statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Aimee Perry

Partner

Alyssa R. Bivins

Associate

©2019 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.

PERB Articulates Duties Of Employer When Faced With Internal Union Strife

October 2019
Number 56

In City of Arcadia (2019) PERB Dec. No. 2648-M, the Public Employment Relations Board (PERB) grappled with a variety of issues surrounding a public employer’s duties in the face of warring factions within one of its unions, as well as the propriety of “exploding” offers-an offer or proposal that expires on a given date-in the context of labor negotiations.

PERB held that the City unlawfully interfered with internal union affairs when its police chief encouraged a union representative to oust its president, and violated its duty to meet and confer in good faith when it unilaterally set ground rules in advance of negotiations, invited a non-leadership union member to a pre-negotiations meeting without notifying the union’s official representatives, and made an exploding offer without adequate justification.

An Employer Interferes with Internal Union Affairs by Offering an Incentive for a Change in Union Leadership

Bargaining units have a right to choose their leaders without employer interference. In this case, after receiving reports of unprofessional conduct by the union president, the Chief of Police informed the vice president of the Arcadia Police Civilian Employees Association (Association) that he was cancelling the regular labor-management meetings between the City and the Association until the president no longer held that position.

PERB held that this encouragement to remove the union president constituted interference under the Meyers-Milias-Brown Act (MMBA). Suspending the labor-management meeting until a change in union leadership constituted an incentive for the union to oust its president. A reasonable employee would have viewed his comments as inserting the employer into internal union affairs and/or favoring one faction over another, and as promising a benefit if members took a particular action with respect to their leadership.

An Employer Does Not Engage in Interference by Temporarily Recognizing and Bargaining with a Newly Elected Board

An employer must maintain strict neutrality between bargaining units, as well as between competing factions within the same unit. At the same time, the employer remains obligated to deal with the union regardless of internal strife, and may have little choice but to recognize one faction on an interim basis, pending resolution of the internal union dispute. Here, members of the Association voted out existing leadership and replaced them with different members. The new leaders informed the City Manager of the election results and provided supporting documentation. The ousted president informed the City Manager that she disputed the results of the election, but the City Manager stated that he would negotiate with the newly elected Board.

While an employer may violate the MMBA if it favors one internal faction over another in a manner that materially strays from a good faith effort to comply with its duty to deal with the union’s chosen representatives, here PERB held that the City properly maintained its neutrality and complied with its good faith duty to bargain when it temporarily recognized one faction over the other.

An Employer Commits a Per Se Violation of its Duty to Bargain in Good Faith by Unilaterally Imposing Negotiations Ground Rules

It is a per se violation of the employer’s duty to bargain in good faith if it unilaterally imposes ground rules in advance of negotiations. Here, the City Manager informed the bargaining units that negotiations would commence much earlier than anticipated, that the early start date would be paired with an “accelerated” approach capped by a specific deadline and, in the absence of a deal by the deadline, there would be a “cooling off” period during which there would be no negotiations. PERB held that this constituted a per se violation of the duty to negotiate in good faith.

PERB Held that the City Violated its Duty to Bargain in Good Faith Based on Totality of Circumstances

PERB also held that under the totality of circumstances, the City acted in bad faith in its bargaining conduct with the Association. PERB based its holding on three indicia:

  1. The City’s unilateral imposition of ground rules, discussed above;
  2. The City’s undermining of the Association’s selection of itsrepresentatives; and
  3. The City’s “exploding” offer.

PERB held that the City undermined the Association’s selection of its representatives when it invited a former Association Board member who had resigned from her position years earlier, to a pre-negotiations meeting. That employee attended the meeting-which was reserved for union representatives-without the City notifying the union leadership. This act undermined the Association’s selection of representatives by giving the unauthorized member detailed information about negotiations, elevating her at the expense of the designated representatives.

PERB also held that an “exploding” offer (an offer or proposal that expires on a given date), without an adequate explanation for its termination date, indicates bad faith bargaining. Such an offer is a form of regressive bargaining-making proposals that are less generous to the other party than prior offers. These tactics are indicative of bad faith unless supported by adequate explanation of a legitimate purpose for the expiration, such as changed economic conditions or other changed circumstances.

Here, the City indicated to the Association that a “signing bonus” would not be on the table if the Association and City did not strike a deal by the end of November. The City explained that the deadline was necessary because of the City Council election in the spring, and the new Council could have different budgetary goals. PERB rejected this explanation, because there were several months between the deadline and the election, and it was speculative whether the election would lead to a new Council with goals so different as to change the City’s bargaining position.

Takeaways

Public agency employers’ obligations to bargain in good faith do not change when there is internal union strife. In such circumstances, employers should ensure they continue to engage in good faith negotiations, which may require temporary recognition of one faction over another until the internal union disputes are resolved. Employers should also be wary of presenting exploding offers, as such proposals are only lawful if the employer can demonstrate changed economic conditions or other changed circumstances to support its position. It is crucial to note that PERB’s assessment of the lawfulness of employer behavior in the face of internal union strife is very fact specific, so it is important that all employer bargaining team members understand their obligations under such circumstances.

If you have questions regarding this PERB decision, or to discuss any employee bargaining matter or labor 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Angela J. Okamura

Associate

©2019 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 Narrow The Use Of Medical Exemptions For Student Immunizations

October 2019
Number 54

Through Senate Bills (SB) 276 and 714, California lawmakers demonstrated a concerted effort to narrow the use of medical exemptions from immunization requirements by requiring a singular exemption form and consolidating oversight through the California Department of Public Health (CDPH). In creating stricter scrutiny over medical exemptions, SB 276 and 714 continue in the spirit of SB 277, adopted in 2015, which eliminated religious and personal belief exemptions to school vaccine mandates. (See 2015 Client News Brief Number 36.)

By January 1, 2021, the CDPH must develop an electronic, standardized, statewide medical exemption certification form that must be used by licensed physicians and surgeons and must be transmitted directly to the California Immunization Registry (CAIR) established pursuant to Health & Safety Code section 120440. As of January 1, 2021, this standardized form will be the only documentation of a medical exemption that school districts may accept.

In the near-term, parents or guardians may continue to file a written statement by a licensed physician and surgeon to the effect that the child’s physical condition is such that immunization is not considered safe, and that the child will still be exempt from the specified requirements, until January 1, 2021.

Students who have an existing medical exemption, issued before January 1, 2020, may continue with enrollment in school until the child enrolls in the next “grade span.” These are defined as birth to preschool, kindergarten (including T-K) to grade 6, and grades 7-12.

In April 2020, the CDPH clarified that students who have a medical exemption issued during 2020 may also continue with enrollment until the child enrolls in the next grade span.

The bills also add a process for parents and guardians to appeal to the Secretary of California Health and Human Services if a medical exemption is revoked pursuant to section 120372(d). A student whose revocation is appealed shall continue to attend school and not be required to begin the immunization requirements for continued admittance, provided that the appeal is filed within 30 days of revocation of the medical exemption.

In addition, schools and institutions that have 1) an overall immunization rate of less than 95%, 2) waivers from a physician or surgeon who submitted five or more medical exemptions in a calendar year, or 3) not provided reports on vaccination rates to the CDPH, will be subject to, at a minimum, an annual review by the CDPH of all immunization reports.

Takeaways

As of January 1, 2021, school districts will be able to accept only one medical exemption immunization certification form. The identification of only one valid certification form should assist in streamlining medical and registration processes for schools and others.

If you have any questions about SB 276 or 714 or about laws applicable to student immunizations 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 subscribe to our podcast, follow us on Facebook, Twitter, andLinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Nicholas G. Felahi

Associate

©2019 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.

AB 5: New Law Further Limits Employers’ Ability To Classify Workers As Independent Contractors

October 2019
Number 53

Governor Newsom signed Assembly Bill 5 (AB 5) on September 18, 2019, which takes effect on January 1, 2020. AB 5 codifies the California Supreme Court’s decision inDynamex Operations West, Inc. v. Superior Court of Los Angeles (Dynamex) (see 2018 Client News Brief No. 20), which made it more difficult to classify a worker as an independent contractor. This new legislation also creates additional protections for workers.

In Dynamex, the Court held that, for purposes of Industrial Welfare Commission (IWC) wage orders, a worker is presumed to be an employee unless the hiring entity is able to demonstrate that:

(A) The person is free from their control and direction in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B) The person performs work that is outside the usual course of the hiring entity’s business; and

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

AB 5 expands the applicability of this three-part test, commonly referred to as the “ABC test,” to specific sections of the California Labor Code and Unemployment Insurance Code. The bill exempts specific occupations such as licensed architects, lawyers, and private investigators from the ABC test. Instead, those professionals will be governed by the Borello test, which does not contain a rebuttable presumption that a worker is an employee. The Borello test has nine factors and focuses on the amount of “control” the hiring entity has over a worker. Hiring entities are not required to meet all nine factors to show that a worker is an independent contractor. Therefore, it is easier to classify a worker as an independent contractor under Borello. AB 5 provides that, in addition to the specific exemptions, Borello can also be applied when a court determines that the ABC test cannot be applied in a particular circumstance.

AB 5 authorizes the California Attorney General and certain local government officials to seek injunctions against hiring entities on behalf of misclassified workers. Additionally, some of the changes to the Labor Code apply retroactively to existing claims to the extent permitted by law.

Takeaways

AB 5 extends the applicability of Dynamex and the ABC test from IWC wage orders to provisions of the Labor and Unemployment Insurance Codes. The legislation has the potential to increase employer liability because it is partially retroactive to existing claims and creates a new right to seek injunctive relief.

Precisely what impact AB 5 will have on public entities is yet to be determined. First, while most IWC wage orders do not apply in full to public entities, sections of the Labor Code and the Unemployment Insurance Code do apply. Second, AB 5 does not contain an exemption for public entities. Third, adopting the ABC test could lead to greater use of the test by other agencies that have historically relied on the Borello test such as the California Public Employees’ Retirement System (CalPERS). If this occurs, the change may have a significant impact on CalPERS membership rules, including post-retirement work implications for CalPERS retirees attempting to return to work as independent contractors. Therefore, public entity employers with independent contractors should review their classification decisions to ensure workers are correctly classified under the appropriate test.

For more information about AB 5 or worker classification 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Travis J. Lindsey

Associate

©2019 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 Expands Ban On Suspensions For “Willful Defiance” And “Disruption” In Both Public And Charter Schools, Emphasizes Importance Of Alternative Means

October 2019
Number 52

Governor Gavin Newsom recently signed into law Senate Bill (SB) 419, which expands the existing ban on suspending students in grades K-3 for disrupting school activities or committing an act of willful defiance. The ban on such suspensions now extends to grades 4-5 permanently and to grades 6-8 for five years. The new law, which takes effect on July 1, 2020, applies to both traditional public schools and charter schools.

Subdivision (k), of Education Code section 48900, provides that a student may be suspended if he or she “disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties.” Subdivision (k) excludes grades K-3, and provides that such offenses may not be grounds for an expulsion recommendation. The law does not, however, define disruption or willful defiance. SB 419’s broader ban comes in response, in part, to criticism that this category of suspensions is an overly-broad and subjective catchall for any behavior a teacher finds objectionable, such as refusing to remove a hat, talking back, or refusing to follow school rules, and that its use disproportionately affects students of color, students with disabilities, and LGBTQ students.

SB 419 permanently eliminates suspensions for disruption and willful defiance for students in kindergarten to grade 5, and temporarily for grades 6-8 (sunsetting on July 1, 2025, unless a subsequent law extends that date). SB 419 maintains the restriction on expelling any student if the sole basis for the expulsion was a disruption or willful defiance offense. These restrictions now apply to public and charter schools alike. SB 419 also now explicitly encourages school districts’ use of alternative disciplinary practices, including restorative justice practices, trauma-informed practices, social and emotional learning, and schoolwide positive behavior interventions and support.

SB 419 does not change existing law that allows a teacher to suspend a student from his or her own class for the day of the incident and the following day, so long as the student remains in school and a parent-teacher conference is offered as soon as possible. The new restrictions also do not apply to suspensions or recommendations for expulsion based on other grounds, such as acts related to violence, controlled substances, bullying, and vandalism.

SB 419 continues the Legislature’s efforts to reduce the total number of suspensions and expulsions in California’s schools. (See 2014 Client News Brief No. 72, and 2017 Client News Brief No. 65) The statewide action follows outright bans on suspensions for disruption and willful defiance for all grade levels by at least five school districts, including Los Angeles, Oakland, San Francisco, Pasadena, and Azusa. The California Department of Education has reported a nearly 50 percent drop in suspensions statewide in the past six years for all categories of behavior, with willful defiance suspensions dropping even more sharply than suspensions for more serious behavior. In the 2011-2012 school year, willful defiance accounted for about half of the approximately 700,000 suspensions in the state. In the 2017-2018 school year, they made up only one-sixth of the approximately 360,000 suspensions.

School districts and charter schools should review, and potentially revise, their disciplinary policies and procedures, including suspension and expulsion forms, to ensure compliance with SB 419’s new restrictions. In addition, while not mandated by SB 419, school districts should consider updating their policies and procedures regarding the use of alternative means of correction, intervention strategies, and disciplinary optionsbefore imposing a suspension or recommendation for expulsion, given the Legislature’s encouragement and preference for such measures.

For more information about SB 419 or any other student discipline matter, 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

Erin Frazor

Associate

©2019 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 Will Allow Students With IEPs To Take Assistive Technology Devices Home With Them

October 2019
Number 51

Governor Newsom recently signed Assembly Bill (AB) 605, which will require local educational agencies (LEAs) to allow students to use school-purchased assistive technology devices at the student’s home or in other settings when the student’s individualized education plan (IEP) team decides on a case-by-case basis that access to those devices is necessary in order for the student to receive a free appropriate public education (FAPE). This new law takes effect on January 1, 2020.

Current law states that LEAs (including school districts and charter schools) are responsible for providing specialized equipment, including assistive technology devices, for use at school when it is needed to implement a student’s IEP. An “assistive technology device” is defined as any item, piece of equipment or product system that is used to increase, maintain or improve the functional capabilities of a student with exceptional needs. Assistive technology devices come in many forms, and may be low-tech or high-tech, and include items such as wheelchairs, voice-activated computers, large-print books, pencil grips, and many other types of equipment.

Frequently they are used by students with limited or no verbal communication skills. According to the author of AB 605, when such students are required to leave an assistive technology device at school, “they are essentially losing their voice when they go home.”

AB 605, which adds new section 56040.3 to the Education Code, will also require LEAs to continue to provide students with exceptional needs who require the use of assistive technology devices to have continued access to the devices, or comparable devices, for up to two months after the student leaves to enroll in another LEA, or until alternative arrangements can be made.

Going forward, it is important that IEP teams consider whether students with exceptional needs may obtain educational benefit from the use of their school-owned assistive technology devices when away from school, and that staff are aware that these devices may need to be made available for students to use at home and other locations away from school, as determined by the students’ IEPs.

If you have any questions about AB 605, or education of students with exceptional needs 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

©2019 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.

Department Of Labor Opinion Says Family Medical Leave Allowed For Parental Attendance At IEP Meetings At School

October 2019
Number 50

On August 8, 2019, the U.S. Department of Labor issued an opinion letter (Opinion Letter) stating that the Family Medical Leave Act (FMLA) covers intermittent leave to attend a child’s Individual Education Program (IEP) meeting, so long as the child suffers from a qualifying “serious health condition” under the FMLA. Special education IEP meetings are convened to develop, review, and revise the written document created and implemented to meet the educational needs of a child with a disability.

Under the FMLA, an eligible employee of a covered employer is allowed to take up to twelve weeks of job-protected, unpaid leave each year to “care for a family member with a serious health condition.” “Serious health condition” means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment and care for a family member. Leave may be intermittent, and can be used to cover both psychical and psychological care, as well as making arrangements for changes in that case. The Opinion Letter informs employers that parental attendance at a qualifying child’s IEP meeting may constitute “care of a family member with a serious health condition” under the FMLA.

The Opinion Letter notes that attendance at an IEP meeting is “essential to [the parent’s] ability to provide appropriate physical or psychological care” for a child. According to the Department of Labor, parents help participants make medical decisions, discuss their child’s well-being and progress with the providers of services, and “ensure the school environment is suitable to their medical, social, and academic needs.” Such contributions constitute “arrangements for changes in care” within the scope of intermittent leave under the FMLA. Notably, a change in care for a family member does not have to involve a facility that provides medical treatment. (Wegelin v. Reading Hosp. & Med. Ctr., 909 F. Supp. 2d 421, 429-30 (E.D. Pa. 2012).)

While a child’s physician does not need to be present at an IEP meeting in order for a parent’s leave to qualify as intermittent FMLA leave, employers can continue to require employees to timely provide a copy of a certification issued by their child’s health care provider that meets the criteria to support the request for leave. It is possible that not every student with an IEP will have a serious medical condition under the FMLA. Therefore, it is important to verify that the FMLA eligibility requirements are met when a request for such leave is made.

Public agency employers should take steps to ensure that supervisors and human resource professionals are informed of this permissible use of intermittent FMLA leave and associated verification parameters. Public agencies should review employee handbooks, policies, and collective bargaining agreements regarding qualifying leave under the FMLA to determine whether any updates are necessary.

If you would like to discuss the Opinion Letter, how to handle requests for FMLA leave, whether your policies need updating, or if you have any other questions as to what constitutes “care for a family member with a serious health condition” under the FMLA, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Michelle N. Silwa

Associate

©2019 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 Newsom Signs Comprehensive Reforms for Charter Schools

October 2019
Number 49

In the largest overhaul of California’s Charter Schools Act (“Act”) since it was enacted in 1992, Governor Gavin Newsom signed AB 1505 and AB 1507 on October 3, 2019. The Act authorizes the establishment and operation of charter schools in California. The closely watched and hotly debated reforms impact most aspects of charter school authorization, including oversight, appeals, and renewals. Enactment of AB 1505 and AB 1507 follows months of negotiations and compromises from both sides in the ongoing charter school debate.

Background

Charter schools operate independently from school districts, but they require oversight from the school district or county board that authorizes them. In the last decade, California has seen unprecedented growth in the number of charter schools. According to the California Department of Education (“CDE”), there were approximately 1,306 charter schools and seven all-charter districts in California at the beginning of the 2018-19 academic year. With this growth has come criticism that the law was not keeping pace with necessary checks and balances on charter school operation and the impacts charter schools have on public school districts. These bills were introduced to correct deficiencies and close loopholes brought to light by litigation, including Anderson Union High School District v. Shasta Secondary Home School (2016) 4 Cal.App.5th 262 handled by Lozano Smith (see Client News Brief), as well as a subsequent Legislative Audit examining charter school operation and oversight, and the work of the Governor’s California Charter School Policy Task Force.

AB 1505

Most provisions of AB 1505 are set to go into effect on July 1, 2020. Major highlights of AB 1505 include the following changes:

  • Petition Approval Criteria. When considering whether or not to grant or deny a petition for a new charter school, a district may consider whether the charter school will serve the interests of the entire community in which the charter school is proposing to locate. Further, if a district meets certain criteria, the district may also consider whether or not it is positioned to absorb the fiscal impact of the proposed charter school.
  • Petition Review Timelines. The timeline for a school district to review an initial charter petition and a renewal petition has been extended. The district must hold a public hearing to consider the level of support for the petition 60 days after the petition is submitted, and the district must now hold a second public hearing to take action on a petition 90 days after the petition is submitted. Additionally, the governing board of a school district or county board of education is now required to publish all staff recommendations and findings regarding a charter petition at least 15 days before the public hearing at which the board will either approve or deny the initial or renewal petition. Petitioners must also be afforded equivalent time to present evidence and testimony to the governing board at the public hearing in which the petition will be approved or denied.
  • Petition Renewal Criteria. Charter petition renewals will be considered under a 3-tiered system whereby authorizers must consider the academic performance of the charter school on the state indicators included in the evaluation rubrics (the “Dashboard”) adopted by the State Board of Education (“SBE”). Under the tiered system, a “high performing” charter school may be renewed for five to seven years, an “average performing” charter school may be renewed for five years, and a “low performing” charter school, generally, may not be renewed. However, under certain conditions, a “low performing” charter school may be renewed for a two year period. Additionally, the requirement to consider increases in pupil academic achievement as the most important factor in determining whether to grant or deny a renewal has been eliminated.
  • Appeal Process. The new law modifies the appeal process for denials of a new charter school petition or renewal of an existing charter at both the county and state level in a variety of ways. For example, a petition submitted on appeal to a county board of education or the SBE containing “new or different material terms” will be immediately remanded back to be reconsidered by the district within 30 days of remand. Additionally, districts and county boards of education are required to prepare and submit an administrative record to the SBE upon request of the petitioners. The SBE may only reverse the denial of a petition or renewal if it finds there was an “abuse of discretion” by the county or district, or both. If a petition is approved on appeal to the SBE, either the district or county office of education will be designated as the authorizing authority, effectively eliminating the SBE as a charter school authorizer.
  • Nonclassroom-Based Charter Schools. The new law creates a 2-year moratorium on the approval of a petition for the establishment of a new charter school offering nonclassroom-based instruction, effective January 1, 2020 to January 1, 2022. According to the California Charter School Policy Task Force Report, the two year freeze on nonclassroom-based charter school will allow advocates to spend the time studying issues related to the establishment of nonclassroom-based charter schools, such as their operational practices and performance, and to make further recommendations to ensure students are receiving appropriate instruction.
  • Teacher Credentialing. Under prior law, charter school teachers were only required to hold a state-approved credential if teaching a Core course. Under the new law, all teachers hired after July 1, 2020 must have the appropriate credential for their certificated assignment regardless of whether they teach a core subject. All teachers employed at a charter school during the 2019-2020 school year without a credential will have until July 1, 2025 to obtain the appropriate credential for their certificated assignment. By July 1, 2020, all charter school teachers must also obtain a certificate of clearance and satisfy the requirements for professional fitness under the Education Code.

AB 1507

AB 1507 makes two major changes to the location requirements for charters schools, effective January 1, 2020.

  • Charter School Location. Under prior law, a charter school that was unable to locate within the geographic boundaries of its authorizing district was permitted to establish one site outside the boundaries of the school district, but within the county in which that school district is located, if specific requirements were satisfied. AB 1507 eliminates this loophole and requires all charter schools to locate within the geographic boundaries of the authorizing district. A charter school lawfully established outside the boundaries of the authorizing district, but within the county, before January 1, 2020, may continue to operate at the site until the charter school submits a renewal petition. At that time, to continue operating at the same location, the charter school must either obtain written approval from the district where the charter school is operating, or submit a renewal petition to the district in which the charter school is located.
  • Resource Centers. Under prior law, a nonclassroom-based charter school was able to establish a resource center in a county adjacent to the county in which the charter school was authorized, if certain conditions were met. The new law eliminates the ability of a nonclassroom-based charter school to establish a resource center in an adjacent county. A charter school that was lawfully operating a resource center outside the geographic boundaries of the authorizing district before January 1, 2020, may continue to operate at the site until the charter school submits a renewal petition-at which time the charter school must obtain written approval from the district where the resource center is located to continue operations at the same site.

Charter School Toolkit

Lozano Smith will soon be publishing an in-depth resource with important background information, answers to frequently asked questions, an implementation checklist, and more, regarding the recent amendments to the Act. If you are interested in receiving the toolkit, please email Client Services.

Takeaways

The current legislation reflects a shift in the charter school debate in this state. Rather than an emphasis on the performance of charter schools compared to district operated schools, the changes in the Act reflect a focus on the fiscal and operational impacts that new and existing charter schools have on public school districts. The enactment of AB 1505 and AB 1507 signals a policy shift in California and marks a victory for school districts that have been advocating for more local control of the approval, renewal, and oversight process. However, as part of the legislative compromise process, some significant new obligations have been placed on districts and will likely have long term impacts on the charter school landscape in California. In the short term, school districts should expect an influx of charter petition submissions in the coming months in anticipation of the comprehensive reforms going into effect on January 1, 2020 and July 1, 2020.

If you would like more information regarding AB 1505 and AB 1507, or if you have any questions regarding charter school authorization and oversight generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our Podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Megan Macy

Partner

Erin M. Hamor

Senior Counsel

Courtney de Groof

Associate

©2019 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 Allows Former Students To Change Name And Gender On Past Student Records

October 2019
Number 48

Assembly Bill (AB) 711 establishes a process for former students to change their name and gender on pupil records, including diplomas.

Existing law requires school districts to maintain and preserve, in perpetuity, certain mandatory pupil records, even after a student graduates. AB 711 was enacted to address the needs of former students and to protect their privacy rights. Prior to the enactment of this statute, former students’ prior legal names (or “dead names”) and/or gender were being inadvertently disclosed by school districts to colleges and employers with the release of their transcripts. This bill makes it easier for former students to request the pupil records maintained by a school district be changed to reflect their preferred name and/or gender on student records maintained by a school district. Notably, the AB 711 also includes diplomas as a document that may be reissued, even though diplomas are typically considered ceremonial documents and not pupil records maintained by school districts.

Under AB 711, in order for a former student’s name and/or gender to be changed on mandatory permanent records, the former student must provide legal documentation of the change. If the former student does not provide documentation of the change, they may still proceed to change their name and/or gender through the standard process for amending student records, birth certificates, passports, social security cards, or court orders indicating a name change or a gender change, or both.

Additionally, AB 711 requires that school districts add a document containing the following information to the former student’s file after the request is completed:

  • The date of the request;
  • The date the requested records were reissued to the former pupil;
  • A list of the records that were requested by, and reissued to, the former pupil;
  • The type of documentation provided by the former pupil in order to demonstrate the legal name or gender change;
  • The name of the school district, charter school, or county office of education staff person that completed the request; and
  • The current and former name or gender of the former pupil.

Takeaways

School districts should review what policies and forms they have to request name and gender changes, and ensure that those forms are in compliance with Senate Bill 179 (See 2018 CNB No. 13) and AB 711. These forms should reflect the option for former students to change their gender on student records, including with the non-binary gender marker.

If you have questions regarding AB 711, pupils records, or student issues 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Gayle L. Ketchie

Associate

©2019 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.

AB 392 Changes Use of Force Standards

October 2019
Number 47

Governor Gavin Newsom has signed the California Act to Save Lives (AB 392) into law. AB 392 modifies the standards surrounding the use of deadly force by Police and other peace officers in the line of duty.

California Penal Code section 196, enacted in 1872, was the single oldest un-amended law enforcement use of force statute in the country. This Penal Code section provided that killing by police was justifiable when necessarily committed when arresting or retaking felons who are fleeing, resisting, or who have escaped. In addition, California Penal Code section 835a authorized police to use force to arrest, prevent escape, and overcome resistance – without requiring the force to be proportional.

AB 392 significantly changes these rules, including amending the longstanding justifiable homicide standard. The bill states, “Peace officers are justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary.” The new law goes on to state that the use of deadly force is limited to two circumstances. First, deadly force may be used when the officer reasonably believes it necessary to defend themselves against “an imminent threat of death or serious bodily injury.” Second, deadly force may be used in order to apprehend a person fleeing from a felony that may have caused or resulted in death or serious bodily injury or where the officer reasonably believes that the fleeing person will pose a similar danger to another unless “immediately apprehended.” However, prior to the use of deadly force to apprehend a fleeing person the officer must make “reasonable efforts” to identify themselves as an officer and warn that deadly force may be used. The officer does not have to identify and warn if they have objectively reasonable grounds to believe that that the person is aware of those facts.

AB 392 also includes a clarification that de-escalation techniques should be used by law enforcement agencies prior to the use of deadly force. When reviewing situations in which deadly force has been used, the new law requires such review be done under the “totality of circumstances” standard. That is a review of all facts known to the officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force. Departments may want to provide updated training and information to their officers following this new law.

For more information about AB 392, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Junaid Halani

Associate

©2019 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.