Meet-and-Confer Requirement Does Not Apply to Pension Reform Measure Placed on Ballot through Voter Initiative Process

April 2017
Number 20

In Boling v. Public Employment Relations Board (Apr. 11, 2017, D069626) ___ Cal.App.4th ___ (Boling), the Fourth District Court of Appeal invalidated a decision by the Public Employment Relations Board (PERB) holding that a city council violated the Meyers-Milias-Brown Act (MMBA) by placing a voter initiative to amend the city’s charter on the ballot without first meeting and conferring with the unions representing affected city employees. In doing so, the court rejected PERB’s reasoning that the mayor’s public support of the initiative effectively transformed it from a voter initiative to a city council-sponsored ballot proposal subject to meet-and-confer requirements.

This case addresses a longstanding issue. In a 1984 case, People ex rel. Seal Beach Police Officers Assn. v City of Seal Beach, the California Supreme Court concluded that a charter amendment proposed by a governing body is subject to the MMBA’s requirements, but cautioned that the case did “not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposed by initiative.” Three decades after Seal Beach, a California appellate court has addressed that question for the first time.

The Boling case traces back to a City of San Diego decision on an issue that rarely evades controversy: public employee pension plans. In 2010, the city’s mayor and a city councilmember separately announced plans to replace the city’s existing defined benefit pension plans with 401(k)-style defined contribution plans for new hires. Ultimately, supporters of the mayor’s proposal and of the city councilmember’s competing proposal joined forces to produce an initiative to adopt a charter amendment mandating changes to pension plans for new hires.

The California Constitution provides two options for proposing an amendment to a city charter: an initiative qualified for the ballot through signed voter petitions, or a ballot measure sponsored by the governing body of the city. Rather than pursuing a ballot measure sponsored by the San Diego City Council (City Council), which the mayor believed the City Council would not place on the ballot “under any circumstances,” he launched a citizens’ initiative for his pension reform proposal. The parties to the case never disputed the fact that the mayor and his staff assisted in drafting the proposal and in campaigning for the citizens’ initiative.

In the summer of 2011, proponents of the proposal circulated a voter petition to place the initiative on the ballot. Meanwhile, a municipal employees’ union wrote to the mayor and asserted that the MMBA required the city to meet and confer over the initiative before it could be placed on the ballot. The city disagreed and refused to do so. In November 2011, the county’s registrar of voters reviewed and certified the petition. Subsequently, the City Council passed a resolution of its intention to put the measure on the ballot.

In January 2012, the union filed an unfair practice charge. Other unions followed suit. Later that month, the City Council enacted an ordinance placing the initiative on the June 2012 ballot. Shortly thereafter, PERB issued a complaint against the city and ordered an expedited administrative hearing. PERB also filed a superior court action seeking a preliminary injunction to bar the city from putting the initiative on the ballot. The trial court denied PERB’s request for an injunction and the voters overwhelmingly approved the initiative in June 2012.

However, the proceedings before PERB continued and the case went to a hearing in July 2012. At the conclusion of the PERB hearing, the administrative law judge (ALJ) issued a proposed decision determining that the mayor, acting under the color of his elected office and with support of councilmembers and the city attorney, violated the MMBA by denying the unions the opportunity to meet and confer over the mayor’s decision to launch and pursue the initiative. The ALJ further determined that since the mayor was an agent of the city, and because the city ratified the mayor’s policy decision, the obligation to meet and confer extended to the city. PERB agreed and issued a decision consistent with the ALJ’s proposed decision.

The city and the initiative’s proponents filed separate petitions for writs of extraordinary relief with the Fourth District Court of Appeal challenging PERB’s decision, which the Court of Appeal consolidated for purposes of its decision.

The Court of Appeal disagreed with PERB’s conclusions and determined that the MMBA’s meet-and-confer requirement does not apply when a proposed charter amendment is placed on the ballot by citizen proponents through the initiative process. Instead, only a governing body-sponsored proposal willtrigger the meet-and-confer requirement.

Central to the court’s analysis was the principle that procedural requirements that govern city council action generally do not apply to citizen-sponsored initiatives. Unlike a charter amendment proposed by a city council, a voter-initiated charter amendment proposal must be placed on the ballot; the city council has no discretion to decide otherwise. (Elec. Code, § 9255.) In contrast, a city council’s vote to adopt a ballot proposal for submission to its voters is discretionary and is thus subject to certain procedural constraints, including the requirement to negotiate. Moreover, the court reasoned, the MMBA’s meet-and-confer provisions expressly refer to “governing body” proposals, which a voter initiative is not.

The court further determined that PERB erred when it applied legal theories regarding principal-agent relationships to transform the initiative from a citizen-sponsored initiative into a governing body-sponsored ballot proposal, even given the mayor’s role in developing and supporting the initiative. This was in part because under the express language of the city’s charter, the mayor had no authority to place a City Council-sponsored ballot proposal on the ballot without City Council approval, and there were no indicators that he obtained such approval. The court also rejected PERB’s arguments under the theories of apparent authority, respondeat superior, and ratification as legally erroneous.

This case resolves a major question regarding the balance of power between voter-driven initiatives and union collective bargaining rights, with the court deciding the issue in favor of the electoral process.

For more information on the Boling decision or a local government agency’s collective bargaining duties, please contact the authors of this Client News Brief or an attorney at one of ournine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Steven A. Nunes

Associate

©2017 Lozano Smith

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

Supreme Court Returns Transgender Student Rights Case to Lower Court

March 2017

On March 6, 2017, the United States Supreme Court sent the case of Virginia transgender high school student Gavin Grimm back to an appellate court, which must now consider the case and the parties’ arguments “in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017” that rescinded the Obama administration’s May 2016 guidance on transgender student rights and facilities access. (Gloucester County School Board v. G.G. (March 6, 2017, No. 16-273).)

Last April, the United States Court of Appeals for the Fourth Circuit held that courts should defer to the Obama administration’s guidance on and interpretation of Title IX and Title IX’s regulations (specifically, 34 C.F.R. § 106.33) relative to access to school restrooms based upon gender identity. The appellate court’s ruling held that Grimm should have access to school restrooms based upon gender identity.

The Supreme Court’s order to vacate the court of appeals’ decision follows the Trump administration’s rescission in February of the Obama administration’s guidance. ( See 2017 CNB No. 9.) For now, it is left to the lower courts in this matter to decide whether gender identity discrimination constitutes sex-based discrimination prohibited by Title IX, or possibly under other theories of law, such as constitutional equal protection.

As we await further guidance from the courts on this important interpretation of federal law, California school districts are reminded that their obligations under state law remain unchanged. AB 1266 (Ed. Code, § 221.5(f)), which became effective January 1, 2014, and other state laws (Ed. Code, §§ 220, 234.1), prohibit discrimination against students based upon their gender identities and require that students be permitted to use facilities and participate in sex-segregated school programs and activities that are consistent with their gender identities. (See 2014 Client News Brief No. 14
and 2016 Client News Brief No. 16.)

For more information on the Supreme Court’s decision or on federal Title IX guidance and state law regarding gender identity, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Joanna J. Kim

Associate

©2017 Lozano Smith

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

California Public Records Act Applies to Private Accounts

March 2017
Number 11

Emails, text messages and other written communications sent to or from a public official’s private account may be subject to disclosure under the California Public Records Act (CPRA), the California Supreme Court ruled unanimously in a highly anticipated decision published on March 2, 2017. (City of San Jose et al. v. Superior Court (March 2, 2017, No. S218066) ___ Cal.5th ___ < http://www.courts.ca.gov/opinions/documents/S218066.PDF>.)

The court held that the public has a right under the CPRA to access texts, emails and other records discussing public business regardless of whether the records were created, received by or stored in a private account. “If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device,” the court wrote, “sensitive information could routinely evade public scrutiny.”

This case had its origin in a 2009 lawsuit against the City of San Jose, its redevelopment agency and several city officials. The plaintiff in that case, a community activist, claimed that the city’s failure to provide certain records regarding a downtown redevelopment project and other city business violated the CPRA. The city had provided certain records, but declined to provide voicemails, emails and text messages that were sent and received by city officials on personal devices using personal accounts. In 2013, a trial court judge ruled against the city, finding that communications sent to or received from city officials regarding public business are public records regardless of what device or account was used to create and deliver them. ( See 2013 Client News Brief No. 17.)

The city appealed the decision, and in 2014, the Sixth District Court of Appeal reversed the decision. The appellate court ruled that the CPRA’s definition of public records as communications “prepared, owned, used, or retained” by a public agency did not include messages sent or received on individual city officials’ and employees’ private devices and accounts. ( See 2014 Client News Brief No. 21.) Distinguishing between a public agency as the holder of public documents and its individual elected officials and employees, the appellate court held that, as a practical matter, the city could not use or retain a message sent from an individual council member’s phone that was not linked to a city server or account. While acknowledging the potential for abuses, the court determined that it is up to the Legislature to decide whether to require public agencies to police officials’ private devices and accounts.

The community activist then appealed to the California Supreme Court, where the case languished for nearly three years before the high court overturned the appellate decision.

In its ruling, the Supreme Court disagreed with the appellate court because records “prepared” on private devices could still qualify as public records. The high court observed that the agency itself is not a person who can create, send and save communications; rather, any such communication would come from or be received by an individual. As such, the city’s elected officials and employees were in essence acting as the city, and to the extent that their emails pertained to city business, they were public records.

The court did narrow the type of records that are subject to disclosure, holding that records containing conversations that are primarily personal in nature are not subject to disclosure under the CPRA. The court also acknowledged that determining whether particular communications constitute public records is a heavily fact-specific process, and decisions must be made on a case-by-case basis. This will create challenges for public agencies as they attempt to follow the reasoning of this decision.

The court also addressed the practical challenges around retrieving records from personal accounts, including ways to limit the potential for invading personal privacy. For guidance, the court offered examples of methods for retrieving records from personal accounts including procedures adopted by federal courts applying the Freedom of Information Act and followed by the Washington Supreme Court under that state’s records law that allow individuals to search their own devices for responsive records when a request is received and to submit an affidavit regarding potentially responsive documents that are withheld. The court also discussed adoption of policies that would prohibit the use of personal accounts for public business, unless messages are copied and forwarded to an official government account. While these methods were offered as examples, the court did not endorse any specific approach.

The opinion did not address a host of other practical issues, such as how public agencies should proceed when employees refuse or fail to provide access to records contained in their private accounts.

The decision means that public agencies must now carefully consider how to retrieve business-related public records that may be located in employees’ and officials’ personal accounts. One approach is to create new policies that address the decision. However, public agencies should consider the implications such policies may have on issues such as collective bargaining, records retention, acceptable use policies and other policies concerning technology.

Lozano Smith attorneys can provide a wide array of CPRA services, including preparing policies to address this opinion, responding to CPRA requests, analyzing documents and assisting in related litigation. Lozano Smith has a model email retention policy, and is in the process of reviewing and updating this and other model policies to reflect the impact of this decision. In order to receive our existing retention policy, which addresses individual employees’ obligations in relation to electronic communications, or to request our upcoming board policy to address the court’s decision, you may also email Harold Freiman at hfreiman@lozanosmith.com or Manuel Martinez at mmartinez@lozanosmith.com. We will also be producing webinars about the City of San Jose case and electronic records under the CPRA.

For more information on the City of San Jose opinion or about the California Public Records Act application to personal technology in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

©2017 Lozano Smith

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

New Federal Guidance Regarding Transgender Students Will Not Impact California Schools

February 2017
Number 9

Under new leadership following the 2016 presidential election, the United States Department of Justice (DOJ) and Department of Education (DOE) issued a joint “Dear Colleague” letter on February 22, 2017 withdrawing the Obama administration’s May 2016 letter and guidance regarding transgender students and sex-based discrimination under Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et. seq.) and Title IX’s regulations. The prior letter and guidance, consistent with the Obama administration’s enforcement of Title IX in school districts, provided that Title IX’s protections extended to transgender students, irrespective of that student’s sex assigned at birth, and included access to facilities like restrooms and locker rooms. (See 2016 Client News Brief No. 31 and July 25, 2016 article.)

The federal government’s new Dear Colleague letter includes a twofold explanation of the reasons for the rescission of the prior letter and guidance: (1) the prior letter and guidance lacked extensive or sufficient legal analysis to support the extension of Title IX protections to include access to sex-segregated facilities for transgender students; and (2) the DOJ and DOE desire to provide greater discretion to individual states regarding the issue of facilities use by transgender students, given the legal uncertainty and the fact that the prior guidance resulted in litigation in several states. One case involving the now rescinded May 2016 letter and guidance is currently pending before the United States Supreme Court. The Supreme Court has invited the parties in that case to submit letters addressing whether this new guidance impacts how the case should proceed.

Despite the withdrawal of the May 2016 Dear Colleague letter, the new federal guidance continues to emphasize a commitment to protect LGBT students from discrimination, bullying and harassment.

While the May 2016 federal letter and guidance are no longer in effect, California law, including Assembly Bill 1266 (Ed. Code, § 221.5(f)) and related non-discrimination provisions providing protections on the basis of gender identity (Ed. Code, §§ 220, 234.1, etc.), continues to control in the state. Likewise, the California Department of Education’s guidance on transgender youth in schools continues to stand. (See 2016 Lozano Smith Client News Brief No 16 .) Specifically, state law requires California school districts and other local education agencies to ensure transgender students’ rights consistent with, if not beyond, the previously issued and now rescinded federal letter and guidance.

If you have questions about the new Dear Colleague letter, its interaction with California law or state or federal law regarding transgender student rights in general, please contact an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Inna Volkova

Associate

©2017 Lozano Smith

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

Change in Law May Require Shift to Even-Year Elections

February 2017
Number 8

In September 2015, Governor Jerry Brown signed into law Senate Bill (SB) 415. SB 415, which becomes operative on January 1, 2018, prohibits political subdivisions from holding odd-year regular elections if a prior odd-year election resulted in a “significant decrease in voter turnout,” as defined by statute. The new law reflects a policy of encouraging election consolidations to defray election costs and encourage voter participation. It applies only to regular elections and not to special elections.

Specifically, the new law, which is codified at Elections Code sections 14050 et seq., provides that a political subdivision (such as a city, school district, community college district or other district organized pursuant to state law) shall not hold an election other than on a statewide election date if holding an election on a “nonconcurrent date” has previously resulted in a “significant decrease in voter turnout.” “Nonconcurrent dates” are non-statewide election dates such as odd-year board member elections (or “off-cycle” election dates). A “significant decrease in voter turnout” is a voter turnout in a regular election in a political subdivision that is at least 25 percent less than the average voter turnout within that political subdivision for the previous four statewide general elections.

If a political subdivision has experienced such a “significant decrease in voter turnout” and is prohibited from holding future off-cycle elections, it may still hold off-cycle elections through 2021 if, by January 1, 2018, it has adopted a plan to consolidate a future election with a statewide election not later than the November 8, 2022 statewide general election.

In determining when to make the transition, political subdivisions should build in an administrative time buffer. In order to consolidate a currently-scheduled election into a general election, cities will need to enact an ordinance and seek approval from their county board of supervisors, among other requirements. Likewise, certain other categories of political subdivisions that wish to consolidate a currently-scheduled legislative body member election will need to adopt a resolution, seek approval from their county board of supervisors and comply with other statutory preconditions. Elections Code sections 10404 and 10404.5 provide that such a resolution must be adopted and submitted for approval no later than 240 days prior to the date of the currently-scheduled election. For an election scheduled in November 2017, the deadline for such actions would be March 13, 2017.

Political subdivisions should also consider the short-term effects of the transition. School districts, for example, which may now be able to hold Proposition 39 bond measure elections on an annual basis, will be limited to holding such elections once every two years once they transition to even-year election cycles. Political subdivisions should also be aware that consolidating elections to move them from odd to even years may affect the duration of their officers’ or board members’ terms. Consolidating school board elections, for example, will result in extending terms for current board members by one year.

A political subdivision that holds an odd-year election after January 1, 2018 without first adopting a transition plan can be sued by a voter within the political subdivision and compelled to comply with SB 415. If the voter prevails, the political subdivision will be liable for attorney’s fees and litigation expenses.

Lozano Smith has assisted political subdivisions with applying the 25 percent rule of SB 415 and with the mechanics of transitioning to even-year election cycles. If you have questions about compliance with SB 415 or any other issues impacting school districts and other local government entities, please contact an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Steven Nunes

Associate

©2017 Lozano Smith

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

Court Reaffirms Undocumented Students’ Eligibility for Higher Education Aid Programs

February 2017
Number 6

The Second District Court of Appeal has rejected arguments that sought to bar the University of California (UC) from making certain financial aid programs available to undocumented students. In decidingDe Vries v. Regents of University of California (2016) 6 Cal.App.5th 574, the appellate court has reaffirmed undocumented students’ eligibility for such programs.

As some colleges express concern about the potential for federal policies that could impact their undocumented students, De Vries builds on the existing body of law that enables California’s higher education institutions to provide support for such students.

In its December 9, 2016 decision, the Court of Appeal held that three laws that aid undocumented students apply to those attending UC: Assembly Bill (AB) 540 (2001), which allows certain undocumented students to qualify for resident fees; AB 131 (2011), which makes undocumented students eligible for state aid programs; and SB 1210 (2014), which allows undocumented students to participate in student loan programs. The taxpayer plaintiff filed suit in Los Angeles County Superior Court challenging the legality of these programs at UC. The trial court dismissed the suit, and the Court of Appeal affirmed that decision.

Central to the case is a federal law, 28 U.S.C. section 1621(d), which states that undocumented immigrants may be “eligible for any state or local public benefit,” including those related to postsecondary education, “only through the enactment of a State law … which affirmatively provides for such eligibility.” The plaintiff argued that under section 1621(d), such a state law must directly grant a benefit to the students, but that the three state laws at issue only granted the benefits they confer to students at California State University and the state’s community colleges, and not to students attending a UC. The plaintiff in De Vries then honed in on the unique status of UC under the California Constitution, which grants its Board of Regents “broad powers to organize and govern the university and limits the Legislature’s power to regulate either the university or the regents.” The plaintiff insisted that the three state laws in question do not, and cannot, affirmatively provide for any benefit to students at UC as required under section 1621(d) because the Legislature cannot legislate UC and UC cannot otherwise enact a state law.

The Court of Appeal rejected these arguments. First, the court held that section 1621(d) “requires only that state law provide eligibility for undocumented immigrants to receive public benefits. It does not require that state law confer such benefits on eligible persons or mandate that any other entity do so.” Therefore, because AB 540, AB 131 and SB 1210 complied with section 1621(d) by making undocumented students eligible for the benefits of these respective laws, UC itself could adopt policies that opted its students into such programs. Speaking directly to AB 540, for example, the court reasoned that the law “removed the federal barrier to making undocumented immigrants eligible for the exemption from nonresident tuition, and the Regents conferred that benefit on qualified UC students. Nothing in section 1621(d), California’s Constitution, or AB 540 requires more.” Moreover, the “legislative deference to the University’s constitutional status does not affect the Legislature’s express intent to make UC students eligible for the exemption from nonresident tuition.” UC students are not entitled to that benefit unless the University of California elects to provide it.” Likewise, AB 131 and SB 1210 “provide eligibility for the specified benefits to those students, regardless of whether the University ultimately confers such benefits on them.”

The De Vries decision adds to existing legal precedent that affirms the state’s ability to make higher education programs available to undocumented students. If you have any questions regarding such programs or appropriate guidelines for related resolutions and policies, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App .

Written by:

Michelle Cannon

Partner

Steve Ngo

Senior Counsel

©2017 Lozano Smith

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

Schools and Immigration Enforcement

January 2017
Number 4

In the wake of the recent presidential election, changes in immigration law and enforcement may be on the horizon.

Some California K-12 school district and community college district officials have voiced concerns over the potential for increased enforcement of existing immigration laws, due in part to the president-elect’s campaign statements that he would triple the number of enforcement agents at Immigration and Customs Enforcement (ICE) and deport 2 million undocumented immigrants. These proposals appear to have created apprehension in local immigrant communities over potential enforcement visits to school campuses, and requests from ICE agents for student- and parent-related records and information. The rising fears prompted State Superintendent of Public Instruction Tom Torlakson to issue a statement on December 21, 2016 declaring California’s public schools safe havens for students and their families.

With these developments in mind, many school and community college districts are considering adoption of guidelines for interacting with ICE agents, as well as related alternatives such as “sanctuary school” resolutions and policies.

The federal Family Educational Rights and Privacy Act (FERPA) and California’s Education Code generally limit the disclosure of student records and information without parent consent to specifically delineated exceptions. How ICE agents’ requests for records or information interact with those laws and exceptions may depend on the specific facts of each request, and the form in which ICE makes the request. For example, both FERPA and the Education Code generally require compliance with a lawfully issued subpoena for student records, assuming that is the method through which ICE were to seek such information.

Federal law does not require school districts to report undocumented students to immigration authorities. Moreover, there may be an argument that the United States Supreme Court’s opinion in Plyler v. Doe (1982) 457 U.S. 202, prohibits school districts from reporting undocumented students to law enforcement agencies in the absence of a court order or subpoena requesting such information, as such voluntary reporting could result in denying undocumented students the right to access a free public school education. This said, there are other federal laws that prohibit the intentional concealing or shielding of an illegal alien from detection. Due to the evolving and somewhat unsettled nature of the law in this area, school districts are encouraged to consult with legal counsel regarding these issues.

The potential for increased ICE enforcement and its impact on undocumented students is likely to grow in importance in 2017. As a result, districts may wish to consider their role in relation to this issue, as well as policies, practices or procedures that can provide guidance and structure.

Lozano Smith is working on guidance on these and other immigration-related issues and on model sanctuary campus policies for our school and community college district clients. If you are interested in receiving our guidance or copies of our model policies or have any questions regarding immigration enforcement on school campuses, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit ourwebsite, follow us on Facebook or Twitter or download our Client News Brief App.
Written by:

Kristy J. Boyes

Associate

©2016 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.