DFEH Releases Guidelines on Anti-Harassment Policies, Training and Notice Regulations

June 2017
Number 33

The Department of Fair Employment and Housing (DFEH) recently released a Workplace Harassment Guide that includes recommended practices to enable employers to comply with California Fair Employment and Housing Act (FEHA) regulations aimed at preventing, investigating and addressing workplace harassment. DFEH also issued guidance and a poster related to identifying and addressing sexual harassment in the workplace.

Effective April 1, 2016, California employers became subject to new regulations under FEHA which prohibit workplace discrimination and harassment. The new anti-harassment regulations require employers to adopt and distribute written policies on unlawful harassment, including how complaints of prohibited conduct should be filed. The new regulations also require employers to provide trainings on prohibited harassment, discrimination, and abusive conduct. (For more details regarding these FEHA regulations, see 2016 Client News Brief No. 30.)

DFEH’s Workplace Harassment Guide provides valuable guidance on what employers can do to ensure an effective anti-harassment program and provides recommended practices for conducting workplace investigations. The guide’s recommendations include:

  • If an employer receives a report of harassment, including an anonymous complaint, the employer should give the complaint “top priority” and determine if the complaint may be resolved informally or if a formal investigation is necessary.
  • Investigations should be fair and should include:
    • A thorough interview with the complainant, preferably in person;
    • An opportunity for the accused to respond and tell his/her side of the story;
    • Interviews of relevant witnesses and a review of relevant documents; and
    • A conclusion based on the information collected, reviewed and analyzed.
  • Employers can only promise limited confidentiality of the complaint, in part because the identity of the complainant can often be determined based on the allegations. Also, it is rarely appropriate for an employer to fail to investigate a complaint because an employee asks their employer to keep the complaint confidential.
  • Whether employers may direct employees to not discuss a pending investigation is a complicated issue. Employers should consult with legal counsel prior to giving such a directive. (For the Public Employment Relations Board’s determination on “no contact” admonitions, see 2015 Client News Brief No. 3.)
  • Investigations should be started and conducted promptly. Further, investigations should be fair, thorough, and conducted by a neutral investigator. Employers should also consider whether the investigator will be publicly perceived as unbiased.
  • An investigator can reach a reasonable conclusion in a “he said/she said” situation based on an assessment of witness credibility.
  • Investigators should document witness interviews, steps taken in the investigation and findings made.
  • Investigators should make findings of fact (not legal conclusions) based on a “preponderance of the evidence” standard. “Preponderance of the evidence” means that it is more likely than not that the alleged conduct occurred.
  • Misconduct should be addressed through remedial measures. Remedial measures recommended by DFEH include training, verbal counseling and discipline.
  • Retaliation can occur at any time, and complainants and witnesses must be protected from retaliation.

In addition to DFEH’s guidance, school and community college districts should be mindful of their own policies and procedures for conducting investigations, which may include specific timelines and investigation procedures, as well as applicable collective bargaining agreements.

Lozano Smith has a team of attorneys experienced in conducting investigations of complaints, including employee and student complaints alleging discrimination and harassment. For more information, 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:

Stephanie M. White


©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.

High Court Declines to Review Ruling on Cash in Lieu Payments

June 2017
Number 28

The United States Supreme Court has denied review of a Ninth Circuit Court of Appeals ruling that cash payments made to employees in lieu of benefits must be included as pay when calculating their overtime pay rate under the Fair Labor Standards Act (FLSA). On May 15, 2017, the Court denied the City of San Gabriel’s petition for review of Flores v. City of San Gabriel (2016) 824 F.3d 890 (Flores), allowing the decision to remain legal precedent.

Flores provides narrow interpretations of exemptions to the FLSA when calculating an employee’s “regular rate of pay” and a broad definition of what constitutes an employer’s “willful” violation of the FLSA. This ruling also highlights the importance of employers carefully reviewing all payments made to employees to determine if the payments must be included in calculations of the employee’s regular rate of pay for purposes of overtime.

In Flores, a group of police officers sued the City of San Gabriel (the City) for overtime pay they said they were owed under the FLSA. The City had a flexible benefit plan which allowed employees to forego medical benefits if they had alternative coverage. Employees who made this election received the unused portion of their benefit allotment as a cash payment added to their regular paycheck. The police officers argued that the City should have included these payments when calculating their overtime pay rate. The officers also argued that the City’s violation of the FLSA was “willful” and thus triggered an extension of the two-year limit on back pay that could be recovered.

Under the FLSA, an employer must pay its employees overtime compensation of one and one-half times the “regular rate of pay” for any hours worked in excess of 40 hours in a seven-day work week. An employee’s “regular rate of pay” must include all remuneration for employment paid to, or on behalf of, the employee, unless the payment is excluded as set forth in the FLSA. The FLSA allows employees to sue for unpaid wages owed to them within a two-year statute of limitations for claims unless an employer’s violation of the law was “willful,” in which case the statute of limitations is extended to three years.

The Ninth Circuit held that the City’s cash-in-lieu of benefits payment may not be excluded as exemptions to the FLSA and therefore must be included in the calculations of the plaintiffs’ “regular rate of pay,” rejecting the City’s argument that the cash-in-lieu benefits were exempt because the payments were not tied to hours worked or amount of services provided by the plaintiffs. The court reasoned that the City’s interpretation contradicted a regulation implementing the FLSA which provides that a payment may not be excluded from regular rate of pay if it is generally understood as compensation for work, even though the payment is not directly tied to specific hours worked by an employee. The court further determined that the FLSA exemption did not apply because the unused benefits were paid directly to the employees and not a “trustee or third person.”

The court also deemed the City’s violation of the FLSA “willful,” saying that the City did not put forth any evidence of any actions it took to determine whether its treatment of cash-in-lieu of benefits payments complied with the FLSA, despite full awareness of its obligation to do so. (For more details on the decision, see 2016 Client News Brief No. 47.)

The court’s narrow interpretation of the FLSA exceptions for calculating “regular rate of pay” could have a significant impact on the way agencies pay employees and provide benefits. This interpretation of the FLSA means that employers must be cautious when offering cash-in-lieu of benefits payment programs to employees because of the consequences such offers may have on overtime payment calculations.

The broad interpretation of what constitutes an employer’s “willful” violation of the FLSA requires employers to be proactive when even the slightest possibility of violating the FLSA arises. The ruling emphasizes the importance of conducting and documenting regular review of payments made to employees and a determination of whether they must be included in the employee’s regular rate of pay for purposes of overtime. Determining whether a specific payment fits into one of these statutory exclusions and is therefore properly excluded from the regular rate of pay involves a highly fact-specific analysis. To that end, case law, regulations and the Department of Labor provide extensive guidance regarding how specific forms of common arrangements are treated under these exclusions, and legal counsel should be consulted as needed during an analysis of whether a particular payment should be included in the regular rate of pay.

For more information on the Flores case or FLSA claims 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:

Jayme A. Duque


©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.

Proposed Amendments to CalSTRS Creditable Compensation Regulations Have LCAP Implications

May 2017
Number 26

Proposed amendments to the California State Teachers’ Retirement System (CalSTRS) creditable compensation regulations would allow employers to establish a class of employees based upon employment in a program established under a Local Control and Accountability Plan (LCAP). The proposed amendments modify the CalSTRS creditable compensation regulations that came into effect on January 1, 2015.

CalSTRS member benefits are based in part on the “creditable compensation” paid during a defined period of months during a member’s career. Creditable compensation consists of “base salary” and certain types of “remuneration
in addition to salary” paid in cash to the employee by a CalSTRS employer to all persons in the same “class of employees” for performing creditable service in that position. A class of employees is typically established in
one of two ways: (1) the CalSTRS members are employed to perform similar duties; or (2) the CalSTRS members are employed in the same type of program. (Ed. Code, § 22112.5; Cal. Code Regs., tit. 5, § 27300.) Currently, the regulations define a “program” as any educational program established pursuant to state or federal law. (Cal. Code Regs., tit. 5, § 27300, subd. (a)(2)(A).)

The proposed amendments expand the regulatory definition of a “program” to include a local educational program established under an LCAP. This change is significant because employees in different programs can be in different
classes even if they perform similar duties. If employees in an LCAP program are treated as a separate class, they could have a longer work day, a different work year, and potentially a separate salary schedule that recognizes additional hours or days worked with a higher base salary.

Creating a separate salary schedule for employees in an LCAP program could eliminate the need to compensate those employees for extra work in the program through a stipend. This could also make clear that the additional days or hours are part of the base work year for the separate class and therefore all related earnings would be creditable to the defined benefit plan. As currently structured, many stipend payments ultimately end up credited to the member’s defined benefit supplement account because the additional service for which the stipend is paid is considered “service in excess of a year.”

If the CalSTRS Teachers’ Retirement Board adopts the proposed amendments, employers that wish to place CalSTRS members employed in LCAP programs in separate classes and utilize separate salary schedules will need to consider legal implications such as members’ collective bargaining rights and uniform salary schedule requirements. The public comment period for the proposed amendments ended on April 25, 2017. The board may review the proposed amendments for adoption as early as June 2017. For a copy of the modified text of the proposed regulations, click here.

For a copy of Lozano Smith’s co-authored article with ACSA explaining the 2015 creditable compensation regulations in greater detail, click here.

Lozano Smith continuously tracks the CalSTRS regulatory process and precedential CalSTRS decisions. If you have any questions about the new CalSTRS creditable compensation regulations or how retirement law governs public schools and their employees, 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:

Steven A. Nunes


©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.

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


©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.

Federal Court Holds Discrimination on the Basis of Sexual Orientation is Prohibited under Title VII

April 2017
Number 18

In Hively v. Ivy Tech Community College of Indiana (7th Cir., April 14, 2017, No. 15-1720) ___ F.3d ___ < http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit =Display&Path=Y2017/
>, a federal appeals court evaluated whether federal antidiscrimination laws protect an individual against discrimination on the basis of sexual orientation under Title VII (42 U.S.C. § 2000e-2(a)). In a landmark decision, the court held that under Title VII, such discrimination is unlawful.

Kimberly Hively was an openly lesbian adjunct professor at Ivy Tech Community College (Ivy Tech). After unsuccessfully applying for at least six full-time positions between 2009 and 2014, and after her part-time contract was not renewed in July 2014, Hively initiated legal action against Ivy Tech alleging that she was discriminated against based on her sexual orientation in violation of Title VII. Ivy Tech filed a motion to dismiss for failure to state a claim, arguing that sexual orientation is not a protected class under Title VII. The district court agreed with Ivy Tech and dismissed the complaint, and Hively appealed.

On appeal, the circuit court was not asked to determine if Ivy Tech had actually discriminated against Hively in its decision not to hire her as a full-time professor or in its failure to renew her part-time contract. Instead, the court was tasked with addressing the scope of sex discrimination under Title VII. The court held there is no difference between a claim based on sexual orientation and those cases finding sex discrimination due to gender nonconformity, such as women not getting jobs typically held by men. The court said that “a policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex.”

The court also evaluated Hively’s claim under the theory of discrimination by association, which prohibits discriminating against an individual based on the characteristics of someone with whom they associate. These characteristics include sex, race, color, national origin and religion. In association discrimination, an individual would not be suffering the adverse action had the trait in question been different for one person in the relationship (male instead of female, for example). The court analyzed this issue by using the history of interracial marriage cases to show that discrimination based on those with whom one associates is not limited to race, but is also prohibited on the basis of sex. “The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that endeavored to find and observe that line,” the court said.

While this is a groundbreaking decision under federal law, California’s Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) already explicitly prohibits employment discrimination on the basis of sexual orientation in this state. Nevertheless, this case is important because it reflects a possible shift in the federal courts’ treatment and view of employment discrimination based on sex by expanding the scope of prohibited discrimination.

It remains to be seen whether this case will be taken up to the United States Supreme Court and, if so, whether review will be granted. Lozano Smith will be closely tracking this decision for any subsequent action or associated federal legislation.

For more information on the Hively decision or anti-discrimination law 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:

Gabriela D. Flowers

Senior Counsel

Janae D. Lopes


©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.

IDEA Procedural Requirements Warrant a Second Look After Recent Ninth Circuit Decision

April 2017
Number 17

The Ninth Circuit Court of Appeals recently issued a decision inM.C. v. Antelope Valley Union High Sch. Dist. (9th Cir., Mar. 27, 2017, No. 14-56344) ___ F.3d ___ [2017 U.S.App. LEXIS 5347] that expanded procedural requirements in special education cases and opened the door for parents to add issues during a special education due process hearing. This decision appears to shift the balance in favor of parents’ attorneys throughout California and other Ninth Circuit states.

In Antelope Valley, the student suffered from a genetic disorder resulting in blindness and “a host of other deficits.” His parent filed for a due process hearing, taking issue with the school district’s Individualized Educational Program (IEP) documentation of “teacher of visually impaired” (TVI) services offered, the IEP’s omission of the types of assistive technology (AT) devices offered, and the lack of a 10-day response to the parent’s due process complaint, among other things. The Individuals with Disabilities Education Act (IDEA), the federal law governing special education, guarantees students with disabilities a free, appropriate public education (FAPE) and requires procedural and substantive compliance when crafting an IEP for a special education student.

Although the school district prevailed in the due process hearing and at the district court level, the Ninth Circuit overturned those decisions. In ultimately determining that the student was the prevailing party entitled to an award of attorney’s fees with regard to the most recent appeal, the Ninth Circuit came to a number of additional conclusions primed to impact those who serve special education students, while also remanding the case back to the district court for additional proceedings. The issues of note are summarized below.

Adequacy of Due Process Hearing Decision

First, the Ninth Circuit examined its standard of review of special education cases. The court decided that the duration of a due process hearing, the administrative law judge’s (ALJ) active involvement in a hearing and the length of an ALJ’s opinion issued did not necessarily determine that a “thorough and careful” fact finding had occurred. Even though the ALJ in the parties’ three-day due process hearing had questioned witnesses and wrote a detailed 21-page opinion, the Ninth Circuit found that “no thorough and careful” fact finding had occurred because the ALJ had disregarded evidence and failed to address all issues. As a result, the Ninth Circuit reviewed the entire case anew, based on the evidence in the record from the underlying due process matter.

Typographical Errors in IEP Documents and the IEP as a Contract

Second, the court concluded that a typographical error constituted a denial of FAPE, even though the error had resulted in no substantive loss of services. After the parent consented to the student’s IEP, the school district realized that it had inadvertently written in the IEP 240 minutes of TVI services per month instead of the agreed-upon frequency of per week. The school district provided at least 240 minutes of TVI services per week. The school district corrected the IEP a month later, but the parent first learned of the correction during the due process hearing. The Ninth Circuit determined that although no substantive harm may have occurred with the student receiving additional minutes of TVI services, the parent nonetheless suffered procedural harm because the mistakes necessitated the parent incurring legal fees to determine the actual level of services provided. This constituted a form of prejudice denying educational benefit.

In reaching this conclusion, the Ninth Circuit also ruled that “an IEP is a contract,” and that making a unilateral amendment is legally impermissible. When the school district in this case learned that the IEP did not reflect
the IEP team’s agreement, it was required to notify the parent and seek consent for amendment. “Absent such consent, the District was bound by the IEP as written unless it sought to re-open the IEP process and proposed a different IEP,” the court said. The “unilateral amendment” to the IEP was deemed a “per se procedural violation of the IDEA because it vitiate[d] the parents’ right to participate at every step of the IEP drafting process.”

Moreover, the court ruled that a unilateral IEP correction may serve as grounds for sanctions. Whether the school district had engaged in “mere bungling” or had deliberately attempted to mislead the parent by inaccurately recording the offer of FAPE must now be determined by the district court on remand. If it is the latter, the district court is ordered to impose sanctions on the school district sufficiently severe to deter any future such misconduct.

Monitoring and Enforcement of IEP as Part of Parental Participation

The court also concluded that the IDEA provides parents a right to participate in every step of the IEP drafting process, which includes IEP monitoring and enforcement. Although the parent had participated in drafting the student’s IEP, the typographical error obfuscated her knowledge of the actual offer made, and without knowing the actual offer, she could not adequately use the IEP to monitor and enforce the services provided. This constituted another procedural violation of the IDEA. Likewise, even though the IEP team discussed the types of AT devices offered, the school district’s failure to provide that discussion in writing “rendered the IEP useless as a blueprint for enforcement.” Thus, the failure to identify the AT devices in the IEP was an additional violation.

Shifting of Burden of Proof at Due Process Hearing

The court additionally held that failing to make a clear offer of FAPE can impact a party’s burden of proof in a due process hearing. The party alleging an IDEA violation typically bears the burden of proving that the services received did not amount to FAPE. Here, the court held that when procedural violations prevent parents from knowing the kind or duration of IEP services offered, it is impossible for them to assess the substantive reasonableness of those services, so the burden of proof must shift to the school district, even if it has not initiated the due process hearing.

Penalties for Failure to Provide Responses to Due Process Complaints

In addition, Antelope Valley has created significant penalties for school districts that fail to provide a timely 10-day response to a parent’s due process complaint. The court held that in such circumstances an ALJ must not go forward with the hearing but instead order the school district to provide a response, and “shift the cost of the delay” to the school district, regardless of the ultimate prevailing party.Antelope Valley makes it clear that a school district has an obligation to commit to a position within the first 10 days after a complaint is filed. In order for the Office of Administrative Hearings (OAH) to enforce this ruling, school districts must now provide OAH with a copy of the district’s response to the complaint.

Issues to be Tried at Due Process Hearing

Finally, after this decision, a party’s failure to object to an ALJ’s restatement of the issues will not be deemed a waiver of any issue “arguably encompassed in a due process complaint.” In this case, the school district argued that the parent had waived the issue of adequate TVI services because although alleged in the due process complaint, the ALJ had not included the issue in the subsequent framing of issues for hearing. The district court agreed, but the Ninth Circuit extended the concept that “issues are treated as if they were raised in the complaint if they are tried by consent” to the IDEA context, so as to find no waiver. In doing so, the Ninth Circuit admitted that “[w]hile we haven’t previously recognized this practice in IDEA cases, it’s often been applied in a variety of other agency adjudications … We see no reason IDEA cases should be treated differently.” Effectively, this means that any issue addressed at hearing without objection could be seen as “tried by consent,” regardless of whether it is memorialized in any statement of issues.

Antelope Valley greatly expands and shifts school district obligations. It reminds those serving special education students of the need to accurately and clearly record in an IEP the offer of FAPE made, to communicate with the parents regarding monitoring and enforcement of the IEP, and to timely respond to due process hearing requests, among other things. If it is not challenged in an expanded Ninth Circuit review or an appeal to the United States Supreme Court, this case will likely alter special education legal processes in California and the rest of the Ninth Circuit for the foreseeable future.

For more information on the Antelope Valley decision, IEP drafting, responses to due process hearing requests or special education law 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:

Roxana R. Khan


©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.

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©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.