Significant New Title IX Guidance on Handling Sexual Misconduct: What Schools Need to Know

October 2017
Number 56

New guidance on schools’ responsibilities for addressing claims of sexual misconduct under Title IX places greater emphasis on the rights of those accused of sexual misconduct. The new guidance marks a significant departure from prior guidance but lacks details, creating the potential for many issues requiring legal consultation.

On September 22, the United States Department of Education issued interim guidance on schools’ responsibilities in addressing sexual misconduct and rescinded a 2011 Dear Colleague Letter (DCL) and a 2014 Q&A document, which were both intended to provide more support for those making sexual misconduct complaints. The Department plans to go through a notice and comment period before putting new, permanent guidance in place.

Separately, California lawmakers are seeking to return to the standards laid out in the 2011 DCL in Senate Bill (SB) 169, which was approved by the Legislature and is awaiting Governor Jerry Brown’s signature or veto. If the bill is signed, educational institutions may wish to consult with legal counsel regarding potential conflicts between federal guidance and state law.

Title IX and Sexual Misconduct

Title IX requires educational institutions, including school districts, county offices of education and community college districts, to do the following:

  • Designate a Title IX coordinator to accept reports of sexual misconduct and to oversee Title IX compliance;
  • Investigate and respond to allegations of sexual misconduct involving students;
  • Prior to investigating a complaint, offer assistance to complainants such as counseling, medical services and class schedule modifications;
  • Provide both parties with an equal opportunity to present evidence;
  • Notify parties of the outcome of the complaint; and
  • Take steps to prevent recurrence of sexual misconduct and to remedy its discriminatory effects.

What Does the Interim Guidance Do?

The interim guidance, released as a Q&A document (2017 Q&A), changes how the Department will evaluate whether schools’ procedures satisfy Title IX’s procedural requirements. For example, it could loosen the time frame for investigating sexual misconduct claims and raise the standard of evidence required to prove them. It may also provide new rights for the accused, including the right to interim measures (described below) and written notice of the accusations against them.

Interim Measures

The 2017 Q&A makes it clear that interim measures must be extended, as appropriate, to both accused and complainants. Interim measures are temporary measures that are put into place to stop sexual misconduct, protect involved parties and preserve the integrity of the investigation. The 2014 Q&A had emphasized interim measures that avoided impact to the complainant’s educational environment. The 2017 Q&A states that interim measures should “avoid depriving any student of his or her education” and that “a school may not rely on fixed rules or operating assumptions that favor one party over another, nor may a school make such measures available only to one party.” The 2017 Q&A does not provide specific examples for evaluating the appropriateness of interim measures, but the revised wording and enhanced focus on the rights of the accused suggest that the Department may be more critical of procedures that do not give equal consideration to the interim needs of the accused and the complainant.

Investigation Time Frame

The 2017 Q&A provides that there is no fixed time frame in which schools are expected to complete an investigation. As a result, the suggested 60-day “safe harbor” period contained in the withdrawn guidance will apparently no longer be the bar against which the promptness of investigations is measured. Instead, while schools must still establish reasonable timelines, whether an investigation was in fact conducted timely will be measured on a case-by-case basis. Schools should be mindful of timelines that may apply to sexual misconduct complaints under their internal policies and state law, including the Uniform Complaint Procedures and Title 5 of the California Code of Regulations.

Disclosure of Information and Confidentiality

The 2017 Q&A provides that initial disclosures regarding allegations of sexual misconduct should be made to the accused if an educational institution initiates an investigation. The disclosure should be in writing and should include:

  • The identities of the parties involved;
  • The specific section of the code of conduct allegedly violated;
  • The precise conduct allegedly constituting the potential violation; and
  • The date and location of the alleged incident.

The 2017 Q&A does not include procedures that would allow a complainant to request confidentiality. However, the Department’s 2001 Revised Sexual Harassment Guidance, which remains in effect, provides that the institution should consider a student’s request for confidentiality and evaluate the request in conjunction with its duty to provide a safe environment for all students. Educational institutions should consult with legal counsel prior to issuing this type of written notice to a responding party in cases where a student has requested confidentiality.

Informal Resolution and Mediation

The 2017 Q&A clarifies that informal resolution of complaints, including through a mediation process, may be deemed appropriate by a school if the parties involved agree to such a voluntary resolution after receiving full disclosure of the allegations and options for formal resolution. The 2011 DCL had expressly stated that mediation was not appropriate in cases of alleged sexual assault. The new guidance appears to grant schools discretion, with the consent of both complainant and accused, to use mediation even in cases of alleged sexual assault.

Standard of Proof

The 2017 Q&A provides discretion to educational institutions regarding the standard of proof to use in making findings of fact. Educational institutions may choose to apply either a preponderance of the evidence standard (i.e., more likely than not) or a more rigorous clear and convincing evidence standard (i.e., substantially more likely than not). While an educational institution has the discretion to apply either standard, the 2017 Q&A provides that the standard selected for Title IX investigations should be consistent with the standard the school applies in all other student misconduct cases.

Written Reports/Notice of Findings of Fact

The 2017 Q&A provides that a written report summarizing the relevant evidence should be completed at the conclusion of each Title IX investigation. No specific guidance is provided in the 2017 Q&A regarding notice to the parties of the factual findings resulting from the investigation, other than to state that notice is required and that parties must have timely and equal access to any information that will be used during disciplinary proceedings that follow.

Disciplinary Hearings

The 2017 Q&A makes it clear for the first time that the investigation report must be offered to both parties if it will be used during any informal or formal disciplinary meeting or hearing, and that the parties should be given the opportunity to respond to the report in writing in advance of the decision of responsibility or a hearing to decide responsibility. The Department had not previously issued any guidance related to the disclosure of an investigation report in Title IX matters.

Educational institutions still have the option to offer the right to appeal the decision on responsibility and/or any disciplinary decision to both the complainant and the accused, though the 2017 Q&A permits schools to limit the right to appeal only to the accused. Similar to prior guidance, the 2017 Q&A recommends that written notice of the outcome of disciplinary proceedings be issued to both parties concurrently.

Going forward, the Department has said that in addition to the 2017 Q&A, schools may continue to rely its 2001 Revised Sexual Harassment Guidance as well as its 2006 DCL on Sexual Harassmentas it solicits input on new, permanent guidance. Additionally, any existing resolution agreements that educational institutions entered into with the Department’s Office for Civil Rights will not be impacted by the change in guidance and will continue to be binding.

For questions about the significant changes made by the new guidance or Title IX obligations to address sexual misconduct in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.
Written by:

Michelle L. Cannon

Partner

Trevin E. Sims

Partner & Co-Chair

Stephanie M. White

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.

Advertisements

Lawmakers Extend Deadline for Proposition 39 Energy Efficiency Funding and Create New Program

July 2017
Number 42

State lawmakers have extended the deadlines to apply for and encumber money dedicated to energy efficiency projects at schools and community colleges – the program known as Proposition 39 – and have created a new program to fund such projects indefinitely.

Proposition 39 was scheduled to sunset June 30, 2018. Now, Senate Bill (SB) 110 has extended the deadline for encumbering Proposition 39 funds by one year, to June 30, 2019. At the same time, the bill creates the Clean Energy
Job Creation Program, which will administer funds for energy efficiency projects at school districts, charter schools, county offices of education and community colleges. The program opens for business at the start of the
2018-19 fiscal year.

After the bill’s passage, the California Energy Commission sent out a notice extending the deadline for submitting an energy expenditure plan to January 12, 2018. The original deadline had been August 1, 2017. Amendments to an existing energy expenditure plan that request additional funds must also be submitted by January 12, 2018.

Under SB 110, in order to take advantage of Proposition 39, agencies now have until June 30, 2019 to encumber those funds. The California Energy Commission defines “encumbrances” as “obligations in the form of purchase orders, contracts, salaries, and other commitments chargeable to an appropriation for which a part of the appropriation is reserved.”

After March 1, 2018, SB 110 reappropriates the remaining money in the existing Proposition 39 fund based on the number of school districts, charter schools and county offices of education that have not yet submitted energy expenditure plans. The bill devotes $75 million to loans or grants for school bus replacements or retrofits, prioritizing funding to agencies with the oldest school buses or those operating in disadvantaged communities. It also authorizes $100 million for low- and no-interest revolving loans for projects and technical assistance aimed at expanding clean energy generation and improving energy efficiency, prioritizing funding based on diversity in geographic and agency size, energy savings and the percentage of low-income students served.

Any remaining money from Proposition 39 will be used to provide competitive grants to school districts, charter schools and county offices of education for energy efficiency and generation projects, with 10 percent going to education agencies with 1,000 or fewer students, 10 percent going to agencies with between 1,001 and 2,000 students and the rest going to larger education agencies.

Under the new Clean Energy Job Creation Program beginning in 2018-19, 11 percent of available funds will be allocated to the Chancellor of the California Community Colleges for distribution to community college districts for energy efficiency projects, and the California Energy Commission will distribute the rest to school districts, charter schools and county offices of education.

Projects will be selected based on in-state job creation and energy benefits. Priority for grants made through the new program will be given based on the number of students eligible for free and reduced-price meals, geographic diversity, school type and local area workforce needs. Funding will be available as appropriated in the annual budget act. Both the reallocated funds and money provided to local education agencies under the new program must be encumbered within nine months of allocation to those agencies.

Lozano Smith will provide additional details about the new program as they emerge. If you have any questions about SB 110, Proposition 39 or energy efficiency projects in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

©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 Travel Ban Does Not Apply to Local Agencies

July 2017
Number 41

A California law that bars state agencies from funding travel, and from requiring employees to travel, to states that permit discrimination on the basis of sexual orientation, gender identity or gender expression – and Attorney General Xavier Becerra’s recent expansion of the list of states covered by the ban – have raised questions regarding whether the law applies to cities, counties, school districts and community college districts.

While there is no definitive legal guidance on the issue, the law expressly applies to state agencies, departments, boards, authorities and commissions, including the University of California and the California State University system. As “state agencies,” it appears the law also applies to the California Community Colleges Chancellor’s Office and the California Department of Education. AB 1887 does not state that it applies to cities, counties, school districts or community college districts, nor do these entities appear to be state agencies under the law.

The acting general counsel of the California Community Colleges Chancellor’s Office agrees: In a June 29 legal update, he said that while the restrictions apply to the chancellor’s office itself, community college districts are local education agencies that are not covered by the ban. Still, the letter cautioned local community college districts that the chancellor’s office may not be able to approve a request for state-funded travel to any of the states covered by the ban.

Effective January 1, 2017, Government Code section 11139.8 (enacted by Assembly Bill (AB) 1887) prohibits California state agencies, departments, boards, authorities and commissions from requiring any state employees, officers or members to travel to other states that permit discrimination on the basis of sexual orientation, gender identity, or gender expression and also, from approving a request for state-funded or state-sponsored travel to a state that has passed such a law.

AB 1887 prohibits travel to any state that has enacted a law after June 26, 2015 that voids or repeals existing state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression or permits discrimination against same-sex couples or their families on those bases.

The original list of states covered by the ban included Kansas, Mississippi, North Carolina and Tennessee. On June 22, Becerra added Alabama, Kentucky, South Dakota and Texas to the list after those states approved laws that permit such discrimination.

Exceptions to the travel restrictions include:

  • Enforcement of California law, including auditing and revenue collection;
  • Litigation;
  • To meet contractual obligations incurred before January 1, 2017;
  • To comply with requests by the federal government to appear before committees;
  • To participate in meetings or training required by a grant or required to maintain grant funding;
  • To complete job-required training necessary to maintain licensure or similar standards required for holding a position, in the event that comparable training cannot be obtained in California or a different state not subject to the travel prohibition; and
  • For the protection of public health, welfare or safety, as determined by the affected agency, department, board, authority, commission or legislative office.

If local government agencies intend to use state grant money for travel to any of the states covered by the ban, they should check to determine if the travel restrictions are included as a condition of the grant. In addition,
local agencies may have adopted their own policies that mirror AB 1887.

Additional information about AB 1887 and the states the travel ban applies to is available on the Attorney General’s website. For more information on AB 1887, 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

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.

OCR Issues New Instructions on Transgender Student Complaints

July 2017
Number 36

The U.S. Department of Education’s Office for Civil Rights (OCR) has issued new instructions to its regional directors regarding how to handle complaints involving transgender students. The document is intended to offer OCR staff additional guidance in light of recent court developments and the Trump Administration’s withdrawal of the Obama Administration’s guidance on transgender students. (See 2017 Client News Brief No. 9.)

The instructions affirm that transgender students still have federal protections against discrimination, bullying and harassment and urge OCR investigators to “approach each case with great care and individualized attention” before dismissing and to look for a permissible jurisdictional basis for OCR to retain and pursue a complaint. They direct OCR staff to rely on Title IX regulations, federal court decisions and other OCR guidance in evaluating complaints of sex discrimination, whether or not an individual is transgender.

The instructions describe five scenarios in which OCR has jurisdiction over complaints involving transgender students, including:

  • Failure to promptly and equitably resolve a transgender student’s complaint of sex discrimination;
  • Failure to assess whether sexual harassment or gender-based harassment of a transgender student created a hostile environment;
  • Failure to take steps reasonably calculated to address sexual or gender-based harassment that creates a hostile environment;
  • Retaliation against a transgender student after concerns about possible sex discrimination were brought to the recipient’s attention; and
  • Different treatment based on sex stereotyping.

Notably, failure to allow students to use the restroom consistent with their gender is not on the list. In fact, the instructions offer restroom access as an example of a type of case that might be dismissed. This is a clear shift in the approach set out in the Obama Administration’s guidance, which required schools to allow transgender students access to bathrooms and locker rooms according to their gender identity.

Regardless of whether the instructions clarify the federal government’s stance on transgender students’ rights, pending a final judicial opinion interpreting federal laws, California school districts must continue to comply with the state’s heightened anti-discrimination restrictions under California law. Since January 1, 2014, California’s Assembly Bill (AB) 1266 has required that students be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with their gender identity, irrespective of the gender listed on a student’s records. (See 2014 Client News Brief No. 14. ) Other California laws additionally prohibit discrimination against students based on their gender identities.

Schools and local education agencies should ensure they have board policies and regulations which are designed to address the needs and legal rights of both transgender and non-transgender students. For further guidance on best practices with regard to transgender student issues, 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:

Sara E. Santoyo

Partner

©2017 Lozano Smith

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

New Law Requires Union Access to Employee Orientation Sessions

June 2017
Number 34

Governor Jerry Brown has signed legislation that requires public agency employers to give union representatives access to new employees during orientation sessions. The bill, which went into effect immediately after Brown signed it on June 27, is part of Assembly Bill (AB) 119, a budget trailer bill.

The bill is a product of the efforts by unions representing public employees to mitigate the impact of an anticipated United States Supreme Court decision that could make union dues in public agencies voluntary. Under current law, public agency employees who opt out of participating in their union may be required to pay fees to cover union services including collective bargaining.

AB 119 requires public agency employers to grant union representatives access to new employee orientations, which are defined as onboarding processes conducted in person, online or by other means in which new employees are advised of their employment status, rights, benefits, duties and responsibilities. The structure, time and manner of access is subject to negotiations. This new law also requires that negotiations must be conducted during the period between the effective date of the bill and the expiration of a union’s existing contract.

Public agency employers must give their unions at least 10 days’ notice of a new employee orientation session, unless the employer and the bargaining unit reach an alternate agreement or in specific cases where an urgent, unforeseeable need prevents it. It also requires public agency employers to provide the names, job and contact information for new employees to unions within 30 days of hire or by the first pay period of the month following a hire, even if the employee previously worked for the district. Public agencies must provide the same information about all bargaining unit members every 120 days, though public agency employers and unions may negotiate the provision of more detailed lists or different time intervals for providing the information regarding new employees or bargaining unit members.

If a public agency and a union are unable to reach an agreement on the structure, time and manner of access, the dispute is subject to compulsory interest arbitration which means that that arbitrator has the authority to dedicate the terms of the agreement. Alleged violations of the new law may be addressed by the Public Employment Relations Board (PERB).

The budget trailer bill is less prescriptive than last year’s Assembly Bill (AB) 2835, which would have required public agency employers to hold in-person new employee orientations every four months during work hours, and also to allow unions to conduct 30-minute presentations during the first half of these orientations. That bill would also have required public agency employers to provide contact and job description information about bargaining unit members to unions every 90 days.

AB 119 gives public agency employers the opportunity to work with their labor partners to negotiate terms for access to employee orientations that are workable for the employer and meaningful to the union. There are a variety of options for implementing the requirements of this legislation, including airing a videotaped presentation from the union during employee orientations or allowing for an in-person presentation by a union representative. Public agency employers are encouraged to review existing collective bargaining agreements to determine if existing language conflicts with AB 119 and negotiate any necessary change, or develop, through negotiations, language to implement the terms of AB 119.

Lozano Smith has been tracking this legislation and court cases on union dues closely and is ready to assist public agencies with the implementation of these new mandates. A Frequently Asked Questions document that offers more details on the bill is available below. For more information on these new mandates, 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.

FREQUENTLY ASKED QUESTIONS

Q: What does this bill require public agencies to do?
A: Assembly Bill (AB) 119 requires public agencies to provide unions with access to new employee orientation sessions. It also requires public agencies to provide unions with names and contact information of new employees in bargaining unit positions.
Q: What was the reason for this bill?
A: Unions representing public employees sought this legislation because there is at least one case pending before the United States Supreme Court that could result in the Court ruling that union dues are voluntary, which could greatly reduce revenues for public employee unions. Currently, public employees who opt out of union membership are often required to pay service fees to cover the cost of negotiations and other union-provided services.
Q: When does the bill go into effect?
A: The bill went into effect immediately after the Governor signed it on June 26, 2017.
Q: Does the bill require public agencies to conduct face-to-face orientations?
A: No. Orientations may be conducted in person, online or by other means.
Q: Does the bill spell out when and how access must be provided?
A: No. The structure, time and manner of access are all subject to negotiations. However, the bill does, in the absence of an alternate agreement, require public agency employers to give unions at least 10 days’ notice before holding an employee orientation, except in specific instances where there is “an urgent need critical to the employer’s operations that was not reasonably foreseeable.”
Q: When should negotiations over access take place?
A: Negotiations must take place between the effective date of the bill and the expiration of a union’s contract.
Q: What happens if we can’t reach an agreement with the union on the structure, time and manner of access?
A: If any dispute that occurs during negotiations over access is not resolved within 45 days after the first meeting of the parties or 60 days after the initial request to negotiate, either side may make a demand for compulsory “interest arbitration.”
Q: What is “interest arbitration?”
A: “Interest arbitration” is one in which the arbitrator has the authority to determine the terms that will resolve the dispute, i.e. dictate the terms of the resolution to the parties.
Q: Couldn’t unions demand to bargain their role in employee orientations prior to AB 119?
A: Yes, unions could bargain their role in employee orientations prior to AB 119 taking the position that such participation was necessary in order to fulfill their representational rights under the EERA and because it impacted terms and conditions of employment.
Q: My agency hires new employees continuously, which will make it difficult to provide the notice and access the bill requires. How can I comply?
A: The bill permits public agencies and unions to reach an agreement that differs from the requirements of the new law. For example, public agencies could seek to negotiate an arrangement with their labor unions to provide access via a video aired at all in-person orientations or provided along with other orientation materials if orientations are conducted online.
Q: What information does the bill require public agencies to provide to unions?
A: Public agencies must provide the union a new employee’s name; job title; department; work location; work, home and personal cell phone numbers; personal email addresses on file with the agency; and home address, within 30 days of hire or by the first pay period of the month following the hire, even if the employee previously worked for the district. The bill also requires public agencies to provide the same information about all bargaining unit members every 120 days, though public agency employers can negotiate agreements with their unions to provide more detailed lists of information or different intervals for providing information about new employees and bargaining unit members. Public agency administrators may wish to work with their human resources departments to find out whether the generation of these lists can be automated to save time and ensure consistent compliance.
Q: What if an employee doesn’t want to stay to hear from the union?
A: The law only requires public agency employers to provide unions with access to new employees and to information on new employees and bargaining unit members. It does not require that an employee stay to hear from the union. This would be the employee’s choice.
Q: What happens if the union believes the public agency is violating the law?
A: Disputes may be submitted to the Public Employment Relations Board (PERB).

Written by:

Louis T. Lozano

Partner

©2017 Lozano Smith

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

Public Entities Must Proceed with Caution When Preparing an Addendum to a Negative Declaration

June 2017
Number 31

A California appellate court has held that a public entity violated the California Environmental Quality Act (CEQA) by preparing an addendum to a mitigated negative declaration. In Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal.App.5th 596, the court found that proposed changes to the District’s original facilities project might have a significant effect on the environment, requiring further analysis, rather than use of an addendum.

The California Environmental Quality Act

Under CEQA, a public agency generally conducts an initial study to determine if a project may have a significant effect on the environment unless an exemption applies. If the initial study shows that there is no substantial evidence that the project may have a significant effect on the environment, CEQA requires the agency to prepare a negative declaration. Alternatively, if the project has potentially significant environmental effects but these effects will be reduced to insignificance by mitigation measures, CEQA requires the agency to prepare a mitigated negative declaration. Projects where the environmental effect cannot be reduced to insignificance by mitigation measures require an environmental impact report (EIR).

In the event an agency modifies a project after a negative or mitigated negative declaration has been adopted, CEQA outlines subsequent review provisions that apply so long as the original declaration is relevant. These provisions require the agency to prepare a subsequent negative or mitigated declaration or subsequent EIR depending on certain circumstances. The guidelines also allow the agency to prepare an “addendum,” rather than a subsequent negative or mitigated negative declaration, if there are only “minor technical changes or additions.” Such addenda have more limited analysis and do not reopen public comment opportunities. Alternatively, if the modifications are such that the original negative or mitigated declaration is no longer relevant, the public entity must start over by conducting a new initial study.

Background

The San Mateo County Community College District (District) adopted a facilities master plan proposing nearly $1 billion in new construction and facilities renovations that involved demolition of certain buildings and renovation of others. In order to comply with CEQA, the District published an initial study and mitigated negative declaration analyzing the physical environmental effects of implementing the plan’s proposed improvements in 2006. However, after the District failed to obtain adequate funding for its original plan, it added one building to its demolition list and removed two others. As a result of these changes, the District prepared an addendum to the 2006 mitigated negative declaration.

The proposed changes to the plan prompted complaints by a number of students and faculty which ultimately led to a lawsuit challenging the addendum. (Friends of College of San Mateo Gardens v. San Mateo County Community
College Dist.
(Sept. 26, 2013, No. A135892) [nonpub. opn.].) The community members expressed concern that the proposed changes would eliminate a portion of an existing garden making up one-third of one percent of the total landscaped and open space on campus. The court concluded that the proposed changes constituted a “new” project, meaning that new CEQA review was required. However, the California Supreme Court disagreed and remanded the case with
additional instructions. (Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937.)

On remand, the appellate court found that substantial evidence supporting the District’s original mitigated negative declaration was still relevant and agreed with the District’s determination that CEQA’s somewhat more limited subsequent review provisions were applicable. However, the court concluded that the District did not properly comply with its obligations under those provisions. The court considered testimony from community members regarding the project’s aesthetic value to be substantial evidence that the project might have a significant environmental effect, rendering the proposed changes more than “minor technical changes or additions,” and therefore requiring more than the adoption of an addendum.

Takeaway

The lesson from this case is that, when modifying a project after a negative or mitigated negative declaration has been adopted, public entities should be very cautious when deciding whether to prepare an addendum or adopt a subsequent or supplemental negative declaration or EIR. Although courts give public entities deference when deciding whether to proceed under CEQA’s subsequent review provisions so long as there is evidence that the original negative or mitigated declaration remains relevant, the decision to prepare an addendum (rather than a subsequent or supplemental negative declaration or EIR) is reviewed with much more scrutiny. As we learn from San Mateo Gardens, even complaints about aesthetics from community members could be enough evidence for a court to conclude that modifications to a project may have a significant environmental effect, requiring further review. No matter what subsequent review process is selected, it is important to ensure that the rationale is well-documented in the administrative record in order to best defend the public entity’s decision.

For more information about the California Environmental Quality Act, 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:

Anne L. Collins

Partner

©2017 Lozano Smith

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