New Law Limits School District Collection of Debts from Students and Penalties for Debts

December 2018
Number 85

The California Legislature recently passed Assembly Bill (AB) 1974, which places new prohibitions and restrictions on the collection of debt owed by parents to public schools, including state special schools and charter schools, and school districts, including county offices of education (all referred to herein as school districts). The new law prohibits the practice of punishing students for the failure of their parents to pay debt owed to the school district, adds additional requirements for the collection of student debt, prohibits the sale of such debt, and allows school districts to offer alternative, nonmonetary forms of payment to settle the debt. Importantly, the new law will not impact existing law regarding the imposition of charges for willfully damaged school property or failing to return loaned school property, or the consequences of not paying those charges.

Background

Parents are responsible for the fees and debts incurred by their minor child. School districts can no longer take negative actions against students for their parents’ failure to pay debt. While parents may still be held accountable for the failure to pay permissible student fees (such as fees for transportation to and from school), the student cannot. Schools districts are now barred from imposing the following consequences as a result of the unpaid debt:

  • Denying full credit for any assignments for a class;
  • Denying full and equal participation in classroom activity;
  • Denying access to on-campus educational facilities, including, but not limited to, the library;
  • Denying or withholding grades, transcripts, or a diploma;
  • Limiting/barring participation in an extracurricular activity, club, or sport; and
  • Limiting or excluding from participation in an educational activity, field trip, or school ceremony.

Significantly, the new restrictions do not apply to “debt owed as a result of vandalism or to cover the replacement cost of public school or school district books, supplies, or property loaned to a pupil that the pupil fails to return or that are willfully cut, defaced, or otherwise injured.” This exception relates directly to Education Code section 48904, which permits the imposition of charges under such circumstances, and so long as adequate due process is provided to the student, authorizes the withholding of grades, diploma, and transcripts of a student where the charge has not been paid. The above exception does not apply to a student who is a current or former homeless youth, or current or former foster youth. As such, school districts must ensure against imposition of consequences against these categories of students, even where the debt is imposed for school property which is not returned or willfully damaged.

AB 1974 imposes the following requirements when collecting the debt from parents owed to the school district:

  • Provide an itemized invoice for any amount owed by the parent or guardian before pursuing payment of the debt;
  • Provide a receipt to the parent or guardian or former student for each payment made to the school or district for any amount owed by the parent or guardian on behalf of the student or former student; and
  • The invoice must include references to school policies relating to debt collection and the rights established under Education Code sections 49014 and 49557.5.

In addition, the school district may offer the student or former student, with the permission of the parent or guardian, alternative, nonmonetary forms of compensation to settle the debt. This alternative must be voluntary and conform to all Labor Code provisions. Further, a school district is prohibited from selling the debt owed by a parent or guardian. Finally, the school district may still contract with a debt collection agency to collect the debt, but the debt collection agency cannot report the debt to a credit agency.

Takeaways

When AB 1974 goes into effect on January 1, 2019, public schools, including state special schools and charter schools, school districts, and county offices of education, will not be able to take negative actions against a student, or former student, for debts owed by the student’s parent or guardian-with the exception of debt imposed as a result of vandalism or for failure to return school property, which is itself limited relative to current or former homeless youth, or current or former foster youth. As school districts and county offices of education look forward to 2019, a review of existing debt-collection practices is recommended, which may lead to the need to modify, establish or eliminate existing policies
and practices to ensure compliance with this new law.

For more information about AB 1974 or about school fees in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

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Legislature Further Limits the Ability to Consider Expunged, Dismissed, or Sealed Convictions in Hiring Decisions

December 2018
Number 84

Senate Bill (SB) 1412, which takes effect on January 1, 2019, builds on prior law limiting consideration of expunged, dismissed, or sealed convictions in hiring decisions. SB 1412 prevents employers from requiring job applicants to disclose certain criminal convictions that have been expunged, dismissed, sealed, or statutorily eradicated. SB 1412 also provides that employers may only consider particular expunged convictions that are enumerated in the law when making hiring decisions. Exceptions to this prohibition remain for employers-like public school districts and certain other public agencies-that are prohibited from hiring individuals with certain convictions even if the conviction has been dismissed, expunged, or sealed.

Background

In recent years, the Legislature has focused on limiting the types of convictions that may be considered by employers when making hiring decisions. For example, in 2016, AB 1843 was passed generally prohibiting employers from seeking or using information about an applicant’s juvenile convictions in hiring decisions. (See 2016 Client News Brief No. 86.)

Separate from the use or consideration of juvenile convictions in hiring, existing law prevents employers from requiring applicants to disclose convictions that have been expunged, dismissed, or sealed, subject to several exceptions. These exceptions include situations where: (1) the employer is required by law to obtain information regarding an applicant’s convictions; (2) the applicant is applying for a job that would require him to possess or use a firearm; (3) the law prohibits an individual convicted of a crime from holding the position, even if the conviction is expunged, sealed, or dismissed; or (4) the law prohibits the employer from hiring an applicant who has been convicted of a crime. Aside from the above exceptions, once a conditional offer of employment has been made to an applicant, an employer may consider an expunged, dismissed, or sealed conviction.

Since January 1, 2018, California’s Fair Employment and Housing Act also prohibits similar conduct, with specified exemptions. (See 2017 Client News Brief No. 80; 2016 Client News Brief No. 86.)

Under the above legal protections for job applicants, concerns were raised that employers have been broadly rejecting applicants with expunged convictions, regardless of the nature of these convictions or their relevance to the job or future job performance. With SB 1412, the Legislature narrows the aforementioned exceptions so employers may only consider expunged, dismissed, sealed, or statutorily eradicated convictions that are enumerated in the law. Specifically, this bill provides that employers may only consider such convictions if: (1) the employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; (2) the applicant would be required to possess or use a firearm in the course of his or her employment; (3) the law prohibits an individualwith that particular conviction from holding the position sought, regardless of whether the conviction has been expunged, sealed, dismissed, or statutorily eradicated; or (4) the employer is prohibited by law from hiring an applicantwho has that particular conviction, regardless of whether that conviction has been expunged, sealed, dismissed, or statutorily eradicated.

Takeaways

Employers should note that the Legislature has instituted additional protections for the consideration of expunged convictions in the applicant screening process. Under the SB 1412, employers can only ask an applicant about or consider expunged, sealed, or dismissed convictions to the extent permitted by law; they cannot simply withdraw an offer merely because an applicant has a conviction that was dismissed, expunged, or sealed. Keep in mind that public school employers are prohibited from hiring individuals convicted of certain crimes, even if such convictions have been dismissed, expunged, or sealed. The laws concerning the use of criminal convictions in hiring public school staff is highly technical and should be carefully reviewed before making a hiring decision based on a conviction, even if it has been dismissed, expunged, or sealed.

If you have any questions about SB 1412, 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:

Gabriela D. Flowers

Partner

Benjamin Brown

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.

SEC: Bank Loans and Other Private Placements to Trigger 10-Day Continuing Disclosure Reporting

November 2018
Number 82

The Securities Exchange Commission’s (SEC) Rule 15c2-12 requires that an issuer of publicly offered municipal securities, such as bonds or certificates of participation, commit to disclosing certain material events that occur while those securities are outstanding. Now, the SEC has added two new items to the list of events requiring disclosure. They are: (1) an incurrence of a material financial obligation, or an agreement to events of default, remedies, priority rights, or other similar terms of a financial obligation, if material; and (2) events occurring in connection with a separate financial obligation that reflect financial difficulties of the issuer (e.g., default, event of acceleration, termination event, modification of terms, etc.). All such material events must be disclosed within 10 days.

In other words, the existence of a private financing unrelated to the securities, such as a vehicle lease financing, or solar panel lease purchase agreement, or any event resulting from those unrelated financings that suggests “financial difficulties,” must be reported.

What is a “financial obligation”?

The term “financial obligation” is defined as (i) a debt obligation; (ii) a derivative instrument entered into in connection with, or pledged as security or a source of payment for, an existing or planned debt obligation; or (iii) a guarantee of either of the foregoing. Esoteric jargon aside, the term “financial obligation” is commonly read to include private bank loans and other private and direct purchases, municipal leases, capital lease financings, and other types of financial obligations of the issuer. Municipal securities for which a final official statement has already been provided to the Municipal Securities Rulemaking Board (MSRB) are not included in the definition of “financial obligations.” Thus, going forward, issuers must now disclose any new, non-publicly offered loans and equipment financings to the owners of their outstanding publicly-available municipal securities.

The new requirements take effect on February 27, 2019, and are meant to increase disclosure of an issuer’s potential or actual financial difficulties.

Although issuers who adhere to standards of the Governmental Accounting Standards Board and its generally accepted accounting principles likely already include such financial obligations in preparing audited annual financial statements, now such items must be disclosed contemporaneously. All such “material events,” under the Rule, must be disclosed within 10 days of occurrence, by filing notice with the MSRB’s Electronic Municipal Market Access (EMMA).

The absence of meaningful guidance from the SEC regarding which financial obligations are considered “material” under the amendments and, thus, trigger a disclosure requirement, will pose a challenge for issuers.

Agencies who have issued publicly available securities, such as bonds or certificates of participation that remain outstanding, and plan to incur a new financial obligation, such as a capital lease or private bank loan, should consult with counsel to determine whether such event must be disclosed

Lozano Smith serves as bond and disclosure counsel to school districts, community colleges, and other public agencies throughout California and would be happy to provide guidance regarding these developments. If you have any questions regarding initial or continuing disclosure compliance, 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:

Daniel Maruccia

Partner

Kate S. Holding

Associate

©2017 Lozano Smith

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

New Law Requires Paid Time Off for Union Stewards and Officers

October 2018
Number 65

Effective January 1, 2019, Senate Bill (SB) 1085 requires public agency employers in California to grant, upon the request of a union, “reasonable” paid leaves of absence to employees serving as stewards or officers of the union or of any statewide or national employee organization with which the union is affiliated.

While on such leave, employees must suffer no loss of compensation or benefits and retain reinstatement rights, meaning they have the right to return to the same position and work location held before the leave, or if this is not feasible, a substantially similar position without loss of seniority, rank, or classification. Benefits while on leave also include retirement fund contributions and service credit. Unions must reimburse the employer within 30 days for all compensation paid to employees while on leave, unless negotiated otherwise.

“Steward” is defined very broadly as:

[A]ny employee designated by the exclusive representative as a representative for unit employees, whether for the unit as a whole or at a particular site, department, or other division of the employer’s operations, regardless of whether the employee is referred to by the exclusive representative as a steward or by a different title.

In other words, the designation of an employee as a “steward” for purposes of this new law is left up to the union, or potentially up to the negotiation process.

The bill faced opposition from many public agency employer groups who argued that it creates a highly expansive form of protected leave for employees without consideration of the potential burdens on employers. Opponents further argued that such leave is traditionally negotiated at the bargaining table where both parties are better positioned to have their interests equally represented.

The new law also provides that employers are not liable for any acts, omissions, or injuries by employees on leave. In the event that liability arises, the union is required to indemnify the employer and hold the employer harmless.

The actual procedures for requesting and granting leave are still left up to negotiations and the mutual agreement of the employer and the union. Generally, the law as written contains significant ambiguities that will likely need to be resolved at the bargaining table, such as what is considered “reasonable.”

This new State legislation may have been intended to counter the effect of the decision issued in Janus v. AFSCME earlier this year. (See 2018 Client News Brief No. 27.) In Janus, the United States Supreme Court held that public

employees may not be compelled to pay fair share fees to public sector unions, as such fees violate the First Amendment. SB 1085 offers a layer of protection for labor organizing at a time when unions are feeling threatened and fear low participation rates.

Existing Law

Protected paid time off for public employees for labor-related reasons is not a new concept. The paid time off granted by SB 1085 is in addition to leave entitlements provided to employees by negotiated agreement and by the various collective bargaining laws in California. Most of the public sector collective bargaining laws in California guarantee employee representatives the right to receive reasonable periods of release time without loss of compensation when meeting and negotiating or conferring and for purposes of processing grievances. This includes, but is not limited to, the Educational Employment Relations Act (EERA) (covering K-12 and community college public school districts), the Higher Education Employer-Employee Relations Act (HEERA) (covering public institutions of higher education), the Ralph C. Dills Act (covering state government employees), and the Meyers-Milias-Brown Act (MMBA) (covering local public agencies). Going beyond these minimum release time entitlements, the Education Code also requires public school or community college districts to grant paid time off to specified represented employees to serve as elected officers or attend important organizational activities; and the MMBA provides paid time off for public agency employees to testify or appear in certain conferences, hearings, and general matters before a personnel or merit commission.

SB 1085 addresses what some may identify as an inconsistency with regard to existing statutory paid time off allowances by creating an entitlement that applies uniformly to stewards of public employee unions (however steward may be defined for the particular organization).

Next Step: Negotiation

With some exception, SB 1085 leaves the technical details up to the employer and union and does not invalidate existing negotiated agreements, which must be reopened for negotiations on the subject of this new leave entitlement upon request of the union.

Public agency employers are encouraged to review their existing collective bargaining agreements to determine if existing language conflicts or can be harmonized with SB 1085 and consider their interests in anticipation of the inevitable requests and proposals that will likely come in from the unions representing their employees.

If you have any questions about SB 1085, contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas R. Manniello

Partner

Niki Nabavi Nouri

Associate

©2017 Lozano Smith

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

New Law Requires Districts to Pay Employees on Parental Leave at Least 50% of Their Salaries

October 2018
Number 64

Starting January 1, 2019, California school and community college districts will be required to pay certificated, classified, and academic employees eligible for parental leave under recently enacted laws at least 50% of their salaries once they exhaust their sick leave and begin taking differential leave. This requirement applies regardless of the rate districts pay substitute employees to fill in for the employees on parental leave. The new law is a result of Assembly Bill (AB) 2012, which was approved by Governor Brown on September 30, 2018, and is the latest in a series of bills which expanded protections for employees taking parental leave.

Current Law

Prior to AB 2012, employees electing to take up to twelve weeks of parental leave under recently enacted additions to the California Education Code must first exhaust their paid sick leave, after which time they are compensated according to their districts’ established practices for differential leave. (See Client News Brief No. 56 &, Client News Brief No. 84.)

Currently, there are two systems available for establishing the pay rate for employees on differential leave, whether the leave is due to parental leave, illness or accident. Under the first system, school and community college districts pay certificated and academic employees the difference between their regular salaries and the amount the districts pay or would have paid a substitute hired to fill in for the employee during his or her absence. For classified employees, this system requires that that districts actually hire a substitute employee in order to deduct a portion of the employee’s regular salary. This system allows employees to potentially receive only a small percentage of their salary while on differential leave
if the substitute’s rate of pay is close to the employee’s regular salary.

Alternatively, some school and community college districts have negotiated a system under which employees on extended sick are compensated at no less than 50% of their regular salary, regardless of the rate paid to a substitute.

New Law

AB 2012 amends the law to require that, regardless of the type of pay system used by school and community college district to compensate employees on extended illness and accident leave, all certificated, academic and classified employees taking up to 12 weeks of parental leave must be paid no less than 50% of their regular salary. Employees will still be required to exhaust their fully paid sick leave before receiving differential pay for parental leave.

Takeaways

AB 2012 only affects the differential pay system for employees on parental leave. School and community college districts should maintain their current

system for determining the pay rate of employees on differential leave due to illness or accident. Furthermore, to the extent districts have a practice of providing employees on parental leave with more than 50% of their salary, districts should continue to maintain their current practice. AB 2012 is not intended to decrease the amount of compensation provided to employees on parental leave.

If you have any questions about AB 2012 or parental leave laws applicable to California school and community college districts, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitteror download our Client News Brief App.

Written by:

Dulcinea Grantham

Partner

Jennifer Ulbrich

Associate

©2017 Lozano Smith

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

New Laws Restrict Law Enforcement Agencies’ Right to Withhold Recordings Relating to “Critical Incidents”

October 2018
Number 60

After years of failed attempts, the Legislature has passed, and Governor Brown has signed into law, two bills that remove the longstanding layers of protection and confidentiality for certain law enforcement records. Senate Bill (SB) 1421, which becomes effective January 1, 2019, increases public access to certain records relating to allegations of misconduct by law enforcement. Assembly Bill (AB) 748, effective July 1, 2019, subjects body camera footage to public records requests.
These laws will be applicable to all public entities employing peace officers or custodial officers, including cities, counties and school districts.

Background

For more than four decades, records relating to citizen complaints against law enforcement officers that are held by the officers’ employing agency have only been made available in a civil or criminal matter, after a showing of cause established in a “Pitchess” motion or through an officer’s voluntary waiver. The courts have supported the protection of peace officer personnel files over the years. In 2006, the California Supreme Court ruled that the record of an officer’s administrative disciplinary appeal from a sustained finding of misconduct was confidential and could not be disclosed to the public. However, the confidential status of these records is about to change.

SB 1421 expands the public’s right, through the California Public Records Act (CPRA), to request and receive records related to reports, investigations, or findings of:

  • An incident involving an officer’s discharge of a firearm at a person;
  • An incident in which the use of force by an officer against a person resulted in death or great bodily injury;
  • An incident in which a finding that an officer engaged in sexual assault involving a member of the public was sustained; and
  • Any record relating to a sustained finding that an officer was dishonest relating to the reporting, investigation, or prosecution of a crime, or relating to the misconduct of another officer.

While SB 1421 permits the redaction of certain personal information and allows a public agency to withhold records when their release would create a reasonable safety concern, and also while an investigation into the use of force is ongoing, the new law will change who has access to information historically found to be confidential.

Separately, AB 748 will require law enforcement agencies to release, upon request, video or audio recording footage of a “critical incident” within 45 days of the incident. A critical incident is defined as a recording that depicts:

  • An incident involving an officer’s discharge of a firearm at a person, or
  • An incident in which the use of force by an officer against a person resulted in death or great bodily injury.

AB 748 provides limited exceptions to the requirement that such video or audio footage be released. In an effort to balance transparency with law enforcement’s ability to conduct effective investigations and the right to privacy, a law enforcement agency may withhold such footage for up to one year if it can “demonstrate that disclosure would substantially interfere with the investigation.” An agency may withhold such footage for longer than one year if it can establish by “clear and convincing” evidence that substantial interference would occur if the information is released.

The new law will also allow an agency, when it can demonstrate that release would violate the subject’s reasonable expectation of privacy, to blur, obscure and redact the recordings, so long as the changes do not interfere with the public’s ability to “fully, completely, and accurately comprehend the events captured in the recording.”

Takeaways

As early as January 1, 2019, the right to obtain copies of law enforcement agency records pertaining to citizen complaints and recordings of “critical incidents” will be expanded under the CPRA, barring certain limited exceptions. It is not yet clear what facts may pass scrutiny for these exceptions to apply. Public agencies should review their current policies regarding CPRA, body camera footage, video and other recordings to determine what changes will be necessary to comply with these new laws.

For more information about SB 1421, AB 748 or about the CPRA 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:

Jenell Van Bindsbergen

Partner

Mark Murray

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.

Field Trip Immunity Does Not Apply to a Community College’s Hosting of an Intercollegiate Athletic Event

August 2018
Number 44

Community college districts are generally immune from liability for injuries sustained in the course of field trips and excursions under the California Code of Regulations, title 5, section 55220. However, inAnselmo v. Grossmont-Cuyamaca Community College District, an appellate court determined that such immunity does not apply to an injury sustained during an intercollegiate athletic tournament.

Background

In this case, a community college hosted an intercollegiate beach volleyball tournament at its campus. During the competition, a beach volleyball player, who attended a different community college district, was injured when she dove into the sand and hit her knee on a rock.

The student filed a complaint against the college, claiming that she was injured due to a dangerous condition that existed at the college’s facility. The college sought to dismiss the case, contending that the field trips and excursions immunity under section 55220 applied.

The court disagreed with the college and concluded that section 55220 did not apply to this situation. The court determined that the college did not conduct the student’s field trip or excursion (i.e., direct or manage the actual travel). Rather, it provided the sports facility that the student traveled to with her team. As the host of the intercollegiate athletic competition, the college had an ongoing responsibility to provide reasonably safe premises to all teams participating in the tournament, including the visiting beach volleyball players.

Takeaways

Field trips and excursions immunity has specific and limited application for community college districts. While the court did not expressly state that such limitations apply to immunity provided to K-12 school districts, it did note the similarities in the statutory immunity language for K-12 districts. Finally, this case highlights the importance of public entities maintaining their property in a safe condition.

If you have any questions regarding the Anselmo case or field trip immunity 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:

Edward J. Sklar

Partner

Aria G. Link

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.