Supreme Court Keeps DACA in Place, Emphasizing Importance of Procedural Requirements for the Program’s Rescission

June 2020
Number 51

On June 18, 2020, in Department of Homeland Security v. Regents of the University of California (June 18, 2020, Nos. 18-587, 18-588, and 18-589) __ U.S. __[2020 U.S. LEXIS 3254], the United States Supreme Court found unlawful the way in which the Trump Administration sought to rescind the Deferred Action for Childhood Arrivals (DACA) program. Specifically, in the 5-4 majority opinion, the Supreme Court held that the Department of Homeland Security’s (DHS) original analysis and explanation for rescinding DACA failed to address whether DACA’s process in granting forbearance in deferring removal of Dreamers was actually a legal exercise of prosecutorial discretion. While the DACA program itself has been the source of headlines in relation to the opinion, the Supreme Court’s decision is not based on the legal merits of DACA, but instead focused on the requirements of the federal Administrative Procedure Act (APA). As a result, while DACA presently remains in place and operative, the merits of DACA’s legality may have yet to be decided, and DHS could continue its quest to rescind DACA in future proceedings.

The effort by DHS to end DACA has been a long process, starting with DHS’s September 5, 2017 memorandum rescinding DACA. (See 2017 Client News Brief Number 57.) That action was quickly the subject of numerous legal challenges, the results of which were eventually reviewed by the Supreme Court.

At the heart of the court’s opinion are three holdings: (1) claims that DHS’s rescission of DACA violated the APA are reviewable; (2) DHS’s attempted rescission of DACA was arbitrary and capricious, in violation of APA; and (3) the parties challenging DACA’s rescission failed to state a claim for violation of the equal protection clause of the United States Constitution.

In ruling, the court quickly dismissed arguments that APA review was not applicable in the case, holding that rescission of DACA was not merely an act of non-enforcement on the part of DHS. The court then focused on DHS’s initial 2017 reasoning for rescinding DACA under APA. The court dismissed DHS’s subsequent DACA analysis, affirming past precedent that “[a]n agency must defend its actions based on the reasons it gave when it acted.” In analyzing DACA, the court found that the program is comprised of two parts: (1) granting eligibility for benefits; and, (2) forbearance on removal. Each part is subject to review for legality under the Immigration and Nationality Act (INA), and DHS failed to consider the second part. As a result, the court found DHS’s failure to consider the forbearance component of DACA, in its initial decision to rescind DACA, was arbitrary and capricious, and a failure to fulfill its obligations under the APA.

Additionally, while not impacting the current status of DACA, the court’s opinion dismissed the claim that the rescission of DACA violated constitutional equal protection, reasoning there was no evidence that the rescission was motived by discriminatory animus. The court noted that DHS had previously rescinded the related Deferred Action for Parents of Americans (DAPA) and sought to rescind DACA on similar grounds. Thus, challenges to any future rescission of DACA are likely limited to APA-like procedural claims.

Takeaways

For the foreseeable future, DACA remains in place. Yet, the federal government may again attempt to rescind DACA under the parameters set forth in the opinion.

California public agencies are encouraged to continue following the law; avoiding discriminatory practices; and informing students and parents of DACA students’ education and privacy rights. Additionally, public agencies should further refer to the State’s Attorney General’s guide on the rights of undocumented immigrant students and families. (See 2018 Client News Brief Number 17.)

If you have any questions about the Supreme Court’s decision, or about DACA and its impact on public agencies, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Nicholas G. Felahi

Associate

©2020 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 Title IX Regulations Issued by the Department of Education Take Effect August 14, 2020

June 2020
Number 49

On May 6, 2020, the United States Department of Education (DOE) issued much-anticipated Regulations (Regulations) addressing how schools and colleges (referred to as Recipients) must respond to claims of sexual harassment covered by Title IX of the Education Amendments of 1972 (Title IX). Title IX is the federal law which prohibits discrimination on the basis of sex in educational settings. The Regulations make significant changes to current requirements and practices and require compliance by August 14, 2020. Some of the most notable changes imposed by the Regulations are detailed below.

Sexual Harassment is Narrowly Defined.

Sexual harassment is now narrowly defined to mean conduct on the basis of sex that satisfies one or more of the following:

  1. Any employee of the Recipient conditioning the provision of an aid, benefit, or service of the Recipient on an individual’s participation in unwelcome sexual conduct;
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it denies a person equal access to the Recipient’s educational program; or
  3. Sexual assault (as defined in the Clery Act (20 U.S.C. § 1092(f)(6)(A)(v)), or dating violence, domestic violence, or stalking (as defined in the Violence Against Women Act (20 U.S.C. § 12291(a)).

A Single Investigator/Decision-Maker Model is Prohibited.

The Regulations clearly provide that the decision-maker, or the person(s) responsible for determining responsibility, cannot be the same person as the Title IX Coordinator or the investigator. Moreover, in the event of an appeal, the appellate decision-maker cannot be the same person who served as the Title IX Coordinator, investigator, or decision-maker making the original determination. Among other things, the decision-maker must also issue a written determination regarding responsibility in accordance with the Regulations at section 106.45(b)(7).

Disclosure of Evidence

As part of the formal grievance process, detailed within section 106.45 of the Regulations, both parties and their advisors must be given the opportunity to inspect, review, and respond to all evidence that is directly related to the allegations in the formal complaint, before the investigator completes the investigation report. Additionally, the final investigative report must be provided to the parties and their advisors at least 10 days before any hearing, if there is one.

Live Hearings Are Required for Postsecondary Recipients.

Post-secondary Recipients must have live hearings that permit the cross-examination of the involved parties and witnesses. Cross-examination must be conducted by the advisor, and not by the parties themselves. If a party does not have their own advisor, one must be provided by the Recipient at no cost. The decision-maker overseeing the hearing must determine whether each question posed by the advisor is relevant and explain any decision to exclude a question. Live hearings may be conducted with all parties physically present in the same location, or may be conducted virtually. If a party or witness does not submit to cross-examination at the live hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility.

Under the Regulations, K-12 Recipients have the option of conducting live hearings, though live hearings are still mandated under California Education Code section 48900 et seq. prior to the expulsion of any student. For K-12 Recipients, whether a hearing is conducted or not, once the investigative report has been sent to the parties and before reaching a determination regarding responsibility, the decision-maker must afford each party the opportunity to submit written questions they want asked of any party or witness. Answers to relevant questions must be provided along with additional, limited follow-up questions from each party.

Recipients Must Choose and Consistently Apply the Standard of Evidence.

A Recipient can decide whether the standard of evidence to be used during the grievance process is the “preponderance of the evidence” or the “clear and convincing evidence” standard. The standard used must be consistent whether the respondent is a student or an employee, and with all other formal investigation processes.

The Option to Appeal Must Be Afforded to Both Parties.

Both complainant and respondent must be offered the opportunity to appeal a determination regarding responsibility, and from a dismissal of a formal complaint or any allegation therein. Appeals may be based on (i) procedural irregularity; (ii) new evidence that was not reasonably available at the time of the determination or dismissal; or (iii) conflict of interest or bias of the involved Title IX personnel.

Records Must Be Maintained for 7 Years.

A Recipient must maintain for a period of seven years, all records relating to sexual harassment investigations, any appeal and the results therefrom, any information resolution and the results therefrom, and all materials used to train Title IX Coordinators, investigators, decision-makers, or any person who facilitates an informal process.

Takeaways

The over 2,000 page document presents sweeping changes that are required for Recipients in their implementation and handling of Title IX complaints. The above highlights some of the key changes, though by no means is an extensive or complete outline of the Regulations. By August 14, 2020, all Recipients will need to update their policies and procedures, train personnel, and in some cases add personnel to their Title IX teams. It is important that the new requirements be included in student discipline procedures, as well as employee complaint and discipline procedures.

If you have any questions about the new Title IX Regulation, Investigations or Title IX in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Stephanie M. White

Partner Effective July 1, 2020

Sarah E. Fama

Senior Counsel

©2020 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.

Industrial Disability Retirement May Still Be Considered a Constructive Discharge

May 2020
Number 34

On January 28, 2020, the California Court of Appeal for the First Appellate District revived a former California Highway Patrol (CHP) officer’s claims that he was forced to quit because he is openly gay. In Brome v. California Highway Patrol, the Court of Appeal held that a workers’ compensation claim could extend the statute of limitations for filing a complaint of discrimination and that an industrial disability retirement could still be considered a constructive discharge in violation of California anti-discrimination laws.

Background

Throughout his nearly 20-year tenure with the CHP, Officer Brome complained that he suffered discrimination and harassment from fellow officers based on his sexual orientation. From 2008 through 2014, Brome complained to his superiors that he was frequently subjected to derogatory comments and that other officers routinely refused to provide Brome with backup assistance during enforcement stops. Brome’s superiors investigated his complaints and disciplined at least one officer related to the failure to provide backup assistance. Despite the actions of the employer, Brome alleged that the harassment and discrimination continued, causing him extreme stress and anxiety.

In January 2015, Brome went on medical leave and filed a workers’ compensation claim due to his work-related stress. After his workers’ compensation claim was resolved in his favor in October 2015, he applied for and received an industrial disability retirement effective February 2016.

In September 2016 – over a year after he first went on medical leave – Brome filed a complaint with the Department of Fair Employment and Housing (FEH), and a lawsuit alleging sexual orientation discrimination and harassment, failure to prevent harassment, and retaliation. The trial court dismissed the case on statute of limitations grounds because it was not filed within one year of the challenged actions, as required by the Department of Fair Employment and Housing Act’s (FEHA) provisions in effect at that time. The trial court also rejected Brome’s constructive discharge theory, finding that Brome failed to establish that the working conditions were sufficiently intolerable to cause him to quit.

As of January 1, 2020, the one year statute of limitation to file with the Department of Fair Employment and Housing was extended to three years. See Complainants Now Have 3 Years to File Charge of Employment Discrimination, Lozano Smith Client News Brief Number 79 for December, 2019, available at http://www.lozanosmith.com/news-clientnewsbriefdetail.php?news_id=2952

The Court of Appeal reversed the trial court’s decision on three grounds. First the court reversed the trial court’s finding regarding the statute of limitations. The court found that Brome’s discrimination/harassment claims could be tolled while his workers’ compensation claim was pending. This finding hinged in part on whether a jury could reasonably conclude that the worker’s compensation claim constituted notice to the CHP that Brome also had potential discrimination claims. The court held that it was reasonable to conclude CHP received such notice, because the CHP necessarily considered the cause of Brome’s work-related stress in order to investigate his worker’s compensation claim.

Second, the Court of Appeal also found that Brome’s claims may include allegations of wrongful conduct occurring before the statute of limitations period under the continuing violation doctrine. The continuing violation doctrine allows claims regarding conduct alleged to have occurred prior to the limitations period to move forward if a jury could find:

  • discriminatory/harassing conduct that occurred before the limitation period are “sufficiently similar in kind” to those occurring during the limitation period,
  • the acts occurred with reasonable frequency, and
  • the problems had not “gained permanence” before the limitations period – i.e., that the CHP’s actions did not make it clear that further efforts at informal resolution without litigation would be futile.

Finally, the Court of Appeal disagreed with the trial court’s conclusions that Brome could not prove that his February 2016 disability retirement was a constructive discharge (i.e., forced quitting). A constructive discharge claim requires an employee to show that the “working conditions were so intolerable or aggravated that a reasonable employee would be forced to resign and that the employer either created or knowingly permitted those conditions.” The appellate court found, “the accumulation of discriminatory treatment over time can amount to intolerable working conditions.” Furthermore, the court determined Brome presented sufficient evidence to conclude that the CHP knowingly permitted the intolerable conditions and, due to his workers’ compensation claim, should have known that a reasonable employee in Brome’s position would resign.

The Court of Appeal returned the case to the trial court in order to make a final determination as to CHP’s liability.

Takeaways

The ruling in Brome highlights recent legislation that extends the statute of limitations on Fair Employment and Housing Act claims from one to three years. Further, employers should be aware that a workers’ compensation claim – particularly a stress-related claim – could signal the presence of discriminatory conduct. Receipt of such a claim can constitute notice of discrimination or a hostile working environment. This ruling also highlights the importance for employers to consider and address any subsequent discrimination/harassment claims that may be raised even after the initial claims have been resolved and disciplinary action taken.

If you have any questions about FEHA claims or workplace harassment/discrimination claims in general in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Lindsey F. Zwicker

Associate

©2020 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.

CARES Act – Federal Funding for COVID-19 Prevention

April 2020
Number 24

In the midst of the emergency surrounding the novel coronavirus and its associated respiratory disease (COVID-19), the federal government passed a two trillion dollar spending bill. The bill, known as the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, includes funding assistance in the form of direct tax rebate payments to individuals and couples, increased unemployment benefits, loans for small businesses, student loan payment deferral, and the expansion of numerous federal programs and federally-supported programs administered by state and local governments. Local governments and school districts may be on the receiving end of some of these expenditures. Below are some potential areas of funding for cities, counties, and school districts under the CARES Act.

Coronavirus Relief Funds – Payments to State and Local Governments

The CARES Act appropriates $150 billion to state, local, territorial, and tribal governments for necessary COVID-19 expenditures incurred between March 1, 2020 and December 31, 2020 that were not budgeted by the public entity. Most of this money is allocated to the states based on population, but direct payments can be made to “unit[s] of local government” which meet certain criteria. A “unit of local government” includes a county or municipality with a population of more than 500,000. Most local public entities, save for a handful of large California cities and counties, will not be eligible for direct payments. For California local agencies with a population of less than 500,000, it will be up to the State of California to determine how the money is distributed.

It is unclear whether state appropriation is intended to be a pass-through payment or used only by the direct recipient. There do not appear to be any express bars against disbursement down to the local level, but there is also no directive or process for states to distribute these funds. Therefore, cities, counties, and school districts may be eligible for disbursements from California’s proportionate share, but it remains to be seen what that will look like. A separate bill, the Coronavirus Community Relief Act (H.R. 6467), was recently introduced to provide $250 billion in funding to all local governments with fewer than 500,000 residents. It is pending in the House of Representatives.

Financial Liquidity, Loans, and Bond Purchasing

Under a portion of the CARES act called the Coronavirus Economic Stabilization Act of 2020, up to half a trillion dollars will be available for loans, loan guarantees, and other investments “to provide liquidity to eligible businesses, States, and municipalities related to losses incurred as a result of coronavirus.” A “municipality” is a political subdivision of a state and appears to include cities, counties, school districts, and other special districts in California. There does not appear to be a designated amount set aside for municipalities, which means cities, counties, and school districts may be competing with private businesses and with states for the available funds.

Direct loans and loan guarantees are available to municipalities under the appropriation. There are few details in the bill as to what the loans would entail for public entities who take advantage. The Treasury Secretary is authorized to make the loans on whatever terms and conditions he determines to be appropriate. Rules establishing procedures and minimum requirements are forthcoming.

In addition to loans, the United States Department of the Treasury can use the money for “purchasing obligations or other interests” directly from issuers or in the secondary market. Municipal bonds and school bonds likely qualify as obligations that could be purchased under the program. Currently, there are no details that would suggest how this program will be implemented and operated. It is unknown at this time whether any special conditions will be required for federal purchasing of municipal bonds, or whether the federal government will simply act as a normal purchaser in the municipal bond market.

Education Stabilization Fund – Grant Money for Schools

The CAREs act establishes the Education Stabilization Fund, which consists of several grant programs and pass-through funding totaling more than $30 billion. Of the appropriations, $3 billion is for states to distribute as grants to educational entities “most significantly impacted by coronavirus” to be able to continue to provide educational services to their students. State governors have discretion in how and how much of these funds will be allocated to local educational agencies. More than $13 billion is allocated directly to local educational agencies, including charter schools, as subgrants to maintain operation and continuity of services. Such grants will be allocated in a similar manner as under the existing federal Elementary and Secondary Education Act. Finally, almost $14 billion will be distributed directly to institutions of higher education for costs associated with changes in instruction due to COVID-19. At least half of the funds must be used for emergency financial aid grants for students.

Recipients of Education Stabilization Fund grants are required, to the greatest extent practicable, to continue to pay their employees and contractors during any disruptions or school closures. This is similar to a California mandate to continue to pay employees and contractors during the COVID-19 emergency. In general, funds not used or distributed by the states must be returned to the U.S. Department of Education.

COVID-19 Pandemic Education Relief Act of 2020 – Various AuthorizationsThe COVID-19 Pandemic Education Relief Act of 2020 is another section of the CARES Act. This section includes an assortment of goodies, mostly for institutions of higher education and students. Among the types of provisions included in this part of the bill are: waivers of matching-fund requirements; transferability or reservation of existing funds; continuation of payments to federal work-study participants; temporary student loan relief and Pell Grant changes; and more.

The bill also permits the United States Secretary of Education to waive certain statutory or regulatory provisions if the waiver is necessary or appropriate due to the COVID-19 emergency. Access to this part is not limited to higher education institutions. State education agencies may request waivers related to assessments, accountability, and reporting requirements related to assessments and accountability. Local educational agencies, including public charter schools, can request waivers of certain provisions of the ESEA. The requests must describe how the COVID-19 emergency prevents or restricts the local educational agency’s ability to comply with the legal requirement and provide assurance that the local educational agency will work to mitigate the negative effects of the waiver.

Unemployment Reimbursement for Local Governments

States will receive an unspecified amount of money equal to one-half of the unemployment benefits paid to employees of governmental entities in order to reimburse the governmental entities for amounts paid into the state unemployment fund in lieu of contributions. “Governmental entities” is not defined and presumably includes all public entities below the state level, such as cities, counties, school districts, and special districts.

Additional Appropriations for Existing Programs

Numerous appropriations are made to existing programs under the label “Emergency Appropriations for Coronavirus Health Response and Agency Operations.” These are generally appropriations to federal programs and agencies. To the extent local public entities and school districts will benefit from these expenditures, it will most likely be through normal operation of the federal program. Here are some notable expenditures under this part:

  • $25 million for broadband to support distance learning services in rural areas.
  • $3.5 billion in payments to states for the Child Care and Development Block Grant for child care assistance for low-income families.
  • Almost $1.9 billion for Children and Families Services Programs. This includes $750 million for programs under the Head Start Act, from which $500 million is available for operating supplemental summer programs.
  • $5 billion for the Community Development Fund, including an additional $2 billion to existing grantees under the current distribution formula and $1 billion directly to states and insular areas, as defined.

There are also appropriations for the Child Nutrition and Supplemental Nutrition Assistance Programs; law enforcement and firefighter grants; funding for operations of public transit; and healthcare programs in response to the COVID-19 emergency.

In general, these are additional appropriations specifically intended to fight COVID-19, but many do not include any more specific instructions for how the funds must be spent beyond “to prevent, prepare for, and respond to coronavirus.” Some appropriations specify that the money should be used for administration, salaries, supplies, equipment, or some other specific expenditure needed to continue program operations or adapt the operations in light of the COVID-19 emergency. In many cases, there is additional money available for distribution under existing grant or award mechanisms to which public entities may be eligible recipients.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

If you have any questions about the CARES Act or other Coronavirus relief funding, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Wesley L. Carlson

Associate

©2020 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.

Important Update: The deadline to file the Annual Statement of Economic Interests (Form 700) has been extended from April 1, 2020 to June 1, 2020

March 2020
Number 18

In light of the current COVID-19 pandemic, the Fair Political Practices Commission (FPPC) has announced it is allowing a 60-day extension for those required to file a 2019 Annual Statement of Economic Interests (Form 700). As a result of this extension, Form 700’s normally due no later than April 1, 2020 will be accepted by the FPPC as timely filed if submitted by June 1, 2020. This extension applies to all officials required to file in April pursuant to Commission Regulations 18723 and 18730. This extension will likely be welcomed relief for many public officials in California required to file Form 700’s, and is in contrast to the FPPC guidance issued on March 17, 2020 indicating that the April 1 deadline could not be extended by state or local filing officers.

The FPPC still encourages annual filers to file as soon as they are able, in advance of the June 1, 2020 extended deadline. Those who have access to an electronic Form 700 filing system are encouraged to use it. If electronic filing is not available, filers can submit Form 700’s by mail. Statements postmarked on or before June 1, 2020 will be considered filed on time. The Commission intends to formally ratify this extension at its April 2 special meeting.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Scott G. Cross

Partner

Andrea Ortega

Law Clerk

©2020 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 Families First Coronavirus Response Act: Temporary Employer-Paid Sick Leave and Employer-Paid FMLA Leave for Childcare

March 2020
Number 17

In response to the nationwide economic disruption and uncertainty resulting from the COVID-19 outbreak, Congress passed, and the President signed, the “Families First Coronavirus Response Act” (H.R. 6201), which became law on March 18, 2020. While H.R. 6201 provides federal assistance in a range of areas, this Client News Brief focuses on relief provided by H.R. 6201 in the form of employer-paid sick leave for individuals and families unable to work due to the virus or its effects.

Background

California public agency employees are granted a certain amount of annual sick leave by statute. Modified or additional paid leave may be available pursuant to collective bargaining agreements and/or agency policy. Up to half of an employee’s sick leave may also be used to care for a sick family member.

Emergency Paid Sick Leave Act

Under the unique circumstances resulting from the COVID-19 outbreak, H.R. 6201 established the Emergency Paid Sick Leave Act (EPSLA), which requires all public agency employers, regardless of size, and private employers with fewer than 500 employees, to provide temporary paid sick leave to eligible employees. Until December 31, 2020, full-time employees in the following subgroups will receive 80 hours (approximately two work-weeks) of employer-paid sick leave not to exceed $511 per day and $5,110 in the aggregate for any of the following reasons:

  1. Employees subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. Employees advised by a health care provider to self-quarantine due to COVID-19 related concerns; or
  3. Employees experiencing COVID-19 symptoms and seeking a medical diagnosis.

Employees taking leave for the following reasons will receive 80 hours (approximately two workweeks) of employer-paid sick leave at 2/3 their regular pay amount not to exceed $200 per day and $2,000 in the aggregate:

  1. Employees caring for an individual who meets the specifications in (1) or (2) above;
  2. Employees caring for a son or daughter due to school or childcare closure based on COVID-19 precautions; or
  3. Employees experiencing any other similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

“Son or daughter” includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older and incapable of self-care because of a mental or physical disability. Part-time employees in all categories get the number of hours of paid leave equal to their average work hours over a two workweek period. This sick leave is available to any employee, excluding employees who are healthcare providers and emergency responders. There is no requirement that an employee have worked for the employer for any particular length of time. Employers must also post a notice of these requirements in conspicuous place.

The EPSLA creates a completely new bank of sick leave that an employee can elect to use immediately. An employer cannot force an employee to use other existing leave before using this new sick leave.

FMLA Expansion

H.R. 6201 also allows employees to receive employer-paid leave under the Family and Medical Leave Act (FMLA), under limited circumstances. Qualifying employers are private entities with fewer than 500 employees, and all public agencies already required to comply with the FMLA. While employers with under 50 employees are typically excluded from the FMLA, this exclusion is retracted for purposes of the temporary FMLA expansion. In addition, an employer is not required to provide such leave to employees who are healthcare providers or emergency responders. Until December 31, 2020, employees unable to work (or telework) because of their son or daughter’s school closure or unavailability of the child care provider due to COVID-19, are eligible to take up to 12 weeks of FMLA leave, paid as follows:

  • The first 10 days of the expanded FMLA leave are unpaid, but may run concurrently with alternative employer-paid leaves including paid leave under the EPSLA, should the employee choose to use paid leave.
  • For the remaining 10 weeks, the employee is eligible to receive two-thirds of their average monthly earnings, not to exceed $200 per day and $10,000 in the aggregate.

“Son or daughter” has the same meaning as stated above. Employees have access to this leave after having worked for the employer for 30 days, rather than the typical 1,250 hours over 12 months under the FMLA.

Tax Credit for Employer-Paid Social Security Taxes Not Available to Public Agencies

While the Act provides a tax credit for employer-paid social security taxes as an effort to reduce the financial burden from these new paid leave entitlements, this tax credit is only available for private employers and not for public employers. The Act does not seem to include reimbursement provisions for public entities that must provide the new paid leave. Additional guidance from the federal government on the topic of reimbursements may follow.

Takeaways

H.R. 6201 will go into effect not later than April 2, 2020. Until then, employees are able to use existing qualifying leave time if they are forced to miss work due to COVID-19. Leave granted pursuant to H.R. 6201 is in addition to any paid or unpaid leave employers already provide.

If you have any questions about H.R. 6201, FMLA or labor and employment issues related to COVID-19 in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Jenell Van Bindsbergen

Partner

Kate S. Holding

Associate

©2020 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.

How to Address COVID-19 with Your Governing Board: Brown Act Reminders

*** UPDATED AS OF 3/27/20 *****

This Client News Brief (CNB) supersedes and replaces the prior CNB on this topic based on the new Executive Orders and public health officer directives.

March 2020
Number 13

Background

With growing concerns over the spread of the novel coronavirus (COVID-19), many public agencies are closely monitoring guidance and updates from health and science officials. The California Department of Public Health (CDPH) along with the Centers for Disease Control and Prevention (CDC) have been providing regular updates and recommendations for employers, and the fluidity of the situation has resulted in some public agencies taking or considering actions on an emergency basis or without the time for all the public notice and input required for routine public business.

Generally, the public has a right to attend meetings and address the legislative body on any item on the agenda or any item of interest to the public that is within the subject matter jurisdiction of the legislative body. With increased precautions in place related to large gatherings and travel, public agencies are faced with the need to make decisions quickly in response to the latest information available. The following provides guidance for conducting public meetings to discuss COVID-19 with your governing board and the public, in compliance with California’s open meeting laws under the Brown Act.

How to Convene a Meeting:

  • Notice must be given of the time and place for regular meetings, by posting an agenda at least seventy-two (72) hours in advance of the meeting. Posting must occur in a place that is freely accessible to the public and on the agency’s website.
  • A special meeting may be called at any time including weekends and holidays, by notice at least twenty-four (24) hours in advance of the meeting. Only the business set forth in the notice may be considered at the meeting.

Emergency Meetings:

  • In case of an emergency meeting to consider matters that require prompt action due to the disruption or threatened disruption of public facilities and services, the Brown Act meeting notice described above is not required. However, absent a “dire” emergency, attempts must be made to contact the media by telephone at least one hour before the meeting, unless the telephones are not working. Following the emergency meeting, the minutes of the meeting, a list of persons notified or attempted to be notified of the meeting, and actions taken must be posted for ten (10) days in a public place.

Not all discussions about COVID-19 necessarily merit an “emergency” situation allowing for greater flexibility with certain legal requirements. For purposes of the Brown Act, an emergency is defined as a “work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the legislative body.” A “dire emergency” is a “crippling disaster, mass destruction, terrorist act, or threatened terrorist activity that poses peril so immediate and significant that requiring a legislative body to provide one-hour notice before holding an emergency meeting under this section may endanger the public health, safety, or both, as determined by a majority of the members of the legislative body.” (Gov. Code section 54956.5(a).) The legislative body should make findings supporting the existence of an emergency.

Attending Meetings Remotely: On March 12 and 17, 2020, as part of a larger effort to address the outbreak, Governor Gavin Newsom issued Executive Orders allowing state and local legislative bodies to hold meetings via conference calls without violating the Brown Act. Board members may attend regular, special, or emergency meetings by telephone (or video conference), and the Governor’s Executive Orders suspends the following requirements which normally apply to teleconference attendance:

  • A quorum of the members participate from locations within the boundaries of the agency and each location is accessible to the public;
  • Each teleconference location from which a member will participate must be publicly noticed, and agendas must be posted at each teleconference location;
  • Each teleconference location be accessible to the public;
  • Members of the public may address the body at each teleconference location; and
  • At least one member of the legislative body must be physically present at the location specified in the notice of the meeting.

These requirements are suspended on condition that 72 hour or 24 hour (whichever applies) public notice is still given, and to give notice by which members of the public may observe the meeting and offer public comment. While the definition and parameters surrounding “public participation” are unclear, there are various options to allow the public to address items on the agenda and provide public comment including, but not limited to conducting the meeting via teleconference, using an internet platform such as Zoom or YouTube to stream the meeting allowing attendees to comment in real-time, or providing a special email address for the public to submit comments in advance of the meeting. Given the Order of the State Public Health Officer of March 19, 2020 and the Governor’s Executive Order of the same date placing limits on the public congregating, public agencies should work closely with their legal counsel as to whether and to what extent public meetings are permissible. Public agencies will need to decide whether to provide such an in-person opportunity for the public to attend meetings, as personal attendance is not “essential.” In addition, if the Board elects to meet in person, it should continue to monitor and adhere to all state and local public health directives and social distancing guidelines.

How to Act on Items Not on the Agenda: Under normal circumstances, the legislative body may not discuss or take action on any item that does not appear on the posted agenda. The following exceptions apply:

  • Subsequent Need. The legislative body may act upon an item not appearing on a regular agenda upon a finding by two-thirds (2/3) vote of the members present, or by unanimous vote if less than two-thirds (2/3) but more than a quorum of members are present, that there is a need for immediate action and the need for action came to the attention of the agency after the agenda was posted.
  • Emergency Situation. If by a majority vote the legislative body determines prior to any such action that an “emergency situation” exists and that prompt action is required, they may take action on an emergency item not appearing on the posted agenda. The emergency situation exception is for an agenda that has already been posted, in contrast to the emergency meeting discussed above.

How to Address the Board in Closed Session:

  • The legislative body may discuss COVID-19 in closed session if there has been a threat of or exposure to litigation. An attorney should be present at such closed session discussion.
  • There is also an exemption under the Education Employment Relations Act for discussing negotiations. Therefore, topics such as changes to work day and work year, overtime for employees doing deep cleaning, addressing non-refundable staff travel plans, changes to employee leave provisions, all of which are negotiable, may be discussed in closed session as long as the purpose of the discussion is to discuss negotiation direction and strategy.
  • The Brown Act provides that the legislative body may go into closed session to discuss threats to public safety/security, including a threat to the public’s right to access public facilities or public services. However, the intent of this exception appears to focus on allowing law enforcement officials or security consultants to advise during closed session and should be used with caution.

Local and State Agency Governing Bodies May Receive COVID-19 Updates Without Violating Open Meeting Laws:

On March 21, 2020, the Governor issued an Executive Order to allow all, or more than a quorum, of a legislative body (local and state), to listen in and ask questions for COVID-19 updates from federal, state or local officials. This limited exception from the open meeting laws does not authorize discussions, serial or otherwise, among members constituting a majority without complying with open meeting law requirements.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.
Written by:

Mary F. Lerner

Partner

Anne L. Collins

Partner

©2020 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 Agency Employer Responses to COVID-19: Labor and Employment Implications

March 2020
Number 12

Background

With growing concerns over the spread of the novel coronavirus, COVID-19, public agency employers are taking proactive steps to limit exposure and further transmission. The California Department of Public Health (CDPH) along with the Centers for Disease Control and Prevention (CDC) have been providing regular updates and recommendations for employers, which should be closely monitored and followed.

The following is some general guidance from a labor and employment perspective as public agency employers take additional steps to maintain a safe work environment, including potentially closing facilities or limiting employee attendance at work.

Employee Leaves

Agency policies and collective bargaining agreements describe entitlement to and appropriate use of sick leave and other paid leaves. Employers may provide an additional period of paid or unpaid leave for employees who are medically quarantined. (See Ed. Code, §§ 44964, 45199 for school districts.) It is important to keep in mind that employees absent due to COVID-19 may qualify for industrial illness leave if they contracted the virus at work. Employees who pay into State Disability Insurance (SDI) may also qualify for disability insurance benefits while they are unable to work. If an employee is absent due to their own illness or to care for an ill family member they may be entitled to kin care leave and up to 12 workweeks of job protective leave under the Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). It will be important to examine every request for leave carefully to determine if it is a qualified leave, and what leave entitlements may be implicated by the leave request.

Ensuring a Safe Work Environment

As a reminder, employers are required to provide and maintain a safe work environment. Work safety may be addressed in policy and/or collective bargaining agreements. Employers should review such language to ensure they are complying with their policies and obligations. To the extent employees are required to do additional cleaning beyond what is within their regular job duties, such a change in work duties may be negotiable, may require out of class pay, and/or may result in overtime compensation, among other things. Employers should ensure that overtime is offered according to relevant collective bargaining agreement provisions.

Also, the California Division of Occupational Safety and Health has put out guidance for employers in responding to COVID-19: https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html, https://www.osha.gov/SLTC/covid-19/. It is critical that employers ensure that recommended safety measures, including stocking sufficient soap/hand sanitizer, are followed to maintain a safe work environment.

Active Employee Considerations

It is possible that some employees may refuse to perform duties within their job description that may be implicated by COVID-19. For example, some employees may refuse to provide health services that are part of their normal job duties. When an employee is at work, they are required to perform their job. However, it is also important to remember that antidiscrimination laws protect employees who are temporarily or permanently disabled or who are perceived as being disabled. Conversely, an employee’s refusal to provide services could also constitute discrimination against those whom they serve, be it students or patients.

Some employees with compromised immune systems may receive medical directives temporarily limiting their work activities. The Americans with Disabilities Act (ADA), may require temporary work modification as a reasonable accommodation to the extent an employee is medically unable to perform certain tasks.

School Closure

For public agencies whose employees are represented by a collective bargaining unit, the decision to close a school or facility due to an epidemic is generally not negotiable. However, the impacts and effects of such closures are negotiable to the extent that decision impacts matters within the scope of representation, like work hours. In addition, whether employees will be paid during any work-site closure is negotiable.

It is recommended that employers notify their labor unions of any possible school or facility closures to help impacted employees prepare and respond to such changes. School closures may also require negotiating additional work days beyond the regular work year.

Payroll and business offices should be prepared for potential increases in unemployment insurance claims if facilities are closed or employee hours are reduced.

Availability of J-13A Waiver for ADA Loss

Public schools that experience loss of ADA due to the coronavirus should be aware of the availability of the J-13A waiver to minimize the fiscal impact of ADA loss due to emergency. Information on the J-13A waiver can be found at:

https://www.cde.ca.gov/fg/aa/pa/documents/j13a.pdf

Availability of Waiver to Avoid Instructional Minute Penalties

Public schools districts, including basic aid districts, should also be aware of the availability to request a penalty waiver from the California Department of Education (CDE), in the event instructional minutes fall below Education Code minimums.

For more information on issues arising from the continued spread of COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Derek Ulmer

Associate

©2020 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.

Creditable Compensation for Paid Administrative Leave Under Review by CalSTRS

February 2020
Number 10

On January 23, 2020, the California State Teachers’ Retirement System (“CalSTRS”) issued an Employer Information Circular taking a restrictive position regarding what leaves count for the purpose of calculating creditable compensation under the Teachers’ Retirement Law. The CalSTRS Employer Circular is located here.

Creditable compensation is a term set forth in the Education Code that represents all compensation reportable to CalSTRS for an employee’s performance of creditable service. Compensation paid for the use of sick leave, vacation, or an employer-approved leave, is included in the statutory definition of creditable compensation.

Effective January 1, 2016, a definition for “leave of absence” was incorporated into the Teacher’s Retirement Law, in Education Code section 22144.3, limiting the definition to only those leaves included in specific sections of the Education Code.

CalSTRS’ January 23, 2020 Circular expressed a narrow interpretation of section 22144.3, stating that only those paid leaves expressly stated in those Education Code sections listed in section 22144.3 count as creditable compensation. The Circular specifically noted that leaves legally granted through a governing board’s general authority to grant paid administrative leave under Education Code sections 44963 (K-12 school districts) or 87764 (community colleges) are not expressly authorized for purposes of the Teachers’ Retirement Law.

CalSTRS’ position effectively eliminated certain discretionary leaves commonly utilized by school districts for various reasons, such as paid administrative leave while an employee is under investigation, from the definition of a “leave of absence” under the CalSTRS system. CalSTRS’ interpretation, if it stands, will mean that teachers do not earn any service credit for time spent on such leaves.

There has been significant concern over the position taken in the CalSTRS Circular. CalSTRS has recently indicated that it will be withdrawing the January 23, 2020 Circular and will be taking this issue under review. CalSTRS may pursue legislative or regulatory changes to address how paid administrative leave and other leaves granted under a governing board’s general authority will be treated in the CalSTRS system. School districts and community colleges will need to monitor this issue carefully as the outcome of this issue may impact the retirement benefits of their employees and could have audit ramifications if the compensation is not reported correctly.

For questions regarding CalSTRS’ guidance related to leaves of absence or the potential impacts this guidance may have on its current practices, or to discuss any other labor and employment issues, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Thomas R. Manniello

Partner

©2020 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.

Student Newspaper Sues University After All Print Media Is Defunded Following The Publication Of A Satirical Article

January 2020
Number 4

A University of California San Diego (UCSD) student newspaper, The Koala, brought suit against UCSD officials alleging that they defunded all print media in violation of the First Amendment. In The Koala v. Khosla (9th Cir. 2019) 931 F.3d 887, the Ninth Circuit sided with the student newspaper, reversing in part and vacating in part a district court’s dismissal of the complaint, holding that the Eleventh Amendment did not bar The Koala’s claims, and allowing the case to proceed.

Background

The Koala is a UCSD student organization that publishes a newspaper featuring art and satirical writing. In 2015, The Koala published an article which mocked the concept of “safe spaces” on college campuses. The publication included numerous ethnic and sexist stereotypes, generating various complaints and prompting UCSD to publicly denounce the article. Two days later, the UCSD student government passed the Media Act (the Act), eliminating student organization funding for all print media. Thereafter, The Koala brought suit against UCSD, alleging multiple violations of the First Amendment. Specifically, The Koala argued that in violation of the Free Press Clause, the Act intentionally singled out and financially burdened The Koala, and that it did so in retaliation against the publication of the “safe spaces” article. The Koala also argued that funds for student organizations were a limited public forum and the Act’s exclusion of The Koala from the forum was viewpoint discrimination and violated the Free Speech Clause. UCSD filed a motion to dismiss these claims, and the district court granted the motion, concluding that The Koala’s claims were barred by the Eleventh Amendment. The Koala appealed to the Ninth Circuit.

Ninth Circuit Opinion

The Ninth Circuit reversed in part and vacated in part the district court’s dismissal of the complaint, allowing The Koala could move forward with its claims. First, the Ninth Circuit analyzed whether The Koala’s claims should be barred by the sovereign immunity doctrine under the Eleventh Amendment, which generally prevents a state and state government actors from being sued in federal court without the state’s consent. The Ninth Circuit found that because The Koala was seeking only a return of theireligibility to apply for funding, and not an order directing the state to provide funding, the claims were not barred by the Eleventh Amendment.

The Ninth Circuit then analyzed each of The Koala’s claims individually, starting with the freedom of the press claim. The Koala argued that the Act targeted student press by defunding it and that it was “substantially motivated by discrimination,” while UCSD argued that the Act did not implicate the Free Press Clause because it applied equally to all student organizations. The Ninth Circuit sided with The Koala and found that The Koala stated a viable cause of action, vacating the lower court’s decision.

Next, the Ninth Circuit addressed The Koala’s freedom of speech claim, which argued that UCSD created a limited public forum (funds for student organizations) and then closed off a portion of that forum (print media) with the intent specifically to deny The Koala access to it. While The Koala asserted that the forum consisted of the entire student activity fund, UCSD claimed that the forum was specifically limited to the media funds and that regardless of how the forum was defined, they were free to close it. The Ninth Circuit agreed with The Koala and concluded that the entire student activity fund was the relevant forum for assessing the appropriateness of UCSD’s actions. Because the district court came to a different conclusion, the Ninth Circuit vacated the order granting the motion to dismiss the claim and remanded the decision for consideration under the appropriate forum framework.

Lastly, with regard to their retaliation claim, The Koala argued that the Act was passed in direct response to the “safe spaces” article and intended to silence The Koala’s content. UCSD claimed that the government’s motive is irrelevant when it enacts a rule that is content neutral and intended to apply generally (i.e., applies to all print media). The Ninth Circuit sided with The Koala, holding that the Act did not apply equally to all student organizations, as it banned only print media organizations from obtaining student activity fee funding. The Koala was also found to have alleged an adequate nexus between its speech and the implementation of the Act.

Takeaways

Universities and community colleges should keep this decision in mind when responding to controversial matters. This is especially true in instances where the college’s actions may be viewed as retaliatory or an attempt to silence or regulate student speech, even if the action does not exclusively target the speaker.

If you have any questions about these new laws, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Steve Ngo

Partner

Stephanie M. White

Senior Counsel

©2020 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.

Data Breach Notification Law Gets Updates With Important Implications

January 2020
Number 2

Data breaches are all but inevitable and occur in all types of organizations. Public entities are no exception, with cyber criminals increasingly targeting the wide-range of sensitive information they maintain (e.g., student data, resident data, confidential government infrastructure data, etc.). Against the backdrop of and in response to this looming threat of cyber-attacks, Governor Newsom recently signed into law Assembly Bill (AB) 1130, which makes small but significant changes to the state’s existing data breach notification laws.

Current Law

Under Civil Code section 1798.29, any agency (including a local government or school district) that owns or licenses computerized data that includes personal information has an obligation to provide notice to any California resident whose unencrypted personal information is or is reasonably believed to have been acquired without authorization. Notification to affected individuals must be made in the format and include the information specified in the law. Importantly, notification obligations are triggered when the acquired information includes personal information as defined under the law, unless the information was encrypted and the security credentials or encryption key that would permit access to the information was not also acquired. As defined under the law, personal information includes an individual’s first name or first initial, and last name, in combination with certain other types of information including social security number, driver’s license number, and medical information. For a more detailed discussion, including the specific information required to be included in a breach notice, see Lozano Smith’s 2017 TIPJar Article.

New Law

Effective January 1, 2020, AB 1130 amends the definition of personal information under Civil Code section 1798.29 with the purpose of addressing perceived gaps in the categories of sensitive information protected under the law. Under these amendments, personal information will now include an individual’s first name or first initial, and last name, in combination with either of the following (in addition to the data elements previously included in the definition):

  • Driver’s license number, California identification card, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual.
  • Unique biographic data generated from measurements or technical analysis of human body characteristics, such as fingerprint, retina, or iris image, used to authenticate a specific individual (not including a physical or digital photograph, unless used or stored for facial recognition purposes).

These changes have the potential to significantly impact public entities in terms of data breach notification obligations. Because biometric data is less commonly found in public entity databases, the largest impact from the new law will likely be the expansion of the types of government identification numbers that, if disclosed, may create a reportable event. By including within this definition “other unique identification numbers issued on a government document,” the law now potentially encompasses many additional types of information used by public entities to identify individuals within their databases and which they would not normally associate with or guard as personal information, one of example of which would be student identification numbers.

Takeaways

The best response to the threat of a cyber-attack is being prepared for it. Public entities should act now to review their data security and breach incident policies and procedures to ensure those documents define a reportable incident in compliance with the changes made by AB 1130. Personnel responsible for the organization’s data security should be placed on notice of these changes and instructed to make updates to all relevant policies, procedures, and data security training, as appropriate. Finally, those organizations without such policies or procedures should strongly consider adopting them to ensure they are prepared to comply with the California’s breach notification requirements, when, not if, an information security incident occurs.

If you have any questions about AB 1130 or data security breach notification obligations of public entities in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Devon B. Lincoln

Partner

James N. McCann

Associate

©2020 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 State Laws Aimed At Protecting LGBTQ Students And Students Who Are Pregnant Or Parenting

January 2020
Number 1

Assembly Bills (AB) 493 outlines new requirements for school districts, county offices of education, and charter schools to train certificated employees, serving in grades 7 to 12, to support Lesbian, Gay, Bisexual, Transgender, Queer, and Questioning (LGBTQ) youth. AB 809 outlines new requirements for public colleges and universities to increase awareness of the Title IX rights provided to pregnant and parenting students. Additionally, AB 34 requires that specific information on bullying and harassment prevention be posted on the websites of school districts. (For more information see CNB 70.)

AB 493: LGBTQ Resources and Trainings for Teachers

AB 493 was signed into law on October 12, 2019, adding Education Code section 218 with the goal of improving the overall school climate for LGBTQ students. Specifically, by no later than July 1, 2021, AB 493 requires the California Department of Education (CDE) to develop and update resources for in-service training on school site resources (e.g., counseling services, peer support groups, relevant policies, etc.) and community resources for LGBTQ pupils (e.g., healthcare providers experienced in treating LGBTQ youth), as well as strategies to increase support for LGBTQ students. The CDE will design the training resources for schools serving students in grades 7 to 12. Importantly, the new law encourages schools to use the training resources to provide training at least once every two years to teachers and other certificated employees who serve students in grades 7 to 12.

AB 809: Website Posting Requirement for Title IX Protections for Pregnant and Expecting Students

AB 809 was signed into law on September 6, 2019, and requires public postsecondary institutions (the University of California, the California State University, and California community colleges) to prominently post on each institution’s website and provide information regarding, Title IX protections for pregnant and parenting students. Title IX is an existing federal law prohibiting discrimination of any person on the basis of sex, in any educational program or activity receiving federal financial assistance. Implementing Title IX in California, Education Code section 66281 outlines various accommodations afforded to pregnant and parenting students. AB 809 now adds section 66061 and amends section 66281.7 to:

  • Require all public colleges and universities to inform pregnant and parenting students of the protections provided by Title IX on the institution’s website;
  • Require each public postsecondary educational institution with an on-campus medical center to provide notice of the protections provided by Title IX through the medical center to a student who requests information regarding policies or protections for students with children or pregnant students and when otherwise appropriate; and
  • Encourage child development programs established by the public postsecondary educational institutions to give specified priority to children of students who are unmarried and meeting specified income requirements.

Takeaways

AB 493 and 809 are focused on providing training and resources that will support LGBTQ youth and parenting students in public colleges and universities. LEAs and public colleges and universities should review these requirements to make sure they are in compliance.

If you have any questions about these bills or about student issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Marisa R. Lincoln

Partner

Stephanie M. White

Senior Counsel

Lauren A. Lyman

Associate

©2020 Lozano Smith

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

Governor Signs A Suite Of Bills Aimed At Supporting Students In Higher Education

December 2019
Number 87

Governor Newsom signed a host of Assembly Bills (AB) and Senate Bills (SB) in support of higher education, which expand existing student aid programs and eligibility criteria, among other things.

California College Promise

The existing California College Promise program waives enrollment fees for eligible students. The program generally targets students from low-income families or who are receiving government assistance, such as Supplemental Security Income or Temporary Assistance to Needy Families. The Budget Act of 2019 (AB 74) expands the California College Promise by providing funding for community colleges to offer up to two years tuition free enrollment to first-time, full-time California students. Another bill, AB 2 expands access to the California College Promise program by allowing students with disabilities to qualify for the program even without a full-time course load. AB 2 also specifically excludes participation by students who have previously earned a degree or certificate from a postsecondary educational institution.

Student Equity and Achievement Program

The Seymour-Campbell Student Success Act of 2012 established the Student Equity and Achievement Program, aimed at closing achievement gaps for students from traditionally underrepresented groups in higher education. AB 943 amends the Program by authorizing the use of Program funding for emergency student financial assistance to help eligible students overcome unforeseen financial challenges that would directly impact the student’s ability to persist in their course of study. These challenges include, but are not necessarily limited to, the immediate need for shelter or food as well as textbook purchases and transportation assistance.

Internet Website Notification of Public Services and Programs

Existing law seeks to establish “hunger free campuses” within the University of California (UC), California State University (CSU) and California Community Colleges (CCC). AB 1278 adds a requirement that the attendance student web portal for CSU and CCC campuses include notification of, and a link to, information on public services and programs, such as the CalFresh program, housing resources, and mental health services. UC campuses are “requested” to include this information, but not required to do so. This bill is intended to connect students to existing social services resources to address areas of student need.

California DREAM Loan Program

The California DREAM Loan Program provides educational loans for qualifying undergraduate, UC and CSU students. Qualifying students with a full-time course load may borrow up to $4,000 per year or $20,000 total. Effective July 1, 2020, SB 354 expands eligibility for DREAM loans to students enrolled in qualified professional or graduate degree programs, including, but not limited to, a teaching credential program.

Chafee Educational and Training Voucher Program

The Chafee Educational and Training Voucher (ETV) Program is designed to provide financial assistance for current and former foster youth attending college. Effective July 1, 2021, SB 150 implements changes to the ETV disbursement process by (1) relaxing the academic progress requirements for recipients of student aid (in a manner similar the Cal Grant disbursement process) and (2) instituting an appeals system for those not meeting academic standards. The new disbursement process is structured to provide aid at the beginning of the school year when it is needed most.

If you have any questions about recently signed student aid bills, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Trevin E. Sims

Partner

Stephanie M. White

Senior Counsel

Tilman A. Heyer

Associate

©2019 Lozano Smith

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

In An Historic Move, California Paves Way For Public Banks

December 2019
Number 86

Effective January 1, 2020, local agencies will be allowed to create their own public banks. Assembly Bill (AB) 857, known as California’s Public Banking Act, allows local agencies and/or joint powers associations to organize nonprofit mutual benefit corporations for the purpose of engaging in the banking business. The stated purpose of the Public Banking Act is achieving cost savings for local government entities, strengthening local economies, supporting local economic development, and addressing community infrastructure and housing needs.

The procedural requirements for establishing a public bank include the following: the local agency must establish a separate corporate legal entity with appropriate articles of incorporation setting forth a specified purpose statement for the bank. Then, the entity must conduct a required feasibility study to assess the viability of the proposed bank. Next, the entity must submit a certificate of authorization to the Commissioner on Business Oversight (CBO). (Non-charter cities must have voter approval of a motion to submit an application to the CBO.) Finally, the public bank must secure Federal Deposit Insurance Corporation (FDIC) insurance and obtain a license from the CBO.

Entry into the public banking market is limited. Under AB 857, the CBO is allowed to issue just two licenses per year, and there can be no more than 10 public banks authorized to operate at one time.

Once the public bank is operational, it will be prohibited from competing with other retail banking financial institutions. Accordingly, the public bank’s primary function will be lending money to local initiatives that fall within the purview of its specified purpose statement in the articles of incorporation. Public banks are exempt from state taxes and a county is able to lend available funds to the bank.

Notably, the Public Banking Act includes Brown Act and Public Records Act exceptions. Brown Act open meeting requirements are waived when a local agency’s board convenes to discuss matters involving loan or investment decisions, and matters involving internal audits, compliance, governance, and meetings with state or federal regulators. Public Records Act disclosure requirements will not apply to any information or records pertaining to decisions made in any closed session meeting, information regarding investment decisions, information regarding specific bank accounts, and information regarding meetings with state and federal regulators. Furthermore, all information received by a shareholder, member, or owner of a public bank must remain confidential.

Takeaways

The process for establishing a public bank involves multiple procedural steps each requiring state and federal approval. There will likely be significant competition to obtain state licensure because licenses will be severely restricted. Time is of the essence for local government entities interested in establishing their own public bank. Once established, a public bank will need to observe and comply with state and federal regulations applicable to financial institutions.

If you have questions regarding establishing a public bank, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Daniel Maruccia

Partner

©2019 Lozano Smith

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

Appellate Court Refuses To Enforce An Indemnity Provision Included In Consultant Agreement It Considers To Be Unfair To Consultant Plaintiffs

December 2019
Number 85

On December 9, 2019, the Appellate Court filed its decisions inLong Beach Unified School District v. Margaret Williams LLC, holding that an indemnity provision included in a consultant agreement between the parties was unfair and therefore inapplicable to claims brought by the consultant, Margaret Williams, or her consultant company, Margaret Williams LLC, against the District.

Background

In 2006, Long Beach Unified School District prepared and entered into its standard form consultant agreement with Margaret Williams LLC to perform full-time consultant work related to construction management and environment compliance on District projects.

In October 2013, a general contractor illegally brought contaminated material on one of the District’s construction sites. Based on this incident, a dispute arose between Ms. Williams and the District representatives assigned to the construction site as to how the contamination would be addressed, and Ms. Williams contracted arsenic poisoning. The District terminated the consultant agreement over its dispute with Ms. Williams.

Ms. Williams and her company brought an action against the District based on claims of retaliation and numerous causes of action for breach of contract and Ms. Williams’ wrongfully caused arsenic poisoning. The District filed a cross-complaint alleging the company was required to indemnify the District against the company’s and Ms. Williams’ claims, according to the terms of the consultant agreement. The consultant agreement required the company “at its own expense, cost, and risk, [to] defend any and all claims, actions, suits, or other proceedings . . . that may be brought or instituted against the DISTRICT, its officers, agents or employees . . . and shall pay or satisfy any judgment that may be rendered against the DISTRICT, its officers, agents or employees in any action, suit or other proceedings as a result thereof.” Thus, according to the District, the company was required to indemnify the District even against claims brought by the company and Ms. Williams, and even if the District was at fault.

Ms. Williams and her company asked that the trial court strike the District’s cross-complaint in its entirety. That motion was granted by the trial court, and the trial court’s decision was then appealed by the District.

The Court’s Unconscionability Test

The appellate court’s opinion focused on Williams’ argument that the District could not force the company to indemnify the District because the indemnity provision included in the consultant agreement was unconscionable. The court was required to determine if the indemnification provision was so one-sided in favor of the District that it should not be enforced, and it did so by analyzing multiple factors to consider both the provision’s procedural unconscionability (the allegedly unfair fashion in which the contract was imposed) and its substantive unconscionability (the alleged unfairness of the contract’s terms).

  • Procedural Unconscionability: The consultant agreement was presented to the company in a standard form, on a take-it or leave-it basis, with no negotiation. Based on these facts, the District was found to have the superior bargaining power and, according to the court, the company faced economic pressures to accept the contract as drafted. In addition, the court stated that, based on the terms of the agreement, the company was unfairly surprised to learn it would be required to pay for the District’s defense and indemnity, since the agreement also included a requirement that each party pay their own costs and attorney’s fees in any litigation arising from the agreement. For these reasons, the court found procedural unconscionability.
  • Substantive Unconscionability: The court also considered the fairness of the consultant agreement’s terms, and found a high degree of substantive unconscionability. The indemnity provision as drafted by the District, if enforced, would limit the company’s opportunity to obtain meaningful recovery in numerous valid actions against the District. Further, because Ms. Williams was not herself a party to the consultant agreement, the company would, under the language of the agreement, be required to pay the cost of defending against her claims as well as the cost of any ultimate judgment awarded to Ms. Williams against the District. For these reasons, the court found the clause to be substantively unfair.

Based on the court’s finding of both procedural and substantive unconscionability, it determined the provision could not be enforced because it would result in the unfair scenario of the company being required to pay for the entire lawsuit- required to defend its own lawsuit and indemnify any damages they may be due.

Takeaways

The court’s decision inLong Beach Unified School District v. Margaret Williams LLC, reinforces the legal concept that if a provision of a contract is considered by a court to be unfair, the court has discretion to limit the provision’s application to avoid an unfair result. Therefore, this decision acts as a caution against overly broad indemnification clauses. We recommend reviewing such clauses with legal counsel to determine their enforceability.

If you have any questions about indemnity provisions or contracting issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Devon B. Lincoln

Partner

©2019 Lozano Smith

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

Settlement Agreements To Resolve Employment Claims Filed By A Person Against Their Employer Can No Longer Contain No-Rehire Clauses

December 2019
Number 83

In the wake of the #MeToo movement, and as part of the ongoing legislative response to it, Governor Gavin Newsom signed Assembly Bill (AB) 749 into law, which prohibits no-rehire clauses in certain types of settlement and severance agreements. While the intent behind that law focused on victims of sexual harassment or sexual assault, the law is broad in scope and is not limited to such claims.

AB 749 applies to any settlement agreement between an employer and an “aggrieved person” entered into to resolve an employment dispute. An “aggrieved person” is defined as a “person who has filed a claim against the person’s employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process.” Beginning January 1, 2020, California employers-including public agencies-will be prohibited from including no-rehire language in any settlement agreement to resolve a claim filed by such aggrieved persons against their employer. Existing agreements regarding an employment dispute containing a no-rehire clause will be void (as to that provision) as of January 1, 2020.

Under AB 749, no-rehire clauses can only be included where there is a good faith determination by the employer that the person entering into the settlement agreement engaged in sexual harassment or sexual assault. The bill further clarifies that employers are not required to continue employing or rehire a person if there is a legitimate nondiscriminatory or nonretaliatory reason for terminating or refusing to rehire the person. In addition, the settlement agreement can contain resignation or termination of employment language.

Takeaways

Employers should review and revise standard settlement and severance agreements regarding employment disputes and remove any no-rehire clauses. It is important to keep in mind that not all settlement agreements will be subject to this prohibition, only those to resolve a claim or claims filed by a person against their employer. Additionally, employers may see an uptick in applications for reemployment from employees who settled employment disputes with the employer in the past, and employers should be prepared on how to handle such applications.

If you have any questions about AB 749 or about labor and employment issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedInor download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Marina L. Ramirez

Associate

©2019 Lozano Smith

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

Bill Intended To Establish E-Mail Retention Requirement For Public Agencies Vetoed By Governor Newsom

December 2019
Number 82

California lawmakers recently proposed Assembly Bill (AB) 1184, which would have required public agencies to retain business related e-mails for at least two years. While the Governor did not sign the bill, this legislative effort again shows the significant interest in preserving e-mails as part of a public agency’s public record.

AB 1184: Public Records E-Mail Retention

The California Public Records Act establishes that every person has a right to inspect public records. Public records include any e-mail containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency.

Existing law authorizes cities, counties, and special districts to destroy or to dispose of duplicate records when they are no longer required by the city, county, or special district. However, the law does not address the requirements for the retention of e-mails. AB 1184 intended to add section 6253.32 to the Government Code to require all public agencies to retain and preserve every public record that is transmitted by electronic mail for at least two years.

Governor Newsom returned AB 1184 without his signature, stating it did “not strike the appropriate balance between the benefits of greater transparency through the public’s access to public records, and the burdens of a dramatic increase in records-retention requirements, including associated personnel and data-management costs to taxpayer[s].”

Had AB 1184 been signed into law, any other statute or regulation that required a longer retention period, or any rule established by the Secretary of State that provided for a longer retention period, would have remained in place.

With or without this legislation, school districts remain subject to specific California Code of Regulations requirement governing the retention and destruction of school district records in California. The contents of a particular record will determine how long a school district must maintain that record and all records must be classified prior to destruction. (See 2017 Client News Brief No. 2). Community college districts are also subject to retention regulations under the California Code of Regulations, although those retention requirements differ from the rules regarding school districts’ records.

Takeaways

Governor Newsom suggests that legislation must find a balance between the benefits of greater transparency through the public’s access to public records and the burdens of a dramatic increase in records-retention requirements. Though AB 1184 was unsuccessful, local agencies should be aware that the question of preservation of e-mails will remain of interest to the Legislature and to advocates for greater transparency.

For public agencies who may wish to establish or update their own record retention policies to address existing retention requirements, Lozano Smith provides policy options for addressing the complexities raised by the retention of e-mails. For a copy of the retention policy documents, contact Client Services. For more information on AB 1184 or guidance on e-mail retention, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

©2019 Lozano Smith

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

New Law Continues Availability Of Design-Build Construction Delivery Method To Community College District But Also Imposes Additional Labor Requirements

December 2019
Number 81

While a new law ensures that community college districts may continue to utilize the design-build construction delivery method for another ten years, it also imposes additional labor requirements on all design-build projects.

Design-build is a construction delivery method by which an owner retains a single entity to provide architectural, engineering, and construction services under a single contract. Design-build also allows owners to award projects on a “best value” basis, meaning the project owner can consider factors other than price. These features are intended to expedite project completion, reduce design and construction costs, and avoid project disputes. In 2007, community college districts were given statutory authority to award design-build contracts. This authority initially expired in 2014, but was subsequently extended to January 1, 2020. Assembly Bill (AB) 695 extends this statutory authority to January 1, 2030.

While community college districts can take advantage of the design-build method for at least another ten years, AB 695 also imposes a significant new restriction on design-build projects. Specifically, any contractor seeking to be prequalified or shortlisted for a design-build project must provide an enforceable commitment to the district that the entity and its subcontractors at every tier will use a “skilled and trained workforce” to perform all work for the project. These “skilled and trained workforce” requirements mandate that all workers performing work in a designated apprenticeable occupation have certain levels of on-the-job experience and that certain percentages of the workforce be graduates from an apprenticeable program for the applicable occupation. The contractor is also required to provide monthly reports to the project owner that demonstrate compliance with these requirements. The only exception to these skilled and trained workforce requirements is if the district or entity enters a project labor agreement covering the project.

While the addition of the “skilled and trained workforce” requirement creates some new complexities, it is not necessarily a surprise. The legislature has already extended these same requirements to design-build projects for K-12 school districts and all lease-leaseback projects (see 2015 Client News Brief No. 8;2015 Client News Brief No. 71; and 2016 Client News Brief No. 63). On a positive note, recent legislation has also has shifted much of the burden for compliance with these requirements to subcontractors and shifted the risk for noncompliance away from the project owner (see 2019 Client News Brief No. 2).

If you have questions regarding the design-build construction delivery method or the new labor requirements, or if you have any planned or anticipated construction project and would like to discuss delivery methods, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedInor download our mobile app.

Written by:

Devon B. Lincoln

Partner

Travis E. Cochran

Associate

©2019 Lozano Smith

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

Public Agencies Can Be Liable For Attorney’s Fees In Reverse-CPRA Actions

December 2019
Number 80

The risks involved in asking a court to halt the disclosure of documents sought under a California Public Records Act (CPRA) request were just expanded to public agencies. About a year ago, we reported that a pair of court decisions held that private parties who lose in a lawsuit, to prevent government agencies from disclosing personal information, may be required to pay the requester’s attorney’s fees (see 2018 Client News Brief Number 35). In the recent case of City of Los Angeles v. Metropolitan Water District of Southern California (November 19, 2019, B272169) __Cal.App.5th__, this rule has now been extended to third-party public agencies seeking to prevent the disclosure of governmental records.

Background

During a time of severe drought in California, the Metropolitan Water District (Metropolitan) implemented a rebate program for customers who replaced their grass with drought tolerant landscaping. The City of Los Angeles Department of Water and Power (DWP) is a member agency of Metropolitan, and has customers who received rebates through Metropolitan’s program.

On May 19, 2019, a reporter from the San Diego Union Tribune (Tribune) wanted to research allegations that the rebate program was favoring affluent communities. The reporter made a CPRA request to Metropolitan for information about the rebate recipients, seeking information including recipients’ names, addresses, and rebate amounts. Before responding to the request, Metropolitan provided DWP with a copy of the request. Metropolitan and DWP agreed to limit the response to only generalized block numbers, and Metropolitan’s share of the rebate amount (member agencies had the option of supplementing customer rebates). Tribune objected to the withholding of information, and DWP filed a “reverse-CPRA” lawsuit, seeking to broadly prevent Metropolitan from releasing customer information about anyone who participated in the rebate program. At trial, the court ruled in Tribune’s favor, determining that the records in dispute must be disclosed. The trial court required Metropolitan to pay about $25,000 to Tribune for attorney’s fees under the CPRA. The court further awarded Tribune about $136,700 in attorney’s fees under California’s Private Attorneys General Act (PAGA) (Code Civ. Proc., § 1021.5), to be paid by DWP and other intervening utilities. PAGA allows a court to grant attorney’s fees in favor of a party who seeks to enforce an important public right, such as the disclosure of records concerning public expenditures.

On appeal, the court affirmed for the first time that governmental agencies risk liability for attorney’s fees under PAGA if the agency loses a lawsuit challenging the agency’s decision to withhold public records. Here, DWP lost its appeal to withhold its customer’s information, and the trial court affirmed the initial attorney’s fees and added an additional $12,350 to the award.

Takeaways

City of Los Angeles should serve as a cautionary tale for public agencies considering intervening in CPRA disputes, to prevent disclosure of public records. The financial risks involved in such intervention have now significantly increased for public agencies, and the court has reaffirmed the general stance favoring the broad disclosure of information. When a public agency is at risk of having its information disclosed in another agency’s response to a CPRA request, seek legal assistance in conducting a careful analysis of how to proceed.

If you have any questions about the City of Los Angeles case, the CPRA or PAGA in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Manuel F. Martinez

Partner

Sophia V. Cohn

Associate

©2019 Lozano Smith

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

Complainants Now Have 3 Years To File Charge Of Employment Discrimination

December 2019
Number 79

Effective January 1, 2020, employees complaining of discrimination in the workplace will have three years to file a charge of discrimination with the California Department of Fair Employment and Housing (DFEH).

On October 10, 2019, Governor Gavin Newsom signed Assembly Bill 9 into law, which extends the deadline under the Fair Employment and Housing Act (FEHA) for employees to file a charge from one year to three years-tripling the amount of time employees previously had to do so.

According to the bill’s author, extending the deadline was prompted by the #MeToo movement, which “has brought attention to many of the dynamics related to sexual harassment.” Many victims needed “ample time to fully grasp what happened to them before they felt comfortable coming forward,” and “the fear of retaliation often prevented victims from being able to report incidents of sexual harassment.” The same is true for other types of discrimination as well, where victims “may be initially unclear about what happened, unaware of their rights, or reluctant to report misconduct to their boss.”

FEHA prohibits employer discrimination, harassment, and retaliation against employees based on certain protected classes, such as race, religion, sex, gender, sexual orientation, marital status, disability, and age. Employees must first file a charge with the DFEH, which entails filling out and filing an intake form provided by the DFEH. The DFEH then reviews the information provided by the complainant supporting his or her claim. If the DFEH declines to investigate the case, the complainant receives a “right-to-sue” letter, allowing him or her to file a complaint in superior court within one year from receiving the letter.

AB 9 defines “filing a complaint” as filing the DFEH intake form. So, under the new law, employees must file the intake form with the DFEH within three years of the alleged unlawful practice. This deadline may be extended by 90 days if, within 90 days of the deadline, the complainant first learns of the unlawful conduct. This situation commonly arises when employers conceal their unlawful conduct and the employee has no reasonable means to discover it.

The new law will not apply retroactively-that is, it will not revive claims that have already lapsed under the former one-year limitations period. And it only applies to claims under the California-specific FEHA; for most employers, federal claims of discrimination under Title VII must still be filed with the EEOC within 300 days of the alleged discriminatory conduct.

Takeaways

This new law will have a significant impact on all employers, including public agencies. Employees will now have up to four years to file an employment discrimination complaint in state court-three years from the misconduct, plus one year to file in court. This places employers in the difficult position not only to maintain documentation and other evidence for longer, but to rely on fading memories and to locate witnesses who may have since relocated. In light of these new realities, employers should revisit and update their internal document retention policies, implement effective anti-discrimination trainings and policies, and promptly address any inappropriate conduct in the workplace.

For more information about AB 9, including Lozano Smith training opportunities, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Angela J. Okamura

Associate

©2019 Lozano Smith

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

AB 101 And SB 330: The Juggernauts Of The 2019 Housing Laws

December 2019
Number 76

According to the California Department of Education Office of Financial Accountability and Information Services, pursuant to Public Contract Code section 20111(a), the bid threshold for K-12 school districts’ purchases of equipment, materials, supplies and services (except construction services)
has been adjusted to $95,200, effective January 1, 2020. The notice may be viewedhere.

The California Community Colleges Chancellor’s Office is expected to announce a similar adjustment to the bid threshold for community college districts’ purchases of equipment, materials, supplies and services (except construction services), pursuant to Public Contracts Code section 20651(a), sometime in the near future. Once released, that information will be available here.

The bid limit for construction projects remains at $15,000.

The bid thresholds for cities, counties and special districts are not affected by the bid limits discussed above.

For those school districts and other public entities that have adopted the California Uniform Public Construction Cost Accounting Act (CUPCCAA), as of January 1, 2019 the force account limit is $60,000, the informal bid limit is $200,000 and the limit for awarding informal bids is up to $212,500, provided that the cost estimate was determined to be reasonable. (CNB 2018 #47).

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

Written by:

Ruth E. Mendyk

Partner

©2019 Lozano Smith

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

Formerly Homeless Youth To Be Granted Priority Enrollment And Additional Resources At The Community College Level

November 2019
Number 72

Assembly Bill (AB) 806 was signed into law by Governor Newsom on July 31, 2019, extending the following postsecondary educational resources to formerly homeless youth:

  • Priority enrollment for community college districts and California State University.
  • The services of a Community College Homeless and Foster Student Liaison.
  • Access to the Community College Student Financial Aid Outreach Program and the Student Opportunity and Access Programs.
  • Eligibility for a community college enrollment fee waiver.

Previously, the resources listed above were made available to homeless youth, current and former foster youth, and youth from low-income households. Through this bill, Education Code section 66025.9 has been amended to define “homeless youth” and “former homeless youth” as a student under 25 years of age, who has been verified, in the case of a former homeless youth, at any time during the 24 months immediately preceding the receipt of the youth’s application for admission by a postsecondary educational institution that is a qualifying institution, as a homeless child or youth, as defined in subsection (2) of Section 725 of the federal McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11434a(2)). Education Code §66025.9 states that verification of “homeless youth” or “formerly homeless youth status” must be provided by one of the following:

  • A homeless services provider, as that term is defined in paragraph (3) of subdivision (d) of Section 103577 of the Health and Safety Code.
  • The director of a federal TRIO program or Gaining Early Awareness and Readiness for Undergraduate Programs program, or a designee of that director.
  • A financial aid administrator for an institution of higher education.
  • A homeless and foster student liaison designated pursuant to paragraph (1) of subdivision (a) of Section 67003.5 of the Education Code.

The priority enrollment provision of existing law was originally set to be repealed on January 1, 2020, but under AB 806, it has been extended indefinitely.

Takeaways

Community colleges must ensure that application forms allow students to identify as formerly homeless and that priority enrollment and fee waivers are made available to these students. A community college must ensure that its Homeless and Foster Student Liaison’s services are extended to any formerly homeless student. A community college’s Community College Student Financial Aid Outreach Program and Student Opportunity and Access Program must also ensure that services are available to formerly homeless youth.

If you have any questions about AB 806 or postsecondary educational student support, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Darren C. Kameya

Partner

Stephanie M. White

Senior Counsel

Peter Y. Sumulong

Associate

©2019 Lozano Smith

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

Adult Education Students Pursuing High School Diploma Or Equivalency Certificate Allowed To Enroll As Special Part Time Students At Community Colleges

November 2019
Number 73

Senate Bill (SB) 554 was signed into law on by Governor Newsom on October 4, 2019. The law authorizes the governing board of a school district overseeing an adult education program, or the governing board of a community college district overseeing a noncredit program, to authorize an adult student pursuing a high school diploma or equivalency certificate to enroll as a special part-time student at a community college. Through the bill, the community college would be credited or reimbursed through the apportionment process for the student’s attendance at the college.

Existing law authorized school districts to allow pupils whom they determined would benefit from advanced scholastic or vocational work to attend community college as special part-time or full-time students, subject to parental permission. SB 554 extends special part-time student status to adult school students.

Takeaways

Community colleges must recognize the ability of adult school students to enroll as special part-time students, and must keep record of these students to ensure reimbursement.

If you have any questions about SB 554 or special part-enrollment at community college, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Darren C. Kameya

Partner

Stephanie M. White

Senior Counsel

Peter Y. Sumulong

Associate

©2019 Lozano Smith

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

New Laws Streamline Process For Participation In College And Career Access Pathways Partnership

November 2019
Number 74

Assembly Bill (AB 30) and Senate Bill (SB) 586 were signed into law by Governor Gavin Newsom on October 4, 2019. The two bills jointly revised Education Code section 76004 to simplify the requirements for high school pupil participation under a College and Career Access Pathways (CCAP) partnership. AB 30 and SB 586 require the board of a community college to consult with, and consider the input of, the appropriate local workforce development board in adopting a CCAP partnership agreement. Finally, AB 30 and SB 586 streamline the approval process for CCAP partnership agreements.

As revised, Section 76004 requires a high school pupil participating under a CCAP partnership to submit only one parental consent form and principal recommendation and would require the Chancellor of the California Community Colleges to revise the special part-time student application process to allow a student to complete one application for the duration of the pupil’s participation under the CCAP partnership. The changes in the law also allow the units completed by a pupil pursuant to a CCAP agreement to count towards determining a pupil’s priority for registration and enrollment at a community college.

The new law also requires the governing boards of a community college district and either the school district or charter school, as a condition of adopting a CCAP partnership agreement, to solicit and consider the input of the appropriate local workforce development board to better align the CCAP’s career pathways with regional and statewide employment needs.

Section 76004, as revised, now streamlines the approval of CCAP partnership agreements. Existing law required a two meeting process for presentation of a CCAP partnership agreement with presentation and public comment taking place over the course of two meetings. Under the revisions to Section 76004, only one open public meeting is necessary.

The revisions also require the CCAP partnership agreement to include a plan to ensure specified conditions are met, and eliminates the need for a certification of compliance by the college district. The new law extends the operation of Section 76004 until January 1, 2027.

Takeaways

Community college districts must now be aware that high school pupils participating under a CCAP agreement are only required to complete one application for the duration of their attendance. Community colleges must also count a high school pupil’s CCAP units towards priority enrollment at the community college. With respect to adopting a CCAP partnership, participating districts must remember to consult with and consider the input of the appropriate local workforce development board before adoption. Also, a community college district should be aware that only one meeting is now necessary for presentation, public comment, and action on a CCAP agreement.

If you have any questions about the above newly-enacted laws, or CCAP partnerships in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Darren C. Kameya

Partner

Stephanie M. White

Senior Counsel

Peter Y. Sumulong

Associate

©2019 Lozano Smith

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

California Expands Definition Of Domestic Partners To Include Opposite Sex Couples

October 2019
Number 63

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

Policy and Review of Collective Bargaining Agreements

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

Health Benefits and Other Considerations

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

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

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

Written by:

Gabriela D. Flowers

Partner

Carolyn L. Gemma

Associate

©2019 Lozano Smith

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

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

October 2019
Number 62

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

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

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

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

Impact on Developer Fees

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

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

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

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

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

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

Takeaway

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

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

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

If you have any questions about AB 48, public finance or developer fees in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app. Information regarding Lozano Smith’s Developer Fee Handbook for School Facilities can be found Here.

Written by:

Harold M. Freiman

Partner

Daniel Maruccia

Partner

Deepika S. Thompson

Senior Counsel

James N. McCann

Associate

©2019 Lozano Smith

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

New Law Clarifies Anti-Discrimination Laws Include Hair Discrimination

August 2019
Number 38

The California Legislature recently passed Senate Bill (SB) 188, known as the CROWN Act, which amends the definition of “race” contained in state anti-discrimination laws under both the Fair Employment and Housing Act and the Education Code to include “hair texture and protective hairstyles.” The new law does not mean that public agencies have to change their dress codes unless specific hair texture and hairstyles are specified in their policy. Rather, the new law clarifies that dress codes may be considered discriminatory if they explicitly or implicitly affect individuals who have their hair textured or styled in a manner historically associated with their race. For example, a public agency could not have a policy restricting Black workers or students from wearing dreadlocks, twists, or braids. Further, a public agency could not enforce a policy demanding “professional” or “clean and tidy” hair that effectively limits workers or students from wearing dreadlocks, twists, or braids.

Courts and administrative agencies have routinely and clearly established that public agencies have a management prerogative to impose non-discriminatory employee dress code policies. Indeed, in the K-12 school context, there is a heightened importance associated with standards for professional appearance because employees’ behavior is often imitated or modeled by students. Similarly, courts have held that school districts may impose viewpoint neutral and content neutral dress code policies for students as long as they are implemented in a consistent and equal manner among all students.

The California Legislature passed the CROWN Act to provide clarity in light of recent federal case law declining to extend anti-discrimination protections based on hairstyles or textures commonly associated with a protected class. Because hair can be changed (i.e., is mutable), federal courts have refused to equate hairstyle with race, with a limited exception for afros, and thus limited Title VII race discrimination claims to only protect against “immutable characteristics.” In contrast, the legislative analysis for SB 188 notes that discrimination is often not based on the immutable nature of a trait but is instead based on the trait’s connection with an identity associated with a protected characteristic.

Importantly, the new law reaffirms a public agency’s control over dress code policies for employees and students. These dress code policies will be lawful so long as they are imposed in a valid and non-discriminatory manner with no disparate impact on individuals based on their dress and appearance’s association with a protected characteristic. Public agencies should review their existing dress code enforcement practices to ensure compliance with SB 188. In addition, public agencies may consider conducting implicit bias training and refocus practices to ensure inclusivity and compliance with this new law.

For more information about SB 188 or about public agency dress code policies in general, whether directed at employees or students, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Joshua Whiteside

Associate

©2019 Lozano Smith

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

U.S. Supreme Court Overrules Precedent And Opens the Federal Court Door to Takings Lawsuits Before Exhaustion of State Law Just Compensation Remedies

August 2019
Number 37

The Supreme Court of the United States held in Knick v. Township of Scott that plaintiffs claiming a local government action has interfered with their use of property may bring their constitutional “takings lawsuit” under 42 U.S.C. section 1983 directly in federal court, and before exhausting other related state law remedies. The Supreme Court’s opinion overruled a 34-year old precedent requiring plaintiffs to first seek just compensation under state law in state court. This is a major change in takings law, which alters long-held takings strategies used by local agencies.

The United States Constitution prohibits the “taking” of private property for public use without the payment of just compensation. In Knick, the Township of Scott informed a private landowner that her property, which contained a small graveyard, must be opened to the public during daylight hours, pursuant to a local cemetery ordinance. The landowner brought an action in federal court alleging that the ordinance’s mandatory public access requirement effected a “taking” of her property without the payment of just compensation. Existing, long standing Supreme Court precedent, specifically, the opinion in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, required plaintiffs to first seek just compensation under state law in state court before bringing a federal takings claims. Because landowner had proceeded directly to federal court without first seeking a state court remedy, the U.S. District Court dismissed her action.

The 1985 Williamson County opinion had held that the constitutional prohibition on the taking of private property has not been violated until the government denies payment of just compensation. Williamson County drew from cases dating back to 1890 for the proposition that just compensation does not need to be paid to the private property owner at the time of the taking, provided a “reasonable, certain, and adequate” mechanism exists for obtaining just compensation, such as an inverse condemnation action in state court. On this authority, a plaintiff cannot bring a claim for violation of the takings clause until just compensation has been denied by the state. However, as a perhaps unintended consequence, federal law requires federal courts to give preclusive effect to state court decisions. This means that a plaintiff who loses its inverse condemnation case in state court would often be barred from then bringing a claim in federal court due to the issue preclusion rule.

In Knick, the Supreme Court overruled the Williamson County precedent, holding “[i]f a local government takes private property without paying for it, that government has violated the Fifth Amendment, just as the Takings Clause says, without regard to subsequent state court proceedings. And the property owner may sue the government at the time in federal court for the ‘deprivation’ of a right secured by the Constitution.” The assertion of an uncompensated taking is now enough to obtain immediate standing to sue in federal court on an immediate basis.

The Supreme Court’s Knick opinion decision means that plaintiffs may sue local governments in federal court for alleged “takings” withoutfirst bringing a state court inverse condemnation action.

For further information regarding the Knick opinion, or governmental land use and taking issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

William P. Curley III

Partner

Nicholas J. Clair

Associate

©2019 Lozano Smith

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

“She Said, He Said”: Appellate Court Weighs In On Fairness Requirements In Student Sexual Assault Discipline Case

July 2019
Number 33

On April 23, 2019, a California appellate court ruled against a private college for failing to properly provide an accused student with a fair hearing in a sexual assault case that led to the student being suspended from college for two years.

Doe v. Westmont College involved an alleged rape of a female college student (Victim) by a male college student (Accused) and demonstrates the necessity of fairness for all parties involved in contested student sexual assault discipline cases. In Doe v. Westmont College, the court concluded that the college denied the Accused a fair hearing when it failed to allow the Accused to fully respond to all evidence against him at a hearing before a neutral disciplinary panel, and the panel failed to question all relevant witnesses.

Background

In January 2016, multiple students gathered at night at an off-campus house for a party. The Victim and the Accused arrived separately with friends, interacted with multiple people throughout the night, and accused one another of smoking marijuana and drinking alcohol.

The Victim alleged that at some point later in the night she and the Accused were alone and agreed to go on a walk together. While walking, the Victim alleged the Accused began making comments of a sexual nature, touched her sexually without her consent, and then forced himself upon her. The Accused disputed all of the allegations, claiming that the walk never happened and that he was with a friend at the party for the entire evening.

The Victim, the Accused and multiple witnesses were interviewed by an associate dean during a preliminary investigation. The dean recommended that the allegations be put before a student discipline panel. The panel consisted of the dean and two additional staff members. The panel found in favor of the Victim and the Accused was suspended from the college for two school years. The Accused challenged this action in court.

Court of Appeal Holdings

The Court of Appeal found that the Accused had been denied a fair hearing since the panel did not hear testimony from all critical witnesses and the information and documents circulated were not shared equally with the Accused. Another factor which the court considered to a lesser extent was the role of the dean throughout the entire investigation and adjudication process. While the court did not prohibit the dean from serving on the student discipline panel, the court questioned the ability of the panel to be fair since the dean conducted the preliminary investigation, and then served on the student discipline panel. While the Court did not specifically analyze issues under Title IX of the Education Amendments Act of 1972, the Court’s decision seems to be consistent with the guidance that has been issued by the Office for Civil Rights on addressing sexual assault on college campuses, which calls for due process protections for all students. California’s Title 5 regulations alsoprovide specific due process protections for all students in these types of cases and requires certain procedures be followed in processing complaints of sexual violence on campus. Some of the Title 5 requirements, such as deadlines for investigation, may differ from Title IX requirements and thus community colleges must take care to ensure compliance under all applicable regulations.

Takeaways

This is one of many recent cases that serves as a reminder for educational agencies to be impartial and to provide fundamental fairness to the accused during both investigations and student discipline hearings. When conducting student expulsion hearings, especially in contested sexual assault cases, it is recommended that colleges and districts:

  • Make available to the accused all documentary evidence that will be used at the hearing, prior to the commencement of a contested expulsion hearing.
  • Be judicious with respect to the use of “fear declarations” to ensure that declarations are only used in lieu of personal testimony in student expulsion hearings when lawful, particularly since the use of a fear declaration deprives the accused of the right to confront a witness.
  • The administrator conducting the investigation should not serve on the administrative panel conducting the expulsion hearing.

It is also important to remember that investigations into allegations of sexual misconduct, including sexual harassment and sexual assault, implicate Title IX, which prohibits discrimination on the basis of sex and requires educational institutions to properly investigate and address any claims of sexual misconduct that have or could impact a student’s ability to participate in the educational environment. The Office of Civil Rights is currently developing regulations that will also provide direction to colleges and district in handling claims of sexual misconduct, which will likely enhance the due process rights of the accused.

Lozano Smith continues to expand its Title IX and investigations practice as the needs of public education agencies grow in this area. We offer advice and counseling, investigations, and numerous workshops on these topics. For more information and resources on Title IX, please visit our website at http://www.lozanosmith.com.

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

Written by:

Michael E. Smith

Partner

Gayle L. Ketchie

Associate

©2019 Lozano Smith

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

Brown Act’s “Committee Exception” Does Not Apply To Special Meetings

March 2019
Number 18

A California appellate court has focused on the distinction between a regular meeting and a special meeting of the local legislative body when considering an exception to public comment under the Ralph M. Brown Act (Brown Act). In Preven v. City of Los Angeles (Preven), the Second District Court of Appeal found that the City of Los Angeles had improperly relied on the Brown Act’s “committee exception” to stop public comment during a special meeting regarding a topic that had properly been addressed by a committee composed of City Council members.

Background Information

The Brown Act requires that public agencies provide the public with an opportunity for participation in the legislative process. At a regular meeting, the public has the opportunity to comment on not only agenda items, but also any item within the subject matter jurisdiction of the public agency. During a special meeting, on the other hand, the governing body may limit public comment to only the items described on the agenda.

The Brown Act’s public comment requirement is found at Government Code section 54954.3. Subdivision (a) of that statute sets forth the “committee exception” and specifically references regular meetings:

However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.

Preven specifically focused on whether the exception applies to special meetings as well as regular meetings. The appellant in Preven filed a lawsuit against the City of Los Angeles after the City, citing the “committee exception,” had denied appellant the opportunity to comment at a special city council meeting because he had already spoken at a regular meeting of the City Council’s Planning and Land Use Committee the night before. The trial court ruled that the committee exception applied to both special meetings and regular meetings. The trial court reasoned that appellant had been afforded the opportunity to discuss the agenda item at the committee meeting the night before, and therefore could be barred from comment at the special meeting addressing the same agenda item.

On appeal, the appellate court found the trial court’s holding in error. It held that, pursuant to the plain language of Government Code section 54954.3(a), the “committee exception” does not apply to special meetings at all. The public is entitled to comment at special meetings even where the agenda item was covered at a prior committee meeting.

Takeaways

In light of this decision, a public agency subject to the Brown Act must take care in denying public comment pursuant to the “committee exception.” This exception only applies to regular meetings, and only applies to items which were previously discussed by a committee made up of board or council members, where the public was allowed to address the committee on those same items. The purpose of the Brown Act is to facilitate public participation with local government decisions, and improperly denying public comment could produce an adverse result.

If you would like more information about the decision in Preven or have any questions relating to exceptions to the Brown Act generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

William P. Curley III

Partner

Matthew M. Lear

Associate

©2019 Lozano Smith

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

PERB Decision Provides Guidance Addressing “Public Hearing” Requirement

March 2019
Number 17

In a recent decision, the Public Employment Relations Board (PERB) addressed the public hearing requirement an agency must satisfy before implementing its last, best, and final offer (LBFO), after completing applicable impasse procedures. In City of Yuba City (2018) PERB Dec. No. 2603-M, PERB upheld an administrative law judge decision dismissing an unfair practice charge brought against the City of Yuba City (City) by Public Employees Union Local 1 (Local 1) alleging violation of the Meyers-Milias-Brown Act (MMBA).

Background

Local 1 alleged that the City unlawfully failed to hold a public hearing before imposing a LBFO in violation of section 3505.7 of the MMBA. Government Code section 3505.7 provides that after completing any applicable impasse procedures, and no earlier than 10 days after the parties receive the factfinding report, the agency “may, after holding a public hearing regarding the impasse, implement its [LBFO]….” This case marks the first time PERB has considered violation of the public hearing requirement as a potential standalone violation of the MMBA.

Local 1’s allegations specifically charged that, by identifying the item on the City Council’s agenda as “Local 1 imposition,” rather than as a public hearing regarding the impasse, and by focusing on the need to impose terms rather than on the disputed issues, the City failed to follow the statutory procedures prescribed by the MMBA.

In rejecting this argument, PERB noted that the agenda and staff report described the parties’ bargaining history, and notified the public that the parties had reached impasse and exhausted impasse procedures. Additionally, the union admitted it had the opportunity to prepare for the Council meeting and had received the agenda and staff report. Further, the Mayor “opened up the public hearing” during the public portion of the meeting. Based upon these facts, PERB concluded that the City had satisfied section 3505.7’s requirement to conduct a public hearing regarding the impasse.

Local 1 also argued that the City did not intend to hold a public hearing regarding the impasse because (1) the “Local 1 imposition” item did not appear on the agenda where public hearings were required to be listed per the City’s local rules and (2) the City failed to provide adequate notice required under the Brown Act of a public hearing regarding the impasse. PERB also rejected this argument on the basis that the City had adequately informed the public that the City Council would be considering imposing the LBFO and the opportunity for public comment had been provided.

In other words, the fact the item was not described as a “public hearing” on the agenda at a particular location on the agenda did not establish a violation of section 3505.7’s public hearing requirement under the facts. Rather, PERB clarified that section 3505.7’s public hearing requirement is satisfied when the agency (1) provides adequate notice to the public that it intends to consider imposing terms and conditions on employees (the LBFO) and (2) allows public comment concerning the proposed imposition of the LBFO.

Takeaways

While the PERB’s decision was dependent upon the facts in this case, there are some important takeaways:

  1. After completing impasse procedures and before imposing an LBFO, agencies should ensure that section 3505.7’s public hearing requirements are met. To reduce exposure to similar claims, the agenda should clearly describe the item as a “public hearing regarding impasse pursuant to Government Code section 3505.7,” or words to that effect. Local rules pertaining to agenda requirements (e.g. location of hearings on agenda and timely posting, etc.) should be followed. Please note the Educational Employment Relations Act does not appear to have a similar public hearing requirement.
  2. The staff report should describe the parties’ bargaining history, impasse, and compliance with applicable impasse procedures.
  3. The item should be considered and deliberated upon in open session during a regular meeting in which public comment is invited.
  4. The government agencies should ensure the union is provided with sufficient time to prepare for the public hearing by ensuring the agenda is timely posted and all documents supporting the agenda item are timely provided to the union.

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

Written by:

Jenell Van Bindsbergen

Partner

Meera H. Bhatt

Associate

©2019 Lozano Smith

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

Records Owned And Held By A Third Party Are Not Public Records Even If A Public Agency Has A Right To Access Such Records

March 2019
Number 16

A recent California appellate court ruling has clarified the reach of the California Public Records Act (CPRA). InAnderson-Barker v. City of Los Angeles, the Second District Court of Appeal held that records in the possession of a third party contractor under a contract with the City of Los Angeles were not subject to the CPRA where the city had access to but did not actually possess or control the records.

Background

In Anderson-Barker, the plaintiff sought to compel the city to disclose electronically stored data relating to vehicles that private towing companies had impounded as directed by Los Angeles Police Department per a contractual agreement. The city had access to this information but did not control the data stored, nor did it control the databases on which it was stored. The city argued that the requested data did not qualify as “public records” under the CPRA because the city did not possess or control the data. Recent amendments to the contract with the third party contractors expressly stated that the data was “owned” by the contractors. The trial court ruled in favor of the city, and the Court of Appeal
affirmed that decision.

Analysis

The court focused on the issue of possession to decide whether the data in question must be produced under the CPRA. Prior state and federal cases (the latter addressing the Freedom of Information Act) had held that records are considered in possession or “constructive possession” of a public entity if they have “the right to control the records.” The court, particularly following federal cases, held that constructive possession does not apply when the entity only has access to the data: “[t]o conclude otherwise, would effectively transform any privately-held information that a state or local agency has contracted to access into a disclosable public record.”

The court further explained why this case does not reach the same result as the California Supreme Court’s decision inCity of San Jose v. Superior Court (2017) 2 Cal.5th 608. At issue in City of San Jose was a CPRA request for “all electronic information relating to public business, sent or received by [mayor and council members] using his or her private electronic devices” related to a city-involved real estate matter. The California Supreme Court ruled that such records were subject to the CPRA. (See 2017 Client News Brief No. 11.) The City of San Jose court, focusing on the definition of “public record,” held that a record does not lose its “public record” status simply because of its location on a public employee’s personal account. The Anderson-Barker court focused on a CPRA requirement distinct from the definition of “public record,” that the record must be in the possession or control of the agency, ultimately finding that the City of Los Angeles did not have possession or control of the record because the record was with a third party. The city had only access to the records, and the court concluded that access does not satisfy the requirement of possession or control. However, the court also explained that data actually extracted from the database by the governmental agency and used for a governmental purpose might be disclosable.

Anderson-Barker thus creates a distinction between documents in possession of an employee or official versus documents controlled by a third party contractor. The former will generally be subject to the CPRA, while the latter generally will not.

Takeaways

Under Anderson-Barker, members of the public may not have a right to access records in the possession of a third party contractor. An agency or its employees or officials must control, and not merely have access to records, in order for the records to be subject to mandatory production under the CPRA. Public agencies may wish to address the structure of document control through contractual arrangements with third party contractors, allowing the agency to decide who controls records for purposes of CPRA production.

If you have any questions about theAnderson-Barker v. City of Los Angeles decision or the California Public Records Act 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:

Harold M. Freiman

Partner

©2019 Lozano Smith

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

Bid Thresholds Raised For 2019

January 2019
Number 4

According to the California Department of Education Office of Financial Accountability and Information Services, pursuant to Public Contract Code section 20111(a), the bid threshold for K-12 school districts’ purchases of equipment, materials, supplies and services (except construction services) has been adjusted to $92,600, effective January 1, 2019. The notice may be viewed here.

The California Community Colleges Chancellor’s Office is expected to announce a similar adjustment to the bid threshold for community college districts’ purchases of equipment, materials, supplies and services (except construction services), pursuant to Public Contracts Code section 20651(a), sometime in the next few days. Once released, that information will be available here.

The bid limit for construction projects remains at $15,000.

The bid thresholds for cities, counties and special districts are not affected by the bid limits discussed above.

On a related note, the Legislature increased the bid limits under the California Uniform Public Construction Cost Accounting Act (CUPCCAA), effective January 1, 2019. (See 2018 Client News Brief No. 47) The increase in the bid limits affects school districts, cities, counties and all other public entities that have adopted CUPCCAA.

For more information on the new bid limits or bidding 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:

Ruth E. Mendyk

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 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.

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.

Lawmakers Approve Overhaul of Community College District Funding System

August 2018
Number 42

State lawmakers have approved an overhaul of the funding system for California’s community colleges. The new Student-Focused Funding Formula for general purpose apportionments will be phased in over three school years, starting in 2018-19. The formula aims to equalize access and improve outcomes for community college students by tying a portion of annual funding to student equity and success.

The formula was included in a budget trailer bill, Assembly Bill (AB) 1809, which was part of the budget package Governor Jerry Brown signed on June 27, 2018. The bill added Education Code section 84750.4, which spells out the specifics of the formula. The final version of the formula approved by lawmakers reflects a compromise with Governor Brown, who proposed a new funding formula in January 2018. The Governor’s original proposal would have devoted a greater share of funding to student equity and success measures and would have been fully effective this school year.

Under the final version, 70 percent of state apportionment funding for most credit-based full-time equivalent students (FTEs) will be based on enrollment alone, while 30 percent will be tied to student equity and success measures. By the 2020-21 fiscal year, 60 percent of state apportionment funding for community college districts will be based on enrollment alone, while 40 percent will be tied to student equity and success measures.

The student equity funding will be provided in the form of a supplemental allocation based on the number of low-income students a college district serves. The other major funding component will be provided as a “student success allocation” based on degrees and certificates earned, transfers to four-year colleges and universities and other factors. Additional funding will be set aside for college districts whose low-income students attain such successes.

This new student equity and success funding will be allocated on a points-based system that ties points to certain student characteristics. The points will be tied to specific funding rates.

For college districts whose funding would drop under the new formula, there is a “hold harmless” provision that maintains a funding floor for the next two fiscal years at 2017-18 levels, plus cost of living adjustments. For the 2020-21 fiscal year and beyond, college districts will receive the higher of either (1) the amount based on the new formula or (2) the 2017-18 base allocation rate, whichever is higher.

The law additionally maintains higher base allocation rates for 10 specific community college districts that had higher base allocation rates in place during the 2017-18 school year, though these amounts will be subject to decrease over the three-year phase-in period.

AB 1809 also requires each college district’s governing board to certify that it will adopt local goals aligned with the California Community Colleges’ Vision for Success plan by January 1, 2019. This plan includes a goal of increasing the number of students who obtain degrees and jobs in their field of study and transfers to four-year state colleges or universities.

Unlike the funding allocated under the Local Control Funding Formula to K-12 school districts, this formula does not explicitly require community college districts to spend supplemental and student success allocations to directly benefit the specific student populations upon which the allocations are based. However, it does require each college district to align its comprehensive plan with its local goals and to align its budget with that plan.

Takeaways

As made clear by the statutory provisions enacting the new funding formula, community college district leaders should be prepared to analyze the short-and long-term fiscal impacts of this new funding plan on their students and on supporting programs and services. District leaders may also wish to reach out to legal counsel to explore the potential legal ramifications of the new formula and the impacts it may be expected to have on each college’s staffing and programmatic offerings.

For more information on the Student-Focused Funding Formula and how it will affect your district, 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:

Darren C. Kameya

Partner

Steve Ngo

Senior Counsel

©2017 Lozano Smith

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

Colleges Have a Duty to Warn or Protect Students from Foreseeable Violence

April 2018
Number 14

Colleges have a legal duty, under certain circumstances, to protect their students from or warn them about foreseeable violence in the classroom or during curricular activities, the California Supreme Court has ruled.

In The Regents of the University of California, et al., v. Superior Court of Los Angeles County, the Court considered whether colleges owe a duty of care to their students to protect them from or warn them about foreseeable violence. This question is critical to determining whether a college acted in a negligent manner when it failed to warn or protect students from foreseeable violence.

Negligence claims require the existence of an underlying duty of care owed the injured party. Where there is no duty of care on the college’s part, a college cannot be held liable for negligence.

Background

A student who displayed increasingly hallucinatory, erratic, and threatening behavior stabbed a fellow student during a chemistry lab. Over the course of that year, the university, which was aware of the student’s psychological issues, had moved him to a different dormitory and then a single room before expelling him from student housing. The university also provided counseling services, urged the student to submit to voluntary hospitalization, concluded he did not meet the criteria for an involuntary hold, and ordered him to return to counseling services. The members of the university’s consultation and response team monitored the student’s behavior and became increasingly concerned when he identified particular students as threats. The day before the stabbing the team scheduled a meeting with the student, but he failed to attend. The university did not otherwise protect or warn students regarding the potential threats.

The Court concluded that colleges have a duty to their students to warn or protect them from foreseeable harm, which arises from the special relationship that exists between the college and its students. The Court opined the college environment is unique. A college provides educational services and community, often at a point in students’ lives when they are learning to navigate the world as adults and are vulnerable and dependent on the college for a safe environment. Colleges have superior control over the environment and also, the ability to protect students by imposing rules, disciplining students, and employing resident advisers, mental health counselors, and campus police. There is also a limited community to whom the duty is owed, namely students and not the public at large. These characteristics all fit within the paradigm of a special relationship between the parties which establishes a duty to warn or protect from foreseeable harm.

A college’s duty to warn and protect students is limited, however, and extends only to activities where the college has some control. The Supreme Court concluded it is reasonable for students to expect that a college will provide some measure of safety in the classroom, and more broadly, in curricular activities.

The Court emphasized that the existence of a duty of care is not equivalent to liability, and that not all violence on campuses can be prevented. Colleges do have a duty to act with reasonable care, however, when aware of a foreseeable threat of violence in a curricular setting.

The Court did not provide any guidance regarding what a college must do to meet this duty of care. Having settled that colleges generally owe a limited duty of care to their students, the case was remanded to the Court of Appeal to determine whether the university had breached its duty of care in this case or was otherwise immune from liability. Thus, whether the university’s response failed to meet its duty to warn or protect, and guidance on what the university should have done and when, remains to be determined by the Court of Appeal.

Takeaways

If community college employees acting within the scope of their employment become aware of student behavioral issues that could rise to the level of foreseeable harm, there is a duty of care which may result in liability if the community college fails to warn or protect students. Community colleges should ensure there are communication channels in place to alert employees responsible for assessing and responding to threatening behavior, and should also review their behavioral intervention protocols.

Though Regents is specific to the college environment, a court could adopt a similar viewpoint toward a school district and its minor students. For more specific analysis in the school district context, contact legal counsel.

If you have any questions about this case or about community colleges’ or school districts’ duty of care to students 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 C. Cannon

Partner

Carrie M. Rasmussen

Senior Counsel

©2017 Lozano Smith

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

School District Bid Threshold Raised for 2018

December 2017
Number 85

School districts’ bid threshold for purchases of equipment, materials, supplies and services (except construction services) has been adjusted to $90,200, effective January 1, 2018. This represents an increase of 2.20 percent over the 2017 bid limit. The notice may be viewed here.

Under Public Contract Code section 20111(a), school districts must competitively bid contracts over the bid limit and award to the lowest responsible bidder, unless an exception applies. Contracts for amounts that fall under the bid limit may be awarded without competitive bidding.

The California Community Colleges Chancellor’s Office is expected to announce a similar adjustment to the bid threshold for community college districts’ purchases of equipment, materials, supplies and services except construction services, pursuant to Public Contract Code section 20651(a), sometime in the next few days. Once released, that information will be available here.

The bid limit for construction projects remains at $15,000.

The bid thresholds for cities, counties and special districts are not affected by the bid limits discussed here.

For more information on the new bid limits or bidding in general, please contact 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:

Ruth E. Mendyk

Partner

Michael Dunne

Paralegal

©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 Legal Consult Prior to Custodial Interrogation of Minor under Age 16

November 2017
Number 78

Beginning January 1, 2018, minors under the age of 16 must consult with legal counsel prior to a custodial interrogation and before waiving their Miranda rights.

Existing law requires a peace officer to advise minors of their rights by providing a Miranda warning. But if the minor or parent waives those rights, officers can interrogate the minor. Senate Bill (SB) 395, which adds section 625.6 to the Welfare and Institutions Code, will prohibit a law enforcement officer from conducting a custodial interrogation of or accepting a waiver of Miranda rights by a minor 15 or younger until the minor has had an opportunity to consult with legal counsel. This consultation must occur in person, by telephone or by video conference and may not be waived.

SB 395 requires a court to consider the impact of a peace officer’s failure to provide such legal consultation in determining the admissibility of statements the minor made during or after a custodial interrogation.

SB 395 provides limited exceptions to its consultation requirement. The new law does not require probation officers to comply with its requirements and also excludes questions related to obtaining information believed to be necessary to protect life or property from an imminent threat.

SB 395 creates new issues for police and other public agencies, including schools, when dealing with minors and illegal or inappropriate conduct. School districts that rely upon interviews of students by school district police department officers or contract school resource officers (SRO) in relation to student discipline proceedings may wish to review those practices for conformance with the new law, which covers potential criminal misconduct occurring on school campuses. In particular, school districts may wish to review how and when a law enforcement officer or an SRO may become involved with investigations of student misconduct.

Lozano Smith is currently working with our law enforcement, municipal, school district and community college district clients to address these and other issues related to the enactment of SB 395. If you have questions or need more information on how the new law impacts your agency, 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

©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 Requirements for Placing Community College Employees on Paid Leave

November 2017
Number 73

Assembly Bill (AB) 1651 adds a new hurdle community college districts must clear before placing an academic employee on paid administrative leave. AB 1651 specifies new requirements for placing academic employees on paid administrative leave, including two days’ advance notice of such a placement unless an exception applies. The bill becomes effective January 1, 2018.

Academic employees are individuals employed by a community college district in academic positions that require minimum qualifications.

Under existing law, community college districts generally have discretion to place an academic employee on paid administrative leave without advance notice. AB 1651 adds Education Code section 87623, which requires community college districts to notify academic employees in writing about the general nature of the allegations of misconduct at least two business days before placing them on paid administrative leave. This requirement will not apply if there is a “serious risk of physical danger or other necessity arising from the specific allegations.” If this limited exception applies, then the employer may immediately place the employee on paid administrative leave. Within five business days of placing an academic employee on paid administrative leave without advance notice, the community college district must notify the employee of the general nature of the allegations made against him or her.

This new law also addresses time limits for completing an investigation into alleged misconduct and for initiating disciplinary proceedings. AB 1651 provides that a community college district should complete its investigation and initiate disciplinary proceedings or reinstate the employee within 90 days of placing the employee on paid administrative leave. Because the statute uses the word “should” instead of “shall,” this appears to be a recommendation as opposed to a mandatory time limit. However, AB 1651 allows the California Community Colleges’ Board of Governors to specify by regulation a required amount of time in which a community college district is expected to comply with investigating and initiating disciplinary proceedings. This means that a required time limit for complying with this portion may be forthcoming.

AB 1651 also makes clear that its requirements do not supersede the rights of labor organizations or employees under the Educational Employment Relations Act.

If you have any questions about AB 1651 or its impact on the paid administrative leave process, please contact the authors of this Client News Brief or an attorney in our Technology and Innovation Practice Groupor 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 J. Cannon

Partner

Aria 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.

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.

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.