Questions Remain Regarding Face Coverings in Schools

July 2020
Number 59

As California’s local educational agencies (LEAs) examine how and when schools can reopen, a frequent question has been the extent to which face coverings will be required for staff and students. While there have been numerous questions and some confusing guidance from the California Department of Public Health (CDPH), the issue has come more into focus with the latest guidance. Based on the July 17 CDPH “COVID-19 Industry Guidance: Schools and School-Based Programs” school staff will be required to wear masks absent particular exceptions, as will students of particular age groups, again subject to specified exceptions.

Background Information

Governor Newsom has issued various executive orders directing California residents to conform to guidance issued by State health officials. The Governor’s orders establish that public health “directives” automatically include an enforceable order to comply.

Employees

As a result of guidance from the California Department of Public Health (CDPH), school employees will be required to wear face coverings in most circumstances. The July 17 CDPH guidance states that “[a]ll staff must use face coverings in accordance with CDPH guidelines unless Cal/OSHA standards require respiratory protection.” This appears to put to rest the question of whether staff will be required to wear masks.

The July 17 guidance includes a link to prior CDPH guidance dated June 18. The June 18 guidance required face coverings for Californians in “high-risk situations.” The list of “high-risk situations” expressly includes people who are working, and who are interacting, with members of the public; working in any space visited by the public, regardless of whether anyone from the public is present at the time; working in spaces where food is prepared for distribution to others; or working in or walking through common areas, or in any room or enclosed area where other people are present when unable to physically distance. To the extent that students may be considered “members of the public” within the meaning of the CDPH, the June 18 CDPH guidance seems to require teachers to wear face coverings in their classrooms at all times, even when they are alone. LEAs may wish to consult with their attorneys regarding that specific issue.

The June 18 guidance also includes specific exemptions from the face covering requirement, including persons with a medical condition or disability that prevents them from wearing a face covering; persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication; and persons who are engaged in outdoor work when they are able to maintain a distance of at least six feet from others, among other circumstances. LEAs should provide an opportunity for employees to request a reasonable accommodation, and engage in the interactive process, if they feel they are unable to wear a mask. If engaged in the interactive process, it is important to recognize that the question of whether a face covering is an essential function of an employee’s job is open for debate.

Students

In his July 17, 2020 press conference, Governor Newsom stated “all staff and students in third grade and above must wear masks.” That requirement is reflected in the July 17, 2020 CDPH guidance for schools, which provides the most direction to date regarding student use of face coverings in schools. The document states that children under two years old are not required to wear face coverings; children two years old through second grade are “strongly encouraged” to wear face coverings; and children in third grade through high school are required to wear face coverings, unless exempt.

The recent guidance additionally states the following:

In order to comply with this guidance, schools must exclude students from campus if they are not exempt from wearing a face covering under CDPH guidelines and refuse to wear one provided by the school. Schools should develop protocols to provide a face covering to students who inadvertently fail to bring a face covering to school to prevent unnecessary exclusions. School should offer alternative educational opportunities for students who are excluded from campus.

The guidance is silent on the type of alternative offerings, but they may potentially include distance learning or independent study. (For information regarding distance learning issues raised by recent legislation, see CNB No. 56.)

The July 17 guidance provides qualifiers for wearing face coverings, including anyone who has trouble breathing; anyone who is unable to remove the face covering without assistance; for meals and snacks; and during naptime and recreation. The guidance refers back to the prior guidelines, indicating that they are still in effect. While the July 17 document uses strong language indicating a legal mandate, and the Governor has referred to the guidance as a mandate, the document itself includes qualifiers. The guidance states that “[a]ll guidance should be implemented only with county health officer approval following their review of local epidemiological data including cases per 100,000 population, rate of test positivity, and local preparedness to support a health care surge, vulnerable populations, contact tracing, and testing.” Also, the document is titled “Guidance” further bringing into question its binding effect. LEAs continue to wait for the CDPH to indicate with greater clarity that their guidance is indeed intended as a mandate.

To the extent that there remains an unresolved question regarding whether the use of masks by students as set forth in the most recent guidance is a mandate, it is noteworthy that the July 17 CDPH guidance does “require” cloth face coverings for students while at school, whereas the prior guidelines limited themselves to “recommending” and “encouraging” coverings. CDE’s prior recommendations, issued on June 8, 2020, combined with both prior CDPH guidance and the most recent guidance of July 17, 2020, lead to the likely conclusion that students should be required to wear face coverings, subject to the indicated exceptions. Regardless of the legally binding effect of these various recommendations and guidelines, they can be taken together to establish a standard of care that could be cited by aggrieved individuals seeking to establish liability against an LEA for failure to comply with that standard.

As an additional consideration, school districts may need to review and possibly revise or suspend any existing Board Policies restricting the use of face coverings.

Takeaways

From a safety and liability perspective, the more precautions an LEA can take, the better, which could include requiring everyone (including students of an appropriate age) to wear face coverings while in school, unless particular, narrow exceptions apply, such as health conditions that limit the wearing of a mask, or the other exceptions addressed in the July 17 guidance.

If you have any questions about school reopening plans, including the use of face coverings, 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:

Harold M. Freiman

Partner

Sophia V. Cohn

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.

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.

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.

New Law Requiring Later Start Times For Middle Schools And High Schools Creates Uncertainty For Educational Agencies

November 2019
Number 66

Governor Gavin Newsom signed Senate Bill (SB) 328, which establishes new mandatory school day start times for most middle schools and high schools. SB 328 adds section 46148 to the Education Code, requiring high schools to set the beginning of the school day no earlier than 8:30 a.m., and middle schools at no earlier than 8:00 a.m. The reasoning behind this new law is based on studies showing increased academic performance, school attendance, and health for students at schools that started later in the day.

SB 328 raises several questions for school districts, county offices of education, and charter schools. Here are some of the areas which remain uncertain or will need to be addressed by school districts.

Implementation Date. The new start times must be implemented by July 1, 2022, unless the school district or charter school has a collective bargaining agreement that is operative on January 1, 2020 and expires after July 1, 2022; in that case, the new start times shall be implemented at the expiration of that collective bargaining agreement. Most school districts have two collective bargaining agreements, one with their teachers and certificated personnel, and the other with classified personnel. Unfortunately, SB 328 does not distinguish whether one or both collective bargaining agreements must expire for this start time mandate to be implemented.

Collective Bargaining. In addition to questions regarding when SB 328 will be implemented, collective bargaining may also be required to set new start and end times for employees, and districts affected by SB 328 will need to give notice and offer to negotiate these changes with their bargaining units.

Rural School Districts. SB 328 provides that rural school districts are exempted from the new school start time. However, the law does not currently provide a definition of a “rural school district,” a fact that was noted in the legislative analysis that accompanied the bill. This rural exemption only applies to school districts, but not to charter schools.

Enforcement. The text of the new statute is silent as to how SB 328 might be enforced to ensure compliance.

Middle School and High School. SB 328 lacks a definition of “middle school” and of “high school.” Does “middle school” cover grades 6 to 8 or 7 and 8 only, and does this mandate apply to elementary schools which serve grades ranging from kindergarten to eighth grade?

Other Considerations. Notably, it is still permissible to offer “zero” period classes or activities that start before the school day and do not count towards average daily attendance. Also, SB 328 does not appear to create any new obligations for secondary schools directly run by county offices of education, but would affect a charter school overseen by a county office of education.

Takeaways

SB 328 will have significant impacts on the operations of school districts, for both the students and the employees. School districts who rely on staggering their bus transportation times for secondary and elementary students may have to acquire more buses or push elementary school start times back. Districts may also need to consider the cost of expanding child care and other before-school programs, as well as changes to the scheduling of after school programs and extracurricular activities to later in the day; this may result in student-athletes missing more class time due to afternoon competitions. Many secondary schools open up their campus to outside groups through the Civic Center Act when school ends and the later start time may require renegotiating of arrangements with community groups for time slots after the school day. Finally, districts that are considering whether they qualify for exemption as “rural school district” may wish to contact legal counsel for assistance.

School districts should start planning now to address the issues raised by compliance with this new bill and work together with employees, parents, and other community stakeholders to determine how to best meet student needs within the parameters of SB 328.

For more information about SB 328, including questions about preparing for changes to school start times, 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

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.

New Laws Will Impact Public Work Projects

November 2019
Number 65

Governor Gavin Newsom has signed two laws that will impact public works contracts in California. Assembly Bill (AB) 456 extends the operative date for the current contractor claims resolution process to January 1, 2027. AB 1768 expands the definition of “public works” for purposes of paying prevailing wage, regulating working hours, and securing worker’s compensation.

AB 456

The law as currently stated in Public Contract Code section 9204 prescribes a claims resolution process for any claim by a contractor in connection with a conovernor Gavin Newsom has signed two laws that will impact public works contracts in California. Assembly Bill (AB) 456 extends the operative date for the current contractor claims resolution process to January 1, 2027. AB 1768 expands the definition of “public works” for purposes of paying prevailing wage, regulating working hours, and securing worker’s compensation.

AB 456

The law as currently stated in Public Contract Code section 9204 prescribes a claims resolution process for any claim by a contractor in connection with a contract for a public works project entered into on or after January 1, 2017.

Under existing law, such a claim is defined as a separate demand by the contractor for one or more of the following:

  • A time extension for relief from damages or penalties for delay;
  • Payment of money or damages arising from the work done pursuant to the contract for a public work; or
  • Payment of an amount disputed by the public entity.

Upon receipt of a claim that is subject to this resolution process, a public entity must conduct a reasonable review of the claim and provide to claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. The public entity is required to provide this statement within 45 days.

The law requiring this claims resolution process was set to expire January 1, 2020. AB 456 extended the sunset date to January 1, 2027.

AB 1768

This bill specifies that preconstruction and postconstruction work fall within the definition of “public works” and, consistent with existing law, employees conducting such work must be compensated no less than the general prevailing rate of per diem wages as determined by the Director of Industrial Relations. This definition of “public works” is only for purposes of the Labor Code and prevailing wages.

Previously, “public works” included construction, alteration, demolition, installation or repair work done under contract and paid in whole or in part with public funds. Now, the definition of “construction” under Labor Code section 1720 has been expanded to specifically include work performed during the design, site assessment, feasibility study, and other preconstruction phases of construction, including but not limited to, inspection and land surveying work and work performed during the postconstruction phases of construction, including but not limited to all cleanup work at the jobsite. Furthermore, preconstruction work is considered “construction” regardless of whether any actual construction work is done at that phase. What this means is the scope of work covered by existing prevailing wage laws has grown.

Any willful violation of prevailing wage law is a misdemeanor, and because AB 1768 expands the application of an existing crime, it also imposes a state-mandated local program.

Takeaways

Public entities should be mindful that prevailing wage rights have been extended to all employees conducting pre and postconstruction services on public works projects. This may entail additional cost in contracts for those services. Public entities should also ensure that their contracts for construction include appropriate language regarding the claims resolution process.

If you have any questions about AB 456 or AB 1768, or public works projects 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:

Anne L. Collins

Partner

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 Law Expands Ban On Suspensions For “Willful Defiance” And “Disruption” In Both Public And Charter Schools, Emphasizes Importance Of Alternative Means

October 2019
Number 52

Governor Gavin Newsom recently signed into law Senate Bill (SB) 419, which expands the existing ban on suspending students in grades K-3 for disrupting school activities or committing an act of willful defiance. The ban on such suspensions now extends to grades 4-5 permanently and to grades 6-8 for five years. The new law, which takes effect on July 1, 2020, applies to both traditional public schools and charter schools.

Subdivision (k), of Education Code section 48900, provides that a student may be suspended if he or she “disrupted school activities or otherwise willfully defied the valid authority of supervisors, teachers, administrators, school officials, or other school personnel engaged in the performance of their duties.” Subdivision (k) excludes grades K-3, and provides that such offenses may not be grounds for an expulsion recommendation. The law does not, however, define disruption or willful defiance. SB 419’s broader ban comes in response, in part, to criticism that this category of suspensions is an overly-broad and subjective catchall for any behavior a teacher finds objectionable, such as refusing to remove a hat, talking back, or refusing to follow school rules, and that its use disproportionately affects students of color, students with disabilities, and LGBTQ students.

SB 419 permanently eliminates suspensions for disruption and willful defiance for students in kindergarten to grade 5, and temporarily for grades 6-8 (sunsetting on July 1, 2025, unless a subsequent law extends that date). SB 419 maintains the restriction on expelling any student if the sole basis for the expulsion was a disruption or willful defiance offense. These restrictions now apply to public and charter schools alike. SB 419 also now explicitly encourages school districts’ use of alternative disciplinary practices, including restorative justice practices, trauma-informed practices, social and emotional learning, and schoolwide positive behavior interventions and support.

SB 419 does not change existing law that allows a teacher to suspend a student from his or her own class for the day of the incident and the following day, so long as the student remains in school and a parent-teacher conference is offered as soon as possible. The new restrictions also do not apply to suspensions or recommendations for expulsion based on other grounds, such as acts related to violence, controlled substances, bullying, and vandalism.

SB 419 continues the Legislature’s efforts to reduce the total number of suspensions and expulsions in California’s schools. (See 2014 Client News Brief No. 72, and 2017 Client News Brief No. 65) The statewide action follows outright bans on suspensions for disruption and willful defiance for all grade levels by at least five school districts, including Los Angeles, Oakland, San Francisco, Pasadena, and Azusa. The California Department of Education has reported a nearly 50 percent drop in suspensions statewide in the past six years for all categories of behavior, with willful defiance suspensions dropping even more sharply than suspensions for more serious behavior. In the 2011-2012 school year, willful defiance accounted for about half of the approximately 700,000 suspensions in the state. In the 2017-2018 school year, they made up only one-sixth of the approximately 360,000 suspensions.

School districts and charter schools should review, and potentially revise, their disciplinary policies and procedures, including suspension and expulsion forms, to ensure compliance with SB 419’s new restrictions. In addition, while not mandated by SB 419, school districts should consider updating their policies and procedures regarding the use of alternative means of correction, intervention strategies, and disciplinary optionsbefore imposing a suspension or recommendation for expulsion, given the Legislature’s encouragement and preference for such measures.

For more information about SB 419 or any other student discipline matter, 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:

Thomas R. Manniello

Partner

Erin Frazor

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.

Court Clarifies Interplay Between Education Code Discipline And The Brown Act’s 24-Hour Notice Requirement

February 2019
Number 14

In Ricasa v. Office of Administrative Hearings, certified for publication on January 14, 2019, the California Court of Appeal attempted to harmonize an apparent dissonance between the Ralph M. Brown Act’s personnel exception, and the disciplinary procedures of the Education Code. The opinion constitutes the first time an appellate court has ruled on the Brown Act’s personnel exception in the context of community college districts, and the opinion’s implications reach to all public entities that discipline employees under the Education Code. Lozano Smith attorneys, including Mark Waterman (one of the authors of this news brief), successfully represented the community college on this appeal.

Background

Appellant Arlie Ricasa (Ricasa) served as the Director of Student Development for the Southwestern Community College District (Southwestern), while at the same time serving as an elected board member of a separate, but closely tied, entity, the Sweetwater Union High School District (Sweetwater). Ricasa was implicated in the Sweetwater scandal, which received substantial media coverage, and had criminal charges filed against her for counts that included bribery and corruption. As a Sweetwater board member, Ricasa voted on million-dollar vendor contracts while also receiving gifts from the contractors, including dinners and a scholarship for her daughter. She did not disclose the gifts on her required Economic Interest Form 700, and ultimately pled guilty to violating the Political Reform Act. Her guilty plea admitted she accepted gifts and failed to disclose them, and that the gifts were provided with the intent to influence her vote on business awarded to the contractor.

After Southwestern demoted Ricasa in compliance with the Education Code, Ricasa exercised her right to appeal the demotion to the Office of Administrative Hearings (OAH), but lost her appeal on the merits. Ricasa also filed petitions in trial court to challenge the demotion, including on the ground that Southwestern’s Board violated the Brown Act by meeting in closed session without first providing Ricasa 24-hour notice under Government Code section 54957. The Superior Court denied Ricasa’s petitions generally, but ruled that the Brown Act required the college to give her 24-hour notice of the Board’s closed session discussion. Both sides appealed, and the Court confirmed that the Brown Act must be interpreted consistently with the Education Code when determining whether 24-hour notice is required.

Education Code Discipline and 24-Hour Notice under the Brown Act

The Education Code governs discipline of community college district employees, which may occur under section 87732 for immoral or unprofessional conduct, or for conviction of a felony or any crime involving moral turpitude. The Education Code imposes specific procedural requirements for such discipline, including the board’s receipt of recommendations from the district’s superintendent/president, the receipt and consideration of certain information, the preparation of charges, and notice to the employee of the right to appeal the discipline via a full evidentiary hearing before an administrative law judge.

The Brown Act generally requires that board meetings be open to the public. Closed sessions may be conducted only if authorized by statute. The relevant statutory authorization, often referred to as the personnel exception, is found in Government Code section 54957. The personnel exception allows a board in closed session to “consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests an open public session.” [Emphasis added.] For the latter category of actions, the employee must be given 24-hour advance written notice of his or her right to have the complaints or charges heard in an open session.

Ricasa argued, and the Superior Court held, that the Education Code’s disciplinary requirements transformed the closed session into a “hearing” for which 24-hour notice was required. The Court of Appeal rejected Ricasa’s theory and clarified the interplay between the Education Code and the Brown Act. The Court of Appeal held that the presentation of charges and a recommendation by the district president (who was not a percipient witness) did not transform the closed session into a “hearing” requiring 24-hour notice, nor did the length of the closed session, the lack of a post-session announcement, or the closed session debate as to whether the facts in the guilty plea sufficed to impose discipline. The Court ruled that Ricasa’s contrary “interpretation would eviscerate the personnel exception by preventing the governing boards of community colleges from engaging in the type of ‘free and candid’ discussions that the Legislature has deemed necessary for them to manage their personnel.”

Takeaways

Disciplining employees without violating the Brown Act’s 24-hour notice rule involves complex, nuanced legal evaluations for which counsel should be consulted. The Ricasa opinion confirms that for educational agencies the Brown Act must be interpreted in light of the Education Code and that compliance with the mandatory Education Code disciplinary requirements does not necessarily transform a board’s closed session into a “hearing” requiring 24-hour notice. While the Court did not rule that Education Code compliance forecloses 24-hour notice in all Education Code disciplinary matters, it provided substantial clarification for how the Education Code and the Brown Act must be interpreted together so as not to “eviscerate” the personnel exception.

For additional information regarding the Ricasa opinion and how it may impact disciplinary matters in your district, 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:

Mark W. Waterman

Partner

Marisa Montenegro

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 Increase State Control of Addiction Treatment Facilities, Require Student Athlete Opioid Warning

October 2018
Number 58

On September 26, Governor Jerry Brown signed a package of bills designed to enhance state regulation of licensed alcohol and drug abuse recovery or treatment facilities (RTFs). Governor Brown also signed Senate Bill (SB) 1109, which aims to better inform the public of the risks associated with the use of opioids. These bills take effect January 1, 2019 unless otherwise noted.

Senate Bill (SB) 992: Disclosure of Business Relationships; Developing Plans to Address Resident Relapse

SB 992 expands the types of facilities subject to licensing and regulatory requirements by broadening the definition of “alcoholism or drug abuse recovery or treatment facility” to include facilities that provide residential nonmedical services for less than 24 hours per day. Additionally, SB 992 requires all RTFs and certified outpatient programs to publicly disclose ownership of, financial interest in, or control over recovery residences, which include residential dwellings commonly referred to as “sober living homes,” “sober living environments,” or “unlicensed alcohol and drug free residences.” RTFs must develop plans to address resident relapses, including details regarding how the resident’s treatment stay and treatment plan will be adjusted to address the relapse episode and how the resident will be treated and supervised while under the influence. It is unclear where the plans will be kept or who will enforce use of the plans.

Assembly Bill (AB) 3162: Facility Licenses and Increased Penalties for Unlicensed Operations

AB 3162 makes initial licenses to operate a new RTF provisional for one year and revocable by the Department of Health Care Services for good cause. It also requires licensed services offered or provided by an RTF to be specified on the license and provided exclusively within either the licensed facility or any facility identified on a single license by street address. AB 3162 also increases the civil penalty assessed by the Department of Health Care Services for providing recovery, treatment, or detoxification services without a license from $200 per day to $2,000 per day, and increases the penalties for a violation of the licensing and regulatory provisions from $25 to $50 per day for each violation to $250 to $500 per day for each violation.

SB 823: Evidence-Based Standard of Care for Licensed Facilities

RTFs currently vary in their level of service provided. SB 823 requires the Department of Health Care Services to adopt the American Society of Addiction Medicine’s treatment criteria, or an equivalent evidence-based standard, as the minimum standard of care for RTFs by January 1, 2023. The Department of Health Care Services will require RTFs to maintain those standards with respect to the level of care to be provided by the facilities.

SB 1228: Ban on Patient Brokering

SB 1228 prohibits RTFs and other alcohol or drug programs certified by the Department of Health Care Services and their employees from patient brokering, a practice in which patients are recruited to go to a treatment facility in exchange for cash payments, drugs, or other items of value. The Department of Health Care Services may investigate allegations of patient brokering and may, upon finding a violation, assess a penalty or impose other enforcement mechanisms. RTFs or other programs that engage in patient brokering may be fined or have their license or certification suspended or revoked. RTF or program employees who engage in patient brokering may be recommended for disciplinary action, such as termination of employment and suspension and revocation of licensure or certification.

SB 1109: Opioid Factsheet to Youth Athletes

SB 1109 requires school districts, charter schools, private schools, and youth sports organizations offering an athletic program, other than as part of the regular school day or as part of physical education, to annually give the Opioid Factsheet for Patients published by the Centers for Disease Control and Prevention to each athlete. The athlete and, if the athlete is under 17, the athlete’s parent or guardian, must sign and return a document acknowledging receipt of the factsheet before the athlete begins practice or competition. Youth sports organizations include local government agencies that sponsor or conduct amateur sports competitions, training, camps, or clubs in which persons 17 years of age or younger participate.

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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

William P. Curley, III

Partner

Jose Montoya

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 will Require Charter Schools to Provide Meals, Sexual Health Education

October 2018
Number 57

The Legislature has expanded requirements for charter schools in 2019. Assembly Bill (AB) 1871 will require charter schools to provide meals to needy students, while AB 2601 will require charters to provide sexual health education to students in grades 7-12.

Assembly Bill 1871

Starting on July 1, 2019, AB 1871 will require California charter schools to provide needy students with one nutritionally adequate free or reduced price meal each day. Charter schools were previously exempt from this state mandate. This change will be reflected by adding Education Code section 47613.5. Non-classroom based charter schools will be required to provide free and reduced price meals to eligible students on days when the students are scheduled for two or more hours of educational activities at a charter school facility.

For charter schools that become operational July 1, 2019, implementation of this requirement must occur no later than July 1 of the following school year.

Assembly Bill 2601

Starting on July 1, 2019, charter schools will be required to provide sexual health education and human immunodeficiency virus (HIV) prevention education to students in grades 7-12. Current law mandates that this sexual health education and HIV prevention education be provided to students in grades 7-12 in traditional schools. Charter schools, however, were exempt from this curriculum requirement. Again, the Legislature has now decided that providing sexual health and HIV prevention education to students in California schools outweighs the objective to provide freedom and flexibility to charter schools in developing their curriculums. This change will be reflected in Education Code section 51931.

Takeaways

Charter authorizers may want to explore the planned strategies of the charter schools they oversee to implement these two new mandates.

If you have any questions about AB 1871 or AB 2601 or about laws applicable to charter schools 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.

Supreme Court Rules Public Sector Union Agency Fees Are Unlawful

June 2018
Number 27

This news brief is intended for public school districts, including community colleges. For the Janus news brief intended for municipalities and special districts, click here.

Overturning a longstanding precedent, the United States Supreme Court has held in Janus v. AFSCME that public employees may not be compelled to pay mandatory agency fees, or “fair share” fees, to public-sector unions, because such fees violate the First Amendment.

The Janus decision will have a sweeping, nationwide impact on public sector labor unions. The Court’s 5-4 decision immediately affects laws in at least 22 states, including California, that currently allow public sector unions to charge and collect agency or fair share fees.

Background

Mark Janus is an Illinois public sector employee who sued the American Federation of State, County and Municipal Employees (AFSCME), arguing that a state law allowing the union to charge and collect fees from non-members violated his and other workers’ First Amendment rights.

The Supreme Court previously decided this issue in 1977 in the case of Abood v. Detroit Board of Education, then holding it was constitutional for public sector unions to collect agency fees from nonunion members to defray the cost of collective bargaining and other activities, provided nonunion members were not required to pay for a union’s political or ideological activities. The Court now holds in Janus that states and public-sector unions may no longer collect agency fees from nonconsenting employees.

The Court held that compelling employees to subsidize the speech of private speakers, including public-sector unions, violates the First Amendment, noting that “[c]ompelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned.”

Critically, “Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” In anticipation of the ruling, California’s newly adopted Senate Bill (SB) 866, signed into law by the Governor on June 27, makes several changes regarding public employers’ deduction of union dues and fees. Among these is a requirement for public employers to rely on the representations of the union regarding an employee’s deduction authorizations. Given the Supreme Court’s holding, this provision of SB 866 potentially runs afoul of the First Amendment, as interpreted and applied in Janus.

Additional notable statements made by the Court in Janus include:

  • Unions can be effective even without agency fees, without which designation of a public-sector union as the exclusive representative still confers many benefits.
  • Representation of nonmembers, even without agency fees, furthers the union’s interest in keeping control of the administration of the collective bargaining agreement, since the resolution of one employee’s grievance can affect others.
  • Going forward, it would likely be unconstitutional for a public sector employer to adopt a collective bargaining agreement that discriminates against nonmember employees.
  • Individual employees who are not members of a union may potentially be required to pay for certain services of a union, such as representation at disciplinary proceedings.

Next Steps and Considerations for Public Agency Employers

1. Stop Agency Fee Deductions

The Court’s decision in Janus is effective immediately, meaning employees who are non-members cannot be charged agency fees. Accordingly, employers must stop deducting agency fees from the paychecks of public employees. Going forward, an employer may not deduct fees unless an employee clearly and affirmatively consents to the deduction before it is implemented.

SB 866 creates a layer of potential complication because it modifies the law to require public employers to rely on the representations of the union regarding an employee’s deduction authorizations. This likely leaves public agency employers with at least three potential options: (1) stop agency fee deductions immediately without communication with union leadership; (2) stop the agency fee deductions after providing a notice to union leadership as to the employees who the public agency believes to be agency fee payers and whose deductions will be halted with the July paycheck; or (3) stop the fee deductions after the union and public employer agree to the list of employees whose fee deductions will be halted, and rely on the new provisions of SB 866 requiring the union to defend and indemnify the employer in the event a fee payer brings suit to recover fees deducted subsequent to the issuance of the Janus decision.

To avoid future lawsuits, public agencies are encouraged to have their human resources and payroll departments work collaboratively with union leadership to identify employees who are agency fee payers and develop a strategy to ensure prompt compliance with Janus. For many public school district employers, working closely with their county office of education will be critical to accurately updating payroll records to ensure employees are no longer charged agency fees going forward.

2. Implement a Communication Plan

Public agency employers who have agency fee provisions in their union agreements should develop a communication plan to address the likely questions that will come from employees and unions in the days and weeks following this decision. Specifically, taking steps to identify a single point person to respond to questions regarding the impacts of theJanus decision will ensure cohesive and clear messaging and avoid the potential for managers and supervisors to inadvertently run afoul of laws prohibiting discouraging or deterring union membership. In developing these communication strategies regarding whether, and how, to communicate the Janus decision to employees, employers should remain neutral and mindful of applicable law, including SB 285, which prohibits employers from deterring or discouraging public employees from becoming or remaining members of a union, and SB 866, which restricts a public employer’s ability to communicate with employees about the Janus decision.

Specifically, under SB 866, any “mass communication” sent to employees or applicants concerning their rights to join or support or refrain from joining or supporting their union requires a meet and confer process with the applicable union. Any mass communication concerning the Janus decision will likely fall within this provision and requires the parties to attempt to craft a mutually agreeable content, or follow the alternate process of distributing two sets of mass communication: one from the employer and one from the union.

Public agency employers are further encouraged to provide an update on the case to their unrepresented managers and supervisors, along with governing board members, and to provide talking points in the event they are faced with questions about the Janus decision.

To assist our clients, we are developing a communication template. If you are interested in receiving this, please contact one of our offices.

3. Examine Collective Bargaining Agreements

After these immediate next steps are in place, in consultation with legal counsel, public agency employers should review their collective bargaining agreements to determine how the Court’s decision impacts current contract language, assess what articles are impacted by Janus, and determine whether any immediate action or negotiation is required.

While the Court’s decision may not immediately impact current dues-paying union members, some members could choose to opt out of union membership in the future as a result of the Court’s decision, in accordance with applicable collective bargaining agreements and membership agreement. To the extent membership in a union and attendant dues deductions are premised on an opt-out article or practice, wherein the employee is automatically in the union and automatically charged union dues unless he or she ops out, such provisions will need to be negotiated with the union to comply with Janus so that an employee clearly and affirmatively consents to union membership.

Related Bills

In addition to SB 866, please be aware that there are other bills pending in the California Legislature that address union dues and labor relations. Lozano Smith is tracking all of these pending bills and will provide updates if any are adopted by the Legislature and signed by the Governor.

Guidance Measures – Full Suite of Resources

Lozano Smith has partnered with leading associations and has also developed several training opportunities and resources to assist public agency employers in addressing new requirements and obligations. We invite you to download and register for any of the following:

  • Webinar: Join a panel of Lozano Smith attorneys for a live webinar on Friday, June 29. This interactive podcast will break down the Janus decision and SB 866 and offer a guide for implementation. Registration is open here.
  • Toolkit: Lozano Smith will be soon publishing an in-depth resource with answers to frequently asked questions, an implementation checklist, templates for communication, and more.
  • CASBO Workshop: The Northern Section Human Resources Professional Development Workshop Series will feature Dulcinea Grantham presenting a legal update exploring the impact of Janus. Registration is open here.
  • ACSA FAQ: Lozano Smith helped lead the development of a comprehensive overview specific to Janus and SB 866. This FAQ is available for download here.

For assistance responding to the immediate and long-term impacts of Janus, 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:

Dulcinea Grantham

Partner

Gabriela D. Flowers

Senior Counsel

Erin M. Hamor

Associate

©2017 Lozano Smith

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

California Supreme Court says Minors’ Claims against Public Agencies Must Adhere to Government Claims Act Timelines

April 2017
Number 14

In J.M. v. Huntington Beach Union High School District (Mar. 6, 2017, No. S230510) ___ Cal.5th ___ 2017 [Cal. LEXIS 1609] < http://www.courts.ca.gov/ opinions/documents/S230510.PDF >, the California Supreme Court determined a high school football player was not entitled to court relief for his personal injury claim against a school district because he failed to strictly comply with the timelines spelled out in the California Government Claims Act (Act), often referred to as the Tort Claims Act.

This holding illustrates the consequences of failing to strictly comply with the procedural requirements for bringing claims against government entities. As the Court held, no additional recourse is available to a minor who does not petition for superior court relief within the six-month timeframe set by the Act.

J.M., a minor who attended the Huntington Beach Union High School District, received concussion injuries while playing in a high school football game. J.M. did not file a government claim against the District within the six month statute of limitations period on his tort claim. After almost a year had passed since the date of his injury, J.M. retained counsel who submitted an application with the District to file a late claim. The District did not take action on the late claim application, and the claim was denied by operation of law 45 days after it was presented.

After nearly one year had passed, J.M.’s attorney petitioned the superior court for relief from the Act’s claim filing requirements. Both the trial court and the Court of Appeal rejected the claim, holding that J.M. did not file his petition for court relief within six months from the date the claim was deemed denied by the District, as required by the Act. In affirming the decision, the California Supreme Court also disapproved a contrary appellate court ruling in E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4th 736.

The Act, as set forth in Government Code sections 810 et seq., generally requires that claims for money or damages against a public entity must be presented in writing to the public entity prior to filing a lawsuit in court. A tort claim must be filed with the public entity within six months of the accrual of the claim. However, the Act permits a minor to submit an application for permission to file a late claim up to one year after expiration of the claims period. If a public entity does not take affirmative action to respond to the late claim within 45 days, the application is denied by operation of law, and the applicant may seek relief by filing a petition in court within six months.

In J.M., the plaintiff claimed that he was not obligated to comply with the Act’s requirement that he petition the court within six months from the date the District was deemed to have denied his late claim application, arguing that the Act required the District to grant late applications if the applicant was a minor during the entire claims period, and that he was therefore entitled to relief. The Court rejected this argument, finding that it was J.M.’s responsibility to timely seek relief in court from the District’s denial of his late claim application, even if the District was required to grant it.

In finding that J.M.’s claim was time barred, the Court reversed a contrary holding in E.M., under which J.M. would have been entitled to relief. The minor in that case did not file a petition for relief in court
until more than six months had passed since her late claim application was rejected. The appellate court in E.M. found the plaintiff’s untimely petition for relief was irrelevant because plaintiff had satisfied the technical requirements of the Act when she made a timely application to file a late claim with the entity. The Supreme Court in J.M. rejected this holding, finding that strict adherence to the Act’s timelines for filing a petition for relief was required, and no additional recourse was available to a plaintiff who failed to petition the court within six months of a denial of a late claim application.

The Court also dismissed J.M.’s claim that he was entitled to relief based upon the District’s failure to provide him with written notice of its deemed denial of his late claim application. The Court found that while the Act required written notice of a claim that is deemed denied by an entity’s inaction, the Legislature did not include the same notice requirement for an agency’s failure to act upon a late claim application.

For more information on the Supreme Court’s decision or on application of the Government Claims Act in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download our Client News Brief App.

Written by:

Penelope R. Glover

Senior Counsel

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.

Proposed Amendments to FEHA Regulations Regarding Transgender Identity and Expression

June 2016
Number 38

California’s Fair Employment and Housing Council (Council) is set to consider amendments to the Fair Employment and Housing Act (FEHA or Act) that the Council says will more explicitly spell out existing protections for transgender workers and bring those protections in line with federal guidance and state law.

The Council will discuss the proposed amendments at its June 27 meeting and is now accepting public comment. A date to consider approval of the proposed amendments – or some version of them – has not yet been announced.

The Act, which is spelled out in Government Code sections 12900 et. seq. and implemented by the California Code of Regulations title 2, division 4.1, subchapter 2, article 5, already bars employers from discriminating against employees and applicants on the basis of gender identity or expression. In its initial statement of reasons for the proposed changes, the Council said its goals are to clarify an “often misunderstood and increasingly prominent facet of the law” and to better align FEHA with state law and federal guidance.

The list of proposed changes includes:

  • Gender-neutral language. Overall, the Council proposes to use gender-neutral language and eliminate dichotomous references to gender in the Act, substituting “individual” for “male” or “female” and “opposite sex” with “different sex.” In addition, the term “transitioning” is proposed to be included within the definitions found in section 11030 as “the process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth,” which “may or may not include changes in name and pronoun, bathroom, facility usage, participation in activities like sports teams, hormone therapy, sex reassignment surgery, or other medical procedures.”
  • Working Conditions. The Council proposes to expand employees’ equal access to workplace facilities to include locker rooms, dressing rooms, dormitories and restrooms and to establish employers’ obligations to make such facilities available. The proposed amendments provide that employees must be permitted to use facilities that correspond to their gender identity or expression, regardless of the employee’s assigned sex at birth. If individual facilities are not available, employers are to provide alternatives to ensure privacy, such as locking toilet stalls and shower curtains. The proposed amendments also prohibit an employer from requiring an employee to use a particular facility and from requiring transitioning employees to undergo, or provide proof of, any particular medical treatment in order to use facilities designated for a particular gender. Employers with single-occupancy facilities under their control will have to use gender-neutral signage, such as “Restroom,” “Unisex,” “Gender Neutral,” or “All Gender Restroom.”
  • Physical Appearance, Grooming and Dress Standards. Clarifying employers’ existing obligations under FEHA, the proposed amendment would only permit employers to impose physical appearance, grooming or dress standards if they serve a legitimate business purpose and do not discriminate based on an individual’s sex, gender, gender identity or gender expression. The proposed amendment also adds that employers may not require individuals to “dress or groom themselves in a manner inconsistent with their gender identity or gender expression.”
  • Recording of Gender and Name. The Council proposes provisions that will make it unlawful to require an applicant or employee to disclose whether the individual is transgender, on a job application or otherwise. In situations where a job application requires an individual to identify as male or female, an employer cannot consider fraudulent or a misrepresentation, an applicant’s designation of a gender inconsistent with the applicant’s assigned sex at birth or presumed gender.

    Under the proposed amendments, employers will also be required to honor employees’ requests to be identified with a preferred gender, name and/or pronoun, except under limited circumstances. Acknowledging that the severe or pervasive misuse of an employee’s name could be sufficient to create a hostile or abusive work environment, the Council deemed this amendment necessary to prevent the occurrence of sexual harassment.

  • Additional Rights. Finally, the proposed amendments prohibit the denial of employment based wholly or in part on an individual’s gender identity or gender expression, as well as discrimination against an individual who is transitioning or has transitioned. If adopted, it will be unlawful for employers to inquire or request documentation or proof of an individual’s sex, gender, gender identity or gender expression as a condition of employment, except under limited circumstances.

If adopted as currently written, the amendments will require employers to review and potentially revise their existing policies and standards, and to make changes to facility access, signage and privacy considerations. FEHA defines an employer as “any person regularly employing five or more persons; any person acting as an agent of an employer, directly or indirectly; the state or any political subdivision thereof.”

Prior to adopting its proposed amendments, the Council will consider comments submitted in writing or presented at the June 27 public hearing. Written comments may be submitted via e-mail to FEHCouncil@dfeh.ca.gov until 5 p.m. June 27.

If you would like additional information about the proposed FEHA changes or your responsibilities with respect to transgender workers, please contact the authors of this Client News Brief or an attorney in 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:
Darren Kameya
Partner

Joanne Kim
Associate

©2016 Lozano Smith

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

eacher Complaints About School District’s Special Education Program Are Not Protected by First Amendment

April 2016
Number 27

Are a special education teacher’s complaints about her district’s special education program constitutionally protected speech? In Coomes v. Edmonds School District No. 15 (2016) 2016 U.S. App. Lexis 5372, the United States Ninth Circuit Court of Appeals held that a public school teacher’s complaints to her supervisors and parents regarding her employer school district’s special education program were not protected by the First Amendment.

Plaintiff Tristan Coomes worked as the manager and primary instructor for the defendant school district’s emotional and behavioral disorders program. Ms. Coomes complained to her supervisors, fellow teachers, parents and union representative that her special education students were not being placed in mainstream classes as their needs demanded, or conversely, that their transitions were being delayed due to improper fiscal considerations. Ms. Coomes’ complaints made their way up the chain of command to the District’s superintendent and resulted in her transfer to another school within the District.

Ms. Coomes sued the school district, alleging it retaliated against her for her statements regarding the District’s special education program, in violation of her free speech rights under the First Amendment of the United States Constitution.

The Ninth Circuit upheld the trial court’s ruling that Ms. Coomes failed to show that she spoke as a private citizen rather than an as a public employee, and her employer could therefore take an adverse employment action against her in relation to her speech. The court of appeals first reviewed the United States Supreme Court’s opinion regarding government employee speech protections in Garcetti v. Ceballos (2006) 547 U.S. 410. In Garcetti, the U.S. Supreme Court ruled that while “public employees do not surrender all their First Amendment rights by reason of their employment,” the First Amendment does not empower employees to “constitutionalize” their grievances. The Court ruled that the First Amendment protects a public employee’s right to speak as a citizen only when the individual can show that “(1) s/he spoke on a matter of public concern; (2) s/he spoke as a private citizen rather than a public employee; and (3) that the relevant speech was a substantial or motivating factor in the adverse employment action.”

The Ninth Circuit also considered whether Ms. Coomes’ concerns were expressed in her capacity as a private citizen or as a public employee by comparing her speech to her job description. The court noted that when a public employee raises complaints or concerns up the chain of command, generally, the employee’s speech is made in the course of job performance. Because Ms. Coomes focused her complaints on incidents that happened in her classroom, the court held her speech “owed its existence to her position as a teacher.”

Although Ms. Coomes also spoke to parents who were clearly outside her chain of command, her communications pertained to students’ Individualized Education Programs and their academic progress, as required by her job duties. The court of appeals found that Ms. Coomes failed to show that her speech was made in her capacity as a private citizen, holding that it was instead made in her capacity as a District employee and was not protected by the First Amendment.

If you have questions regarding this decision or the First Amendment free speech rights of employees generally, please contact 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:

Sloan Simmons
Partner

Dr. Carey Hawkins Ash
Associate

©2016 Lozano Smith

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

Tactical Response Plans and SB 707: Are Your Schools Prepared to Evaluate and Respond to Threats?

February 2016
Number 8

Recently, various school district officials nationwide received anonymous communications threatening violent attacks. These events, and the school districts’ responses, highlight the importance of having appropriate plans in place to evaluate and respond to threats.

The California Education Code establishes the basic framework for school districts to take steps to make schools safe. Each school in a district is required to develop a comprehensive school safety plan “that addresses the safety concerns identified through a systematic planning process.” (Ed. Code, § 32280.) A “safety plan” is “a plan to develop strategies aimed at the prevention of, and education about, potential incidents involving crime and violence on the school campus.” (Ed. Code, § 32280.) The plan must be annually reviewed and updated by March 1. (Ed. Code, § 32286.)

Generally, the school site council is responsible for developing the safety plan. (Ed. Code, § 32281.) However, in lieu of the school site council, a school district or county office of education may elect to develop confidentially the portions of the safety plan that include tactical responses to criminal incidents that may result in death or serious bodily injury at the school site, otherwise known as a “tactical response plan.” (Ed. Code, § 32281(f)(1).) The term “tactical response” means the “steps taken to safeguard pupils and staff, to secure the affected school premises, and to apprehend the criminal perpetrator or perpetrators.” (Ed. Code, § 32281(f)(2).) When developing a tactical response plan, district or county officials must consult with law enforcement officials and invite representatives of exclusive bargaining units of district employees to participate. (Ed. Code, § 32281(f)(1).)

The range of incidents that may be addressed in a tactical response plan is broad, and may include serious criminal threats and acts such as bomb threats, active shooter situations, and terrorist attacks. Tactical response plan considerations will vary by district and school. What may be a critical need during an emergency for a large urban school district may not be a concern for a rural school district. Similarly, rural schools may not be able to rely on the resources provided to schools in urban areas. Recognizing this reality, the components of a tactical response plan are purposefully broad to allow educators and law enforcement officials to tailor plans to the unique needs of their district.

Because of the sensitive nature of tactical response plans, they are afforded special protection from disclosure to the public. For example, a governing board may meet in closed session to discuss the tactical response plan. (Ed. Code, § 32281(f)(3); Gov. Code, § 54957.) Additionally, the plan may be exempt from disclosure under the California Public Records Act. (Ed. Code, § 32281(f)(1); Gov. Code, § 6254(aa).) However, a governing board must publically announce the outcome of any vote to approve the plan. (Ed. Code, § 32281(f)(3).)

One current, critical issue related to tactical responses for active shooter situations is permitting the presence of concealed weapons on campus. Recently passed legislation, Senate Bill (SB) 707, gives district officials the authority to determine whether concealed weapon permit holders may possess firearms on school grounds. However, SB 707 provides no guidance to district officials on appropriate standards and procedures in exercising that authority. As a result, school officials are left to struggle with important questions, including:

  • Should concealed weapons be permitted at district sites at all?
  • Who should be granted permission?
  • What criteria should be applied for granting permission?
  • What conditions should be imposed on the storage, handling and use of concealed weapons?

The answers to these questions implicate student and staff safety, district and individual liability exposure, and risk management.

The recent threats across the country are a reminder to California educators to be vigilant and to proactively address student safety, including by paying close attention to the tactical response components of school safety plans.

Lozano Smith will be presenting workshops on topics relating to school safety and SB 707 implementation. For information on our next series of workshops click here.

If you have any questions regarding comprehensive school safety plans, tactical response plans, and SB 707, please contact 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

Trevin Sims
Partner

Eric Barba
Associate

©2016 Lozano Smith

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

Legislature Revises and Updates the Education Code Relating to Sexual Health and HIV/AIDS Prevention Education in Schools

January 2016
Number 1

Effective January 1, 2016, two bills relating to sexual health and human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) prevention education will take effect, which will require school districts to review their existing curriculum and instruction for compliance. Assembly Bill (AB) 329 amended, renumbered and repealed various Education Code provisions as they relate to sexual health and HIV education. Senate Bill (SB) 695 added provisions to the Education Code regarding the addition of content to the health curriculum framework for ninth through twelfth grade students. Together, these bills modify, amend and replace prior law regarding sexual health and HIV prevention education.

Current Education Code section 51930 et seq. constitutes the California Comprehensive Sexual Health and HIV/AIDS Prevention Education Act. AB 329 makes several changes to Education Code section 51930 et seq. and sexual health and HIV/AIDS prevention education in California schools and otherwise emphasizes preexisting legal requirements and components of sexual health and HIV prevention education, including:

  • Renaming the law to the California Healthy Youth Act (ACT), merging sexual education with HIV prevention education, so that both are set forth in Education Code section 51930 et seq.;
  • Requiring school districts to provide education, consistent with the Act, including sexual health education and comprehensive HIV prevention education, i.e., sexual health education will no longer be an optional offering in California;
  • Amending existing law for accuracy as it relates to HIV and AIDS prevention;
  • Modifying the purpose of the Act to include promoting understanding of sexuality as a normal part of human development; in addition to ensuring that students receive integrated, comprehensive, accurate and unbiased sexual health and HIV prevention instruction; and to provide students with the knowledge and skills necessary to have healthy, positive and safe relationships and behaviors;
  • Amending existing definitions, including the definition of “comprehensive sexual health education” to include contraception and sexually transmitted infections, and removing the terminology “family planning” from the code;
  • Requiring that instructors have knowledge of the most recent medically accurate research on HIV and in what constitutes a healthy relationship;
  • Emphasizing the requirement that materials used in providing sexual health and HIV education are consistent with the five specified purposes of the Act;
  • Requiring that instruction and materials:
    • Not promote bias against any person based on any of the protected categories found in Education Code section 220 (disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation);
    • Affirmatively recognize that people have different sexual orientations and, when discussing or providing examples of relationships and couples, that same-sex couples also be included;
    • Include instruction and materials about gender, gender expression, gender identity, and explore the harm of negative gender stereotypes;
    • Encourage students to speak with “other trusted adults” in addition to parents/guardians, about human sexuality, and that students be provided with the knowledge and skills to do so;
    • Teach the value of and prepare students to have and maintain “committed relationships” such as marriage;
    • Provide students with knowledge and skills they need to form healthy relationships that are based on mutual respect and affection, and are free from violence, coercion and intimidation;
    • Provide students with knowledge and skills for making and implementing “healthy decisions” about sexuality, including “negotiation and refusal skills” to assist students in overcoming peer pressure and using “effective decision-making skills” to avoid “high-risk” activities;

 

  • Removing from instruction the requirement that students be taught the “value of abstinence” replacing it with the “value of delaying sexual activity”;
  • Requiring that sexual health and HIV education for students in grades 7-12 include information regarding:
    • HIV and other sexually transmitted infections, including new developments in HIV prevention and treatment, as well as Food and Drug Administration (FDA) approved methods to prevent or reduce the risk of contracting HIV or sexually transmitted infections, including use of antiretroviral medication, as well as treatment of same;
    • The relative risk of infection of HIV and other sexually transmitted diseases based on specific behaviors, including sexual activity and drug use;
    • Effectiveness and safety of reducing the risk of HIV transmission as a result of injection drug use by decreasing needle use and needle sharing;
    • Treatment of HIV and other sexually transmitted infections, including how antiretroviral therapy can dramatically prolong the lives of many people living with HIV and reduce the risk of transmitting HIV to others;
    • Discussion about social views on HIV and AIDS, including unfounded stereotypes and myths, emphasizing that successfully treated HIV positive individuals have a normal life expectancy, and all people are at some risk of contracting HIV and the only way to know if one is HIV-positive is to get tested;
    • A student’s right to access local resources for sexual and reproductive health, including health care, medical care, and testing for HIV and other sexually transmitted infections and pregnancy prevention and care, as well as resources for sexual assault and intimate partner violence;
    • Pregnancy, including all available pregnancy outcomes including parenting, adoption, and abortion, and the importance of prenatal care;
    • Sexual harassment, sexual assault, adolescent relationship abuse, intimate partner violence, and sex trafficking;

 

  • Requiring that if a district contracts with an outside provider to provide training in sexual health and HIV education for students, that the provider be an expert in comprehensive sexual health education and HIV prevention education and have knowledge of the most recent medically accurate research on the relevant topic area;
  • That parents/guardians have the right to excuse their student from sexual health and HIV education and assessments related to same through a passive consent process, that such requests to opt their student out must be in writing, and that school districts may not require active parental consent for same;
  • Excluding from the Act descriptions and illustrations of human reproductive organs that may appear in textbooks pursuant to the law, if the textbook does not include other elements of comprehensive sexual health education or HIV prevention education; and
  • Excluding from the Act instruction, materials, presentations or programming that discusses gender, gender identity, gender expression, sexual orientation, discrimination, harassment, bullying, intimidation, relationships or family and do not discuss human reproductive organs and their functions.

SB 695 requires that if a school district requires a course in health education for graduation, that course:

  • Include instruction in sexual harassment and violence;
  • Discuss “affirmative consent”; and
  • Ensure that teachers consult information related to sexual harassment and violence when providing that instruction.

SB 695 also requires that when the Instructional Quality Commission (IQC) next revises the health curriculum framework (which is scheduled to occur in 2018), for students in ninth through twelfth grade, that it consider including information regarding:

  • Different forms of sexual harassment and violence, including those that occur amongst peers in dating relationships, as well as prevention strategies;
  • How students can report sexual harassment and violence;
  • Potential resources for victims to access;
  • Discussion of “affirmative consent”;
  • Skills students can use to establish boundaries in peer and dating relationships; and
  • Discussion regarding the legal aspects of sexual harassment and violence under state and federal law.

If the IQC results in the inclusion of information regarding sexual harassment and violence for the State’s health curriculum, then it must ensure that any information included is research-based and is appropriate for all races, genders, sexual orientations, gender identities, and ethnic and cultural backgrounds; and that it consults with secondary health teachers and experts on sexual harassment and violence.

In light of Assembly Bill 329 and Senate Bill 695, school districts should review current policies and practices regarding sexual health and HIV education to ensure compliance with the newly amended laws. School districts should also verify that staff and/or outside experts are appropriately trained in sexual health and HIV education, and that districts are using the passive consent process (not active) for parents to opt their student out of such instruction, and that the requests are in writing.

Should you have any questions regarding these bills, please contact 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

Sloan R. Simmons
Partner
Sacramento Office
ssimmons@lozanosmith.com

Aimee Perry
Associate
Sacramento Office
aperry@lozanosmith.com

©2016 Lozano Smith

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

Bid Threshold For School District Purchases Raised For 2016; Similar Increase For Community Colleges Expected

December 2015
Number 83

According to the California Department of Education Office of Financial Accountability and Information Services, the bid threshold, pursuant to Public Contract Code section 20111(a), for K-12 districts’ purchases of equipment, materials, supplies and services (except construction services) has been adjusted to $87,800, effective January 1, 2016. This represents an increase of 2.12% over the 2015 bid limit.

It is expected that in the near future the California Community Colleges Chancellor’s Office will 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).

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.

Should you have any questions regarding these new limits or about bidding in general, please contact 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

Ruth Mendyk
Partner
Fresno Office
rmendyk@lozanosmith.com

©2015 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 Government Searches of Cell Phones and Other Devices

December 2015
Number 82

AUTHOR’S NOTE: Due to the significant legal changes caused by Senate Bill (SB) 178, we recommend that all government agencies, including school districts, contact legal counsel for guidance before searching any electronic devices in the possession of staff or students. Government agencies should further update any relevant policies and procedures, and provide training to all staff whose job functions may include searching the electronic devices of others. SB 178 becomes effective on January 1, 2016.

According to its author, SB 178 was introduced to update existing laws to protect privacy and free speech in the digital age by “instituting a clear, uniform warrant rule for California law enforcement access to electronic information, including data from personal electronic devices, emails, digital documents, text messages, metadata, and location information.” SB 178 responds to an increase in warrantless government demands to cell phone providers and social media websites for the personal data of users. It also codifies two recent court decisions requiring law enforcement to obtain a warrant before obtaining GPS information for vehicle tracking, and before searching data contained on a cell phone seized during an arrest.

Under SB 178, a government entity is prohibited from doing the following:

  1. Compelling production of information directly from a service provider (e.g., AT&T, Verizon);
  2. Compelling production from anyone other than the authorized possessor of the device; and
  3. Accessing information by means of physical interaction or electronic communication with the device (e.g., physically taking the device from the person
    and searching it or searching the device by electronic means), except when one of the following applies:
  • Pursuant to a warrant;
  • Pursuant to a wiretap order;
  • With the specific consent of the authorized possessor of the device;
  • With the specific consent of the owner of the device, only when the device has been reported as lost or stolen;
  • With a good faith belief that it is required in an emergency to prevent death or serious physical injury;
  • With a good faith belief that the device is lost, stolen, or abandoned, and only to identify, verify, or contact the device’s owner or authorized
    possessor; and
  • If the device is seized from a correctional inmate or is unclaimed in a correctional facility, except as otherwise prohibited by law.

The new law defines “specific consent” to mean consent provided directly to the government entity seeking information, including when the communication was directed at an audience that included the government entity.

If data is obtained in violation of SB 178, an individual may move to suppress the data in any trial, hearing, or proceeding in which it is introduced as evidence. Furthermore, the Attorney General may commence a civil action to compel a government entity to comply with the new law. Currently, a violation of SB 178 does not carry any criminal penalties.

The full implications of this new law are uncertain for government entity employers as well as school and community college districts. Prior to searching any electronic devices possessed by employees or students, a government entity should contact legal counsel to evaluate how the new law impacts such actions. Government employers may wish to consider providing information or training to staff members who perform searches in the scope of their duties. Additionally, government employers may need to revise policies and procedures to incorporate specific consent as a term and condition of use of the electronic device. For more information, please contact 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

William P. Curley III
Senior Counsel
Los Angeles Office
wcurley@lozanosmith.com

Inna Volkova
Associate
Fresno Office
ivolkova@lozanosmith.com

©2015 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 Supreme Court Extends the Scope of Design Immunity

December 2015
Number 81

In a unanimous decision, the California Supreme Court recently issued a ruling that extends the scope of design immunity for public agencies. Hampton v. County of San Diego (Dec. 10, 2015, S213132) 2015 Cal.Lexis 9854 (Hampton) clarifies that a public agency need not necessarily show that an employee approving a public works project followed, or was even aware of, applicable design standards to claim immunity. However, such an inquiry is still relevant in deciding whether or not the plan or design was reasonable.

Government Code section 830.6 gives immunity to public agencies where defective designs in certain public projects result in injury to third parties. The most common example of such projects are traffic improvements, where an injured party asserts that the road or signage condition resulted in an accident and injury. To be eligible for immunity in such instances, the public agency must show the following: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. If a public agency is successful in proving these three elements then it will not be held liable for injuries caused by dangerous conditions of public property.

In Hampton, the Supreme Court evaluated the second element and determined that a public agency is immune from civil liability even when an employee who approves the plan was not aware of the particular design standards. The plaintiffs in question were involved in a car accident while attempting to turn onto a two-lane thoroughfare from a rural side road. The plaintiffs alleged that the County had created a dangerous condition in planning the intersection by failing to account for a “high, raised embankment covered with shrubs.” They asserted that the failure to account for the embankment rendered visibility plainly inadequate under County standards. The County argued that it was immune under section 830.6, offering design plans for the intersection in question.

The Supreme Court agreed with the County, determining that section 830.6 was applicable because the very purpose of the statute was “to avoid second-guessing the initial design decision adopted by an employee vested with authority to approve it….” The Court confirmed that a public agency is not required to show that the designated employee considered applicable standards when approving the plan or was authorized to deviate from any possibly relevant standards. What is essential is that the employee approving the plan or design had authority to do so.

While this case helps expand one aspect of section 830.6 immunity, public agencies should be mindful of the remaining requirements. The Court cautioned that while an employee need not be aware of applicable standards when approving a plan to satisfy the second element, such circumstances could be relevant as to whether or not the plan was reasonable under the third element. As such, it remains important that public agencies remain vigilant in considering applicable standards as well as any other requirements when implementing new plans or designs.

For more information on public agency immunity, please contact 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

Megan Macy
Partner
Sacramento Office
mmacy@lozanosmith.com

Shawn A. VanWagenen
Associate
Fresno Office
svanwagenen@lozanosmith.com

©2015 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.

President Signs Into Law “Every Student Succeeds Act” Overhauling “No Child Left Behind”

December 2015
Number 80

President Obama has signed into law the “Every Student Succeeds Act” (ESSA), a sweeping overhaul of “No Child Left Behind” (NCLB) that eases the burden of the NCLB’s testing and reporting requirements and restores local autonomy to schools and districts by making states responsible for students’ academic achievement. The ESSA reaffirms the notion that local leadership is best for local schools by overwhelmingly shifting authority from the federal government to the states.

Under the ESSA, the federal “adequate yearly progress” accountability system is replaced by state-designed systems, under which states develop the criteria for identifying and supporting struggling schools. State education agencies must demonstrate that they consulted local school districts in developing their plans, and the plans must be submitted to the federal Secretary of Education to ensure compliance with the law. The most important change regarding accountability is that states are now free to use measures other than test scores as evidence of progress, such as student engagement, access to and completion of advanced coursework, and school climate and safety.

The ESSA, like the NCLB, still requires states to test annually reading and mathematics in grades 3 through 8, and at least once in grades 9 through 12, and further maintains NCLB’s requirement that science tests be given at least three times between grades 3 through 12. Unlike NCLB, however, the ESSA allows states flexibility when assessing students. A state may pilot new testing variables and performance based tests so long as the assessments are valid and reliable.

The ESSA includes several measures to ensure reporting and compliance. First, the law caps the number of alternative assessments to be provided to students with disabilities at 1%, with the goal of ensuring that only those students with the most severe cognitive disabilities are given alternate achievement standards. The ESSA also moves English language accountability standards from Title III to Title I, to refocus efforts on providing support for English language learners. Finally, the ESSA requires states to focus on improving student learning in the lowest performing 5% of schools and any school in which any discrete group of students is consistently underperforming based on the state’s standard.

Further underlining its emphasis on local decision-making, the ESSA contains specific language crafted by the National School Boards Association that curtails federal influence in local school administration, including in the development and expenditure of school budgets. The law now explicitly requires the federal Secretary of Education to “consider input from stakeholders” before issuing any non-regulatory guidance which would impact local decision making.

In other changes, the ESSA eliminates NCLB’s requirement that all teachers be “highly qualified,” which previously required teachers to have demonstrated competence in the core academic subject they teach. Instead, the ESSA requires districts to hire teachers who are determined to be effective at teaching students using locally determined standards. In eliminating the onerous “highly qualified” requirements, the ESSA intends to provide school districts with flexibility and responsibility in selecting teachers to teach in their classrooms.

The ESSA also authorizes states to use funding targeted at the improvement of teacher quality. Specifically, states are encouraged to implement teacher evaluation systems, develop mechanisms for effectively recruiting and retaining teachers, and reform teacher certification, recertification, licensing and tenure systems. The ESSA further emphasizes the importance of improving equitable access for all students to effective teachers who are able to improve student academic achievement. The ESSA also requires local education agency plans to address disparities that result from low-income and minority students being taught by ineffective, inexperienced, or out-of-field teachers at higher rates than their peers.

Finally, the ESSA allocates funding through Teacher and School Leader Incentive Fund Grants for the development, implementation, improvement or expansion of performance-based compensation systems and for staff retention and recruiting for teachers, principals and other school leaders.

California and the other states must now grapple with the increased autonomy and flexibility offered by the ESSA, so it remains to be seen how the ESSA will be implemented in this state. Lozano Smith will continue to monitor this new law and will provide further updates as needed.

If you have questions about the ESSA or accountability measures generally, please contact 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

Sloan R. Simmons
Partner
Sacramento Office
ssimmons@lozanosmith.com

Dulcinea Grantham
Partner
Walnut Creek Office
dgrantham@lozanosmith.com

Inna Volkova
Associate
Fresno Office
ivolkova@lozanosmith.com

Carey Hawkins Ash
Associate
Sacramento Office
cash@lozanosmith.com

©2015 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.

Ninth Circuit Underscores School Districts’ Affirmative Obligation to Initiate Special Education Due Process

December 2015
Number 79

Making clear that school districts should not ignore their obligations to initiate due process when parents refuse to consent to necessary components of special education, the Ninth Circuit Court of Appeals recently reversed and remanded the decision of a district court on the subject. In I.R. v. Los Angeles Unified School District, (9th Cir., November 17, 2015) 2015 U.S. App. Lexis 19900 (I.R.), the Ninth Circuit held that “school districts in California must comply with the additional requirement imposed by the California Education Code of initiating a due process hearing if agreement between the district and the parent on an appropriate placement cannot be reached” and “a year and a half is too long for a school district to wait to initiate a due process hearing pursuant to California Education Code § 56346(f).” This decision is applicable to school districts and other local educational agencies responsible for the offer and provision of a free appropriate public education (FAPE) for special education students.

In I.R., a parent had partially consented to several Individual Education Programs (IEPs) over a span of a year and half, while failing to consent to the Los Angeles Unified School District’s (LAUSD) offer of placement in a special education environment. As a result, I.R. remained in a general education classroom with a special education aide. I.R.’s mother ultimately filed a request for due process hearing on the issue of whether the school district failed to provide the student a FAPE during the relevant time period.

At the administrative level, an Administrative Law Judge (ALJ) held that the school district offered FAPE. The ALJ noted that California law requires a school district to file for due process when it believes that a parent failed to consent to a portion of the IEP that the school district believes is necessary to provide a FAPE. However, in this case, the ALJ did not hold LAUSD liable for failing to file for due process. Instead, the ALJ focused on I.R.’s mother’s refusal to provide consent, which LAUSD argued (and the ALJ agreed) prevented LAUSD from implementing and providing the full offered FAPE.

I.R.’s mother appealed the ALJ’s decision to federal district court, which affirmed the ALJ’s decision. Upon review, the Ninth Circuit disagreed with the ALJ’s decision and the district court’s affirmation of the ALJ’s decision. In this case, I.R.’s mother had consented to special education and related services for I.R., but had not consented to placement. Therefore, LAUSD was obligated to file for due process hearing pursuant to California Education Code § 56346, subdivision (f), which provides that a due process hearing shall be initiated if the school district determines that the proposed special education program component “to which the parent does not consent is necessary to provide” a FAPE. Accordingly, the Ninth Circuit noted, “In effect, § 56346(f) compels a school district to initiate a due process hearing when the school district and the parents reach an impasse.”

The Ninth Circuit also opined that California Education Code § 56346(f) outlines the process to be followed after an IEP is presented to a parent and the parent does not consent to all components of the IEP. In these situations, the Ninth Circuit held that the school district must first determine whether the proposed special education component “is necessary to provide a FAPE.” If so, the district must initiate a due process hearing “expeditiously” and “cannot opt to hold additional IEP meetings or continue the IEP process in lieu of initiating a due process hearing.”

While the Ninth Circuit does not provide a definitive timeline for filing for due process after a parent fails to provide consent for a necessary component of the IEP to provide a FAPE, the Ninth Circuit affirmatively states that the time line in this case, over one year, was too long.

This case affects all California local educational agencies responsible for offering and providing a FAPE as this case is binding precedent. This case makes clear that these issues should be addressed as they arise and affects the response to the frequent problem of parents consenting to part, but not all, of a school district’s offer of FAPE. An internal review of files may be prudent to determine whether a school district has outstanding IEPs of this nature.

If you have any questions regarding the I.R. decision, or about special education in general, please contact 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

Summer D. Dalessandro
Senior Counsel
San Diego Office
sdalessandro@lozanosmith.com

Colleen R. Villarreal
Associate
Sacramento Office
cvillarreal@lozanosmith.com

©2015 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.

Under the Public Records Act, Local Agencies Are Now Required to Create and Maintain a Catalog of Enterprise Systems

December 2015
Number 78

On October 11, 2015, Governor Jerry Brown signed into law Senate Bill (SB) 272, which requires local agencies to create a catalog of “enterprise systems,” as defined, as part of implementing the California Public Records Act (PRA). This bill does not currently apply to local educational agencies.

SB 272 becomes effective January 1, 2016. It adds section 6270.5 to the Government Code, which requires local agencies to create a catalog of “enterprise systems.” “Enterprise system” is defined under this section as “a software application or computer system that collects, stores, exchanges, and analyzes information the agency uses.” Enterprise systems are also limited to multidepartmental systems or systems that contain information collected about the public and systems of record, meaning they serve as an original source of data within the agency. Finally, enterprise systems do not include IT security systems or records collected and stored by IT, nor does it include physical control systems such as video monitoring, mechanical control systems such as street lights or water functions, or systems related to emergency services.

The new law lists several items that must be included in the catalog of enterprise systems, such as the current vendor for the system, the current product, the system’s purpose, a description of the categories of data, the department that oversees the system, and how frequently data is collected and updated. The catalog system must be posted in a prominent place on the agency’s website, and made available upon request in the agency’s office. Local agencies must have these catalogs completed and posted by July 1, 2016, and then must update them annually.

Government Code section 6270.5 explicitly states it is not intended to provide public access to records not otherwise available, or to change the way public records are requested. Also, if the agency determines under the Government Code section 6255 balancing test that the public interest weighs in favor of nondisclosure, the agency can instead provide just a name or identifier for the system. However, as with all PRA requests, nondisclosure under the balancing test should be well documented to support any potential push-back from the requester. Local agencies should carefully weigh the governmental interests against the public’s interest in disclosure, and when possible, do so with the advice and assistance of legal counsel.

SB 272 introduces a new law and there may be impacts or implementation issues not yet addressed or contemplated by the Legislature. Moreover, while this new law does not currently apply to local educational agencies, this law may later be expanded to cover local educational agencies. Local agencies should watch for further updates in the coming year.

For more information on SB 272, its implications for local agencies, and the complex nature of PRA requests, please contact 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

William P. Curley III
Senior Counsel
Los Angeles Office
wcurley@lozanosmith.com

Samantha Corner
Associate
Monterey Office
scorner@lozanosmith.com

©2015 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.

Teacher’s Blog Maligning Students Is Not “Protected Speech” Under the First Amendment

November 2015
Number 75

In Munroe v. Central Bucks School District (E.D. Pa. 2014) 34 F. Supp. 3d 532, 538, the Third Circuit Court of Appeals held that a teacher’s blog disparaging students was not “protected speech” under the First Amendment of the United States Constitution. Although not binding precedent in California, the decision provides guidance in evaluating what First Amendment protections should be afforded to employees’ speech, if any.

Natalie Munroe, a former employee of Central Bucks School District (District) filed a First Amendment retaliation action against the District, the District’s Superintendent, and her school principal. Ms. Munroe claimed she was fired because of a blog she authored.

Ms. Munroe’s blog included a post in which she proposed comments that should be added to student report cards, such as “seems smarter than she actually is,” “a complete and utter jerk,” “dresses like a streetwalker,” and “liar and cheater.” Upon discovering the blog post, the District immediately suspended Ms. Munroe. Parents and students were furious about the posts and over 200 parents complained they did not want Ms. Munroe teaching their children. To allay parent concerns, the District hired another teacher to shadow Ms. Munroe. The District subsequently terminated Ms. Munroe because of the blog posts. Ms. Munroe filed a lawsuit challenging her termination.

To determine whether Ms. Munroe’s blog post was protected speech under the First Amendment, the Third Circuit Court of Appeals applied the United States Supreme Court’s balancing test for public employee speech set forth in Pickering v. Board of Education (1968) 391 U.S. 563. Pickering requires the courts to “balance the interests of the employee as a citizen, in commenting on matters of public concern and the interest of the employer in promoting efficiency of employees.” This Pickering balancing test is fact-intensive. Courts typically consider whether the speech impairs discipline or employee harmony, has a detrimental impact on close working relationships, impedes the performance of the speaker’s duties, or interferes with regular operations.

The Court of Appeals found the blog addressed matters of public concern because Ms. Munroe had proposed suggestions for teacher evaluations of students and the grading process. However, the court found that the blog was not protected speech because the District’s interest in promoting efficiency and avoiding workplace disruption outweighed Ms. Munroe’s free speech interests. In determining that the blog was not protected speech, the court considered the breakdown in the student-teacher relationship and the District’s need to hire a new teacher to address parent concerns.

As Munroe demonstrates, when determining whether to discipline an employee, it is important to consider the extent to which an employee’s speech negatively impacts working relationships, impairs the performance of the employee’s duties, and causes disruption in evaluating discipline based on employee speech.

For additional information regarding the Munroe decision or generally, school employee’s First Amendment rightplease contact 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

Dulcinea Grantham
Partner
Walnut Creek Office
dgrantham@lozanosmith.com

Meera H. Bhatt
Associate
Fresno Office
mbhatt@lozanosmith.com

©2015 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 Assigning High School Students to Certain Courses

November 2015
Number 74

Recent legislation imposes new requirements before school districts can assign high school students to certain courses. Beginning with the 2016-2017 school year, school districts may not assign students in grades 9-12 to “course periods without educational content” without written parent consent and related documentation. Similar requirements apply before a school district may assign students in grades 9-12 to take certain courses for the second time.

Assembly Bill (AB) 1012 was introduced in response to the class action lawsuit (Cruz v. California, No. RG-14727139 (Alameda Cnty Super Ct) filed in May 2014 which alleged that students enrolled in certain courses were not receiving meaningful instruction in violation of the California Constitution’s guarantee of an equal education opportunity. Some of the courses at issue were entitled “Inside Work Experience,” “Service,” “Home” and “Teaching Assistant.” After AB 1012 was signed by the Governor, the parties settled the lawsuit on November 5, 2015.

Effective January 1, 2016, AB 1012 adds sections 51228.1, 51228.2 and 51228.3 to the Education Code. Section 51228.1 provides that school districts are not allowed to assign students in grades 9-12 to “course periods without educational content” for more than one week in a semester beginning in the 2016-2017 school year without written parent consent and related documentation.

“Course periods without educational content” are defined to include course periods where: 1) a student is released early from school, 2) a student is assigned to a service, instructional work experience or to a course to assist a certificated employee, but is not expected to complete curricular assignments, or 3) where the student is not assigned to any course during the class period. However, section 51228.1 may not be interpreted to limit a district’s ability to authorize dual enrollment in community college, to offer independent study, or to provide courses of work-based learning or work experience and similar opportunities.

Education Code section 51228.2 provides that school districts also cannot, without written parent consent and related documentation, enroll students in classes they have previously completed and received a grade which is satisfactory to receive a high school diploma and to attend California public institutions of postsecondary education. There is an exception for courses that have been designed to be taken more than once because students are exposed to a new curriculum year to year and therefore are expected to receive educational value from taking the course again.

As noted above, Education Code sections 51228.1 and 51228.2 both allow for a student’s enrollment in the specified courses, provided there is written consent from the parent, guardian, educational rights holder, or the student, if he or she is 18 years or older. Both of these sections also require that a school official determine that the student will benefit from being assigned to the particular course and that the principal or assistant principal of the school has stated in writing, for the relevant school year, that no pupils are assigned to the specified courses unless the first two requirements have been met.

Education Code sections 51228.1 and 51228.2 do not apply to students enrolled in an alternative school, a community day school, a continuation high school or an opportunity school.

AB 1012 also adds Education Code section 51228.3, which provides that complaints alleging that a school district has not complied with these new requirements must be considered under the district’s Uniform Complaint Procedures, with a right to appeal to the California Department of Education.

The new Education Code sections require the State Superintendent to develop regulations for adoption by the State Board to establish procedures, including the form of the written statements required of the parents and school administrators. The terms of the Cruz settlement provide that, prior to May 15, 2016, the California Department of Education will issue a policy notice to all school districts outlining the requirements of AB 1012 for assigning students to “courses without educational content” and “repeated courses.” However, the reality of the school registration schedule will likely require districts to develop protocols in the very near future. Towards that end, Lozano Smith is continuing to work towards clarifying the parameters and outlining the statements required for the upcoming registration season.

For additional information regarding implementing these new registration requirements for the 2016-2017 school year, please contact 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

Ruth Mendyk
Partner
Fresno Office
rmendyk@lozanosmith.com

Ameet K. Nagra
Associate
Fresno Office
anagra@lozanosmith.com

©2015 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.

Recent Legislation Addresses 9th Grade Mathematics Placement, Mascot Names, and Other Issues Impacting California Students

November 2015
Number 73

Governor Jerry Brown recently signed into law several Assembly Bills and Senate Bills impacting school district campuses. These bills are summarized below.

Senate Bill 359: the California Mathematics Placement Act of 2015

By January 1, 2016, school districts must adopt a fair, objective and transparent mathematics placement policy for students entering the 9th grade. Senate Bill (SB) 359 was drafted in response to research by the Noyce Foundation which revealed that students of color, despite performing well in 8th grade Algebra courses, were often held back from taking the subsequent math course, Geometry, as they entered 9th grade, resulting in “math misplacement” of those students. The study revealed, without stating expressly, that this created disparate treatment of African American and Latino students.

SB 359 requires that Districts use objective academic measures (i.e., statewide assessments, etc.) in determining student placement in mathematics. Additionally, the bill provides several safeguards to ensure that students are not placed in incorrect math classes for their skill level, such as a placement check point within the first month of the school year, as well as clear and timely recourse for each student or parent who questions in their mathematics placement. The bill attempts to address the overarching problem that improper placement of students in mathematics courses, as early as the 9th grade, can have a long lasting impact on both their professional development and college eligibility.

Assembly Bill 30: The California Racial Mascots Act

Assembly Bill (AB) 30 goes into effect on January 1, 2017, and prohibits public schools from using the term “Redskins” as a school or athletic team name, mascot or nickname. AB 30 explains that the term “Redskins” is discriminatory towards Native Americans and the use of the term in public school sports is a barrier to both equality and understanding for all residents. While AB 30 prohibits public schools from using the term “Redskins,” the bill provides some leeway for schools phasing in this new requirement. For example, AB 30 allows schools to use uniforms or materials with the term “Redskins” as long as the school meets four requirements: (1) the school selects a new school or athletic team name, mascot or nickname; (2) prior to January 1, 2019, schools may acquire or purchase only up to 20% of the total number of uniforms to replace damaged or lost uniforms during the 2016-2017 school year that bear the Redskins name; (3) the school refrain from using the term “Redskins” on any materials distributed or sold to students or employees (i.e. yearbooks, newspapers); and (4) the school refrain from setting up any marquee, sign or other new or replacement fixture with the “Redskins” name. However, schools are not required to take down existing structures until the next time they are replaced in the normal course of maintenance.

Senate Bill 707: Restrictions on Concealed Carry Permit Holders

Prior to SB 707, concealed carry permit holders could carry their handguns on school (K-12) and college campuses without obtaining prior written permission from the Superintendent or designee. SB 707 amends the Gun-Free School Zone Act of 1995 to prevent concealed carry permit holders from possessing their handguns on school (K-12) and college campuses, without such written permission. The bill carves out exceptions to carrying handguns on school and college campuses for active, retired and reserve law enforcement officers. Furthermore, with certain exceptions for peace officers and others, the bill establishes restrictions on carrying ammunition on school and college campuses.

Violations of this new law carry stiff penalties, including felony convictions that may lead to several years of prison time.

AB 306: Transfers for Children of Military Personnel

AB 306 makes it easier for children of active military personnel to transfer to schools other than the one that the student has been assigned to based on his or her place of residence. Currently, a successful inter-district transfer of students requires a two step acceptance process: (1) the district where the student wants to transfer must agree to accept the student; and (2) the district of residence (where the student is transferring from) must allow for the transfer to take place. AB 306 prohibits school districts of residence from denying the transfer of a student who is the child of an active duty parent, so long as the school district receiving the student has approved the transfer.

AB 302: Accommodation for Parenting Teens

AB 302 has made it easier for students with small children to continue attending regular high school. The bill requires high schools to provide lactating students with access to a private, secure room, other than a restroom, to express breast milk, breast-feed an infant child, or address other needs related to breast-feeding. Schools are also required to allow these students to bring breast pumps or any other similar equipment on campus and must provide students space to store their expressed milk. Schools are further required to provide these students with a reasonable break time to accommodate their lactation schedule, and students must not incur any academic penalties as a result of using these accommodations.

The new law also allows students to file complaints under the Uniform Complaint Procedures for failure to comply with these requirements.

If you have questions about 9th Grade Mathematics Placement, Mascot Names or any other issues impacting California studentplease contact 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

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Inna Volkova
Associate
Fresno Office
ivolkova@lozanosmith.com

©2015 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 Statutes Affect Local Agency Public Works Projects

November 2015
Number 72

New legislation will impact public works projects for local public agencies, including cities, school districts, and counties. In light of these changes, public agencies will want to closely review their public works bidding and construction documents to ensure they are updated in accordance with these new laws.

Liquidated Damages – Government Code section 53069.85 currently allows liquidated damage provisions in local agency public works contracts to compensate the owner for costs caused by contractor delay in lieu of actual delay damages. Most public works contracts include a liquidated damages clause, which typically states a dollar amount that will be assessed for each day of delay. The dollar amount is calculated by the public agency before entering the contract based on estimated actual delay damages and the likely inconvenience to the public of any delay. If no liquidated damages provision is included in a contract, the owner would still be able to recover actual delay damages incurred.

Effective January 1, 2016, Public Contract Code (PCC) section 7203, added by Assembly Bill (AB) 552, will require liquidated damages provisions in every local agency public works contract, and recovery of actual delay damages will be barred. The legislation also restricts the owner from charging liquidated damages after the filing of a notice of completion or, in the absence of such notice, the public agency’s acceptance of the public work as complete.

Prevailing Wages – For public works projects awarded on or after July 1, 2016, Labor Code section 1720.9 (created by AB 219) adds hauling and delivery of ready-mixed concrete to the definition of “public works” for purposes of prevailing wages. “Hauling and delivery” means the duties of the ready mixer driver, including the return trip to the factory or plant.

Prequalification and Lease-Leaseback (school districts only) – For details about AB 566 that affects mandatory prequalification and lease-leaseback projects as of January 1, 2016, please see see Client News Brief No. 51, September 2015, on the Lozano Smith website.

If you have any questions about these or other public works issues, or if you have any interest in Lozano Smith’s form construction contract documents that are updated annually to conform to changes in the law and the construction industry, please contact 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

Megan Macy
Partner
Sacramento Office
mmacy@lozanosmith.com

Arne Sandberg
Senior Counsel
Walnut Creek Office
asandberg@lozanosmith.com

©2015 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 Bill Overhauls the Design-Build Construction Delivery Method for School Districts

November 2015
Number 71

Although the ‘design-build’ construction delivery method has been available to California school districts for several years, this method has been used somewhat infrequently, as districts have opted for more traditional construction methods, like design-bid-build (Public Contract Code § 20111,et seq.), or alternatives like lease-leaseback (Education Code § 17406). The Legislature recently amended the current laws governing the design-build method for school districts. The changes make the method more accessible and more streamlined, and to give school districts more flexibility. However, the Legislature also imposed a new requirement of a skilled and trained workforce.

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. Although Education Code section 17250.10 et seq. has permitted school districts to utilize the design-build method since 2000, the method has not been widely used. Under present law, school districts are only authorized to use design-build for those construction projects exceeding $2.5 million. Current law also requires a district to make a formal written finding that use of the design-build method will accomplish certain objectives, and requires a district to establish a process to prequalify bidders using a standard questionnaire developed by the Department of Industrial Relations. Also, while the district has some leeway in awarding a contract under design-build (and can consider more than just lowest price), a school district is still required to use the following designated factors to represent at least 50% of the total weight or consideration given to any criteria used by the district: price, technical expertise, life-cycle costs over 15 years or more, skilled labor force availability, and acceptable safety record.

On October 10, 2015, Governor Jerry Brown signed Assembly Bill (AB) 1358, which makes several changes to the design-build method specific to school districts. The changes brought by AB 1358 apply to any request for proposal (RFP) issued on or after on July 1, 2016. Most notably, AB 1358 lowers the threshold from $2.5 million to $1 million, expanding the pool of projects eligible to be awarded through design-build. AB 1358 also somewhat simplifies the process for letting and awarding design-build contracts. First, a district’s governing board is no longer required to make specific written findings regarding the benefits of using the design-build method. Second, a district is allowed to develop its own prequalification questionnaire and rating system. Third, AB 1358 gives more freedom to a district when awarding the contract on factors others than lowest price. While a school district is still required to consider certain factors (price, technical design and construction experience, and life-cycle costs over 15 or more years), the district now has discretion on how these factors are weighted and what other factors, if any, the district should consider.

Another significant change brought by AB 1358 is the addition of a “skilled and trained workforce” requirement. Specifically, any entity seeking prequalification for a school district’s design-build project must provide an enforceable commitment to the district that the entity, and every subcontractor at every tier, will use a skilled and trained workforce to perform all work on the project. This enforceable commitment can be made by the design-build entity in one of three ways: (i) stating in the contract that it will comply with the labor requirements, with monthly written confirmation from the contractor, and with payments to the contractor ceasing if the confirmation is not received; (ii) agreeing to become a party to the school district’s project labor agreement for the project, if one already exists; or (iii) entering a new project labor agreement for the project. This new requirement is similar to recent changes made to lease-leaseback projects, which also become subject to a ‘skilled and trained workforce’ obligation. (For a further discussion of recent changes to lease-leaseback and lease-to-own agreements, see Client News Brief No. 51, September 2015.)

Even though school districts have been slow to use design-build contracts, other public agencies have used the design-build method and found it advantageous. Given the current uncertainty surrounding lease-leaseback construction agreements, and the fact that some school districts have sought alternatives to the design-bid-build method, AB 1358 may allow the design-build method to become a viable and beneficial construction delivery method for California school districts moving forward, as long as school districts are also prepared to accept the new labor requirements.

If you have questions regarding the implications of AB 1358, or have any planned or anticipated construction projects and would like to discuss construction delivery methods, please contact 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

Devon B. Lincoln
Partner
Monterey Office
dlincoln@lozanosmith.com

Travis E. Cochran
Associate
Monterey Office
tcochran@lozanosmith.com

©2015 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 and Community College Districts Must Negotiate Calendar Changes and Generally May Not Rely Upon Operational Necessity As a Defense

November 2015
Number 69

Serving the public is the main business of public agencies, and school and college districts must publish a reliable and predictable schedule of instruction each school year so that students, staff, and the community may plan around it. This has always created tension for public school employers as they must plan the non-negotiable instructional calendar for students and also bargain over the negotiable work year calendar for staff members.

In a recent decision, the Public Employment Relations Board (PERB) held that a community college district (District) violated the Educational Employment Relations Act (EERA) when it adopted and implemented a revised academic calendar without exhausting the EERA’s statutory bargaining and impasse process. (Pasadena Area Community College District (2015) PERB Dec. No. 2444). The decision reminds us about which aspects of a school calendar are negotiable, and when a district may unilaterally implement a calendar.

For many years, the District utilized a traditional semester system which included Fall and Spring semesters and Winter and Summer intercessions. In May 2012, the District’s governing board adopted a proposal by the college’s calendar committee to continue using the semester system for 2012-2013. During faculty association (Association) bargaining sessions, the District proposed a switch to the trimester system for 2012-2013 in order to increase revenues. The trimester system would eliminate the Winter intercession.

At the time that the District proposed the trimester system, it offered to negotiate the impacts, or effects, of the calendar change while the Association demanded to bargain over the decision itself. After holding two bargaining sessions where the trimester issue was on the table and before any agreement was reached, on August 29, 2012 the District’s Board of Trustees adopted a revised tentative academic calendar for 2012-2013. The new calendar incorporated the trimester system starting on January 7, 2013, and set October 1, 2012 as the date of “operational necessity” when the District could implement the proposed calendar even without the Association’s agreement. The parties met in September 2012 but reached no agreement. On October 1, 2012, the District implemented the proposed 2012-2013 calendar.

The Association filed an unfair labor practice charge with PERB, alleging that the District’s adoption of the 2012-2013 trimester calendar was an unlawful unilateral action on a negotiable subject. PERB found in favor of the Association.

Under the EERA, an employer commits a “per se” violation of its duty to meet and negotiate with a unit representative when it unilaterally establishes any term or condition of employment within the scope of representation prior to completion of the bilateral negotiations process. With regard to the scope of representation claim, the District asserted that it had adopted an academic calendar, rather than a work calendar, and that prior PERB decisions allow for such action if it is adjusted to accommodate a negotiated work calendar.

PERB rejected the District’s defense, finding that while the District may have a prerogative to generally determine the hours of instruction and the distribution of working days, “the school calendar is within the scope of negotiations.” PERB also rejected the District’s assertion that it had only adopted a student calendar while continuing to negotiate in good faith over the work calendar. While this has been condoned in prior PERB decisions, PERB noted that in this case, the District’s actions constituted a simultaneous adoption of both student and work calendars that left no room for post-adoption bargaining. PERB held that the implementation of a trimester calendar forced such “dramatic differences” onto the work calendar that it necessarily encroached upon collective bargaining rights.

PERB also rejected two of the District’s other arguments. First, PERB found that the Association had not waived the right to negotiate through its participation in the calendar committee (which had recommended the semester calendar) or by refusing to accept the District’s proposals at the bargaining table. Second, PERB found that the District’s need to plan for the coming school year did not constitute an operational or business necessity that justified the District’s unilateral action. According to the decision, the District could not establish an operational or business necessity defense unless “an actual financial emergency which leaves no real alternative to the action taken and allows no time for meaningful negotiations before taking action.”

While PERB conceded that October 1, 2012 may have been the date of operational necessity if it had no 2012-2013 calendar in place for the 2013 Spring semester, PERB found that the Board’s May 2012 adoption of a semester-based calendar provided an existing default for the District to use. In this context, PERB found that the District’s desire to start the trimester calendar in January 2013, and the District’s prerequisite need to start planning for it as of October 1, 2012, did not constitute a business necessity. According to PERB, such circumstances “[did] not convert the District’s desire into a business necessity and [did] not absolve the District of its bargaining obligation.”

This decision is instructive regarding the scope of bargaining for public school and community college employers, and the limitations on the ability to engage in unilateral actions on the basis of operational or business necessity.

If you have any questions regarding this decision, please contact 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

Darren C. Kameya
Partner
Los Angeles Office
dkameya@lozanosmith.com

Inna Volkova
Associate
Fresno Office
ivolkova@lozanosmith.com

©2015 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.

Taxpayer Organization Lacks Standing To Bring Conflict Of Interest Lawsuit; Court’s Decision Questions Part of Recent Lease-Leaseback Case

November 2015
Number 68

The fourth district court of appeal recently addressed the question of whether taxpayer organizations have standing to sue to invalidate an agreement due to an alleged conflict of interest under Government Code section 1090. In San Bernardino County v. Superior Court (San Bernardino) (August 17, 2015) 239 Cal. App. 4th 679, the court held that taxpayer organizations may not sue to void an agreement under Government Code section 1090 unless they are parties to the agreement or are appropriately challenging the agreement under some other, independent legal theory.

In San Bernardino, two taxpayer organizations challenged a $102 million dollar settlement agreement between the County of San Bernardino, the San Bernardino County Flood Control District (collectively “County”), and Colonies Partners, L.P. The settlement agreement was based on the allegation that the County took 67 acres of Colonies’ land for use as part of a regional flood-control facility. A trial court validated the settlement agreement in March, 2007. However, four years later, the San Bernardino County District Attorney’s Office secured a felony bribery conviction against a former county supervisor for bribes received from Colonies in exchange for his vote approving the settlement agreement. Shortly thereafter, the taxpayer organizations brought suit, seeking to have the settlement agreement declared void in violation of Government Code section 1090 because of the former supervisor’s personal financial interest.

Government Code section 1090 forbids public officers from being financially interested in any contract made by them in their official capacity. However, San Bernardino concluded that nothing in section 1090, et seq., grants non-parties to government contracts the right to sue on behalf of a public entity to void contracts made in violation of section 1090. As a result, the appellate court found that the taxpayer organizations, which were not parties to the agreement, lacked standing under Government Code section 1090 to void the agreement on the County’s behalf. The court left open the possibility that under a different fact pattern, taxpayer organizations could have standing to sue under Government Code section 1090; for example, where the organizations represent individual members who suffer loss or injury resulting from the public entity’s actions.

The taxpayer organizations alternatively argued they had standing to void the agreement based on Code of Civil Procedure section 526a, which gives citizens standing to prevent the illegal expenditure or waste of public funds by a public entity, and under common law. However, the court found that taxpayer suits are authorized only if the public entity is under a duty to act and refuses to do so. Because a public entity is not duty-bound to pursue particular legal claims, taxpayer organizations lack standing under section 526a and the common law to force public entities to file certain types of lawsuits. Taxpayer organizations cannot compel government entities to take a particular course of action unless the public entity already has a legal duty to do so.

It is worth noting that the fifth district court of appeal in Davis v. Fresno Unified School District (June 1, 2015) 237 Cal. App. 4th 261, allowed a third party lawsuit under section 1090 to move forward. In Davis, a contractor and the school district entered into a “lease-leaseback” agreement for construction of school facilities. The contractor was alleged to have served as a pre-construction consultant and then later was hired as the contractor. A third party sued, alleging among other issues that hiring the same entity to provide pre-construction services and then to do the work under contract violated section 1090. The court of appeals reversed a decision to dismiss that lawsuit, and concluded that the third party could raise the section 1090 conflict issue. (See Client News Brief No. 30, June 2015). The fourth district’s decision in San Bernardino appears to be in conflict with Davis. While San Bernardino attempted to distinguish the holding of Davis on procedural grounds, the court also concluded that to the extent Davis “may be read as treating Government Code section 1090 as an independent source of standing” to bring a third party lawsuit, the court “do[es] not find that interpretation persuasive and decline[s] to adopt it.” Because a split in appellate authority now appears to exist regarding whether third parties can bring a third party lawsuit under section 1090, consultation with legal counsel may be appropriate when considering related issues.

If you have any questions regarding Government Code section 1090, conflicts of interest, or the rights of taxpayer organizations relative to public agencies organization, please contact 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

Harold M. Freiman
Partner
Walnut Creek Office
hfreiman@lozanosmith.com

Carey Hawkins Ash
Associate
Sacramento Office
cash@lozanosmith.com

©2015 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.

Recent Legislation Addresses Cheerleading, District Training Requirements to Protect Students, and Changes to the Uniform Complaint Procedures

November 2015
Number 70

In October 2015, Governor Jerry Brown signed into law five new bills that all go into effect January 1, 2016, enacting important changes to the Education Code on issues affecting student rights and services. These bills address mandatory training for school counselors, classification of competition cheerleading as a sport, additions to the Safe Place to Learn Act, guidance regarding child abuse and training, and an expansion of the Uniform Complaint Procedures to cover issues related to foster children and homeless youth.

SB 451: Pupil Instruction and Services
Senate Bill (SB) 451 amends Section 49600 of the Education Code to add specific requirements for school counseling programs in districts which have chosen to provide comprehensive school counseling programs. Counselors will be required to engage in continued professional development related to career and vocational counseling, including strategies for students pursuing postsecondary, career technical education, multiple pathway, college, and global career opportunities. SB 451 also lists additional counseling services that may be added. These additional services, which are stated as legislative intent and are not specifically mandated, include: engaging and advocating for all students; implementing programs to promote student academic, career, and personal growth; promoting a safe learning environment; and using research-based strategies to reduce stigma, conflict, and bullying. Districts that wish to expand the services that their counselors provide may need to bargain this with the applicable employee union.

AB 949: Physical Education Related to Cheerleading
Assembly Bill (AB) 949 requires the California Interscholastic Federation (CIF) to develop guidelines, procedures, and safety standards for the purpose of classifying competition cheer as an interscholastic sport by no later than July 1, 2017. This new law adds Section 33353.7 to the Education Code and will allow school districts to count competition cheer towards a school’s Title IX compliance once the United States Department of Education’s Office for Civil Rights deems competition cheer complaint with its definition of a sport.

AB 827: Safe Place to Learn Act
Currently, the Safe Place to Learn Act requires that each school district afford all persons in public schools, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other specified characteristic, equal rights and opportunities in the educational institutions of the state. As part of the regular monitoring process, the California Department of Education (CDE) is tasked with assessing whether local educational agencies (LEAs) have adopted policies that prohibit discrimination, harassment, intimidation, and bullying. AB 827 amends Education Code section 234.1 to require CDE, as part of its compliance monitoring, to assess whether LEAs have provided information to certified schoolsite employees serving grades seven through twelve on school and community resources related to the support of lesbian, gay, bisexual, transgender, and questioning (LGBTQ) students.

AB 1058: Child Abuse Prevention and Training
AB 1058 amends Section 44691 of the Education Code and focuses on child abuse on school grounds or by school personnel and requires CDE to establish best practices for district employees to follow regarding prevention of child abuse, including sexual abuse of children on school grounds, by school personnel, or in school-sponsored programs. The bill encourages, but does not require, school districts, county offices of education and charter schools to participate in child abuse prevention training at least once every three years regarding the prevention of abuse at school or by school personnel.

AB 379: Foster Youth and Homeless Children and the Uniform Complaint Procedures
AB 379 expands the Uniform Complaint Procedures (UCP) to encompass complaints regarding the rights of foster youth and homeless children. Specifically, complaints alleging violations of certain educational rights afforded to students in foster care and students who are homeless are now subject to the UCP process with an appeal to CDE. This bill amends Sections 48853, 48853.5, 49069.5, 51225.1, and 51225.2 of the Education Code.

If you have any questions about these recent bills, please contact 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

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

Jennifer Baldassari
Associate
Walnut Creek Office
jbaldassari@lozanosmith.com

©2015 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.