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.