New Requirements for Placing Community College Employees on Paid Leave

November 2017
Number 73

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

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

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

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

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

If you have any questions about AB 1651 or its impact on the paid administrative leave process, please contact the authors of this Client News Brief or an attorney in our Technology and Innovation Practice Groupor at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Michelle J. Cannon

Partner

Aria Link

Associate

©2017 Lozano Smith

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

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Legislative Update: Bill Eases Fee Collection for Storm Water Systems

November 2017
Number 74

A new law will make it easier for local governments to raise the revenue necessary to maintain and upgrade storm water management systems. Senate Bill (SB) 231 becomes effective on January 1, 2018.

Proposition 218

Proposition 218 limits local governments’ ability to impose new or increased fees or charges. The California Constitution defines a “fee” or “charge” as “any levy other than an ad valorem tax, a special tax, or an assessment, imposed by an agency upon a parcel or upon a person as an incident of property ownership, including a user fee or charge for a property related service.” Prior to imposing a new or increased fee or charge, local governments are required to provide notice to the property owners or ratepayers that would be responsible for the fee or charge. The proposed new or increased fee or charge can be blocked by the submission of written protests from a majority of property owners. This is commonly known as the “majority protest process.”

Proposition 218 requires, in addition to the majority protest process, that new or increased fees or charges be approved by either a majority vote of the property owners or a two-thirds vote of the electorate in the affected
area. The exception to this voter approval requirement is for fees or charges for “sewer, water, and refuse collection services.”

SB 231

In the case of Howard Jarvis Taxpayers Ass’n v. City of Salinas (2002) 98 Cal.App.4th 1351, the Court of Appeal considered, among other things, whether a storm drainage fee was subject to the voter approval requirement. The court held that the exception to the voter approval requirement for fees or charges for sewer services did not apply because the term “sewer” as defined in the Proposition 218 Omnibus Implementation Act was limited to “sanitary sewage.” SB 231 is a direct response to theCity of Salinas decision.

SB 231 creates a new, expansive definition of “sewer” for the purposes of Proposition 218 that explicitly includes storm water systems. The new definition is contained in the Proposition 218 Omnibus Implementation Act. SB 231 also contains findings that state the Legislature’s disapproval of the City of Salinas decision. This change will make it easier for local government to raise the revenue necessary to maintain proper storm water management systems.

For more information on SB 231 or on Proposition 218 in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

David J. Wolfe

Partner

Nicholas J. Clair

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 Restrictions on Disclosure of Video and Audio Recordings

November 2017
Number 72

A new law will restrict the public disclosure of video and audio recordings created during the commission or investigation of rape, incest, sexual assault, domestic violence, or child abuse that depicts the face, intimate
body part, or voice of a victim of the incident. Assembly Bill (AB) 459 goes into effect on January 1, 2018.

The California Public Records Act (CPRA) requires public agencies to respond to a records request within 10 days, and to make eligible public records promptly available to a requester who pays the costs associated with duplication. Video and audio data are generally considered public records that are subject to disclosure, unless they are exempt under the express provisions of the CPRA or the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.

Over the past several years, peace officers’ use of body-worn cameras has become a frequent topic of public debate. Advocates stress public benefits such as improved evidence documentation and greater transparency, while others express concerns regarding potential invasions of privacy and violations of trust. AB 459 addresses the possibility that such recordings, which may contain sensitive, personal, or violent imagery or audio, could be distributed to the public, and is designed to provide victims of sexual or domestic violence with greater confidence that such footage will not be released.

AB 459 adds section 6254.4.5 to the Government Code, which specifies that the CPRA “does not require disclosure of an audio or video recording that was created during the commission or investigation of the crime of rape, incest, sexual assault, domestic violence, or child abuse that depicts the face, intimate body part, or voice of a victim of the incident depicted in the recording.” A public agency may withhold any such video or audio recording by showing that the public interest served by not disclosing the recording clearly outweighs the public interest served by disclosure of the recording. When balancing the public interest served by disclosure, AB 459 sets forth the two factors the public agency must consider:

  • The constitutional right to privacy of the person or persons depicted in the recording; and
  • Whether the potential harm to the victim caused by disclosing the recording may be mitigated by redacting the recording to obscure images showing intimate body parts and personally identifying characteristics of the victim or by distorting portions of the recording containing the victim’s voice, provided that the redaction does not prevent a viewer from being able to fully and accurately perceive the events captured on the recording.

Notably, AB 459 also explicitly allows a victim of sexual assault or domestic violence, or his or her parent or guardian (if the victim is a minor), next of kin, or legally authorized designee, to obtain a copy of any such recordings. Such a disclosure to a victim or family member does not require that the recording be made available to the public.

Lozano Smith will provide additional details about how AB 459 is applied and interpreted as public agencies begin utilizing these new standards. For more information on AB 459, please contact the authors of this Client News Brief or an attorney in our Charter Schools Practice Group or 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:

Penelope R. Glover

Senior Counsel

Ellen N. Denham

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.

Charter Schools Facilities Request Deadlines Looming

October 2017
Number 71

Commonly referred to as “Prop. 39,” Education Code section 47614 requires that, in certain circumstances, school districts must provide facilities to charter schools. Pursuant to Prop. 39, charter schools must request facilities for the 2018-2019 school year, in writing, by November 1, 2017. Because Prop. 39 triggers certain obligations for a school district, it is best to be prepared for the upcoming facilities request season.

A charter school’s timely facilities request to a school district triggers the following deadlines:

December 1: Deadline for a school district to express, in writing, any objections to the charter school’s projected average daily attendance (ADA). If this deadline passes without objection by the district, the district will likely be required to base its facilities offer on the charter school’s in-district ADA projections.

January 2: Deadline for the charter school to respond to any objections raised by the school district regarding ADA projections.

February 1: Deadline for the school district to provide a preliminary offer of facilities to the charter school, along with detailed information about the offer and a draft facilities use agreement.

March 1: Deadline for the charter school to respond to the preliminary offer.

April 1: Deadline for the school district to provide a final facilities offer.

May 1: Deadline for the charter school to accept the district’s final facilities offer.

Given these tight timelines, it is critical that a Prop. 39 facilities request be reviewed shortly after receipt to determine the reasonableness of the charter school’s ADA projections and to consider what facilities will be offered. School districts should also keep in mind that in certain circumstances, even proposed charter schools may request facilities, so it is possible to receive a request from a school that has not yet been approved.

For assistance with processing Prop. 39 facilities requests or with any charter school matter, please contact the authors of this Client News Brief or an attorney in our Charter Schools Practice Group or at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Edward J. Sklar

Partner

Jerrad M. Mills

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.

Legislative Update: California’s Charter School Students Win New Protections

October 2017
Number 70

A new law aims to ensure equal access for students seeking to enroll in charter schools and to end the practice of dismissing, or “counseling out,” charter school students without due process. Assembly Bill (AB) 1360 takes
effect on January 1, 2018.

The bill gives charter authorizers a new tool for ensuring that charters do not engage in discriminatory admissions practices and provides students more due process during disciplinary proceedings. A description of the bill’s key elements is below.

Admissions Preferences: The Charter Schools Act has always given charter school authorizers the final say regarding charter school admissions preferences. However, the charter authorizer will now be required to hold a public hearing on the admissions preferences prior to their adoption. Any adopted preferences must comply with federal law, the California Constitution, and Education Code section 200, which prohibit discriminatory admissions preferences. For efficiency, charter authorizers may wish to conduct this public hearing on admissions preferences at the same time as the public hearing regarding interest in the charter school, which is required within 30 days of the submission of the charter petition.

Parental Involvement: While the bill allows charter schools to encourage parents and guardians to participate, charter schools are now required to inform parents and guardians of applicants and current students that parental involvement is not a requirement for acceptance or continued enrollment at the charter school.

Student Discipline and Dismissal: While existing law requires charter petitions to include the procedures by which a student can be suspended or expelled, AB 1360 extends beyond this requirement and provides additional due process protections. The changes follow a California Court of Appeal decision,Scott B. v. Board of Trustees of Orange County High School of Arts (2013) 217 Cal.App.4th 117, which allowed for the dismissal of charter school students with minimal due process protections. In addition to the procedures for suspending or expelling a student, charter school petitions must now also include procedures that will be used to involuntarily remove students from the charter school. The bill requires, at minimum, for charter school petitions to explain “how the charter school will comply with federal and state constitutional procedural and substantive due process requirements.” In order to ensure these due process requirements are met, the bill contains specific language that must be contained in the charter petition and specific processes that the charter school must follow when disciplining or removing a student.

Notification: AB 1360 requires school districts to notify charter schools if a student is expelled or leaves the school district without graduating or completing the school year. The district should provide this information to the charter school within 30 days, if the charter school provides evidence of enrollment. This is a new obligation for school districts.

Takeaways

Charter school authorizers, including school boards and county boards of education, should be aware of these important changes required by AB 1360. Charter schools should ensure that their petitions, policies, and practices regarding admissions preferences, student discipline and dismissal, and parental involvement are updated and in compliance with AB 1360. Charter authorizers should integrate the new requirements into their board policies regarding charter schools, and should remain aware of these changes when reviewing charter school petitions.

If you have any questions about AB 1360 or 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.

Written by:

Edward J. Sklar

Partner

Jerrad M. Mills

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.

Feds Offer Guidance on Recent School Data System Hacks

October 2017
Number 69

An arm of the U.S. Department of Education is warning schools and colleges to prepare themselves to address a new threat from cyber criminals hacking into schools’ data systems.

On October 16, 2017, the Department’s Federal Student Aid office (FSA) warned that cyber criminals attempted to extort money from school districts in Texas, Montana and Iowa by threatening to publicly release sensitive student information. According to news reports, the hacker or hackers, going by the moniker “The Dark Overlord,” sent messages directly to students or parents threatening to harm or kill children, prompting closures in two of the three school districts that have admitted to being targeted so far.

Law enforcement officials have said that the threats of violence are not credible, adding that the suspect is overseas. Still, the threats and the hacker’s release of data online and with media outlets, including voicemail messages from some of the victims, mark an escalation in cyber criminals’ tactics. School districts across the country, including in California, have been grappling with ransomware attacks in which hackers infiltrate schools’ computer systems, render data inaccessible and then threaten to destroy the data unless a ransom is paid. (See 2017 TIP Jar #1.)

According to the advisory, FSA believes that the hackers are targeting school districts with weak data security or well-known vulnerabilities that enable them to access sensitive data. It adds that the attacks could come in the form of direct electronic attacks on computers or applications, malicious software or email “phishing” attacks that enable hackers to access sensitive systems through individual employees.

FSA is advising schools and colleges to protect their organizations by encouraging educational institutions to:

  • Conduct security audits to identify weaknesses and update or patch vulnerable systems;
  • Ensure proper audit logs are created and reviewed routinely for suspicious activity;
  • Train staff and students on data security best practices and phishing and social engineering awareness; and
  • Review all sensitive data to verify that outside access is appropriately limited.

The advisory recommends that schools or colleges affected by such an attack contact local law enforcement immediately. It also requests that affected K-12 schools email privacyTA@ed.gov so that the spread of any threats may be monitored.

The advisory also reminds colleges that they are required to notify the Office of Federal Student Aid via email regarding any data breaches.

Additional resources for avoiding, responding to and recovering from cyberattacks include the Privacy Technical Assistance Centerwebsite and the Federal Student Aid office’s cybersecurity web page.

Separate and aside from the guidance, both federal and state law protect the privacy of student information, and state law requires public agencies to report data breaches to affected parties. In 2016, state lawmakers enacted a bill prohibiting schools from collecting students’ Social Security numbers in an effort to protect students from identity theft. (See 2017 Client News Brief No. 13.)

Lozano Smith has been at the forefront of addressing cyber security issues, and will be further addressing these issues in upcoming editions of the TIP Jar. To subscribe to the TIP Jar or to download our latest issue,click here.

For more information regarding these new cyberattacks or on a public agency’s obligation to secure student and employee information, please contact the authors of this Client News Brief or an attorney in our Technology and Innovation Practice Group or at one of our eight offices located statewide. You can also visit our website, follow us onFacebook or Twitter or download our Client News Brief App.

Written by:

Manuel F. Martinez

Partner

Penelope R. Glover

Senior Counsel

©2017 Lozano Smith

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

Legislative Update: Employers Can’t Ask, but Applicants Can Tell

October 2017
Number 68

Employers, including public agency employers, will be forbidden from asking job applicants for their salary history when Assembly Bill (AB) 168 becomes effective on January 1, 2018.

AB 168 explicitly prohibits public agency employers from asking job applicants for salary history information. However, when an applicant voluntarily and without prompting provides salary history information, employers may use the information as a factor in determining salary if the employer’s decision is supported by a bona fide factor other than sex, race, or ethnicity. Further, if the applicant’s prior salary history information is subject to public disclosure pursuant to federal or state law, employers may independently obtain the public information and use it as a factor in determining salary if the employer’s decision is supported by a bona fide factor other than sex, race, or ethnicity.

AB 168 also requires employers to provide a pay scale for an open position upon an applicant’s “reasonable request.” Employers that violate AB 168 are subject to monetary civil penalties under the Private Attorneys General Act.

The bill’s supporters argue that eliminating the practice of asking for salary history information will equalize pay for women and people of color. They claim that basing wages on market value instead of salary history will eradicate pay inequality.

Critics of AB 168 say the new law is gratuitous because there are already protections in place to prevent wage discrimination. For example, California Labor Code section 1197.5 prohibits an employer from using an applicant’s salary history, by itself, to justify a pay disparity. They argue that there are often legitimate reasons to ask about salary history, including unavailability of information regarding the market value for a newly created position. The new law may expose employers to litigation by creating another reason for applicants to sue prospective employers.

The availability of public agency salary information and the uniformity of wages paid to similarly situated workers may blunt the impact of AB 168 on the process of hiring rank-and-file employees and may minimize the need to ask applicants for salary history information. For school districts, the uniform salary schedule rule provides a rigid benchmark for certificated salaries that are paid uniformly based on an employee’s education and years of experience. Classified employee salary schedules are similarly uniform in nature. Applicants for both certificated and classified positions are placed on the salary schedules based upon standard criteria.

AB 168 will likely have a greater impact on the negotiation of salaries for management position applicants, because public employers are now required to produce a salary range for open positions upon request and cannot place new hires within the range based solely upon the applicant’s prior salary level. As a result, public employers may not have as much room to negotiate.

Takeaways

Public employers should ensure that their standard application forms do not include a request for prior salary information. Further, public employers should train employees who interview prospective employees to refrain from asking applicants about their salary history.

For more information about AB 168 or on hiring practices in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Darren C. Kameya

Partner

Carolyn L. Gemma

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.