When is Paid Administrative Leave an Adverse Employment Action?

December 2017
Number 84

According to a recent court decision, “it depends.”

On November 15, 2017, a California appellate court held inWhitehall v. County of San Bernardino that paid administrative leave can constitute an adverse employment action in certain circumstances. Even though the plaintiff employee was placed on paid administrative leave during the pendency of an investigation into her alleged wrongdoing, the court found that under the particular facts presented, the leave was an adverse employment action.

Background

Mary Anna Whitehall was a social worker for San Bernardino County. Whitehall was involved in a dependency case in which she was directed to withhold evidence and to submit altered evidence to the court. Whitehall believed these actions could endanger children and, through her own legal counsel, filed a motion to inform the court of the suspected fraud.

Six days after the motion was filed, Whitehall was placed on paid administrative leave for a two-month period. According to the county, Whitehall was placed on leave to facilitate an investigation of her alleged violation of the county’s rules against disclosing confidential information to unauthorized individuals. The county concluded that Whitehall violated the policy and acted to terminate her, but Whitehall resigned in lieu of termination.

Whitehall then sued the county, alleging it retaliated against her for her whistleblower activities. The trial court ruled in Whitehall’s favor and the appellate court upheld the trial court’s ruling. The Court of Appeal held that placing Whitehall on administrative leave and terminating her employment were acts of retaliation by the county. While administrative leave is not always an adverse action, the court said that it is an adverse action when it “materially affects the terms, conditions, or privileges of employment.”

The court acknowledged that “[r]etaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context.” Citing a previous appellate decision, the court noted that a lateral transfer to a position with equal pay could be an adverse action if it was “reasonably likely to impair [an employee’s] job performance” or likelihood of success. The court said that Whitehall’s administrative leave was an adverse action because she was placed on leave in the context of the county’s disciplinary investigation rather than as a reward or accommodation or at her request, and her leave coincided with the termination of the original social worker involved in the case. The court also noted that the county’s own evidence confirmed its intention to terminate Whitehall for disclosing the county’s attempt to manipulate evidence to the juvenile court.

Takeaways

Paid administrative leave is an important tool that allows an employer to temporarily remove an employee from the workplace in certain situations. Paid administrative leave should not be used as a punitive measure and, if used properly, will not constitute an adverse employment action. Employers must thoroughly evaluate the reasons for the administrative leave and assess the decision on a case-by-case basis.

This is especially important when paid leave is being considered for an employee who may have engaged in a protected activity (e.g., whistleblowing, union activism, filing of a grievance or claim) from which a retaliation claim could be alleged. Some questions employers should consider before using administrative leave in these cases include:

  • What articulable problems are likely to arise if the employee is not removed from the workplace?
  • Are there other ways to address the situation without placing the employee on leave?
  • Is placement on administrative leave a routine course of conduct in this situation?
  • What steps can the employer take to minimize the time spent on administrative leave?
  • Can the administrative leave be construed as a response to any protected activities conducted by the employee?
  • What benefits and/or opportunities will the employee lose out on while on leave, and can the employer mitigate the lost benefits or opportunities?

For more information on the impact of the Whitehall case or on the use of administrative leave 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

Mayrn J. Oyoung

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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New Law Squeezes Local Ballot Measures for Bonds

December 2017
Number 82

A significant new law will require local public agencies to include additional information in summary statements for local ballot measures that raise taxes, including school district general obligation bond measures. Assembly Bill (AB) 195 will amend section 13119 of the Elections Code by requiring summary statements for all local ballot measures that impose or raise a tax to include the amount of money the tax will raise annually and the rate and duration of the tax to be levied. The new law goes into effect on January 1, 2018, and affects measures already approved for an election to be held after that date.

This requirement will apply to all local tax measures, whether submitted to the voters by a local governing body such as a school district governing board or City Council or by citizens through the initiative process. In addition to general obligation bonds, AB 195 also applies to local sales and parcel tax measures.

According to its author, AB 195 was meant to fix a drafting error in an earlier ballot transparency bill, AB 809 (2015), which was intended to apply to all local measures but was found by a court to apply to citizen-backed initiatives only.

As a result of AB 195, the precious real estate of the summary statement, which is limited to 75 words, becomes less available as an opportunity to meaningfully communicate the purposes and works that will be funded by the taxes.

The new law could also pose compliance challenges for local agencies seeking to place bond measures on the ballot. Unlike a parcel tax measure, for which both the rate and duration of the resulting tax are ascertainable on Election Day, bond issues are subject to market forces that can make this information difficult to predict. While it would be possible to estimate tax rate and duration based on an estimated first series of bonds, because of future market conditions, changes in assessed value, construction costs, time of issuance, and size of issuance, efforts to quantify the rate and duration of a tax to fund anything beyond is extremely challenging. Public agencies will need to work closely with their bond counsel and consultants to address these and other issues raised by AB 195.

Lozano Smith has expertise in public finance matters, serving as bond counsel on more than $1 billion in school district and community college district bond issues. Lozano Smith will be conducting School Bond Workshops across the state, covering topics that include:

  • Elections: Timelines and requirements
  • Bonds: Types, validity and tax treatment
  • Roles and Responsibilities: Committees, consultants, and counsel
  • Disclosure and Record-keeping: Regulations and legal considerations
  • Statewide Bond: Matching and impact

If you have any questions regarding the applicability of AB 195 to your measures, compliance with AB 195, or about navigating a future bond campaign, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Daniel Maruccia

Partner

©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.

State Adopts Comprehensive Housing Legislation

December 2017
Number 81

Facing one of the tightest housing markets in California history, state lawmakers have approved an extensive package of bills intended to maintain existing housing stocks and boost new housing construction. These bills become effective on January 1, 2018.

This legislative package will provide funding to stimulate housing production and will eliminate procedural hurdles to getting housing built. Alternatively, though, the bills also require more detailed justification and reporting on planning for and production of housing, limit local agencies’ ability to say no to development projects, and may increase local agencies’ infrastructure costs.

Summaries of the legislation are provided below.

Funding

Senate Bills 2 and 3: The Building Homes and Jobs Act and Veteran and Affordable Housing Bond

Senate Bills (SB) 2 and 3 provide funding opportunities for local housing projects and programs. SB 2 establishes a $75 fee for recorded documents, excluding commercial and residential real estate sales. During the first year the fee is collected, local governments will have access to half of the money collected to update planning documents and zoning ordinances, while the rest will be allocated to the Department of Housing and Community Development (HCD) to assist homeless people. After the first year, up to 70 percent of the fee proceeds will be allocated to local governments for purposes including development of affordable rental and ownership housing, creation of home ownership opportunities, and matching funds for localities that approve low-income housing projects.

SB 3 places a $4 billion general obligation bond for veteran and affordable housing and infill infrastructure on the November 2018 ballot.

Assembly Bill (AB) 571: Expands Funding Access for Farmworker Housing Projects

AB 571 expands the availability of the state’s Low Income Housing Tax Credit Program to aid farmworker housing development and redefines the term “farmworker housing” to mean “housing which is available to and occupied by not less than 50 percent of farmworkers and their households” rather than the prior 100 percent requirement. The bill also extends the occupancy period during which migrant farm labor centers are open from 180 days to 275 days.

Local governments, particularly those in rural districts, should prepare for additional housing developments for farmworkers. The reduction of the occupancy requirement for farmworker housing and the extension of the occupancy period during which migrant farm labor centers are open may result in increased costs to the migrant farm labor centers.

Approvals

Senate Bill 35: Streamlined Approval of Multifamily Residential Developments

SB 35 streamlines the development process for infill multifamily residential developments in communities that have not met their fair share housing goals. The bill makes approval of such developments on sites already zoned to accommodate them a ministerial action, eliminating public input and CEQA review and removing local discretion. A developer must pay prevailing wages on the projects fast-tracked under this bill. The bill sunsets on January 1, 2026.

Senate Bill 167 and Assembly Bills 678 and 1515: Higher Burden of Proof for Disapproval of Development

SB 167 and AB 678 make significant changes to the Housing Accountability Act (HAA), also known as the Anti-NIMBY Law. These amendments impose a heightened standard of proof on local agency governing bodies that vote no on housing projects, authorize the award of attorneys’ fees to housing advocates and project applicants who successfully challenge such disapprovals and allow courts to vacate local disapprovals and impose fines of $10,000 or more per housing unit within an affected project where a local government failed to comply with a court order.

Local agencies should be aware that if courts find that the agency acted in bad faith when it disapproved or conditionally approved a development, the agency could be subject to additional fines if it fails to abide by a court’s injunctive order. To prevent the imposition of fines, local agencies should ensure that their decision to disapprove or conditionally approve a development is based on sufficient evidence that meets the higher burden of proof.

AB 1515 strengthens the HAA by imposing a “reasonable person” standard for determining consistency, compliance, and conformity with any applicable plan or requirement for a housing development project or emergency shelter under the HAA. Concurrent with AB 678’s changes, this law makes it more difficult for localities to vote down housing projects or emergency shelters that comply with existing land use regulations. Per the bill’s author, AB 1515 gives courts a clear standard for interpreting the HAA in favor of building housing, thus weakening local government power to disapprove development.

Assembly Bill 1505: Restores Locals’ Right to Apply Inclusionary Ordinances to Rental Housing

AB 1505 restores a local agency’s right to require that at least 15 percent of units in a rental housing development be set aside as affordable to low-or moderate-income residents. The bill supersedes a 2009 appeals court decision that eliminated local governments’ ability to apply inclusionary policies to rental housing. In addition to restoring locals’ rights to apply inclusionary housing rules to rental housing developments, AB 1505 grants HCD authority to review such ordinances if they were approved or amended after September 15, 2017 and if the locality fails to meet certain housing production thresholds.

Local governments that already have inclusionary housing policies on the books should be prepared to re-familiarize themselves with their inclusionary policies and to apply them as necessary.

Housing Element

Senate Bill 166: Local Governments Must Perpetually Maintain Housing Site Inventory

SB 166 revises the “No Net Loss” zoning law to require local governments to maintain enough housing sites to meet their assigned housing needs at all times during a general plan housing element planning period. Existing law prohibits local agency governing boards from approving new housing development at significantly lower densities than are projected in the housing element of the local agency’s general plan without identifying other sites that could accommodate the lost units. SB 166 ensures that, as development occurs, local governments reassess their ability to accommodate new housing on remaining housing sites in their inventory and make adjustments to their zoning if needed. According to the bill’s author, prior law did not adequately ensure that local governments would maintain a supply of available land to accommodate unmet housing needs because land that was previously zoned for lower-income housing could later be developed into high-end market-rate housing or a commercial development. SB 166 requires local governments to maintain housing site inventory at each income level.

Local governments should maintain a log of adequate housing sites, which may or may not result in development of the sites that include affordable housing. Local governments should also be prepared to review their remaining housing sites and analyze zoning.

Assembly Bill 72: Permits HCD to Revoke Findings of Compliance with Housing Element

AB 72 enhances HCD’s authority to review any local government action or failure to act that it deems inconsistent with that local government’s housing element. HCD may revoke its finding that a housing element complies with state law and notify the local government entity and the state Attorney General that the entity is in violation of state law.

Assembly Bill 879: Mandates More Comprehensive Housing Element and Annual Report

AB 879 creates additional requirements for a local government’s housing element and the housing element portion of its general plan annual report and also applies the existing and new requirements to charter cities, which were previously exempt. Under the new law, the housing element must discuss efforts to address restraints to housing development, while the annual report must include:

  • The number of housing development applications received in the prior year;
  • Units included in all development applications in the prior year;
  • Units approved and disapproved in the prior year; and
  • A list of sites rezoned to accommodate that portion of the city’s or county’s share of the regional housing need for each income level that could not be accommodated on specified sites.

The bill also requires the housing element portion of the annual report to be prepared using standards adopted by HCD and requires that agency to conduct a study evaluating the reasonableness of local development fees.

Local governments should be prepared to create a more extensive general plan and to include a housing element that addresses constraints affecting development, maintenance, and improvement of housing for all income levels.

Assembly Bill 1397: Zoning for Realistic Housing Capacity

AB 1397 establishes higher standards and requires localities to conduct a stronger analysis before they may include sites with existing uses in their housing element, and limits reliance on potential housing development sites that are considered too large or too small or sites that have been recycled across multiple housing elements without development occurring. The bill also requires replacement of existing affordable housing slated for demolition with housing affordable to occupants at the same or lower income levels.

Local governments should be prepared to provide more evidence demonstrating the suitability of sites listed in a housing element for residential development, and particularly those expected to accommodate affordable housing development. Local governments may face funding difficulties in implementing the new mandates of AB 1397, such as bringing utilities to each identified site in the housing element.

Zoning

Senate Bill 540 and Assembly Bill 73: Establish New Zoning Designations

SB 540 allows cities and counties to adopt a specific plan establishing a Workforce Housing Opportunity Zone, which is intended to encourage workforce and affordable housing close to jobs and transportation. The zones may be created by preparing a specific plan and an environmental impact report, both of which would remain valid for five years. Approval of housing developments in these zones will be streamlined, with no further environmental review required, and the local agency will be mandated to approve projects meeting the plan criteria. HCD funds may be made available to create the zones. The developer of a project that takes advantage of this process must pay prevailing wages.

AB 73 creates a new type of overlay district intended to speed development of high density housing in areas with transit and existing infrastructure. Local governments that create such districts are eligible for state incentive payments when the districts are created and when housing is permitted. Local governments would conduct environmental review of a “housing sustainability district” in advance of any development proposals. Residential projects within a housing sustainability district would be subject to ministerial review that must be completed within 120 days. At least 20 percent of the units in a residential project to be built in a housing sustainability district must be affordable units, and such projects are subject to prevailing wage requirements.

Assisted Housing Developments

Assembly Bill 1521: Stricter Notice Requirement for Assisted Housing Development Owners

AB 1521 requires an owner of an assisted housing development to accept a bona fide offer to purchase from a qualified purchaser, if specified requirements are met. It also requires the HCD to monitor assisted housing development owners’ notice requirement compliance.

This bill is intended to help keep affordable housing available for low-income families and to reduce displacement of low-income residents. Owners who receive a market rate offer from a qualified preservation entity that intends to maintain the property’s affordability restrictions must either accept the offer or abide by the affordability restrictions for another five years.

Local governments should be aware of this notice requirement, as owners of assisted housing developments may fail to meet the requirement and would then be required by law to maintain the characterization of their property. Owners may turn to cities or counties to seek the ability to sell property for market rate conversion and cities and counties should be prepared for potential pushback.

Takeaways

This comprehensive housing package seeks to encourage a more residential development- and affordable housing-friendly environment in local communities. City and county planning staff should review the benefits of streamlining development approvals and work closely with their legal counsel to ensure that the streamlined procedures are in place. Additionally, staff should ensure that enhanced findings are included in staff reports to supplement records of housing project disapprovals. Local agencies should also prepare for housing advocates and HCD to conduct far more rigorous review of any decisions related to their housing element.

These new laws are complicated, presenting a double-edged sword to public agencies, and Lozano Smith stands ready to assist. For more information on these bills or on law governing housing 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Harold M. Freiman

Partner

William P. Curley III

Partner

James Sanchez

Senior Counsel

Lauren Kawano

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.

Asking Job Applicants about Criminal Conviction History: What You Need to Know about Assembly Bill 1008

December 2017
Number 80

Effective January 1, 2018, Assembly Bill (AB) 1008 amends the Fair Employment and Housing Act (FEHA) to restrict an employer’s ability to make hiring decisions based on a job applicant’s criminal conviction history.

Background

AB 1008 prohibits an employer from asking about criminal conviction history until the applicant has received a conditional offer of employment. After a conditional offer of employment has been made, an employer may conduct a
criminal conviction history background check. If the background check reveals that the applicant has one or more criminal convictions, then the employer must make an individualized assessment of whether the applicant’s criminal convictions have a direct and adverse relationship with the specific duties of the job the applicant is applying for.

If an employer wishes to rescind the conditional offer based solely or in part on the applicant’s criminal conviction history, the employer must inform the applicant of its preliminary decision in writing and allow the applicant an opportunity to respond. An employer must consider the applicant’s response when making its final hiring decision. If an employer ultimately decides to rescind the conditional offer, the employer must inform the applicant of its decision in writing and inform the applicant of the right to appeal its decision and the process for doing so.

While there are limitations on the reach of AB 1008, it creates significant liability implications for employers covered by the bill as it allows applicants denied employment to sue under the FEHA and also, to recover the broad range of damages available under the FEHA, including compensatory damages, attorney’s fees, and costs.

Below is a brief FAQ that explains how the new law will be applied to public agencies.

Does AB 1008 Apply to K-12 School Districts, Charter Schools and Community College Districts?

No, it does not. Newly created Government Code section 12952 contains two important exceptions. Specifically, the new law does not apply to:

  • “[A] position for which a state or local agency is otherwise required by law to conduct a conviction history background check” (Gov. Code, § 12952 (d)(1)); or
  • “[A] position where an employer or agent thereof is required by any state, federal or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history.” (Gov. Code, § 12952 (d)(4)).

The Education Code provides that applicants for all positions at a K-12 school district, charter school or community college district must undergo a criminal conviction history background check. The Education Code also restricts school employment based on criminal history. The applicable statutes support a conclusion that the new requirements imposed on employers by AB 1008 do not apply to K-12 school districts, charter schools or community college districts.

Does AB 1008 Apply to Local Government Agencies Such as Cities and Special Districts?

Yes, unless an exception covers the particular position the applicant is seeking. AB 1008 will generally apply to other local government agencies except in those cases where the agency is required to conduct a criminal conviction history background check or to restrict employment based on criminal history. For example, public safety and some health profession positions, which require criminal conviction history background checks, will be exempt from AB 1008. Local government employers should carefully assess which positions AB 1008 applies to and tailor their application materials for the individual requirements of each position.

Takeaways

Employers are not legally required to ask for criminal conviction history information on application materials. Rather, they are only legally required, in some circumstances, to conduct a criminal conviction history background check and/or to restrict employment prior to hiring an applicant. Employers that are covered by AB 1008 should remove questions regarding criminal conviction history from their applications, while those that are not may voluntarily choose to remove questions regarding criminal conviction history from their application materials.

Employers may be concerned that screening applicants for criminal convictions, even minor crimes and crimes from many years ago, may result in a discriminatory impact on minority groups such as African-American and Latino men. Therefore, employers not covered by AB 1008 that ask for criminal conviction history information on application materials may wish to make individualized assessments of an applicant’s prior convictions in order to ensure that the questions do not disproportionately screen out minority applicants.

For more information on AB 1008 or on job applicant screening 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:

Thomas E. Gauthier

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.

New Laws Impact Employers’ CalPERS Obligations

December 2017
Number 79

Governor Jerry Brown has signed three bills that significantly impact local agency obligations to the California Public Employees’ Retirement System (CalPERS) and impose penalties on employers running afoul of the law. Each of these bills will take effect on January 1, 2018.

Assembly Bill 1309: CalPERS May Fine Employers for Failing to Report Hiring and Payroll Data when Employing Retired Annuitants

Under Assembly Bill (AB) 1309, CalPERS may now fine employers for failure to report hiring and payroll information for CalPERS members working in retirement.

Existing law allows retired CalPERS members to return to employment with a CalPERS employer under certain limited conditions, without reinstatement from retirement. Generally, a retired member must wait 180 days following retirement before returning to work and may not accrue service credit or make contributions to CalPERS during post-retirement employment. Critically, a retired member must not work more than 960 hours per year, or their retirement allowance may be suspended and the member returned to active service.

AB 1309 adds teeth to current law requiring employers to timely enroll and report retired annuitant hiring and payroll data to CalPERS. Under AB 1309, CalPERS may assess employers a fee of $200 per month, per retired member, for failure to enroll a retired annuitant in the CalPERS administrative system within 30 days of hire. AB 1309 authorizes a separate fine of $200 per month, per retired member, for failure to report monthly payroll data-including pay rate and number of hours worked-for retired members.

AB 1309 makes clear that employers must timely enroll and report data for CalPERS members employed during retirement. Employers may wish to consult legal counsel when considering employment of a retired annuitant, as law in this area is nuanced and small missteps may prove costly.

Assembly Bill 1487: New Limits on Out-of-Class Appointments

Local public agency and school employers sometimes bump an employee to a higher classification on a temporary basis to fill a vacant position while seeking a permanent replacement. AB 1487 places new limits on these temporary out-of-class appointments. Under AB 1487, employers may not place an employee in an upgraded position or higher classification for more than 960 hours in one fiscal year before filling a temporarily vacant position. Employers must also track and annually report to CalPERS the hours worked by all employees in such out-of-class positions. Employers violating these rules may incur stiff penalties including administrative fees and fines equivalent to three times the amount of both the employer and employee contributions on the difference between the compensation paid for the out-of-class appointment and the compensation paid and reported to the system for the member’s permanent position. The law prohibits the employer from passing any of the fees or penalties on to the employee.

Under current law, employers may retain employees in out-of-class appointments indefinitely. With AB 1487, the Legislature increases pressure on employers to timely and permanently fill vacancies, while curbing perceived abuses by some employers who use temporary out-of-class appointments as a mechanism to avoid higher pension liability. AB 1487 does not apply to vacancies created by employee leaves of absence.

Senate Bill 525: CalPERS Performs Annual Housekeeping

With Senate Bill (SB) 525, CalPERS makes a series of clarifying changes to the law. Although most of the bill’s provisions are technical housekeeping amendments, two changes are significant for employers. First, SB 525 authorizes CalPERS members who are school employees performing creditable service as defined by the Education Code, and who should have been enrolled by their employers in the State Teachers Retirement System (CalSTRS), to continue accruing service in CalPERS or make a one-time election to transfer to CalSTRS. These provisions allowing a transfer of accumulated service credit to CalSTRS may be particularly important to employers that mistakenly enrolled employees into CalPERS when those employees should have been enrolled into CalSTRS. In particular, school districts may want to review the retirement system enrollment of their employees in their preschool and early childhood education programs. Any election to transfer service from CalPERS to CalSTRS must be made prior to June 30, 2018.

Second, SB 525 clarifies that public employers must report special compensation separately from an employee’s pay rate. Existing law defines “compensation earnable” by a member, excluding new members subject to the California Public Employees’ Pension Reform Act (PEPRA), to mean the pay rate and special compensation, as defined, of the member. Special compensation includes a payment received for special skills, knowledge, abilities, work assignment, workdays or hours, or other work conditions. The law requires special compensation to be for services rendered during normal working hours, and the employer, when reporting this information to CalPERS, is required to identify the pay period in which the special compensation was earned. SB 525 requires the employer, when reporting special compensation to the board, to identify each item of special compensation and the category under which that item is listed, as described in regulations promulgated by CalPERS, and to report each item of special compensation separately from pay rate.

For more information on these new laws or on pension laws 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:

Thomas R. Manniello

Partner

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.

New Law Requires Legal Consult Prior to Custodial Interrogation of Minor under Age 16

November 2017
Number 78

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

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

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

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

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

Lozano Smith is currently working with our law enforcement, municipal, school district and community college district clients to address these and other issues related to the enactment of SB 395. If you have questions or need more information on how the new law impacts your agency, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Jenell Van Bindsbergen

Partner

©2017 Lozano Smith

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

New Laws Ease Residency and Coursework Requirements for Children of Active Duty Military Personnel

November 2017
Number 77

A pair of new laws intended to ease residency and coursework requirements for students in military families will go into effect on January 1, 2018. Senate Bill (SB) 455 expands on prior legislation to permit students whose parents are on active duty military orders to remotely enroll in school, while Assembly Bill (AB) 365 extends coursework exemptions for other groups of transient students to children of active duty members of the military.

SB 455: Updated Residency Rules for Students in Military Families

A prior bill, SB 1455, went into effect on January 1, 2017. SB 1455 allowed some transferring military families to remotely register their children in school prior to being physically located within the boundaries of their new school district. (Ed. Code, § 48204.3.) Under this existing law, a student complies with school district residency requirements if the student’s parent was transferred or is pending transfer to a military installation located within the boundaries of the school district while on active military duty pursuant to an official military order, so long as proof of residence is provided within 10 days of the documented arrival date.

A problem arose, however, in that the law does not cover families that intend to live and enroll in school outside of the school district in which the military installation in question is located. SB 455 addresses this problem by amending section 48204.3 to provide that children in military families meet the residency requirements for attendance in a school district if the student’s parent, while on active-duty orders, is transferred or is pending transfer to a military installation anywhere in the state. Now, military families on active duty orders will be permitted to remotely enroll in any school district where they will reside regardless of whether the military installation is within school district boundaries.

AB 365: Changes Coursework Requirements for Children of Active Military Personnel

Due to their frequent transfers between school districts, foster youth, homeless students, and former juvenile court school students often struggled to graduate on time due to local coursework requirements that exceed those mandated by state law. By enacting AB 365, state lawmakers extended a coursework exemption and other related provisions that already applied to students in these transient populations to children of active duty military personnel.

Under AB 365, Education Code sections 51225.1 and 51225.2 were amended to provide that foster youth, homeless students, children of active duty military personnel, and former juvenile court school students who transfer between schools any time after the completion of their second year of high school are exempt from all coursework and other requirements that exceed statewide coursework requirements.

The exemption does not apply if the student is reasonably able to complete the additional requirements in time to graduate by the end of his or her fourth year of high school. If a school district determines a student is reasonably able to complete the coursework required for graduation within five years, the district is required to inform the student of the option of remaining in high school for a fifth year, and of the effect that doing so may have on the student’s ability to get into college.

State law also requires school districts to accept satisfactory coursework these students completed at other schools, even if the student did not finish the course. School districts are required to give full or partial credit for the completed coursework and may not require a student to retake a course if the student has satisfactorily completed the entire course in a public school, a juvenile court school, or a nonpublic, nonsectarian school or agency. In addition, these students cannot be prevented from taking or retaking courses to meet the eligibility requirements for admission to either the California State University or University of California systems.

For more information on SB 455 and AB 365 or on enrollment and coursework requirements for students in military families 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:

Thomas A. Manniello

Partner

Klye A. Raney

Associate

©2017 Lozano Smith

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