EdLawConnect

Court Finds County Committee On School District Organization Did Not Violate The California Voting Rights Act And Confirms Trial Court’s 90% Reduction In Award Of Attorneys’ Fees

2012-03-02T16:49:00.007-08:00

By David Soldani, Senior Associate
Fresno Office
Todd Goluba, Partner
and Chet Quaide, Partner
Pleasanton Office

On February 28, 2012, the court in Maria Esther Rey v. Madera Unified School District (February 28, 2012) held that a county committee on school district organization may not be held liable under the California Voting Rights Act ("CVRA," Elections Code § 14025 et seq.) when the county committee has taken no action to impose or apply an election method on behalf of one of its school districts. The court also upheld the trial court’s decision to reduce by over 90%, the amount of attorneys’ fees awarded to plaintiffs in the case.

The district was represented by Atkinson, Andelson, Loya, Ruud & Romo attorneys David Soldani, William Woolman and Jennifer Cantrell.

On the eve of the District's November 2008 election, Maria Esther Rey, Jesse Lopez and Carlos Uranga filed a lawsuit alleging a violation of the CVRA against the Madera Unified School District, the Madera County Committee on School District Organization, and other parties claiming that the District's at-large method of election was impairing Hispanics from electing representation of their choice. The lawsuit requested the District change to a by-trustee area election method. The plaintiffs also filed a motion for a preliminary injunction seeking to stop the District's November 2008 governing board member election.

The lawsuit placed the District in an impossible situation. The lawsuit was filed after candidates had already applied to run in the November 2008 election and at a time in which the District could not have transitioned to a by-trustee area election method prior to the November 2008 election. The timing of the lawsuit left the District with only two options: (1) expend a significant amount of money and resources to fight the lawsuit on the merits; or (2) voluntarily transition to a by-trustee area election method. The District made the strategic decision to minimize the potential for paying a significant attorneys' fee award by not opposing the suit on the merits, opting instead to immediately transition to a by-trustee area election method.

This strategy paid off when the trial court awarded $162,500 in attorneys' fees, despite a request for over $1.7 million. This represented a discount of over 90%!

The District was understandably shocked at the request for over $1.7 million from the District and other parties for their efforts expended in a largely uncontested lawsuit.

After an unsuccessful attempt to mediate the amount of the requested fees, we retained an attorneys' fees expert and vigorously opposed the fee request, attacking it on the grounds that the attorneys were charging exorbitant hourly rates (in excess of $700 per hour in some cases) and claiming to have spent an excessive amount of time working on the case. For example, attorneys claimed they spent 195.45 hours for filing the complaint (a 7 page document). Interestingly, the same attorneys had previously filed at least three other CVRA complaints in other cases that were essentially identical (which we were quick to point out to the court). The trial court at one point observed that the attorneys' fees request was "patently unreasonable" and reduced the award by over 90%.

The appellate court also upheld the trial court's ruling that the County Committee had no liability since the County Committee never had any role in ordering, calling, conducting or otherwise carrying out the District's elections.

The Rey case provides greater clarity on how attorneys' fees may be calculated and awarded to prevailing parties under the CVRA and, significantly, demonstrates that courts still have common sense when it comes to awarding attorneys' fees.

School and community college districts that continue to elect their governing board members at-large should assess their potential liability under the CVRA to determine whether they should continue to utilize this method of election. Attorneys from Atkinson, Andelson, Loya, Ruud & Romo have assisted many entities in evaluating their liability under the CVRA and transitioning to by-trustee area elections.

To read our ALERT regarding the Rey decision, click here.

U.S. Supreme Court Appears to Scale Back Requirement to Exhaust Administrative Remedies Before Filing Suit in Special Education Cases

2012-02-28T06:50:00.004-08:00

By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office

On February 21, 2012, the United State Supreme Court declined to hear an appeal from the Peninsula School District (“District”) in the state of Washington. The District sought review of a Ninth Circuit decision from July 2011. The case stems from a 2005 civil suit filed against the District by a student indentified as D.P., seeking relief under Section 1983 of the Civil Rights Act alleging violations of the Fourth, Eighth, and Fourteenth Amendments to the Constitution, as well as violations of the Individuals with Disabilities in Education Act (“IDEA”). In response to the civil filing, the District argued that D.P. had failed to exhaust his administrative remedies by not going through the due process hearing and appeals procedures connected to the due process hearing. The lower federal court agreed with the District and dismissed the lawsuit. In a somewhat surprising move, the Ninth Circuit reversed.

Generally, the IDEA requires that before filing a civil action seeking relief that is also available under the IDEA, a student must exhaust administrative remedies before filing a lawsuit. However, the Ninth Circuit held that the lower courts should look at the relief sought rather than the injury alleged. This position is in stark contrast to the Ninth Circuit’s previous rulings which placed the focus on the injury alleged, i.e. usually a denial of a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”). The Ninth Circuit specifically noted that exhaustion is required when the parent seeks: 1) an IDEA remedy, such as tuition reimbursement; 2) a change in the student’s program or placement; or 3) the enforcement of rights arising from a denial of FAPE. However, depending on the type of relief sought, some relief may fall outside the exhaustion rule, thereby allowing pursuit of a lawsuit side by side or in lieu of a due process hearing. Not all Courts of Appeal across the country accept the Ninth Circuit’s latest turnabout, which makes all the more puzzling the Supreme Court’s actions, since one purpose of Supreme Court review is to reconcile different interpretations of federal law by different Circuit Courts in the United States, as is the case here.

The Supreme Court’s decision to decline to hear the District’s appeal may leave educational agencies with a sense of trepidation. It is plausible that skillfully drafted pleadings may allow for students to avoid the IDEA’s exhaustion requirements and proceed directly to civil court. While it is too soon to fully appreciate the impact of the Supreme Court’s decision, it is clear that the new “relief-centered” approach to the IDEA’s exhaustion requirements will alter the way lower courts in the Ninth Circuit interpret the exhaustion requirements of the IDEA, at least in the short run. Keep in mind however, that in most cases, parents of special education students are not interested in suing the school district or county office of education, rather, preferring the less complicated and swifter administrative forum for resolution.

Power Purchase Agreement Projects are Now Covered by the California Prevailing Wage Law

2012-02-24T11:04:00.001-08:00

By Bryce Chastain, Senior Associate
Pleasanton Office
and Hugh Lee, Partner
Cerritos Office

Effective January 1, 2012, the legislature expanded the definition of "public project" subject to the California prevailing wage law with criteria meant to cover Power Purchase Agreement ("PPA") projects built on public property, supplying at least half the generated power to the public property owner.

In a typical PPA the local educational agency ("LEA") agrees to lease LEA land, or rooftops, to a private company that will design, build and then own and operate a renewable energy facility. The LEA usually also agrees buy all of the electrical energy generated from the facility for a very long period - typically twenty or more years. The LEA benefits because it is projected to spend less on its electricity over that period than if it just kept buying from the local utility, but it does not have to the building of a solar (or other renewable energy) plant itself. There are also several key economic components on the private owner's side that make PPAs an attractive business, and make it possible for them to offer low rates for the energy produced from PPA facilities. An argument some PPA providers have pushed is that they can build the plant at lower cost because it would be exempt from the California prevailing wage law, but the law was not clear.

Under Labor Code section 1720, a public project subject to prevailing wages includes construction work done under contract and "paid for, in whole or in part, by public funds." Labor Code section 1720(b) describes the term "paid for… out of public funds" as including, among other things, the "transfer by the state or political subdivision of an asset of value for less than fair market price," and "fees, costs, rents… or other obligations that would normally be required in the execution of the contract, that are… reduced, charged at less than fair market value, waived, or forgiven by the state or political subdivision." Since the rental cost to the private owner was often reflected as an offset in the PPA pricing, and not paid separately by the PPA private owner, the argument for application of the California prevailing wage law was that there was, in essence, some kind of rental subsidy to the private owner, or some kind of waiver of rental fees. However, this was rarely, if ever, clear.

Now, under new Labor Code section 1720.6, a "public project" subject to the California prevailing wage law includes any construction, alteration, demolition, installation, or repair work done under private contract when the following conditions exist:

The work is performed in connection with the construction or maintenance of renewable energy generating capacity or energy efficiency improvements;
The work is performed on the property of the state or political subdivision of the state; and
Either more than 50 percent of the energy generated is or will be purchased by the state or political subdivision of the state, or the energy efficient improvements are mostly intended to reduce energy costs that the state or the political subdivision of the state would otherwise incur.

These factors fit PPA facilities perfectly: they are renewable energy facilities; they are built on public property; and, typically the host agency purchases 100% of the electrical energy (because buying 50% or less of the energy would probably not yield enough cost savings to justify the contract).

While some may be tempted to structure PPAs to avoid some of these criteria, LEAs should take a careful look at the proposed PPAs and ensure that they meet other, interrelated legal requirements. PPAs can offer benefits like those discussed above. However, there are many interrelated economic factors and legal requirements applicable to PPAs requiring careful review and analysis to avoid the potential pitfalls. One new factor is the application of the prevailing wage law, and ensuring any private developer's efforts to avoid prevailing wage law requirements do not result in legally void agreements or potential liabilities for the LEA.

Being Prepared For Student Protests And Walk-Outs

2012-02-15T14:13:00.000-08:00

By Sal Holguin, Partner
and Geneva Englebrecht, Associate
Cerritos Office

Media Coverage of the Occupy Wall Street demonstrations is widespread. The protest has spanned the country and has included demonstrations in California cities such as San Francisco, Los Angeles, Ventura, Anaheim, and Temecula. At the same time the campaigns for local, state and national elections are starting to build momentum. Whether these protests and campaigns will infiltrate the school setting is unclear, however, school districts must be prepared to meet their legal obligation to provide a safe and supportive learning environment by mitigating any detrimental effect that protest, picketing, or student walk-outs may have on the school setting.

While school districts must be sensitive to their students’ broad legal right to free expression, they must also bear in mind their legal obligation to prevent the disruption of school activities, the shared responsibilities between schools and parents in ensuring the compulsory attendance, and the safety of their student. School district’s must also be mindful of the types of discipline that can be imposed on demonstrating students. With this in mind, we offer the following advice regarding notices to parents and addressing potential adult involvement in the student activism.

PROVIDE NOTICE TO PARENTS AND STUDENTS

School districts may wish to consider providing a notice to parents advising them of the compulsory attendance requirements, school district’s limited liability, and potential for student disciplinary action. Parents who are informed of the potential disciplinary and legal consequences may influence their children not to leave their classes or engage in disruptive behaviors.

Compulsory Education Requirements

Many parents and guardians are unaware of their legal obligation to ensure that their children attend school each day or that violation of the compulsory education law can give rise to criminal prosecution of parents. When parents are informed they may be more inclined to discuss the consequences with their children.

District’s Have Limited Liability

The California Education Code limits a school district’s liability and responsibility over the conduct and safety of any student at any time when the student is not on school property, unless the district has undertaken to provide transportation for the student, has sponsored an activity off school premises, has otherwise specifically assumed such responsibility or liability, or has failed to exercise reasonable care under the circumstances. Parents and student should be made aware that the District may be absolved of liability for the safety of and supervision of students who walk-out or leave school campus to participate in protest.

Student Discipline

A school district has a responsibility to provide a school environment that is safe and supportive of learning. While students may have a right to free speech and assembly, it has been well established that students in public schools do not have the same free speech or rights to assembly as adults in other settings. School district’s may legally restrict student speech or assembly as they are related to student protests or walk-outs where the speech or assembly interrupts classes or substantially interferes with the opportunity of other students to obtain an education. Potential areas of discipline may arise from unexcused absences, truancies, disruption of school activities, profanity, and other violations of school rules or district policies. It is important that school staff utilize appropriate disciplinary responses to the specific rule or code violation rather than disciplining a student for participation in a protest or demonstration.

INSTIGATING ADULTS

There are numerous Education Code provisions that are relevant to adults who disrupt the public school environment. Additionally, the California Penal Code criminalizes the disruption of school campus by adults and actions that contribute to the delinquency of a minor, which can include persuading a student to violate compensatory attendance laws. School districts may wish to consult with legal counsel to determine whether a personal letter to the individual and/or organization or publish an open letter indicating that it has come to the school district attention that the individual and/or organization is encouraging students to either not report to school or walk-out to engage in protest and that such activity exposed the student to dangers, risks, discipline, and criminal prosecution. The school district may wish to include notice that the school district assumes no liability for harm that comes to students who violate school district policy by leaving campus and as organizer, the responsibility for student safety, and any and all ensuing legal liability for harm that may arise from the protest may fall on the individual or organization personally.

Determining how to proceed when student speech rights and a school district’s obligation to provide a safe and secure environment intersect will require a close examination of the specific facts as applied to the relevant laws. Given the complexity of the issues, districts may wish to consider the involvement of counsel to ensure that all legal issues are addressed.

The Potential Pitfalls of Cloud Computing

2012-02-10T14:31:00.002-08:00

By Peter Sturges, Associate
Pleasanton Office

The trend toward “cloud computing” is increasingly visible as technology firms and service providers vie with each other to provide users with web-based data and software application services. From Apple’s iCloud to Amazon’s cloud-based user libraries to your local cable provider’s data storage plans, everyone wants to provide users with fee-based cloud services.

Cloud computing offers a number of advantages, such as providing online applications (also known as Software-as-a-Service, or “SaaS”), data storage, messaging, email, and web sites that the users themselves do not have to maintain. Cloud-based service providers claim to save users money in the long run by providing these services, notwithstanding that users are charged for them.

On the other hand, cloud-based computing also has inherent risks. For example, the fact that cloud-based services are provided through remote servers and accessed through often unsecure internet connections increases the likelihood that user data will not be kept sufficiently secure or private. The remote computing aspects of cloud computing also increase the risk that communications will not be kept private and may be accessed by outside parties, and that the integrity of user data is not maintained. These risks can raise legal issues such as potential liability for violation of privacy, corrupted data, and unauthorized system access.

Employers or agencies seeking to move their IT operations to the cloud should ensure the vendor contracts sufficiently address these potential risk factors and liability issues. Vendor agreements should contain provisions for addressing data privacy, security, and back-ups and should include appropriate indemnity language for data loss, among other things. A contract for cloud-computing services also should specify the location of the provider’s data servers, the minimum data access service level, and procedures for data recovery after disasters, and other conditions of service. Vendor contracts often are very one-sided in favor of the vendors, so it is frequently necessary to take a firm stance in contract negotiations to ensure the agreement sufficiently provides for such contingencies. Parties seeking to obtain cloud-based services are encouraged to consult their counsel when negotiating agreements for such services.

Nonreelections and Year-End Performance Evaluations: Now is the Time to Think Ahead

2012-02-01T09:44:00.000-08:00

By Sharon Ormond, Senior Associate

Aaron O’Donnell, Partner

Cerritos Office

and Lexe Davidson, Associate

Irvine Office

As we reach the approximate midpoint of the academic year, we believe it is important for employers to look ahead to nonreelections and year-end performance evaluations of permanent employees. We therefore remind our readers of important procedural considerations in the evaluation process, and also offer some substantive tips in preparing evaluation documents.

All education employers should be making sure now that they are developing adequate information on which to base evaluations and decisions about continued employment, that this information has been adequately documented in the personnel file and the employee given a chance to respond, and also that any requirements for the evaluation process established by statute, policy, or collective bargaining agreements are being observed. Don’t wait until the end of the year to address these issues! By then, it may be too late.

Procedural Requirements and Timing Issues

For probationary academic and certificated employees, statutory March 15 nonreelection deadlines are fast approaching. A community college academic employee is entitled to a hearing to challenge a nonreelection decision, and may prevail if the employer failed to follow its own evaluation policies and procedures and other procedures mandated by the Education Code. For community college as well as K-12 employees, while nonreelection decisions do not require “cause” in the same sense as dismissal of a permanent employee, employers must nevertheless be able to justify their decisions if challenged (for example if an unlawful motive is alleged). Consider whether personnel files demonstrate good reasons for any contemplated nonreelections, and if not, whether additional observations should be conducted and/or documentation developed. Remember that personnel file documentation developed only after the fact may be of little help in defending a challenged decision.

Now is also the time for education employers to take stock of any permanent employees for whom performance concerns exist, and to make sure that formal evaluation procedures are being adhered to. Doing so now will help the employer be in a position at the end of the year to address these issues in an evaluation and provide constructive feedback with the goal of improving job performance, or, if necessary, to take disciplinary action.

Tips for Preparing Evaluations

Descriptive and candid formal evaluations are an essential part of an administrator’s duties, and are critical when addressing concerns regarding an employee’s performance. Formal evaluations provide constructive feedback to employees about the strengths and weaknesses in their job performance. When done well, employees can be motivated by the positive feedback and make adjustments to improve the areas of concern, or in the absence of needed improvement, well-drafted evaluations serve as a foundation upon which disciplinary action may be based. When done poorly, evaluations can lack clear direction, provide employees with mixed messages as to what is expected of them, fail to bring about positive change, and create or exacerbate tensions between employees and supervisors.

The following are some helpful reminders when preparing an effective evaluation:

A strong employee evaluation includes information from multiple sources, and is an accurate reflection of the employee’s performance throughout the entire evaluation period. Utilize all prior verbal and written directives for improvement and information gained from in-person observations through the evaluation period when preparing the evaluation.
Constructive criticism is provided to assist the employee with improving his or her performance. Such criticism, therefore, should be accompanied by concrete examples of the employee’s failure to meet expectations, and suggestions about how the employee can improve his or her performance.
Each category should include specific examples that support the rating given. If an employee receives an “unsatisfactory” rating in attendance, the comments section should include the number of times an employee was absent or tardy that evaluation period, and a brief summary of why the employee’s absences violated District policy, and/or pertinent contract and collective bargaining agreement provisions.
The overall rating should reflect the ratings received in individual categories. If an employee receives multiple “needs improvement” ratings in the evaluation categories, the employee should not receive an overall rating of “satisfactory.”
Similarly, written comments should reflect the overall tenor of the evaluation. If an employee receives negative ratings, the comments should not imply that the employee has performed satisfactorily.
Review prior evaluations to determine if the employee has made previously recommended improvements. Decisions not to reemploy or to discipline an employee are best supported by evaluations that consistently identify performance concerns and state whether the employee has improved in the area(s) of concern.
The evaluation must be placed in the employee’s personnel file after it is provided to the employee. Please remember to notify the employee that the evaluation will be placed in his or her personnel file. An administrator must consult the employee’s contract and/or collective bargaining agreement to ensure all provisions regarding placement of documents in an employee personnel file are followed.
Shortly after discussing the evaluation with the employee, the administrator can provide the employee with a written Conference Summary that memorializes the content of the conversation, to be entered into the personnel file. Conference summaries are a useful tool to determine whether concerns not addressed in the formal evaluation were verbally addressed with the employee.

While time-consuming, a detailed and candid evaluation provides an employee with written direction for improving their performance, or, if necessary, support for taking disciplinary action.

Supreme Court Leaves Schools Guessing About How To Respond To Off-Campus Cyberbullying

2012-01-25T12:27:00.000-08:00

By Marleen Sacks, Senior Counsel
and Chet Quaide, Partner
Pleasanton Office

Last week, the U.S. Supreme Court refused to consider three cases involving cyberbullying. That refusal leaves school districts in a continuing quandary about how to respond to off-campus cyberbullying, and illustrates how reasonable minds can come to very different conclusions on whether school districts have the right to impose discipline, or whether such discipline violates the First Amendment.

In J.S. v. Blue Mountain School District (3rd Cir. 2011) 650 F.3d 915, an eighth grade student was suspended for 10 days after creating a fake MySpace page lampooning her school principal as a sex addict. The student, who accused the principal of having sex in his office and “hitting on students and their parents,” alleged that his wife looked like a man and that his son resembled a gorilla, and claimed the posting was a joke. Notably, the comments were written on a home computer during the weekend and shared with the student’s MySpace “friends.” The lower court ruled in favor of school district, but the Third Circuit Court of Appeals reversed, ruling 8-6 that the page caused “no substantial disruption at school.” So basically, seven judges thought the suspension was appropriate, and eight did not.

In Layshock v. Hermitage School District (3rd Cir. 2010) 593 F.3d 249, a student used his grandmother’s home computer to create a profile of the principal, using an actual photo but listing made-up answers to survey questions, suggesting that the principal used illegal drugs, was a drunk, and engaged in lewd and criminal behavior. The student admitted he made up the profile and was suspended for 10 days. The District court ruled in favor of the student, finding there was no substantial disruption at school, and the Third Circuit upheld this decision.

In Kowalski v. Berkeley County Schools (4th Cir. 2011) 652 F.3d 565, a high school student was suspended for 10 days, was kicked off the cheerleading squad, and was prevented from being crowned the “Queen of Charm” at that year’s “Charm Review.” Her offense was creating an online MySpace discussion group called “Students Against Sluts Herpes” that targeted a particular student, suggesting she had herpes. The suspended student claimed in her defense that the page was developed on her home computer during non-school hours, and sued.

Both the lower court and the Fourth Circuit Court of Appeals upheld the school district’s decision, finding that the discussion group could cause a “substantial disruption at school,” noting: “Given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created ‘actual or nascent’ substantial disorder and disruption at the school.” Remarkably, the appellate court cited no actual facts related to the type of disorder the comments might cause, other than the likely emotional distress of the one bullied student. The court could have pointed to the level of gossip at school, how the gossip was impacting learning, the workload on the principal, or other evidence of “substantial disruption,” but it did not.

The lesson learned from these cases, and the Supreme Court’s refusal to take them up, is that school districts should continue to be extremely cautious when imposing discipline on students for comments made on home computers during their own time. Such comments can be considered protected by the First Amendment unless the school district can present evidence of “substantial disruption” at school, as well as satisfy California’s jurisdictional requirements that the conduct is “related to school activities.” When in doubt, consult with your legal counsel; but keep in mind, another lawyer (or judge) may disagree.

Video and Audio Recording of Special Education Students: Potential Teaching Tool and Potential Liability

2012-01-17T22:44:00.000-08:00

By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office

Recording a student during the assessment process or for purposes of self observation can be a helpful documentary or teaching tool because it provides a visual and/or auditory model for students, parents, and other educational professionals. It can also be a useful teaching tool. However, without consent provided, at a minimum by the student’s parent or legal guardian, and in cases where a teacher might be recorded, from the teacher and school principal, such recordings are illegal. Additionally, many assessors and/or services providers may not be aware that any videos or audio recording of the student are considered part of his/her educational record. Thus, all laws and regulations regarding the maintenance and release of educational records, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”), will apply to the recordings.

LEA board policies and administrative regulations should address maintenance of the recordings, permission to record, privacy, etc.

Maintenance of Records

It is important to remember that the recordings must be stored, accessible to parents or legal guardians, copied upon request, and can be used at due process hearing and or other legal proceedings. Further, unlike traditional paper records, magnets, viruses, and new developments in technology may damage or destroy the recording, or make it financially burdensome to transfer the recording to the newest technological recording device (e.g., beta to VHS, VHS to DVD/Blu-ray, etc.)

Permission to Record

Proper procedure and best practices dictate receipt of obtain written permission from the student’s parent or legal guardian for the LEA to record the child and utilize the recording as the LEA deems appropriate including permission to share the recording to other assessors, IEP team members, etc. As for the recording of a teacher, the Education Code requires that consent be provided by the teacher and the teacher’s principal. Although Education Code Section 51512 does not require written consent from the teacher and principal, we recommend that such written consent be obtained. Some records are worth having.

Privacy

Whenever recording is taking place, there is a risk that other children and or adults may inadvertently be videotaped or audio recorded during the process creating a potential liability under the California Penal Code if the recorded individual has not signed a release. If an unknowing and/or unwilling party was inadvertently recorded the LEA may wish to destroy the recording when still in a “draft” format, i.e., prior to the recording becoming an official pupil/educational record. The key is to make sure that if other students are likely to be recorded, that written consent be obtained from the parents or legal guardians of the other students.

An Accurate Depiction or Not?

Video and audio recordings may not capture a full picture of a student’s ability as children have both good and bad days and the day selected to record may not accurately reflect the student’s daily performance. Recording of a student will provide a snapshot on a given day and given time. The key is whether it is fairly representative of the student’s performance. As such, discern beforehand based on reliable information and performance patterns, those portions of the day that are fairly consistent and representative of the student’s typical performance and record at those times.

While the benefit of video and audio recording of students may be great, it can be fraught with peril if handled improperly. LEAs considering recording students for assessments or other legitimate educational purposes should proceed with caution as described.

Clearing the Smoke Surrounding California’s Compassionate Use Act (Medical Marijuana) and Its Effect on Employment and Student Discipline Law

2012-01-04T14:27:00.000-08:00

By Amy Estrada, Associate
San Diego Office
and Mark Bresee, Partner
Irvine Office

Since voter approval of Proposition 215 in 1996 (enacting the the Compassionate Use Act ("CUA")), school districts have encountered issues regarding the discipline of students and employees who possess medical marijuana cards. Due to the tumultuous nature of the law, when asked how to proceed in such situations the responses have varied widely over the years. In light of the California Supreme Court’s decision in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, however, it can be stated with greater confidence that the CUA will not insulate employees or students who happen to be qualified medical marijuana patients from discipline under the Education Code.

Under the federal Controlled Substances Act, the possession and use of marijuana is prohibited, even for medical users. (Gonzales v. Raich (2005) 545 U.S. 1, 26–29.) Federal law classifies marijuana as a "Schedule I" drug, meaning it has "no currently accepted medical use." (21 U.S.C. § 812(c).) The federal government therefore does not deem medical marijuana "prescriptions" valid.

Given that federal law preempts state law, California voters were powerless to change federal drug law through the initiative process. Thus, the CUA merely provides qualified medical marijuana patients with a defense to violations of certain specified California criminal laws.

The California Supreme Court, in the Ross case, made clear that medical marijuana is not "legal" and that patients do not have a "right" to use medical marijuana like other legal prescription drugs. The patient-plaintiff in Ross had been terminated for failing a drug test, which the employee contested because he possessed a prescription for medical marjuana. The Supreme Court dismissed the plaintiff’s wrongful termination and employment claims, finding the CUA did not alter employment law in California. The CUA’s "operative provisions speak exclusively to the criminal law." Employers are therefore not required to accommodate an employee’s use of medical marijuana.

The Court further noted that California’s medical marijuana laws “did not purport to change the laws affecting public intoxication with controlled substances or the laws affecting controlled substances in places such as schools and parks[.]” While children of any age may, theoretically, be qualified medical marijuana patients under the California Health & Safety Code, there is nothing in the CUA or its accompanying legislation indicating California voters sought to confer upon school-age children a right to use, possess, or be under the influence of marijuana at school. Given the California Supreme Court’s reasoning in Ross, a court would likely find the CUA does not alter a school district’s authority to discipline a patient-student for marijuana-related offenses at school. Such offenses would then still fall within the ambit of Education Code section 48900(c) and/or laws governing the discipline of special education students.

Schools should be cautious to avoid facilitating a medical marijuana patient's use or possession of the drug. For example, physicians have been cautioned by the California Medical Association to avoid offering advice or instructions regarding a patient's use of marijuana or how to obtain it. (People v. Kelly (2010) 47 Cal.4th 1008, 1018 ["physicians risk triggering liability under federal law for aiding and abetting the unlawful possession of a controlled substance"].) School officials should likewise refrain from behaving in a manner that may constitute aiding or abetting a student or employee to violate federal drug laws.

Although the present state of the law indicates employee and student discipline issues involving medical marijuana should be handled according to the Education Code and other applicable law, we advise school districts and other readers to confirm with legal counsel that particular exceptional factual circumstances and potential further legal developments do not lead to a different conclusion.

Decision Strengthens Public Agency Authority to Require Reasonable Notice of Delay Claims

2011-12-23T14:22:00.000-08:00

By Hugh Lee, Partner
Cerritos Office
and Bryce Chastain, Senior Associate
Pleasanton Office

In a recent case, Greg Opinski Construction, Inc. vs. City of Oakdale (October, 2011), the California Court of Appeal strengthened the position of public agencies asserting notice of claim requirements against contractors in their public works contracts. The Court based its decision on Civil Code section 1511, which expressly permits a public entity to require the other party to give notices of delay claims caused by the party receiving the notice. The key is that the delay claim requirements must be “reasonable,” and, as the court noted, “just.”

This decision expressly overturned a decision from 1963 in the case of Peter Kiewit Sons’ Co. vs. Pasadena City Junior College, in which the California Supreme Court held that even if a public works prime contract requires the contractor to notify the owner of delays (whether to make a claim, or to avoid liquidated damages), the failure to meet such a requirement was excused where the delays involved were caused by the owner. As the Court in Greg Opinski Construction, Inc. noted, however, Civil Code section 1511 was amended soon after the Peter Kiewit Sons’ Co. case to add language allowing public entities to conditions delay claims on contractor compliance with reasonable notice procedures in the contract.

School and community college districts should take advantage of the ruling in the Greg Opinski Construction, Inc. by confirming their general conditions contain express requirements that the contractor provide reasonable notice of any delay claims or any other claims for time extensions whether or not they involve additional money. Failure to follow such notice requirements could bar a contractor from offering evidence in trial that the delays were the owner's fault and that liquidated damages were not appropriate. The keys for public entities will be: 1) ensuring that the claims notification requirements in the contract are clear; and 2) making sure that the claims notification requirements are reasonable and just. Since the interpretation of Civil Code section 1511 in Greg Opinski Construction, Inc. is new, we don’t have much guidance on where the courts will come down on what provisions are fair and just, and which are not. For a more complete analysis of the Greg Opinski Construction, Inc. vs. City of Oakdale, see our Alert here.

Must Subpoenas be Issued for Student Expulsion Hearings?

2011-12-16T16:05:00.000-08:00

By Mark Bresee, Partner
Irvine Office

We are occasionally asked about the authority and responsibility of a governing board regarding requests for subpoenas in student expulsion cases. Though the issue does not arise very often, it is important to understand what is required and what options are available. The rule can be summarized as follows: Governing boards have an obligation to consider subpoena requests – they cannot have a blanket policy that subpoenas will never be issued – but they have discretion to decide whether to issue or deny specific subpoenas requested by a party, and that decision is final so long as the board does not abuse its discretion.

Education Code section 48918(i)(1) states that “[b]efore [a] hearing has commenced, [a] governing board may issue subpoenas at the request of either the superintendent of schools or the superintendent’s designee or the pupil, for the personal appearance of percipient witnesses at the hearing.” It also authorizes boards, hearing officers and administrative panels to issue subpoenas after hearings have commenced. Once authorized, subpoenas are issued in accordance with the provisions of the Code of Civil Procedure. Education Code section 48918(i)(2) provides for objections to the issuance of subpoenas, and states that any decision by the governing board “in response to an objection to the issuance of subpoenas shall be final and binding.” Also, if the board determines that a percipient witness would be subject to an unreasonable risk of physical or psychological harm by testifying at the hearing, a subpoena shall not be issued . . . [but] that witness may be compelled to testify by means of a sworn declaration.” (Section 48918(i)(3))

Therefore, a governing board is required to address and review each subpoena request individually, but for each subpoena request the board has the options of granting the request, denying the request based on particular circumstances related to that student/subpoena, or denying the request based on a determination that the proposed witness would be subject to an unreasonable risk of physical or psychological harm by testifying at the hearing. In the latter case, the board can require the witness to testify by means of a sworn declaration.

In Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, the only published decision interpreting these provisions, the Court of Appeal addressed the argument that the word “may issue subpoenas” is a grant of subpoena power rather than an authorization to deny them, and that a governing board is required to issue subpoenas on request. The Court rejected this argument. The Court concluded that the language of Section 48918(j) “assumes the issuance of subpoenas is subject to some kind of evaluation by the governing board, and that the results of the governing board’s evaluation lay the issue to rest.” (108 Cal.App.4th at 433) The Court concluded that the Board has discretion to decide whether to issue subpoenas, and may consider subpoena requests on a case-by-case basis so long as it is not arbitrary in its exercise of discretion. (Id. at 437-38)

U.S. Agencies Jointly Issue Guidelines on the Voluntary Use of Race to Achieve Diversity, but California Constitution’s Limits on Consideration of Race Still Apply

2011-12-15T09:03:00.000-08:00

By Aaron O'Donnell, Partner
and Sharon Ormond, Senior Associate
Cerritos Office

On December 2, 2011, the U.S. Departments of Education (ED) and Justice (DOJ) jointly issued guidelines on the voluntary use of race to achieve diversity in postsecondary education and to achieve diversity and avoid racial isolation in elementary and secondary schools within the framework of Titles IV and VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and current case law. The guidance, which is presented in two documents, one for postsecondary institutions and one for K-12 schools, replaces August 2008 letters issued by ED’s Office for Civil Rights (OCR).

The guidance documents reflect the view of ED and DOJ that there is a compelling interest in achieving a diverse student body, and, in the context of K-12 education, avoiding racial isolation. Their intent is to address the degree of flexibility that educational institutions have to take proactive steps, in a manner consistent with principles articulated in Supreme Court opinions, to meet these compelling interests. As the Supreme Court has made clear, such steps can include taking account of the race of individual students in a narrowly tailored manner. The documents will no doubt prompt further discussion and debate of complex legal and policy issues, and are therefore likely to be of interest to many educators regardless of whether their institutions are currently contemplating the adoption of specific practices according to the guidelines. However, California’s public colleges, universities, school districts, and county offices of education must also continue to comply with provisions of the California Constitution that more strictly limit the consideration of race, among other factors, for purposes of achieving diversity.

Legal Framework - Federal

As to the legal framework, the postsecondary guidance reviewed Grutter v. Bollinger (2003) 539 U.S. 306, 123 S.Ct. 2325 and Gratz v. Bollinger (2003) 539 U.S. 244, 123 S.Ct. 2411. In Grutter, the Court recognized that the benefits of student body diversity in postsecondary institutions are “substantial,” as well as “important and laudable” and accepted the law school’s goal to achieve broad diversity where race was “‘only one element in a range of factors a university properly . . . consider[ed] in attaining the goal of a heterogeneous student body.’” It further concluded the law school could seek a “critical mass” of students of underrepresented groups in order dispel stereotypes about minorities and to ensure there are enough members of underrepresented minority groups to participate in the classroom without feeling isolated or feeling like spokespersons for their race.

Having found there was a compelling interest in achieving diversity, the Court next evaluated whether the law school’s admissions program was narrowly tailored. It looked to several criteria in concluding the admissions program was narrowly tailored: the school had considered workable race-neutral alternatives; admissions program provided for flexible and individualized review of applicants; the school did not unduly burden students of any racial group; and the school’s assurance it would “terminate its race-conscious program as soon as practicable” so that consideration of race was limited in time and subject to periodic review.

In Gratz, the Court accepted that the undergraduate college had a compelling interest in achieving diversity, including racial diversity, in its undergraduate student body. However, the Court found the university had failed to narrowly tailor its admissions program to achieve that interest because the university used a point system that automatically awarded 20 points, one-fifth of the points required to guarantee admission, to every “underrepresented minority” applicant solely because of race. Thus, race was unlawfully “a decisive factor for virtually every minimally qualified underrepresented minority applicant.” Additionally, the university failed to provide an individualized review of applicants. The Court rejected the argument that the sheer volume of applications for admission made individualized review impossible.

The K-12 guidance reviews Parents Involved in Community Schools v. Seattle School District No. 1 (2007) 551 U.S. 701, 127 S.Ct. 2738. While the Court in this decision declined to rule on whether the interests that were asserted by certain Seattle and Louisville school districts were compelling, it held that the two districts had failed to demonstrate that their use of individual students’ race was narrowly tailored to meet their goals. Using the factors articulated in Grutter, the Court noted that: serious consideration of race-neutral alternatives had not been shown; the use of race had minimal impact, casting doubt on whether such was needed; the districts defined diversity in limited terms that did not adequately reflect the diversity within the districts; and the districts’ plans did not provide for a meaningful, individualized review of student assignments.

Both guidance documents provide examples of different educational contexts within which institutions may permissibly consider race to pursue their compelling objectives. The postsecondary guidance discusses use of race in admissions, recruitment, pipeline programs, and in mentoring, tutoring, retention and support programs. Similarly, the K-12 guidance discusses districts’ options in matters such as student assignment, student transfers, school and program siting, feeder patterns, school zoning, and grade realignment.

Legal Framework - California

The guidance, however, addresses only federal law, and is not the whole story. The California Constitution, Article 1, Section 31, approved by the voters as Proposition 209 in 1996, prohibits discrimination or “preferential treatment” based on race (among other factors) in public employment, public education, or public contracting, subject to certain exceptions, including actions required to establish or maintain eligibility for federally funded programs.

This provision of the California Constitution has been held by the courts to impose strict limitations on the ability of public entities to give any consideration to race in the provision of any benefit, and was the basis of a 2001 decision by the California Court of Appeal invalidating statutes providing for affirmative action in community college employment. Connerly v. State Personnel Board (2001) 92 Cal.App.4th 16. This and other decisions based on the California Constitution, Article 1, Section 31, are not affected by the recent federal guidance, and public higher education institutions, as well as K-12 agencies, must continue to adhere to them.

For more information, the guidance documents are available at the OCR website: Postsecondary guidance; and K-12 guidance.

New Law Imposing Limitations on Some School Administrator Contracts, and Governing Board Action on These Contracts, Leaves Many Unanswered Questions

2011-12-07T10:50:00.000-08:00

By Chet Quaide, Partner
and Marleen Sacks, Senior Counsel
Pleasanton Office

Sometimes, when the Legislature attempts to impose restrictions on public entities across the board, it results in an “ill fitting” application to school and community college districts. AB 1344, recently signed into law by Governor Brown, is the most recent example of this phenomenon. This new law was designed to limit methods of public official enrichment that were utilized by City of Bell administrators, but it is not entirely clear how these limitations will apply both in general and to school administrators specifically.

The law specifically prohibits employment contracts for “Local Agency Executives” that contain built in salary increases of a specified amount from automatically “rolling over” without Board action. Although the new law defines “Local Agency Executive” to include a school or community college district’s chief executive officer, it also includes in this definition “the head of a department of the local agency,” but explicitly excludes classified employees of school districts or community college districts from this definition. Thus, it appears that this requirement would apply to an Assistant or Associate Superintendent of Personnel or Human Relations (providing the individual holding this position holds a teaching credential), while typically excluding positions such as Chief Financial Officer, or heads of Maintenance, Operations and Transportation, or Facilities. With regard to community college districts, the law, on its face, appears to apply to “educational” (academic) administrators hired pursuant to Education Code section 72411.

A rollover provision in an employment contract typically acts to extend the term of the contract even without specific Board action on the contract itself. Although there has been considerable debate regarding the appropriateness and even the legality of these rollover contract provisions, this new law does not ban such a provision. Likewise, this law does not ban automatic compensation increases (for instance “step” increases) from being built into employment contracts of these individuals. This new law does, however, effective January 1, 2012, prohibit the adoption or renewal by a Board of an employment contract for these designated “local agency executives” that contains an automatic rollover provision and compensation increase provisions that are greater than the California consumer price increase (“CPI”) for urban wage earners as determined by the California Department of Industrial Relations (not the “COLA” figure utilized to fund California state schools).

The first open question is what did the Legislature intend to be the “triggering” event for these contracts to be subject to these limitations? The limitations apply to any contract that is “executed or renewed” by the Board. We know what “executed” means, but what does “renewed” mean, especially in a contract that is automatically renewed without Board action? A conservative and cautious interpretation would be that a contract is “renewed,” and thus subject to these limitations, any time that a contract, either pursuant to the terms or the contract itself or law, is extended for an additional year. Thus if an administrator currently has an employment contract that has completed the initial term of the contract, as written, and has rolled over subsequently, and will roll over again automatically sometime after January 1, 2012, the date that the contract in question rolls over again will likely be viewed as a contract renewal which will trigger the requirements of this new legislation.

The second relevant question is when does the amount of the increase in compensation limitation apply—at the time the contract is initially executed or at the time it subsequently rolls over? Since the CPI for the year that a contract is executed has no apparent relevance to the CPI for the year that the contract rolls over, it is logical to apply the limitation at the time the contract rolls over.

As no one can predict what the “CPI” will be in the year following a two, three, or four year employment contract, the practical impact of this new law is that although the employment contract in question may contain an automatic “rollover” provision and an automatic compensation increase provision, it cannot be determined whether the contract would violate this new prohibition until such time that the correct “rollover” occurs because we won’t know the CPI for the year in question until that time. Accordingly, any employment contracts that contain “roll over” provisions and automatic compensation increases built in will be subject to legal scrutiny at the time of the “roll over” to determine whether they violate newly enacted Government Code section 3511.2. If the built in compensation increases exceed the CPI at that time, then either the entire contract could be found to be illegal at that time, or just the compensation increase provision would be determined to be illegal if the contract contains a contract “severability” provision. So, if the compensation increases in the contract exceed the CPI at the time of rollover, the result would be either that the administrator has no contract, or if the contract has a “severability” provision, the administrator will not be receiving any compensation increases following the effective date of the “roll over.”

This attempt at limiting roll over contracts with automatic pay increases is only one aspect of AB 1344. There are several other new requirements and prohibitions put into place by this new law, including:

Whereas existing employment contracts of certain designated administrators are required to have the “maximum eighteen (18) month” buyout provision (Gov. Code, §§ 53260 et seq.), this statute also requires that any contracts that contain provisions that provide for paid administrative leave pending investigations or for employer paid criminal defense, that after January 1, 2012, these contracts are required to include provisions that require the repayment of the paid investigatory administrative leave salary and/or the repayment of legal expenses spent in defending the administrator, if the administrator is ultimately convicted of specific crimes. In addition, the new contract is required to contain a provision providing that the administrator will fully reimburse the amount of any contract buyout if the administrator is convicted of one of the specified crimes.
Amends the Brown Act to prohibit a Board from calling a special meeting regarding the compensation of executives as defined by this law.
Requires Boards to post their agendas on their web sites in compliance with the normal posting time lines.

For more information, you can review our firms’ recent AALRR Alert on this new law, which can be accessed here.

Providing FAPE to Students Registered as Sex Offenders

2011-11-30T07:17:00.000-08:00

By Adam Newman, Partner

and Geneva Englebrecht, Associate

Cerritos Office

The California Penal Code requires mandatory registration as a sex offender for persons convicted of specific sex offenses. The law provides a different list of offenses for persons convicted as adults than those convicted as minors. As the law currently stands, a juvenile sex offender’s information is not published and an adult sex offender can petition the Sex Offender Tracking Program to be excluded from the website. It has been reported that approximately 25% of registered sex offenders do not appear on the site. Therefore, school districts should not assume that an adult or minor student whose name does not appear on California’s published registered sex offender website is not a registered sex offender.

Districts who are aware or have reason to believe that a student eligible for special education is also a registered sex offender need to obtain information regarding the specific terms of his/her release. Such information should be available from the Sheriff’s Department or the Department of Probation. For confidentiality purposes, districts should refrain from automatically sharing information pertaining to the student’s special education status with outside agencies. The terms of release will indicate if there are any restrictions placed upon the student such as mandated distances from schools, parks, or his/her victim(s). Districts should consider the victim’s location if that person is a student, district employee, or lives/works near the school site.

If, under the terms of the student’s release, there are no restrictions that would negatively impact the student’s ability to attend his/her current placement and/or the IEP team’s ability to consider the continuum of placement options, the IEP team will need to determine what placement and services will provide the student a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”).

If the offer of FAPE includes a school site that will violate the terms of a student’s release the district may unilaterally change the student’s placement to comply with a valid court order or an order from the Department of Probation, provided that the alternative placement setting also allows the student to receive all of the specialized instruction and related services to which the student is entitled as well as a FAPE in the LRE.

Given the sensitive nature of these issues and the need to carefully scrutinize the terms of court release, districts may wish to consider consultation with legal counsel in identifying the court ordered terms of release and in evaluating whether an alternative placement is necessary and appropriate for the special education student in question.

Student Fee Litigation Update

2011-11-22T16:51:00.000-08:00

By Mark Bresee, Partner
and Cathie Fields, Senior Associate
Irvine Office

After the initial publicity surrounding Governor Brown’s unexpected veto of the student fee legislation, AB 165, there was a bit of a lull in the media attention paid to the topic. Thankfully, though, the veto and some misinformation reported in the media immediately after − e.g., a blog post headline stating AB 165 was a bill “banning pay-for-play sports fees,” when such fees have been explicitly banned since 1984 − have not resulted in districts retreating from their efforts to address the issue and achieve 100% compliance. The issue is emerging again: The CDE recently issued an updated guidance on fees, and a recent news report correctly noted the ACLU lawsuit against the State has now resumed.

To review briefly, the original September 2010 suit was filed against the State and the Governor. Then-Governor Schwarzenegger quickly entered into a proposed settlement, to be implemented through legislation that became AB 165. Upon taking office the Brown administration balked at the settlement, asserting that the Governor was not the correct target. When the judge in the case signaled his agreement, the settlement fell apart and an amended complaint was filed, naming as defendants the State, the California Department of Education (CDE), the Superintendent of Public Instruction (SPI), and the State Board of Education (SBE). All of those defendants have filed demurrers to the amended complaint, seeking dismissal of the suit. A hearing is scheduled for January 25, 2012. Some of the arguments in the demurrers remind us that the stakes for school districts and county offices remain high.

The demurrer filed by the State asserts it is not a necessary or proper party in the lawsuit, based on the separation of powers doctrine and because the suit names state officers and agencies with administrative functions. In arguing the State is not an “indispensable party” to the lawsuit, the demurrer does not mention individual school districts. The same is not true of the demurrer filed by the CDE, SPI and SBE, all represented by attorneys at the CDE. These state defendants contend that “not only does the [lawsuit] fail to allege any improper action on the part of the [state] defendants, it fails to allege what the . . . defendants should have done − and under what authority.” Running throughout the demurrer is the explicit assertion that the finger should be pointed at individual districts. These defendants assert that the State has no obligation to enforce the “free school guarantee,” and that “local school districts have the power and authority to cure the alleged problems.” Noting that Hartzell v. Connell was filed against an individual school district, and that decision did not assert the State is responsible for enforcement, they argue that the suit is “fundamentally about fees charged by those school districts” the plaintiffs attend and that the individual school districts are indispensable parties. This argument is consistent with the language and tenor of Governor Brown’s AB 165 veto message. (See our post on the veto here).

To state the obvious, the path this litigation will take and the ultimate impact on districts and county offices remain unpredictable. The plaintiffs, in opposing the demurrers, make a cogent and forceful argument that the individual school districts are not indispensable parties, asserting, “This case is about the State’s duty to intervene when violations of students’ fundamental educational rights occur, and school districts are not indispensable to an action focused exclusively on the scope of the state’s constitutional duties and the form of relief available against the State and its agencies.” However, if this argument is accepted by the court, it simply begs the question what state intervention and enforcement would look like.

Another possibility, perhaps remote, is the Williams example. The complaint in that case identified plaintiffs in eighteen school districts, and the response of the state defendants was to file a cross-complaint against all eighteen of those districts, asserting that “the State of California has a direct interest in ensuring” the districts comply with the law, and that “if plaintiffs are correct” it is the districts that have “violated [their] duties and obligations under applicable statutes and regulations.”

Perhaps the only safe prediction, regardless of how the litigation unfolds, is that the eyes of the ACLU, the State, the Governor, and the citizen watchdogs will remain focused on local district and county office practices.

Dealing With the New Law Limiting Retention to Five Percent on Public Works Projects

2011-11-21T17:08:00.000-08:00

By Hugh Lee, Partner
Irvine Office
and Bryce Chastain, Senior Associate
Pleasanton Office

Despite opposition from various public agency groups supporting school and community college districts, Senate Bill 293 was signed into law. The new law limits retention on public works projects to five percent. Codified as Public Contract Code section 7201, the limit on retention applies to all contracts entered into on or after January 1, 2012. Details about SB 293 can be found in our Alert here.

If your school or community college district is in the process or currently out to bid on construction projects that will be awarded after January 1, 2012, you should consider whether retention withholding of five percent is adequate to properly protect your district. Prior to SB 293, the industry standard for retention was ten percent. If you have concerns about withholding only five percent for retention, you should carefully consider exercising the exception in SB 293 to increase the retention percentage. Under the new law, a school or community college district can make a finding that a particular project is “substantially complex” and requires a higher retention amount than five percent. The public agency must make a finding during a properly noticed and normally scheduled board meeting and include the finding and the new retention amount in the bid documents prior to bid.

The difficulty is there is no definition or guidelines on what makes a project “substantially complex.” Some argue that all school and community college projects are “substantially complex” due to DSA requirements and compliance with Title 24. While this position has merit, we believe this interpretation is overbroad and circumvents the intent of the new law. A safer approach is to work with your architect and other consultants to detail specific issues, conditions, requirements, etc. that are unique to your project and make it “substantially complex.” Incorporate these facts into a resolution and include the resolution in the bid documents prior to bid.

Since the New Year is fast approaching and the number of board meetings is limited due to the holidays, we recommend steps now to determine whether your particular project requires a higher retention percentage and make plans to coordinate various relevant dates including, but not limited to, board meetings, bid advertisement, bid opening and contract award dates. If your district requires assistance in preparing an appropriate resolution, please do not hesitate to contact our firm.

Side Letters Do Not Necessarily Expire When Parties Subsequently Reach Agreement on a Collective Bargaining Agreement

2011-11-15T07:19:00.000-08:00

By Jabari Willis, Senior Associate

Cerritos Office

and Mark Bresee, Partner

Irvine Office

In Palomar Community College District (2011) PERB Decision No. 2213-E, the Public Employment Relations Board (“Board”) clarified that a side letter of agreement between parties does not automatically expire when the parties reach agreement on a subsequent collective bargaining agreement ("CBA").

In Palomar, the employer issued a letter of reprimand based on a 2005 side letter addressing disciplinary procedures for certain employees, which did not contain an expiration clause. The following year the parties reached agreement on a CBA, which did not include a zipper clause or any other provision relating to the existence of the side-letter. The side letter was also not discussed during negotiations. As a result, the issue was whether the 2005 side letter expired and/or was superseded based on the 2006 CBA, making the employer's reliance on the 2005 side letter a unilateral change in policy and thus an unfair labor practice.

The Board, in reaching its decision, reviewed two of its prior cases, Lodi Unified School District (2001) PERB Decision No. 1452 (“Lodi”) and City of Riverside (2009) PERB Decision No. 2027-M (“Riverside”). In reviewing Lodi, the Board noted that the ALJ’s proposed decision provided the following definition of a side letter:

A side letter is an agreement of the parties that occurs during a CBA term. It usually modifies or interprets an existing CBA provision and remains in effect until that particular CBA term ends. When the CBA term expires, the side letter expires, unless by its own terms, it continues.

However, the Board further noted that the ALJ’s proposed decision in Lodi was not fully adopted, and thus determined that the ALJ’s statement regarding the duration of side letters was not dispositive in the Palomar decision. In Riverside a memorandum of understanding between the parties contained the following provision, and the issue was whether a particular agreement was a "grievance resolution document:"

This Memorandum of Understanding will supersede all Side Letters. Both parties recognize that this excludes grievance resolutions documents.

Based on this provision, in Palomar the Board interpreted Riverside to hold that absent a provision in a CBA or other agreement between the parties, a side letter does not automatically expire upon the ratification of a subsequently negotiated agreement.

In reaching its decision, the Board issued the following guidance on side letters:

[W]e find a side letter is an agreement between an employer and union that typically: (1) modifies, clarifies or interprets an existing provision in [a CBA]; or (2) addresses issues of interest to the parties that are not otherwise covered by the [CBA]. At its most basic, a side letter is a contract between the parties. As such, the duration of such an agreement is dictated by the provisions of the side letter itself (either express or implied) or by the subsequent conduct of the parties. (See Riverside.) Consequently, absent a provision in [a CBA], an agreement between the parties or other evidence demonstrating the parties intended it to expire, a side letter does not automatically expire upon the ratification of a subsequently negotiated [CBA].

Given the decision, employers should bear in mind that side letters may continue to remain in effect despite any subsequent agreements reached, unless the side letter or subsequent agreement specifically addresses the issue.

Are Your Acceptable Use Policies Up to Date?

2011-11-09T08:57:00.000-08:00

By Peter Sturges, Partner
Pleasanton Office
and Anthony De Marco, Partner
Irvine Office

The adoption of acceptable use policies to establish the nature and limits of employee and student access to and use of computer systems is by now a common practice. Once such policies are established, however, districts and county offices of education sometimes fail to review them to ensure they are current. In today’s rapidly changing technology environment, these policies can quickly become outdated in the face of new technologies and means of communication, the most recent examples including social networking, micro-blogging, and cloud computing. It is important that acceptable use policies be kept current to address the impacts of new technologies.

The importance of thoughtful, current policies has been demonstrated in the courts, which continue to grapple with technology-related issues in the employment relationship on a regular basis. For example, in City of Ontario, Cal. v. Quon (2010) --- U.S. ----, 130 S.Ct. 2619 [see AALRR Alert here], one of the key factors in determining whether the employee had a right to privacy in text messages sent over an employer-owned cell phone was that the employer’s acceptable use policy established that such communications were not private. Similarly, in Holmes v. Petrovich Development Company (2011) 191 Cal.App.4th 1047 [AALRR Alert here], the court concluded that ordinarily privileged communications between an employee and her attorney were not privileged because the employer’s use policy explicitly establishing to the contrary. Appropriate acceptable use policies can, therefore, be key documents when legal issues arise.

In the public education environment, districts and county offices of education should also ensure that their student acceptable use policies are regularly updated. Entities should determine not only whether there should be separate policies for employees and students, but whether different use policies for different grade/age levels are appropriate. Students at lower grades are often capable of only complying with a more basic use policy, whereas older students can, and should, be required to adhere to more detailed and sophisticated acceptable use policies.

Perhaps no area of education law is more dynamic than issues related to the use of technology by employees and students. Employers and educators should, therefore, provide for a regular process in which they review and update their acceptable use policies to reflect the rapidly evolving pace of technology.

U.S. Supreme Court Will Not Review Federal Court Decision Upholding Student Discipline for Off-campus, Online Speech

2011-11-03T16:40:00.000-07:00

By Cathie Fields, Senior Associate
and Mark Bresee, Partner
Irvine Office

In April 2011, the U.S. Court of Appeals for the Second Circuit (NY, VT, CT) upheld the discipline of a high school student based on an off-campus internet posting. (Doninger v. Niehoff (2d Cir. 2011) 642 F.3d 334.) The student petitioned the U.S. Supreme Court for review of that decision. This week, the Court declined to review the Second Circuit’s ruling.

Avery Doninger sued Lewis Mills High School administrators for violating her First Amendment speech rights when they precluded her from running for class secretary after she referred to school officials as “douchebags” in an Internet blog post she wrote on an off-campus computer. Doninger’s criticism of school officials was related to the scheduling of a concert known as “Jamfest” in the school auditorium. Doninger and other students had also used LMHS's computer lab to gain access to the email account of the father of one of the students and sent a mass email about Jamfest, inaccurately reporting the concert had been canceled and urging people to contact the school office. The school’s email policy restricted Internet access or email using accounts other than those provided by the district for school purposes.

After school officials learned about the blog post, Doninger was not allowed to run for a senior class officer position, but was permitted to retain her current position as Junior Class Secretary. She was not otherwise disciplined for her blog post. A federal district court concluded Doninger's First Amendment rights were not violated “when she was told that she could not run for class secretary because of an offensive blog entry that was clearly designed to come on to campus and influence fellow students.” The Second Circuit, reviewing that decision on appeal, agreed with the district court that any First Amendment right allegedly violated was not clearly established, so that all of the defendants were entitled to qualified immunity from Doninger’s lawsuit.

The court also concluded “it was objectively reasonable for school officials to conclude that Doninger's behavior was potentially disruptive of student government functions (such as the organization of Jamfest) and that Doninger was not free to engage in such behavior while serving as a class representative—a representative charged with working with these very same school officials to carry out her responsibilities.” Thus, it was significant in this case that (1) Doninger’s blog post resulted in on-campus disruption, and (2) she was acting in the capacity of a class officer, rather than as an individual student.

When the U.S. Supreme Court denies certiorari, the lower court’s decision stands. Denial of certiorari is not a judgment or decision on the merits of the lower court’s ruling and cannot be relied on as an indication of the Supreme Court’s prospective opinion on a similar issue. It simply means, for whatever reason, the Court has declined to consider that particular case.

The law applying the First Amendment to students’ off-campus Internet activity continues to evolve unevenly. The availability to produce and transmit instant, far-reaching messages from any computer with Internet access tends to blur the distinction between on- and off-campus speech. Federal courts have reached differing conclusions related to student discipline for these activities. Many states are attempting to address these concerns through legislative action. At some point, the Supreme Court likely will review these issues as they relate to the First Amendment. However, we should not expect that ruling to be imminent or definitive. And California law may provide greater protections to students who engage in on-line, off-campus expressive activities. We will continue to provide updates as these issues develop.

Community College and University Auxiliary Organizations Must Make Their Records Open to the Public

2011-11-01T12:31:00.000-07:00

By Aaron O'Donnell, Partner
Sharon Ormond, Senior Associate
Cerritos Office
and Cathie Fields, Senior Associate
Irvine Office

Effective January 1, 2012, SB 8 amends the higher-education provisions of the Education Code (72690 et seq.; 89913 et seq.; and 92950 et seq.) to require auxiliary organizations of the California Community Colleges, the California State University, and the University of California to comply with disclosure provisions essentially similar to the California Public Records Act, subject to certain exemptions unique to auxiliary organizations.

SB 8 requires records maintained by a CCC, CSU, or UC auxiliary organization to be made available to the public and requires the organization to follow the specified timelines and procedures for responding to public records requests similar to those of the PRA.

Within 10 days of receiving a written request for records, the auxiliary organization must determine whether the request seeks records that are subject to disclosure, notify the requester in writing of the determination and the reasons therefor, and provide an estimated date and time when the records will be made available. If the request for records is denied, in whole or in part, the requester shall be informed of the names and titles or positions of each person responsible for the denial. The 10-day deadline may be extended by a maximum of 14 additional days in some circumstances.

SB 8 incorporates existing PRA exemptions, which are numerous, and additionally exempts from disclosure the following records maintained by a foundation:

Information that would disclose the identity of a donor, prospective donor, or volunteer;
Personal financial information and gift and estate planning information of a prospective donor or volunteer;
Personal information related to a donor's private trusts or annuities administered by an auxiliary or campus foundation;
Information related to fundraising plans, fundraising research, and solicitation strategies, as specified;
The identity of students and alumni to the extent the information is already protected, excluding employees of the organization or a student who participates in a legislative body of a student body organization; and
Trade secrets.

These provisions do not exempt disclosure of certain information, including the amount and date of a donation; donor-designated uses of or restrictions on a donation; the identity of donors who, in any fiscal year, receive a benefit valued at greater than $2,500 or impermissible under existing law; certain self-dealing transactions under existing law; and instances in which a volunteer or donor is awarded, within five years of the date of the service or gift, a contract from the foundation that was not subject to competitive bidding.

As under the PRA, when a foundation discloses a record that is exempt, the disclosure constitutes a waiver of the exemptions, except for: disclosures made to a donor regarding that donor's own donation or prospective donation; to a volunteer regarding that volunteer's services to the foundation; disclosures required or limited by law, disclosures to an auditor conducting an audit, as defined; or specified disclosures to a bank or financial institution.

A contract entered into after the effective date of SB 8 that would prevent the disclosure of information required to be disclosed under the bill is void and unenforceable. Like the PRA, SB 8 authorizes proceedings for injunctive or declarative relief to enforce the right to inspect or receive a copy of a foundation record, including the awarding of attorney's fees. The provisions of SB 8 do not apply to any records subject to a request made pursuant to the PRA.

Impact on Community Colleges and Public Universities

Effective January 1, 2012, college and university foundations must disclose their records, unless the records would be exempt under the PRA or meet one of the exemptions described above. Even the inadvertent disclosure of an exempt record will result in a waiver of the exemption. Expensive litigation may result if records are not timely and properly disclosed upon request.

For Community College auxiliary organizations in particular, this bill is one of two passed in the most recent Legislative session that may require significant operational changes. AB 501, discussed in our post of October 11, 2011, amends the Educational Employment Relations Act effective January 1, 2012, to apply to community college auxiliary organizations as employers.

SB 8 does not amend the PRA, or otherwise change the legal status of auxiliary organizations. However, the change in the law does highlight the distinction between auxiliary organizations established as such, and other entities organized to support public colleges and universities that may not have the legal status of auxiliary organizations. Not all campus foundations are “auxiliary organizations” as defined in the statute however, and it is therefore important for these organizations to assess whether they have this legal status in order to determine whether they are subject to SB 8. Importantly, even for foundations that are not auxiliary organizations, other disclosure obligations may apply by virtue of their status as nonprofits, and depending on circumstances pursuant to other laws, including for example open meeting laws and even the PRA.

These new requirements represent a significant change in the public responsibilities of auxiliary organizations. We anticipate strong public interest in making use of the disclosure requirements. SB 8 was supported by a broad range of organizations that advocate increasing “transparency” in the operation of public agencies.

Compliance with these requirements, and understanding the various exemptions, will require interpretation of a complex array of statutes, in both the Education Code and the PRA, and an understanding of case law and legislative history. Foundations and the educational institutions with which they are affiliated should seek advice from legal counsel when responding to requests under the new provisions.

Union Requests for Information: Has the Law Changed?

2011-10-25T09:48:00.000-07:00

By Chet Quaide, Partner
and Marleen Sacks, Senior Counsel
Pleasanton Office

Recently, our clients have been getting bombarded with requests from local unions for information related to pending disciplinary cases and grievances, with the unions claiming that the information is “necessary and relevant” to the representation of their members. No doubt this recent uptick in such requests is due the June 30, 2011 PERB decision in SEIU 1021 v. City of Redding, which held that it was an unfair labor practice for the City to deny the union a copy of a confidential investigation report into sensitive personnel matters. Notably, the City recently appealed the PERB decision to the California Court of Appeals, so for the short term, the case is of no precedential value.

But regardless of how the case is ultimately decided by the Court of Appeal, the City of Redding case is actually not as compelling as the unions are claiming. This is because any request for information dispute depends on its own set of facts. As the City of Redding case itself noted, “Information request cases ordinarily turn on the particular facts involved, so each request is analyzed separately.” (City of Redding, citing Chula Vista City School District (1990) PERB Decision No. 834.)

In the City of Redding case, the union was requesting a formal investigation report involving employees working in a city customer service division. The investigation report was prepared by an outside investigator. The City had sent a letter to the union informing it that as a result of issues addressed in the report, certain changes would be made to the customer service division. The letter asked for the union’s support in directing bargaining unit members to use the chain of command to resolve problems, among other things. The union then requested a copy of the formal investigation report. The union justified the request by stating that it was unable to assess whether the issues raised by its members had been addressed without seeing the report. This, in turn, was necessary because the union and the City had agreed to implement a new job classification if customer service issues had been resolved. The City withheld the report on the grounds that it was confidential and contained confidential personnel information. PERB ultimately held that the report was “relevant and necessary” for the union to represent bargaining members, and ordered that the report be produced.

Lately, however, unions have been requesting actual investigation and interview notes by internal personnel directors, and/or written materials that public entities are relying in making personnel decisions. Such requests are likely distinguishable from the holding in City of Redding. Moreover, there are still numerous defenses available to public entities receiving information requests. For example, an employer need not comply with a request for information if the request is unduly burdensome. (See State of California (Departments of Personnel Administration and Transportation) (1997) PERB Decision No. 1227‑S.) Constitutional rights of personal privacy, and other reasons, may limit otherwise lawful demands for production of confidential information. PERB has adopted a balancing test to apply in situations involving confidential information. (Los Rios Community College District (1988) PERB Decision No. 670.) Obviously, in applying such a balancing test, each case is considered on its own separate facts.

In addition, Carmichael Recreation & Park District (2008) PERB Decision No. 1953-M, held that a Skelly hearing was an “extra-contractual” proceeding, and the union was not entitled to make requests for information. San Bernardino City Unified School District (1998) PERB Decision No. 1270 provides that an employer need not provide the union with a witness list requested for a Personnel Commission disciplinary appeal hearing.

The justification for a request for information “must be more than a mere concoction of some general theory which explains how the information would be useful to the union in determining if the employer has committed some unknown contract violation.” (Ventura County Community College District (1999) PERB Decision No. 1340, citing Los Angeles Unified School District (1994) PERB Decision No. 1061.) In another case PERB held that a request was unjustified based on a longstanding line of authority that “there is no obligation for an employer to provide detail regarding the thought process or rationale underlying its managerial decisions.” (Id., citing State of California (Departments of Personnel Administration and Transportation) (1997) PERB Dec. No. 1227-S.)

In light of the current ambiguity in the law, the possibility that confidential information is involved, as well as the fact that each situation will turn on its own facts, public employers should continue to be cautious in how they respond to requests for information, and have those requests reviewed by counsel.

Uniform Public Construction Cost Accounting Act Bid Threshold Increases

2011-10-24T07:50:00.000-07:00

By Anthony Niccoli, Senior Associate
and Hugh Lee, Partner
Cerritos Office

For those school and community college districts (and other public agencies) that have opted into the California Uniform Public Construction Cost Accounting Act ("UCAA"), at Public Contract Code Section 22000 et seq., your flexibility just increased. Back on July 1, 2011, Assembly Bill 943 increased the formal bidding threshold amount for public agencies that have opted into UCAA from $125,000 to $175,000. Correspondingly, the safe harbor triggered when all bids received exceed the formal bidding threshold, and the governing body of the public agency adopts a resolution by a four-fifths vote to award informally within the safe harbor, rose from $137,500 to $187,500.

This helps UCAA keep pace with increasing construction costs to accomplish its purpose: to simplify and unify bidding procedures and cost accounting standards on public works projects. For those public agencies that have opted in (or do opt in), according to specific statutory procedures, UCAA offers greater flexibility for awarding public works contracts up to the (now) $175,000… and even more flexibility for smaller public works contracts, as an award of up to $30,000 can be made without any bidding by those agencies that have opted into UCAA.

Still, there are formal, statutory requirements for opting into UCAA and for the alternative bidding processes - informal from $30,000 to $175,000, and formal for public works contracts over that amount and outside the safe harbor - including adopting certain prescribed accounting procedures. For more on this option that many public agencies have found useful in their facilities programs, check out our recent Alert here.

Recent Sale of Bonds Yields Needed Funds for School Facility Program Projects

2011-10-21T16:06:00.000-07:00

By Bryce Chastain, Senior Associate

Pleasanton Office

and Hugh Lee, Partner

Cerritos Office

The Office of Public School Construction ("OPSC") recently announced that the State successfully sold bonds on October 19th yielding "approximately $1 billion for School Facility Program projects." OPSC expects the State Allocation Board ("SAB") to include disbursement of the available funds "to projects on the unfunded list with valid priority funding certifications" on its December 2011 agenda. As OPSC noted, 187 school district certifications for 504 projects (306 modernization projects, 136 new construction projects and 62 projects from additional programs) are on the unfunded list. These 504 projects comprise a total of $1.34 billion. Accordingly, it appears that with about $1 billion in revenue becoming available, and $1.34 billion worth of projects on the unfunded list, there will be projects with valid priority funding certifications on the current unfunded list that still will not have money available.

Back in May 2010, faced with a similar situation of bond money becoming available for projects, but more projects on the unfunded list than could be funded, SAB adopted a "one-time alternative method" to prioritize the unfunded list for the bond funds then available for disbursement. At that time, SAB commented on desires to stimulate the economy and create jobs as factors in the approach taken, and we see nothing fundamentally different in the current economic circumstances. That "one-time alternative" method differed from the previously followed methodology where apportionments were based on the date the grant application had been approved by SAB, otherwise known as the "first in first out" method. For more information, please read our Alert here.

We will be providing updates here on EdLawConnect as SAB deliberates on a disbursement method for these funds and as this issue continues to develop.

New Funding Coming Up for Natural Gas Busing

2011-10-20T19:58:00.000-07:00

By Stephen McLoughlin, Associate
and Hugh Lee, Partner
Cerritos Office

Starting on January 1, 2012, local air quality management districts, aka air pollution control districts ("APCDs"), will have the ability to grant funds to school districts to help retrofit emission control equipment and replace natural gas tanks on school buses, as well as enhance school districts' existing natural gas fueling stations. These funds will come from surcharge fees collected by APCDs through the Department of Motor Vehicles. Once APCDs implement the surcharge, and collect it from the DMV, the resulting funds must be used for specific programs as set forth in Health and Safety Code sections 41081 and 44229. Now, with the passage of Assembly Bill Nos. 462 and 470, APCDs will have three new options for spending a limited portion of the surcharge starting in January 1, 2012:

1) Use the surcharge funds to retrofit emission control equipment for existing school buses in addition to purchasing new school buses.

2) Use the surcharge funds for replacement of natural gas tanks on school buses.

3) Use the surcharge funds for repair or upkeep natural gas fueling dispensers operated by school districts.

Of course, there are various eligibility requirements depending on the intended use of these funds that any applicant school district will have to meet. The funds will also be limited, and not immediately available. For more of these details, please check out our recent Alert on this new legislation here.

Victims of Bullying May be Given Priority or Additional Consideration for Interdistrict Transfers

2011-10-19T13:35:00.000-07:00

By Jabari Willis, Senior Associate
Cerritos Office
and Mark Bresee, Partner
Irvine Office

On October 9, 2011, Governor Brown signed AB 1156. The law, similar to AB 9 (also approved by Governor Brown on October 9, 2011, and about which we previously reported), is an anti-bullying measure aimed at giving victims of bullying priority or special consideration for interdistrict transfers. The law amends Sections 32261 (Interagency School Safety Demonstration Act of 1985), 32282, 32283, 46600, and 48900 of the Education Code.

Specifically, the new law requires that a pupil, who is deemed a victim of bullying committed by a pupil of the school district of residence, be given priority for interdistrict attendance to the school district of proposed enrollment under any existing agreement. If the district of residence and district of proposed enrollment do not have an interdistrict transfer agreement in place, the victim shall be given additional consideration for the creation of an interdistrict transfer agreement. The pupil may be deemed a “victim of bullying” by personnel of either the school district of attendance or the school district of proposed enrollment.

The legislation emphasizes in a statement of intent that these student victims “should be accommodated if they desire to attend another school, even if that school is located in another school district.” This statement highlights that a transfer should be based on the victim’s desire, and not a substitute for the district’s authority and obligation to take action to prevent and remediate bullying behavior.

To bolster the authority to discipline bullys the new law, which takes effect July 1, 2012, also amends the definition of bullying under Section 49800. It specifies that bullying means any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, as defined, including, but not limited to, sexual harassment, hate violence, or harassment, threats, or intimidation, that has the effect or can reasonably be predicted to have the effect of: 1) placing a reasonable pupil in fear of harm to that pupil’s or those pupils’ person or property; 2) causing a reasonable pupil to experience a substantially detrimental effect on his or her physical or mental health; 3) causing a reasonable pupil to experience substantial interference with his or her academic performance; or 4) causing a reasonable pupil to experience substantial interference with his or her ability to participate in or benefit from the services, activities, or privileges provided by a school. Although pupils were previously subjected to suspension and recommendation for expulsion based on acts of bullying, the new law provides clarity as to what acts constitute “bullying.”

Finally, the law encourages the inclusion of policies and procedures aimed at the prevention of bullying in comprehensive school safety plans, and requires the Department of Justice and State Department of Education to contract to provide training in the prevention of bullying.

Disability Related Bullying or Not? Knowing the Difference but Responding to Both

2011-10-18T09:28:00.000-07:00

By Adam Newman, Partner
and Geneva Englebrecht, Associate
Cerritos Office

October is National Bullying Prevention Month and recent media coverage of “mean girls and boys” and the reported influx of bullying through social networking have brought the reality of bullying to the doorstep of America’s schools, causing many state and local educational agencies to develop policies to address and prevent bullying of students. It is well established that children with disabilities may be more susceptible to bullying than their typical developing peers.

While some acts of bullying simply trigger action under state or local (i.e. school district or county office of education) anti-bullying policies, school districts and/or county offices of education should be attentive in considering whether the misconduct triggers additional responsibilities under federal or state anti-discrimination laws and/or results in a denial of a free appropriate education (FAPE) in the student’s least restrictive environment (LRE).

Bullying or Not?

A school or county office of education is responsible for taking prompt, reasonably calculated, and effective steps to end discrimination and harassment, prevent retaliation against complainants, eliminate any hostile environments, and prevent harassment from recurring when the school district or county office of education knew or reasonably should have known about the misconduct.

However, not every instance of alleged bullying, either because of a disability or some other protected category, amounts to actionable, disability-based discrimination and/or harassment under federal or state law. For example, where a student with a speech and language disability is teased by a peer about poor athletic performance during a dodge ball game, the teasing may not be related to the student’s disability and therefore will not rise to the level of disability-based misconduct. By contrast, consider an instance where several students repeatedly call a student with intellectual disabilities “stupid,” “retard,” “dummy”, etc. In the later scenario you may be able to clearly determine that there is disability-based misconduct.

Admittedly, scenarios are rarely clear cut, in part because investigation invariably reveals “two sides” to a story. For instance, consider a student with autism and sensory issues who wears his favorite shirt to school everyday and is repeatedly teased or less ominously, questioned by his peers about why the same shirt is worn to school every day. Perhaps it boils down to teasing, perhaps the questions/comments arise out of concern about the economic well being of the student and the student’s family, or perhaps it is a mixture of concern and ridicule. Whatever the case, the comments can rise to the level of disability-based discrimination and/or harassment depending on the circumstances.

Responding to Bullying and Harassment

In addition to adhering to local anti-bullying policies, federal and state law, school districts and county offices of education should investigate and, where appropriate, take prompt action to address bullying even where the misconduct is unrelated to the student’s disability – since it could arguably be connected to another protected category or simply subject to a civil action based on a theory of intentional or negligent infliction of emotional distress, not to mention other causes of action.

Given the multiple, overlapping issues that can arise from bullying of students, we advise prompt action and, where appropriate, involvement of counsel to ensure that all legal issues are addressed.

School Districts Required to Include Bullying as Part of Harassment and Discrimination Policies

2011-10-17T12:40:00.000-07:00

By Jabari Willis, Senior Associate
and Mark Bresee, Partner
Cerritos Office

On October 9, 2011, Governor Brown signed AB 9, also known as Seth's Law. The law is an anti-bullying measure aimed at giving public schools tools to prevent and address bullying through mandatory policies and systems to help discourage harassment, track incidents when they do occur and create a safe school environment for all students. The bill is named in memory of Seth Walsh, a 13-year-old gay student who took his life in September 2010, after facing years of relentless anti-gay harassment at school.

The law amends Sections 234 (Safe Place to Learn Act), 234.1, 234.2, and 234.3 and adds Section 234.5 to, the Education Code. Generally, the law requires local educational agencies to amend harassment and discrimination policies to include bullying.

Specifically, the law requires the policies adopted by school districts to prohibit discrimination, harassment, intimidation, to now include bullying based on actual or perceived characteristics, as specified in Penal Code section 422.55 and Education Code section 220. These code provisions identify categories of individuals protected from discrimination and hate crimes. The law also requires the process for receiving and investigating complaints to include complaints of discrimination, harassment, intimidation, and bullying based on actual or perceived characteristics.

The law, which takes effect July 1, 2012, also includes a requirement that school personnel who witness such acts take immediate steps to intervene when safe to do so, a timeline to investigate and resolve complaints, and an appeal process.

To provide school districts additional tools, the law requires the Superintendent of Public Instruction to post and annually update on his or her web site, and to provide to each school district, a list of statewide resources, including community-based organizations, that provide support to youth who have been subjected to school-based discrimination, harassment, intimidation, or bullying, and their families.

The law also requires the California Department of Education to develop a model handout describing the policies addressing bias-related discrimination, harassment, intimidation, and bullying in schools. This model handout also must be posted on appropriate department web sites.

Districts should review and amend their current harassment and discrimination policies to specifically include bullying. School districts may be entitled to reimbursement for costs associated with implementation as the law is a state-mandated local program.

Department Of Industrial Relations Discontinues Third Party Labor Compliance Program Approvals

2011-10-11T10:14:00.001-07:00

By Hugh Lee, Partner
Cerritos Office
and Bryce Chastain, Senior Associate
Pleasanton Office

Recently, the Department of Industrial Relations (“DIR”) announced that, effective September 1, 2011, it “discontinue[d] separate approval of third party LCPs.” A third party LCP is a DIR-approved provider of labor compliance services that provides those services, by contract, to an awarding body. DIR is, in their own words, “ending the existing approval of private [LCP] programs and grandfathering those approvals over to awarding bodies,” and will only be granting new approvals to awarding bodies going forward. While DIR’s notice will have minimal impact on awarding bodies such as school and community college districts that maintain and enforce their own approved LCPs with their own personnel, the impact on awarding bodies that rely on third party LCPs is more significant. How does this affect your district?

Districts that have had their own LCPs aren’t significantly affected by this change, unless they have contracted with a third party to administer the program. Districts that have had their own LCPs, but have utilized third party LCP consultants or administrators will still have their LCPs, but their relationship with their third party LCP consultants may need to change. Districts that have used third party LCP providers running DIR-approved third party LCPs will see the biggest change, as those third party LCP providers no longer have approved LCPs. However, DIR “grandfathered” third party approvals over to districts that had preexisting contracts with third party LCPs. In other words, if your district was using a DIR-approved third party LCP before September 1, 2011, DIR should have transferred that approval, essentially ownership of the LCP, to your district. Now, your district has its own approved LCP, which you can simply continue to operate as your own.

The fundamental decision for districts that have their own LCPs and have used third party assistance, whether it is an LCP they have been running with their own personnel or is one they just inherited from a former third party provider, is: abandon the LCP and pay the fee for DIR’s Compliance Monitoring Unit (“CMU”); have district staff administer the LCP; or continue using a third party is some capacity… which raises unsettled legal issues, because DIR has made this last option cloudy. If your district chooses to continue operating the LCP as your own, and to contract out for LCP services, the specific nature of those services – whether merely administrative or also encompassing management and discretionary direction of the LCP – will impact whether your district can secure a waiver of the DIR Compliance Monitoring Unit (“CMU”) fee or will have to pay that CMU fee in addition to the cost of running your LCP. While final regulations have not been adopted, and the current draft regulations may change, the currently proposed regulations would allow a waiver of the CMU fee if your district contracts with a third party only for administrative tasks, but not if your district contracts for services involving any exercise of discretion.

The latest notice from DIR reflects its long held desire to eliminate third party LCP consultants. DIR supports this position by noting that “the state has no distinct regulatory interest in approving private entities to carry out these responsibilities, since the responsibilities ultimately belong to awarding agencies as governmental agencies performing governmental tasks, and private entities cannot exercise such governmental authority independently.” It also notes that “DIR has never been given authority to oversee or regulate a private LCP marketplace or industry.”

All of this is noted in the context that, once enabling regulations under SBX2 9 are adopted and SBX2 9 comes into full force, LCPs will be required on all projects that use any state funds, except on certain small projects under limited circumstances. With the ever-changing landscape surrounding LCPs, it is important for school districts to ensure that its projects are not at risk of losing State funding eligibility. These latest statements and developments lead us to recommend that districts that rely on third party consultants to fulfill their LCP obligations, to any extent, must consider long-term impacts and alternatives in consultation with counsel to avoid the emerging pitfalls arising from use of third-parties for assistance with LCPs.

We have tracked the ongoing evolution of the Labor Compliance Program laws over the last couple of years through these Alerts:

New Amendments To Regulations Governing Labor Compliance Programs Approved

New Law Dramatically Changes Enforcement of Labor Compliance Programs by Public Agencies

Regulations Governing Labor Compliance Programs and Enforcement By the Department of Industrial Relations Are Finalized

Department of Industrial Relations Suspends Newly Adopted Regulations Governing Labor Compliance Programs

The recently enacted AB 436 is a clean up bill to SBX2 9, which was passed in February 2009 but has been difficult to implement. We will post a note here when our detailed Alert on AB 436 is released in the near future.

Community College Auxiliary Organizations, Educational Agency JPAs Now Subject to EERA

2011-10-11T06:40:00.000-07:00

By Aaron O'Donnell, Partner
and Josh Morrison, Senior Counsel
Cerritos Office

On October 9, 2011, Governor Brown announced the signing of AB 501, subjecting community college auxiliary organizations and joint powers agencies comprised of educational agencies to the Educational Employment Relations Act (“EERA”). These entities will now have the same obligations as school and community college districts and county offices of education in matters of labor relations and collective bargaining.

The law revises the statutory definition of a “public school employer” that is subject to the EERA to now include two categories of entities that were not previously covered: (1) auxiliary organizations established pursuant to Education Code section 72670 et seq. (except auxiliary organizations solely formed or operating as a student body association or student union), and (2) JPAs that are created as a separate legal entity with their own employees, and that provide educational services or are comprised solely of educational agencies. Insurance pooling JPAs are excluded.

The new law, which takes effect January 1, 2012, will force major changes in how some community college foundations and JPAs conduct their affairs. The obligations of an employer under the EERA defy summary in this post, but among other things, these entities will now be required to remain neutral with respect to union organizing campaigns, to provide information to and bargain with employee unions, to provide unions with reasonable access to employees through bulletin boards, mailboxes, and other forms of communication, and to respond when unfair practice charges are filed with the Public Employment Relations Board. Importantly, these changes will not be limited to those entities where unions are actively attempting to organize employees, or where unions are eventually established. The EERA also provides important rights to individual employees even where no union is in the picture, including for example the right to assistance from coworkers when challenging working conditions or when facing discipline. Thus, all auxiliary organizations and JPAs subject to the law will need to have an understanding of the obligations of employers under the EERA.

Community college foundations and other organizations similarly affiliated with community college districts should immediately determine whether they are “auxiliary organizations” established in a manner that subjects them to the new law. An entity must be formed according to formal requirements specified in statute in order to have the benefits, and burdens, of “auxiliary organization” status, as defined. Many foundations operate on the assumption that they are established as “auxiliary organizations,” but may not actually be. Similarly, JPAs should immediately determine whether they are subject to the new law. Some JPAs may already operate according to the EERA. Others will need to begin doing so for the first time.

Unions will no doubt view this new law as a major organizing opportunity, as the vast majority of school and community college districts and county offices of education have already been unionized.

Check back on this blog for briefings designed to help auxiliary organizations and JPAs get up to speed on their rights and obligations under the EERA. There will be a steep learning curve for many. The sooner they begin, the better prepared they will be when the new law goes into effect.

Unexpected Veto of Student Fee Legislation (AB 165) Should Not Result in Reduced Vigilance

2011-10-10T13:06:00.000-07:00

By Mark Bresee, Partner
Irvine Office

On Saturday, October 8, 2011 Governor Brown vetoed AB 165, the student fee legislation that would have codified existing student fee restrictions and authorizations, added student fee monitoring to the existing Williams settlement accountability and oversight processes, and resolved the ACLU’s class action lawsuit against the state. The veto was a surprise to most who followed the bill through the legislative process, especially in light of the list of statewide organizations that either supported the bill or took a neutral position.

The Governor’s veto message was revealing. He mentioned that the legislation “responds to a lawsuit filed by the ACLU against the state,” but he implied the finger should be pointed not at the state but elsewhere: “Local district compliance with this right [to a free public education] is essential, and those who fail should be held accountable.” He stated, however, that in his opinion AB 165 “takes the wrong approach to getting there,” concluding: “The bill would mandate that every single classroom in California post a detailed notice and that all 1,042 school districts and over 1,200 charter schools follow specific complaint, hearing and audit procedures, even where there have been no complaints, let alone evidence of any violation. This goes too far.” The message appears clear -- do not punish all districts for the practices of some districts. (See complete veto message here)

By not requiring the time and expense associated with the multiple accountability and oversight measures in the legislation, the veto provides some welcome relief for districts who are already struggling to do what is right for kids with too few resources to provide the programs those kids deserve. The other side of that coin is that the stay on the ACLU lawsuit will likely be lifted, the litigation will resume, and local districts and school programs may face a new wave of individualized scrutiny. As we have commented in several forums, in our opinion the student fee “landscape” has changed permanently, and those who have pushed this issue in local districts and at the state level will continue to do so. We advise districts to keep in place those processes and practices designed to educate staff and support organizations about the requirements of the “free school guarantee,” and to thereby avoid violations.

The substantive law remains as it was based on the Supreme Court's 1984 decision in Hartzell v. Connell and Title 5 regulations: under the California constitution, school districts may not charge for educational activities, including extracurricular activities that are an "integral component" of the educational program, nor may they use waivers based on inability to pay as a way around prohibition. Under Title 5, school districts may charge only those fees that are specifically authorized by law.

In July, the judge overseeing the ACLU lawsuit stated his "intent to defer briefing on the Demurrers [filed by the State Defendants] as long as it appears AB 165 is headed for passage," but that he would "reset the briefing schedule and hearing date" if that changes. In the weeks and months ahead we will monitor the ACLU lawsuit, and other developments in fee monitoring around the state, and report on developments as they occur.

Student Fee Legislation (AB 165) Highlights the Need for Districts to Examine Practices Now

2011-10-03T10:45:00.000-07:00

By Mark Bresee
Partner, Irvine Office

The implementation of the settlement of the ACLU’s student fee lawsuit has taken many unusual turns. The previous settlement is no longer in place, but the litigation has been put on hold pending the legislative process. AB 165, the legislation initially designed to implement the settlement, and which will still be the foundation for a resolution of the litigation if it is enacted, was the product of much legislative wrangling. It now sits on the Governor’s desk, having passed in both houses of the legislature, and it will likely be enacted. Amendments to AB 165 since it was originally introduced have been extensive, but have not significantly changed the basic two-component structure: 1) Codification of the existing “free school guarantee” in statute, rather than the current myriad of judicial decisions, a state regulation, Attorney General opinions, and administrative guidance documents; and 2) Creation of oversight and enforcement mechanisms to encourage Constitutional compliance in the future.

We believe the landscape regarding student fees has changed permanently, regardless of the fate of AB 165 and the ACLU lawsuit—public awareness of the “free school guarantee” is so widespread that more vigilant compliance by school districts will be needed regardless of the outcome of the legislative and judicial process. Many districts have already implemented extensive changes to ensure compliance. The ACLU is still actively addressing fee issues arising at the beginning of this school year. Because the landscape has changed permanently, and because of the likely passage of the legislation, districts are well-served by taking steps to ensure compliance and address specific requirements in AB 165. The parameters of the “free school guarantee” and AB 165 will be reviewed in detail in a series of free AALRR Breakfast Briefings on the subject. Click here to register. A summary of AB 165 follows.

Legislative Provisions to Clarify Permissible and Impermissible Fees

This component of AB 165, from the signing of the original settlement to the current version and at all points in between, is explicitly not intended to change the rules districts must follow in collecting money from students or from other individuals/entities who have collected on behalf of a school or district program. It is designed to reflect existing parameters of the Constitutional “free school guarantee” as dictated by binding precedent.

AB 165 would add the following prohibition to the Education Code, in language similar to the long-standing regulation of the State Board of Education: “A pupil enrolled in a public school shall not be required to pay a pupil fee for participation in an educational activity.” This provision, as with current law, prohibits mandatory fees for participation in educational activities regardless of who or what entity is collecting the fee. The bill defines an “educational activity” as “an activity offered by a school, school district, charter school, or county office of education that constitutes an integral fundamental part of elementary and secondary education, including, but not limited to, curricular and extracurricular activities.” It also defines a “pupil fee,” and includes a variety of examples of prohibited fees and charges taken from existing precedent. AB 165 would explicitly provide that it is “declarative of existing law and shall not be interpreted to prohibit the imposition of a fee, deposit, or other charge otherwise allowed by law.”

The legislation continues to contain language reinforcing the authority to engage in voluntary fundraising, and to give rewards and recognition to those who excel in that endeavor.

Accountability and Oversight Provisions

This component, coined in one legislative hearing as the “three levels of accountability,” would impose new requirements on districts, county offices and charter schools. As one might expect, most of the opposition to AB 165 was related to this aspect of the legislation, specifically the cost of implementation and, to a lesser degree, the assertion that the multiple levels of accountability were unnecessary. The bill sent to the Governor’s desk ultimately included all three levels.

Annual Review and Certification

AB 165 requires district or county superintendents and governing bodies of charter schools to annually determine whether an unlawful pupil fee has been or is being charged in the current fiscal year. Other than in the current 2011-12 school year, this determination must be made by the end of the eighth week after the first day of school for that year. It requires a finding of unlawful fees to be presented at a public hearing of the governing board, and full reimbursement to all affected parties within ten weeks of the beginning of the school year in which the determination is made. For the 2011-12 school year, after the AB 165 effective date of January 1, 2012, determinations must be made by March 1, 2012 and any required reimbursements must be paid by March 15, 2012.

This and other reimbursement provisions highlight that the ultimate responsibility for “free school guarantee” compliance rests with the district, even if the district did not actually receive the money collected.

Uniform Complaint Procedure

As it did from the beginning, AB 165 adds the charging of impermissible pupil fees to the existing Uniform Complaint Procedure process, and adds the fee prohibition to the already required classroom notice implemented in the Williams settlement. Uniform complaints can be filed anonymously, consistent with existing law.

Annual Audit Process

The most controversial and hard-fought aspect of AB 165 was the provisions incorporating the student fee issue into the annual compliance audit. The legislation: 1) requires that emergency regulations be adopted by the CDE to implement new audit requirements; 2) specifies that a fee-related audit exception is not deemed corrected until full reimbursement has been made, with interest; and 3) requires the Superintendent of Public Instruction to withhold one percent of the administrative costs in the subsequent year if the auditor finds that a prior violation has not been corrected or there is a new audit exception that is not corrected.

The primary controversy regarding this provision relates to the scope of the audit. The sponsors of AB 165 assert that the compliance audit will essentially review the two other accountability mechanisms, ensure that they were followed, and ensure that findings of unlawful fees have, in fact, been remedied. This interpretation is consistent with interaction shortly after the introduction of AB 165.

If AB 165 does not pass the issue of student fees will remain at the forefront, if for no other reason than it would guarantee the continuation of the ACLU lawsuit, which could end up involving specific school districts. District, county offices and charter schools are therefore well-served by putting processes in place now that will address the specific requirements of AB 165 should it pass, and will more generally eliminate or at least reduce student fee issues with or without AB 165 in place.