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

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.

Must Subpoenas be Issued for Student Expulsion Hearings?

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))

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

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.

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

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.

Providing FAPE to Students Registered as Sex Offenders

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.

Student Fee Litigation Update

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.

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

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.

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

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.

Are Your Acceptable Use Policies Up to Date?

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.

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

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.

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

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.

Union Requests for Information: Has the Law Changed?

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.)

Uniform Public Construction Cost Accounting Act Bid Threshold Increases

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.

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

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.

New Funding Coming Up for Natural Gas Busing

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

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.

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

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).

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

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.

Department Of Industrial Relations Discontinues Third Party Labor Compliance Program Approvals

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.

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

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. 

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

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)

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

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.