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.