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.
Friday, December 23, 2011
Friday, December 16, 2011
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))
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))
Thursday, December 15, 2011
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.
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.
Wednesday, December 7, 2011
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.
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.
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