By Jabari Willis, Associate
Cerritos Office
and Mark Bresee, Partner
Irvine Office
In Knox v. Service Employees International Union, Local 1000 the United States Supreme Court held that California unions must receive "opt-in" consent of non-members before charging special fees for political purposes expenses, instead of the regular "opt out" practice. The Supreme Court also held that unions must provide an additional "Hudson notice" (a notice to service fee payers of the "fair share" amount and means of challenging the amount) -regarding the special assessment or dues increase.
The suit began in 2005 when former Governor Schwarzenegger requested a special election to consider several propositions, including Proposition 75, which required unions to obtain employees' affirmative consent before charging them fees to be used for political purposes. California unions, including SEIU Local 1000 (SEIU), opposed Proposition 75, and imposed a special assessment on its bargaining unit members to fight the proposition. The special assessment, named the "Emergency Temporary Assessment to Build a Political Fight-Back Fund," increased due and fees to 1.25% of gross salary (from 1%) and eliminated the existing fees and dues cap of $45 per month.
Friday, June 29, 2012
Wednesday, June 27, 2012
The Legal Parameters of College and University Free Speech Policies
By Sharon Ormond, Senior Associate
and Aaron O'Donnell, Partner
Cerritos Office
Public colleges and universities across the country are frequently faced with issues involving free speech activities on their campuses. Some campuses permit students and non-students to engage in free speech activities (such as gathering signatures on petitions or speaking with students about religious, political or social issues of interest) anywhere on campus without restriction. More often, campuses set limitations that apply to everyone or at least to non-students, such as requiring that speakers engage in speech activities in a designated free speech area or zone and to give prior notice of their intent to use the area.
The use of free speech areas and notice requirements are often challenged as being unconstitutional restrictions on free speech rights, and may become more frequent as elections approach. For example, on June 12, 2012, a federal district court in Ohio found that a policy at the University of Cincinnati, which required that all "demonstrations, picketing, and rallies" be conducted in a designated free speech area and that speakers provide notice of such use at least five working days in advance was unconstitutional as applied to students because: (1) the notice requirement was not limited to regulation of large demonstrations or those using sound amplification, as examples, but was broadly apply to any demonstration, picket or rally and thus placed an unwarranted burden on the exercise of free speech; (2) the policy imposed conflicting notice requirements and failed to provide objective criteria for determining whether an expressive activity constitutes a demonstration, picket or rally; (3) the University provided no explanation of a compelling interest to restrict all demonstrations, picketing, and rallies to the free speech area and only speculative benefits of the notice requirement; and (4) the vague aspects of the policy presented university officials with the opportunity for arbitrary or discriminatory enforcement. (See decision here)
and Aaron O'Donnell, Partner
Cerritos Office
Public colleges and universities across the country are frequently faced with issues involving free speech activities on their campuses. Some campuses permit students and non-students to engage in free speech activities (such as gathering signatures on petitions or speaking with students about religious, political or social issues of interest) anywhere on campus without restriction. More often, campuses set limitations that apply to everyone or at least to non-students, such as requiring that speakers engage in speech activities in a designated free speech area or zone and to give prior notice of their intent to use the area.
The use of free speech areas and notice requirements are often challenged as being unconstitutional restrictions on free speech rights, and may become more frequent as elections approach. For example, on June 12, 2012, a federal district court in Ohio found that a policy at the University of Cincinnati, which required that all "demonstrations, picketing, and rallies" be conducted in a designated free speech area and that speakers provide notice of such use at least five working days in advance was unconstitutional as applied to students because: (1) the notice requirement was not limited to regulation of large demonstrations or those using sound amplification, as examples, but was broadly apply to any demonstration, picket or rally and thus placed an unwarranted burden on the exercise of free speech; (2) the policy imposed conflicting notice requirements and failed to provide objective criteria for determining whether an expressive activity constitutes a demonstration, picket or rally; (3) the University provided no explanation of a compelling interest to restrict all demonstrations, picketing, and rallies to the free speech area and only speculative benefits of the notice requirement; and (4) the vague aspects of the policy presented university officials with the opportunity for arbitrary or discriminatory enforcement. (See decision here)
Wednesday, June 20, 2012
What Should You Do If Your Personnel Investigation Comes Down to a “He Said, She Said” Situation?
By Donna Matties, Partner
Sacramento Office
As an attorney who frequently conducts personnel investigations for clients, I often encounter situations where all that I have is a "he said, she said" situation without any other witnesses. This hurdle does not mean that I do not investigate the matter thoroughly. It is fairly well known that all investigations need to be prompt, thorough and effective. Personnel investigations may be eventually reviewed by the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) if a complaint is brought to them. If you are involved in litigation over a personnel issue, your investigation may be reviewed by a judge or jury. Given the stakes involved, the lack of witnesses may mean that it is more crucial to make a determination on who is more credible in the particular matter.
In addition, I also encounter complainants who indicate that nothing was done regarding a prior personnel complaint because there were no witnesses, so everybody involved was just told to watch their step in the future. Unfortunately, as is often the case, the inappropriate behavior continues and you are left with a matter that now has escalated in a variety of ways. In some cases, you cannot proceed with discipline when your investigation reveals that you are dealing with a case of one person’s word against another’s. However, it is usually less risky to make such disciplinary decisions based upon an investigation where a credibility analysis is prepared. This short review will give you an idea of how that can be accomplished.
Sacramento Office
As an attorney who frequently conducts personnel investigations for clients, I often encounter situations where all that I have is a "he said, she said" situation without any other witnesses. This hurdle does not mean that I do not investigate the matter thoroughly. It is fairly well known that all investigations need to be prompt, thorough and effective. Personnel investigations may be eventually reviewed by the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) if a complaint is brought to them. If you are involved in litigation over a personnel issue, your investigation may be reviewed by a judge or jury. Given the stakes involved, the lack of witnesses may mean that it is more crucial to make a determination on who is more credible in the particular matter.
In addition, I also encounter complainants who indicate that nothing was done regarding a prior personnel complaint because there were no witnesses, so everybody involved was just told to watch their step in the future. Unfortunately, as is often the case, the inappropriate behavior continues and you are left with a matter that now has escalated in a variety of ways. In some cases, you cannot proceed with discipline when your investigation reveals that you are dealing with a case of one person’s word against another’s. However, it is usually less risky to make such disciplinary decisions based upon an investigation where a credibility analysis is prepared. This short review will give you an idea of how that can be accomplished.
Thursday, June 14, 2012
Final Emergency Diastat Regulations in May 2012
By Adam Newman, Partner
and Geneva Englebrecht, Associate
Cerritos Office
Background
On January 6, 2009, a California Superior Court judge ruled that licensed nurses (i.e. credentialed school nurses, registered nurses or licensed vocational nurses) must be used to administer insulin to students. In so doing, the judge rejected the California Department of Education’s ("CDE") position that trained classroom staff (non-nurses) can be used to administer insulin. The judge's decision left school districts, SELPAs, and county offices of education throughout California wondering if they were now required to hire more nurses to administer insulin and perhaps other medications like Diastat.
As to Diastat, in response to the Court's 2009 ruling and subsequent appeals which remain unresolved, the California legislature enacted Education Code Section 49414.7, which took effect January 1, 2012. The legislation recognized that approximately one-half of school districts do not have a school nurse and that students with epilepsy who suffered seizures at school were compromised without access to emergency medical assistance. The intent of this legislation was to provide volunteer school employees with voluntary emergency medical training to provide emergency medical assistance to pupils with epilepsy suffering from seizures. Education Code Section 49414.7 allows school districts to provide epilepsy anti-seizure medication, diazepam rectal gel, commonly referred to as Diastat, as emergency medical assistance in the absence of a school nurse or other medical personnel, to assist a student with epilepsy who is suffering from a seizure and where the administration has been sanctioned by the student's parents in writing. The decision of a school district to offer training to its staff is voluntary as is the staff member's participation in the training.
and Geneva Englebrecht, Associate
Cerritos Office
Background
On January 6, 2009, a California Superior Court judge ruled that licensed nurses (i.e. credentialed school nurses, registered nurses or licensed vocational nurses) must be used to administer insulin to students. In so doing, the judge rejected the California Department of Education’s ("CDE") position that trained classroom staff (non-nurses) can be used to administer insulin. The judge's decision left school districts, SELPAs, and county offices of education throughout California wondering if they were now required to hire more nurses to administer insulin and perhaps other medications like Diastat.
As to Diastat, in response to the Court's 2009 ruling and subsequent appeals which remain unresolved, the California legislature enacted Education Code Section 49414.7, which took effect January 1, 2012. The legislation recognized that approximately one-half of school districts do not have a school nurse and that students with epilepsy who suffered seizures at school were compromised without access to emergency medical assistance. The intent of this legislation was to provide volunteer school employees with voluntary emergency medical training to provide emergency medical assistance to pupils with epilepsy suffering from seizures. Education Code Section 49414.7 allows school districts to provide epilepsy anti-seizure medication, diazepam rectal gel, commonly referred to as Diastat, as emergency medical assistance in the absence of a school nurse or other medical personnel, to assist a student with epilepsy who is suffering from a seizure and where the administration has been sanctioned by the student's parents in writing. The decision of a school district to offer training to its staff is voluntary as is the staff member's participation in the training.
Friday, June 8, 2012
LEEDing the Way
By Bryce Chastain, Senior Associate
Pleasanton Office
As a LEED accredited attorney, I thought it was time to address a question that seems to cross many of our clients' minds: Should we aim for LEED certification (whether on a specific project, or as a matter of general policy)?
First, for those who may be unfamiliar, LEED,which stands for Leadership in Energy and Environmental Design, is a system of rating construction projects based on environmental considerations, from open space to sustainability of construction materials to energy efficiency. LEED was created by the U.S. Green Building Council (USGBC), a non-profit organization that advocates for sustainable development practices, and is now administered by the Green Building Certification Institute (GBCI), a for-profit corporation started by USGBC in 2008. As the USGBC describes it: "LEED certification provides independent, third-party verification that a building, home or community was designed and built using strategies aimed at achieving high performance in key areas of human and environmental health: sustainable site development, water savings, energy efficiency, materials selection and indoor environmental quality." (More information here)
LEED has become increasingly well known, but not well understood. We thought it would be helpful for our clients and blog followers to know a little bit about the benefits of LEED, what it is not so good for, and offer some guideline on how to ensure that LEED is evaluated and best used.
Pleasanton Office
As a LEED accredited attorney, I thought it was time to address a question that seems to cross many of our clients' minds: Should we aim for LEED certification (whether on a specific project, or as a matter of general policy)?
First, for those who may be unfamiliar, LEED,which stands for Leadership in Energy and Environmental Design, is a system of rating construction projects based on environmental considerations, from open space to sustainability of construction materials to energy efficiency. LEED was created by the U.S. Green Building Council (USGBC), a non-profit organization that advocates for sustainable development practices, and is now administered by the Green Building Certification Institute (GBCI), a for-profit corporation started by USGBC in 2008. As the USGBC describes it: "LEED certification provides independent, third-party verification that a building, home or community was designed and built using strategies aimed at achieving high performance in key areas of human and environmental health: sustainable site development, water savings, energy efficiency, materials selection and indoor environmental quality." (More information here)
LEED has become increasingly well known, but not well understood. We thought it would be helpful for our clients and blog followers to know a little bit about the benefits of LEED, what it is not so good for, and offer some guideline on how to ensure that LEED is evaluated and best used.
Thursday, June 7, 2012
Student Fees Update: A Second Attempt at a Legislative Solution
By Mark Bresee, Partner
Irvine Office
Although the law regarding student fees has not and will not change − the scope of the constitutional “free school guarantee” is not in question − the ACLU’s effort to address the issue of compliance has taken multiple twists and turns. It started when the ACLU filed a lawsuit against the State in September, 2010, followed by a quick settlement which fizzled after Governor Brown took office. Legislation to address compliance and resolve the litigation, AB 165, made it to Governor Brown’s desk only to be vetoed because, in his opinion, the legislation went "too far." This resulted in a lifting of the stay of the ACLU suit, and a decision by the judge in January, 2012 making it clear that the State has some duty to enforce the free school guarantee on behalf of students.
These developments caused the parties to go back and start where they essentially began − Assembly member Lara introduced AB 1575, substantively the exact legislation that was vetoed by Governor Brown, but there were immediate signs that the plot would not unfold the same way this time around. On March 21, 2012 this legislation, like its predecessor, passed out of the Assembly Education Committee. However, the committee hearing revealed clear signs that the bill would have to be amended to get to the Governor’s desk, based in large part on statements by Democratic legislators during the hearing that amendments would be needed. Amendments were indeed made, as it passed out of the Assembly Appropriations Committee on May 25th and again before it passed out of the Assembly on a 50-22 vote on May 31st.
AB 1575, like its predecessor, would add a specifically-stated statutory student fee prohibition to the Education Code, in language designed to reflect current law: "A pupil enrolled in a public school shall not be required to pay a pupil fee for participation in an educational activity." It 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. Like AB 165, the new legislation 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." It continues to reinforce the authority to engage in voluntary fundraising, and to give rewards and recognition to those who excel in that endeavor.
AB 165 was often criticized for its multiple accountability and oversight provisions, and this has been the focus of the recent amendments to AB 1575. The vetoed bill included three different accountability and oversight levels − adding student fees to the uniform complaint and investigation process; an annual review and certification process at each district; and an annual audit of compliance with the local review and certification process. (For a description of these measures, see our prior post here). The current version of AB 1575 eliminates the latter two accountability provisions, leaving only the inclusion of student fees in the uniform complaint process. Complaints alleging the imposition of unlawful fees would be permitted. Investigation would be required and, if unlawful fees were found to have been charged in a state-level appeal, all affected pupils and parents would have to be reimbursed. The classroom notice required in the existing uniform complaint process would require amendment to existing notices, to include a notice that pupil fees cannot be charged. Also, lawsuits alleging the unlawful imposition of student fees would be exempt from the claim filing requirements of the Government Code.
New language in the bill, added May 30th, would require the California Department of Education to develop and distribute written guidance for school administrators regarding student fees, beginning with the 2014-15 school year and updated every three years thereafter. This new provision is undoubtedly intended, at least in part, to ensure that the issue of student fees does not slip from the radar screen as it has in the past.
We are informed that AB 1575, in its current form, remains a basis for resolving the ACLU litigation, and we continue to advise that districts, county offices and charter schools are well-served by keeping processes in place that eliminate or at least reduce student fee issues.
Irvine Office
Although the law regarding student fees has not and will not change − the scope of the constitutional “free school guarantee” is not in question − the ACLU’s effort to address the issue of compliance has taken multiple twists and turns. It started when the ACLU filed a lawsuit against the State in September, 2010, followed by a quick settlement which fizzled after Governor Brown took office. Legislation to address compliance and resolve the litigation, AB 165, made it to Governor Brown’s desk only to be vetoed because, in his opinion, the legislation went "too far." This resulted in a lifting of the stay of the ACLU suit, and a decision by the judge in January, 2012 making it clear that the State has some duty to enforce the free school guarantee on behalf of students.
These developments caused the parties to go back and start where they essentially began − Assembly member Lara introduced AB 1575, substantively the exact legislation that was vetoed by Governor Brown, but there were immediate signs that the plot would not unfold the same way this time around. On March 21, 2012 this legislation, like its predecessor, passed out of the Assembly Education Committee. However, the committee hearing revealed clear signs that the bill would have to be amended to get to the Governor’s desk, based in large part on statements by Democratic legislators during the hearing that amendments would be needed. Amendments were indeed made, as it passed out of the Assembly Appropriations Committee on May 25th and again before it passed out of the Assembly on a 50-22 vote on May 31st.
AB 1575, like its predecessor, would add a specifically-stated statutory student fee prohibition to the Education Code, in language designed to reflect current law: "A pupil enrolled in a public school shall not be required to pay a pupil fee for participation in an educational activity." It 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. Like AB 165, the new legislation 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." It continues to reinforce the authority to engage in voluntary fundraising, and to give rewards and recognition to those who excel in that endeavor.
AB 165 was often criticized for its multiple accountability and oversight provisions, and this has been the focus of the recent amendments to AB 1575. The vetoed bill included three different accountability and oversight levels − adding student fees to the uniform complaint and investigation process; an annual review and certification process at each district; and an annual audit of compliance with the local review and certification process. (For a description of these measures, see our prior post here). The current version of AB 1575 eliminates the latter two accountability provisions, leaving only the inclusion of student fees in the uniform complaint process. Complaints alleging the imposition of unlawful fees would be permitted. Investigation would be required and, if unlawful fees were found to have been charged in a state-level appeal, all affected pupils and parents would have to be reimbursed. The classroom notice required in the existing uniform complaint process would require amendment to existing notices, to include a notice that pupil fees cannot be charged. Also, lawsuits alleging the unlawful imposition of student fees would be exempt from the claim filing requirements of the Government Code.
New language in the bill, added May 30th, would require the California Department of Education to develop and distribute written guidance for school administrators regarding student fees, beginning with the 2014-15 school year and updated every three years thereafter. This new provision is undoubtedly intended, at least in part, to ensure that the issue of student fees does not slip from the radar screen as it has in the past.
We are informed that AB 1575, in its current form, remains a basis for resolving the ACLU litigation, and we continue to advise that districts, county offices and charter schools are well-served by keeping processes in place that eliminate or at least reduce student fee issues.
Monday, June 4, 2012
Do Your Internet Safety Policies Address the Education of Minors?
By Penelope Glover, Senior Associate
Pleasanton Office
Although July 1, 2012 is less than one month away, there is still time to confirm whether your educational institution is in compliance with the Federal Communications Commission’s (FCC) Report and Order, released August 11, 2011. Pursuant to the FCC Report and Order, "Beginning July 1, 2012, schools’ Internet safety policies must provide for educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response."
While most educational institutions likely already have policies in place for educating minors about online conduct and cyberbullying in order to comply with the Children's Internet Protection Act (CIPA) and to pursue E-rate funds, it would be an excellent time to reexamine those policies, confirm they address online behavior and cyberbullying, and determine whether the policies are effective. In other words, are students actually learning about appropriate online behavior and cyberbullying?
Pleasanton Office
Although July 1, 2012 is less than one month away, there is still time to confirm whether your educational institution is in compliance with the Federal Communications Commission’s (FCC) Report and Order, released August 11, 2011. Pursuant to the FCC Report and Order, "Beginning July 1, 2012, schools’ Internet safety policies must provide for educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response."
While most educational institutions likely already have policies in place for educating minors about online conduct and cyberbullying in order to comply with the Children's Internet Protection Act (CIPA) and to pursue E-rate funds, it would be an excellent time to reexamine those policies, confirm they address online behavior and cyberbullying, and determine whether the policies are effective. In other words, are students actually learning about appropriate online behavior and cyberbullying?
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