By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
Students who are eligible for special and related services are entitled to additional protections when subjected to disciplinary removals that are deemed a "change of placement" under federal law, i.e., the IDEA and its corresponding regulations. At the point where disciplinary removals become a "change of placement" the IDEA and its regulations require that a manifestation determination IEP team meeting be held to determine whether the alleged misconduct in question is a manifestation of the student's disability or not. A change of placement is deemed to occur (hence triggering the requirement for convening a manifestation determination IEP team meeting), where the disciplinary removal is for 10 cumulative school days or more during a school year, or where a series of removals constitutes a pattern. While the legislation seems straight forward, upon a first or even several reads, many questions arise.
School Day Removals
Keep in mind that in most cases, LEA’s can treat disabled students the same as non-disabled students for purposes of suspension for the first 10 days of suspension in a school year, and hence not trigger the need for a manifestation determination IEP team meeting. Nevertheless, disciplinary removals that trigger the need to hold a manifestation determination IEP team meeting need to take into account both partial day and full day removals. In the case of partial day removals, the Office of Special Education Programs (OSEP) has defined "portions of a school day" as counting a disciplinary removal (i.e. a suspension) for a half day or less as a half day, and counting a suspension or removal for more than a half day as a whole day.
Tuesday, March 20, 2012
Tuesday, March 13, 2012
Proposed Revisions to FMLA will Implement Recent Amendments to Military Leave Provisions
By Cathie Fields, Senior Associate
Irvine Office
and Jabari Willis, Associate
Cerritos Office
On February 15, 2012, the U.S. Department of Labor’s Wage and Hour Division issued a “notice of proposed rulemaking,” describing proposed revisions to regulations under the Family and Medical Leave Act of 1993 (FMLA). These regulations are proposed primarily to implement recent amendments to the military leave provisions.
The FMLA entitles eligible employees to take job-protected, unpaid leave, for up to a total of 12 workweeks in a 12-month period for certain serious health conditions of the employee or specified family members, or the birth or adoption of a child. The FMLA was amended by the enactment of the 2008 National Defense Authorization Act (NDAA), which allows eligible employees to take FMLA leave because of any “qualifying exigency” when the employee’s spouse, son, daughter, or parent is called to active duty in the Armed Forces in support of a contingency operation. Additionally, the 2008 amendments provide up to 26 workweeks of “military caregiver leave” in a single 12-month period for an eligible employee to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. These two leave entitlements are referred to as “military family leave.”
Irvine Office
and Jabari Willis, Associate
Cerritos Office
On February 15, 2012, the U.S. Department of Labor’s Wage and Hour Division issued a “notice of proposed rulemaking,” describing proposed revisions to regulations under the Family and Medical Leave Act of 1993 (FMLA). These regulations are proposed primarily to implement recent amendments to the military leave provisions.
The FMLA entitles eligible employees to take job-protected, unpaid leave, for up to a total of 12 workweeks in a 12-month period for certain serious health conditions of the employee or specified family members, or the birth or adoption of a child. The FMLA was amended by the enactment of the 2008 National Defense Authorization Act (NDAA), which allows eligible employees to take FMLA leave because of any “qualifying exigency” when the employee’s spouse, son, daughter, or parent is called to active duty in the Armed Forces in support of a contingency operation. Additionally, the 2008 amendments provide up to 26 workweeks of “military caregiver leave” in a single 12-month period for an eligible employee to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. These two leave entitlements are referred to as “military family leave.”
Friday, March 9, 2012
The Importance of Preserving Electronic Data When Disputes Arise
By Peter Sturges, Associate
Pleasanton Office
During the every day course of business, actual or potential disputes may arise that could lead to later legal action. In these situations, the preservation of electronically stored information can be overlooked.
In addition, litigation discovery rules provide that parties in litigation must take necessary measures to preserve electronic evidence. If appropriate measures are not taken in that regard, a party could be subject to evidence and issue sanctions, together with a counter-claim based on "spoliation of evidence."
Pleasanton Office
During the every day course of business, actual or potential disputes may arise that could lead to later legal action. In these situations, the preservation of electronically stored information can be overlooked.
In addition, litigation discovery rules provide that parties in litigation must take necessary measures to preserve electronic evidence. If appropriate measures are not taken in that regard, a party could be subject to evidence and issue sanctions, together with a counter-claim based on "spoliation of evidence."
Tuesday, March 6, 2012
Community College Districts Must Take Note of Court Ruling on K-12 Categorically Funded Certificated Employees
By Aaron O'Donnell, Partner
Cerritos Office
As noted in a recent AALRR alert, the March 1, 2012, decision of the Court of Appeal in Stockton Teachers Association v. Stockton Unified School District held that certificated employees hired into categorically funded positions pursuant to temporary contracts may nevertheless have the rights of probationary employees with respect to seniority, eligibility for tenure, and rehire rights after layoff. Although the case involved certificated employees of a K-12 district, the case has significant implications for community college districts as well in both the short- and long-term.
Employees heretofore considered to be temporary based on categorical funding may now have new arguments available to claim the rights of contract or tenured faculty. In the short term, the case will require community college districts to reassess their plans for layoffs and release of temporary employees, in order to determine whether, in light of the court’s holding, any additional resolutions should be adopted or notices sent by March 15, 2012. In the longer term, the case may require some districts to re-think their approach to the use of categorically funded temporary employees as a means of maintaining staffing flexibility.
Cerritos Office
As noted in a recent AALRR alert, the March 1, 2012, decision of the Court of Appeal in Stockton Teachers Association v. Stockton Unified School District held that certificated employees hired into categorically funded positions pursuant to temporary contracts may nevertheless have the rights of probationary employees with respect to seniority, eligibility for tenure, and rehire rights after layoff. Although the case involved certificated employees of a K-12 district, the case has significant implications for community college districts as well in both the short- and long-term.
Employees heretofore considered to be temporary based on categorical funding may now have new arguments available to claim the rights of contract or tenured faculty. In the short term, the case will require community college districts to reassess their plans for layoffs and release of temporary employees, in order to determine whether, in light of the court’s holding, any additional resolutions should be adopted or notices sent by March 15, 2012. In the longer term, the case may require some districts to re-think their approach to the use of categorically funded temporary employees as a means of maintaining staffing flexibility.
Friday, March 2, 2012
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
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.
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.
Tuesday, February 28, 2012
U.S. Supreme Court Appears to Scale Back Requirement to Exhaust Administrative Remedies Before Filing Suit in Special Education Cases
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.
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.
Friday, February 24, 2012
Power Purchase Agreement Projects are Now Covered by the California Prevailing Wage Law
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.
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.
Wednesday, February 15, 2012
Being Prepared For Student Protests And Walk-Outs
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.
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.
Friday, February 10, 2012
The Potential Pitfalls of Cloud Computing
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.
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.
Wednesday, February 1, 2012
Nonreelections and Year-End Performance Evaluations: Now is the Time to Think Ahead
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.
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