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.