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.

Community College and University Auxiliary Organizations Must Make Their Records Open to the Public

By Aaron O'Donnell, Partner
Sharon Ormond, Senior Associate
Cerritos Office
and Cathie Fields, Senior Associate
Irvine Office

Effective January 1, 2012, SB 8 amends the higher-education provisions of the Education Code (72690 et seq.; 89913 et seq.; and 92950 et seq.) to require auxiliary organizations of the California Community Colleges, the California State University, and the University of California to comply with disclosure provisions essentially similar to the California Public Records Act, subject to certain exemptions unique to auxiliary organizations.

SB 8 requires records maintained by a CCC, CSU, or UC auxiliary organization to be made available to the public and requires the organization to follow the specified timelines and procedures for responding to public records requests similar to those of the PRA.