By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
It is essential that IEP team members understand how to properly identify students who are eligible for special education and related services. There are times when a referral for an evaluation for special education is made by a parent or teacher for a student who is struggling academically but does not have a true disability or where a student has a medical diagnosis but does not require special education and related services and is consequently also not eligible for special education (and may or may not be eligible for a 504 plan). IEP teams should be sufficiently familiar with the eligibility requirements of federal and state law and avoid the potential harm of wrongly identifying a student as eligible for special education.
Consequences to the school district or county office of education will include limitations to disciplinary options available for the student’s misconduct and “stay-put,” which, subject to certain exceptions not mentioned in this article, require the school district or county office of education to continue providing the student special education placement and services pending the outcome of administrative and/or court litigation.
Tuesday, April 10, 2012
Tuesday, April 3, 2012
Employer-Employee Faceoff: Do You Really Want to Know What is on Your Employees’ or Applicants’ Social Media Sites?
By Penelope Glover, Senior Associate
and Marisa Lincoln, Senior Associate
Pleasanton Office
There has been a lot of buzz recently about whether employers can demand employees or prospective employees to provide passwords to their private social media accounts. The buzz was undoubtedly associated, in part, with a proposed amendment to the Federal Communications Commission Process Reform Act of 2012, which was approved by the House of Representatives on March 27, 2012. The amendment would have enabled the Federal Communications Commission to prohibit covered entities from requiring job applicants or employees to disclose confidential social networking passwords to their employers or prospective employers.
The proposed amendment was rejected by the House of Representatives. Thus, employers may arguably continue to search public social networking sites and request employee and applicant passwords for private social media sites. However, is this practice a good idea?
and Marisa Lincoln, Senior Associate
Pleasanton Office
There has been a lot of buzz recently about whether employers can demand employees or prospective employees to provide passwords to their private social media accounts. The buzz was undoubtedly associated, in part, with a proposed amendment to the Federal Communications Commission Process Reform Act of 2012, which was approved by the House of Representatives on March 27, 2012. The amendment would have enabled the Federal Communications Commission to prohibit covered entities from requiring job applicants or employees to disclose confidential social networking passwords to their employers or prospective employers.
The proposed amendment was rejected by the House of Representatives. Thus, employers may arguably continue to search public social networking sites and request employee and applicant passwords for private social media sites. However, is this practice a good idea?
Monday, April 2, 2012
Public Agencies Can Now Use Their Own Employees Through Force Accounts, or Hire Other Entities Through Negotiated Contracts or Purchase Orders for Construction Projects Under $45,000, if they Opt into the Uniform Cost Accounting Act
By Stephen McLoughlin, Associate
and Hugh Lee, Partner
Cerritos Office
The Uniform Cost Accounting Act at Public Contract Code section 22000 et seq. (“UCAA”) allows participating agencies to avoid the formal bidding procedure for projects that fall under certain cost thresholds. The UCAA includes two thresholds: 1) the "Direct Hire Threshold" which allows public agencies to hire their own employees through a force account or hire other entities directly through a negotiated contract or purchase order to perform public construction contracts and 2) the "Informal Bidding Threshold" which allows public agencies to use an informal bidding procedure. The threshold amounts set forth in the UCAA are periodically changed by the California legislature. As of January 1, 2012, the Direct Hire Threshold is $45,000, meaning any project costing $45,000 or less can be performed by the public agency's employees through a force account or the public agency can hire another entity directly through a negotiated contract or purchase order. The Informal Bidding Threshold is $175,000, meaning any contract costing $175,000 or less may be bid using the informal bidding procedure set forth in the UCAA. Any project over $175,000 must be let through formal bidding procedures.
Whenever the thresholds in the UCAA are changed, public agencies tend to reexamine whether opting into the UCAA is a good idea. In general, the UCAA is touted as a simplified bidding process. The ability to complete construction costs worth $45,000 or less without bidding is definitely appealing specifically to school districts when compared to the competitive bidding threshold of $15,000 under Public Contract Code section 20111. The informal bidding procedure, available for projects $175,000 or under, can also be a nice option as it allows school districts to avoid the formal bidding requirements of Public Contract Code section 20111. However, the UCAA does require public agencies to meet their own set of administrative requirements that can be laborious. Specifically, the public agency must pass a resolution opting into the UCAA and follow the notification procedures for informal bidding described in the UCAA.
and Hugh Lee, Partner
Cerritos Office
The Uniform Cost Accounting Act at Public Contract Code section 22000 et seq. (“UCAA”) allows participating agencies to avoid the formal bidding procedure for projects that fall under certain cost thresholds. The UCAA includes two thresholds: 1) the "Direct Hire Threshold" which allows public agencies to hire their own employees through a force account or hire other entities directly through a negotiated contract or purchase order to perform public construction contracts and 2) the "Informal Bidding Threshold" which allows public agencies to use an informal bidding procedure. The threshold amounts set forth in the UCAA are periodically changed by the California legislature. As of January 1, 2012, the Direct Hire Threshold is $45,000, meaning any project costing $45,000 or less can be performed by the public agency's employees through a force account or the public agency can hire another entity directly through a negotiated contract or purchase order. The Informal Bidding Threshold is $175,000, meaning any contract costing $175,000 or less may be bid using the informal bidding procedure set forth in the UCAA. Any project over $175,000 must be let through formal bidding procedures.
Whenever the thresholds in the UCAA are changed, public agencies tend to reexamine whether opting into the UCAA is a good idea. In general, the UCAA is touted as a simplified bidding process. The ability to complete construction costs worth $45,000 or less without bidding is definitely appealing specifically to school districts when compared to the competitive bidding threshold of $15,000 under Public Contract Code section 20111. The informal bidding procedure, available for projects $175,000 or under, can also be a nice option as it allows school districts to avoid the formal bidding requirements of Public Contract Code section 20111. However, the UCAA does require public agencies to meet their own set of administrative requirements that can be laborious. Specifically, the public agency must pass a resolution opting into the UCAA and follow the notification procedures for informal bidding described in the UCAA.
Tuesday, March 27, 2012
Bullying at California Public Colleges and Universities is Target of New Law
By Aaron O'Donnell, Partner
and Sharon Ormond, Senior Associate
Cerritos Office
As has been widely reported in the media, earlier this month a Rutgers University student was convicted of bias crimes for homophobia-motivated webcam spying on his roommate, who committed suicide after learning of the spying. The case has focused attention on the phenomenon of bullying on college and university campuses.
A new California law calls on the state's public colleges and universities to address this issue as well.
and Sharon Ormond, Senior Associate
Cerritos Office
As has been widely reported in the media, earlier this month a Rutgers University student was convicted of bias crimes for homophobia-motivated webcam spying on his roommate, who committed suicide after learning of the spying. The case has focused attention on the phenomenon of bullying on college and university campuses.
A new California law calls on the state's public colleges and universities to address this issue as well.
Monday, March 26, 2012
The "Secret" Exemption to the Brown Act Enjoyed by California K-12 School and Community College Districts
By Chet Quaide, Partner
Pleasanton Office
School district administrators aren’t used to “thanking” Sacramento too often, given the annual slew of additional mandates and reduced funding from the Legislature. When the “Rodda Act,” the set of laws that provides for collective bargaining by school district employees in California, was enacted in 1975, however, the Legislature provided a little known exemption from the normal requirements of the Brown Act relating expressly to negotiations.
Specifically, Government Code section 3549.1 provides that the following activities are completely exempt from the Brown Act:
Pleasanton Office
School district administrators aren’t used to “thanking” Sacramento too often, given the annual slew of additional mandates and reduced funding from the Legislature. When the “Rodda Act,” the set of laws that provides for collective bargaining by school district employees in California, was enacted in 1975, however, the Legislature provided a little known exemption from the normal requirements of the Brown Act relating expressly to negotiations.
Specifically, Government Code section 3549.1 provides that the following activities are completely exempt from the Brown Act:
- Any meeting and negotiating discussion between a public school employer and a recognized employee organization.
- Any meeting of a mediator with either party or both parties to the meeting and negotiating process.
- Any hearing, meeting, or investigation conducted by a fact-finder or arbitrator.
- Any executive session of the public school employer or between the public school employer and its designated representative for the purpose of discussing its position regarding any matter within the scope of representation and instructing its designated representatives.
Tuesday, March 20, 2012
Some Thoughts on Special Education/Student Discipline – Knowing How to Apply “The 10 Day Rule” and Other Interesting Tid-Bits
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.
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 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.
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