By Suparna Jain, Associate
and Hugh Lee, Partner
Cerritos Office
In an effort to help spur local economic growth and opportunity, especially during times of financial hardship, there have been many inquiries into whether school and community college districts may impose local vendor bid preferences on their bids.
Pursuant to Public Contract Code sections 20111 and 20651, school and community college districts are required to competitively bid any contract involving an expenditure of more than $81,000 (adjusted annually) for equipment, materials or supplies to be furnished, sold, or leased to a school district, and services, except construction services and repairs, including maintenance as defined in Section 20115. As required by law, a school district and community college district must award such competitively bid contracts to the lowest responsible bidder. The public policy behind the statutes on competitive bidding is to enhance competition and to prevent corruption and undue influence. Competitive bidding also guards against favoritism, extravagance, fraud, and serves the public by preventing waste and securing the best economic result. A contract made without compliance with competitive bidding, where such bidding is required by statute, is void and unenforceable as being in excess of the public agency’s power.
Friday, May 18, 2012
Monday, May 14, 2012
Ninth Circuit Decision Allows Intern Teachers to Temporarily Meet "Highly Qualified" Status Under NCLB
By Jabari Willis, Senior Associate
Cerritos Office
and Mark Bresee, Partner
Irvine Office
In Renee v. Duncan (Renee III), issued May 10, 2012, the federal 9th Circuit Court of Appeals determined that a Department of Education regulation allowing "intern teachers" to meet the No Child Left Behind ("NCLB") definition of highly qualified continued to violate the text of NCLB, but acknowledged that a 2010 action by Congress amended federal law, at least temporarily, to permit the Department of Education regulation to go into effect. As a result of the 9th Circuit's most recent decision, intern teachers who under the regulation "demonstrate satisfactory progress toward full certification" are considered "highly qualified" within the meaning of NCLB.
The Renee case is based upon a clash between the supporters of traditional teacher education and proponents of alternative-teaching programs. The original lawsuit (Renee I) was filed by a group of California activists and groups of minority parents and children, who argue that the regulation permitted a disproportionate number of teaching "interns" to teach in California schools with large proportions of minority and low-income students.
Cerritos Office
and Mark Bresee, Partner
Irvine Office
In Renee v. Duncan (Renee III), issued May 10, 2012, the federal 9th Circuit Court of Appeals determined that a Department of Education regulation allowing "intern teachers" to meet the No Child Left Behind ("NCLB") definition of highly qualified continued to violate the text of NCLB, but acknowledged that a 2010 action by Congress amended federal law, at least temporarily, to permit the Department of Education regulation to go into effect. As a result of the 9th Circuit's most recent decision, intern teachers who under the regulation "demonstrate satisfactory progress toward full certification" are considered "highly qualified" within the meaning of NCLB.
The Renee case is based upon a clash between the supporters of traditional teacher education and proponents of alternative-teaching programs. The original lawsuit (Renee I) was filed by a group of California activists and groups of minority parents and children, who argue that the regulation permitted a disproportionate number of teaching "interns" to teach in California schools with large proportions of minority and low-income students.
Friday, May 11, 2012
Responding to a Student Sexting Incident Without a Scandal
By Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On any given day, an online search for "sexting" news will likely not only uncover several sexting incidents, but a "scandal" and/or criminal activity. Since sexting seems to have originated as a teen phenomenon, educational institutions are often vulnerable to becoming involved in the news coverage and scandal, particularly if the sexting results in mass expulsions, the mishandling of evidence, criminal charges, or tragedy associated with an alleged overreaction or omission. In many respects, the sexting incidents in the news involve the more extreme cases in which a sexually explicit student photograph is widely disseminated and causes considerable disruption within the educational community. While such incidents occur with some frequency, there are many other sexting incidents which, with the responsible and informed response of administrators, staff, students, and parents, could be swiftly and discretely resolved.
Although the appropriate responses to cyber incidents are fact-dependent, each educational institution responding to a sexting incident must typically confront at least two legal issues, in addition to compiling and evaluating the facts. First, since the nature of the image may impact how it should be handled, does the image constitute child pornography? Second, should the educational institution report the image to Child Protective Services ("CPS")?
and Chet Quaide, Partner
Pleasanton Office
On any given day, an online search for "sexting" news will likely not only uncover several sexting incidents, but a "scandal" and/or criminal activity. Since sexting seems to have originated as a teen phenomenon, educational institutions are often vulnerable to becoming involved in the news coverage and scandal, particularly if the sexting results in mass expulsions, the mishandling of evidence, criminal charges, or tragedy associated with an alleged overreaction or omission. In many respects, the sexting incidents in the news involve the more extreme cases in which a sexually explicit student photograph is widely disseminated and causes considerable disruption within the educational community. While such incidents occur with some frequency, there are many other sexting incidents which, with the responsible and informed response of administrators, staff, students, and parents, could be swiftly and discretely resolved.
Although the appropriate responses to cyber incidents are fact-dependent, each educational institution responding to a sexting incident must typically confront at least two legal issues, in addition to compiling and evaluating the facts. First, since the nature of the image may impact how it should be handled, does the image constitute child pornography? Second, should the educational institution report the image to Child Protective Services ("CPS")?
Tuesday, May 8, 2012
The Brown Act Does Not Prohibit Written Communications to School Board Members, But Conveying Certain Information Can be a Violation
By James Scot Yarnell, Partner
Sacramento Office
We are periodically asked whether a "weekly update" memorandum which many superintendents distribute to school district governing board members violates the Brown Act. As a general rule, a weekly update distributed to Board members will not violate the Brown Act unless the memo communicates the "comments or position" of a Board member to other members.
Consider the following scenario: In response to a Board member request for information regarding the possible use of District fields by local athletic clubs, a superintendent issued a weekly update to the Board containing historical background information regarding the former use of District fields for athletic competitions by adult league athletic clubs. A long-time current Board member was the source of this information. Thus, the text of the weekly update stated, "Trustee ____________ shared the following information . . ." and proceeded to report a sequence of largely negative activities, observations and recollections by the trustee. In this scenario, a potential violation has occurred.
Sacramento Office
We are periodically asked whether a "weekly update" memorandum which many superintendents distribute to school district governing board members violates the Brown Act. As a general rule, a weekly update distributed to Board members will not violate the Brown Act unless the memo communicates the "comments or position" of a Board member to other members.
Consider the following scenario: In response to a Board member request for information regarding the possible use of District fields by local athletic clubs, a superintendent issued a weekly update to the Board containing historical background information regarding the former use of District fields for athletic competitions by adult league athletic clubs. A long-time current Board member was the source of this information. Thus, the text of the weekly update stated, "Trustee ____________ shared the following information . . ." and proceeded to report a sequence of largely negative activities, observations and recollections by the trustee. In this scenario, a potential violation has occurred.
Monday, May 7, 2012
Knowing the Must Haves of an FAA
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
The functional analysis assessment ("FAA" or "Hughes Bill Assessment") is sometimes mistakenly referred to as a functional behavioral assessment ("FBA") but each is derived from a different law and more to the point, there is nothing in the federal law that describes how to do an FBA. The FAA was the by-product of legislation, AB 2586, that ultimately took form for present purposes in Title 5 California Code of Regulations Section 3052. Simply put, an FAA is a comprehensive and detailed analysis/assessment of a student's identified uncorrected maladaptive behavior in various educational settings that ultimately leads to an IEP team determination of whether the student should have a behavior intervention plan ("BIP"). For purposes of this post, the term BIP refers to the BIP as used in the FAA regs. The term BIP is also used in the federal regulations in the context of manifestation determinations. Sadly, though, the federal law provides no definition and no components for the term BIP used in that context.
An FAA is very specific and prescriptive and has extensive requirements regarding which students should receive an FAA, qualifications of the assessor, the procedures for conducting the assessment, and the elements of the assessment report per Title 5 California Code of Regulations Section 3052.
and Adam Newman, Partner
Cerritos Office
The functional analysis assessment ("FAA" or "Hughes Bill Assessment") is sometimes mistakenly referred to as a functional behavioral assessment ("FBA") but each is derived from a different law and more to the point, there is nothing in the federal law that describes how to do an FBA. The FAA was the by-product of legislation, AB 2586, that ultimately took form for present purposes in Title 5 California Code of Regulations Section 3052. Simply put, an FAA is a comprehensive and detailed analysis/assessment of a student's identified uncorrected maladaptive behavior in various educational settings that ultimately leads to an IEP team determination of whether the student should have a behavior intervention plan ("BIP"). For purposes of this post, the term BIP refers to the BIP as used in the FAA regs. The term BIP is also used in the federal regulations in the context of manifestation determinations. Sadly, though, the federal law provides no definition and no components for the term BIP used in that context.
An FAA is very specific and prescriptive and has extensive requirements regarding which students should receive an FAA, qualifications of the assessor, the procedures for conducting the assessment, and the elements of the assessment report per Title 5 California Code of Regulations Section 3052.
Monday, April 30, 2012
Sound Asset Management and Planning in Tough Financial Times
By Andreas Chialtas, Partner
and Lindsay Thorson, Senior Associate
Cerritos Office
Mounting financial pressure experienced by most K-12 school districts and community college districts throughout California necessitates more efficient use of district real property. Improved efficiency requires more than just knowing the law. The beneficial use and disposition of district property can take many forms such as selling property, generating lease income, decreasing the cost of operations and maintenance through shared use with other public agencies, or any combination of these. Given the myriad of options, it is clear that there is no “one-size-fits-all” approach. With this reality in mind, we recommend that district board members and trustees first get back to basics before undertaking the formal steps in any transaction, and follow some best practice approaches related to planning and community involvement. This will result in an outcome that can withstand public scrutiny while simultaneously providing financial relief.
So where to begin? First, districts should slow down…and plan. Tasked with momentous goals of educating students and improving student performance in these tough economic times, it is understandable that district decision-makers want to act quickly. Nevertheless, district board members and trustees should not rush to take action in this current market without sound planning. For example, in order to prevent sale or lease of properties at "fire sale" prices and to help districts maximize their options, we encourage good asset management and planning, an appropriate level of community outreach, and communication of districts’ desired goals.
and Lindsay Thorson, Senior Associate
Cerritos Office
Mounting financial pressure experienced by most K-12 school districts and community college districts throughout California necessitates more efficient use of district real property. Improved efficiency requires more than just knowing the law. The beneficial use and disposition of district property can take many forms such as selling property, generating lease income, decreasing the cost of operations and maintenance through shared use with other public agencies, or any combination of these. Given the myriad of options, it is clear that there is no “one-size-fits-all” approach. With this reality in mind, we recommend that district board members and trustees first get back to basics before undertaking the formal steps in any transaction, and follow some best practice approaches related to planning and community involvement. This will result in an outcome that can withstand public scrutiny while simultaneously providing financial relief.
So where to begin? First, districts should slow down…and plan. Tasked with momentous goals of educating students and improving student performance in these tough economic times, it is understandable that district decision-makers want to act quickly. Nevertheless, district board members and trustees should not rush to take action in this current market without sound planning. For example, in order to prevent sale or lease of properties at "fire sale" prices and to help districts maximize their options, we encourage good asset management and planning, an appropriate level of community outreach, and communication of districts’ desired goals.
Monday, April 23, 2012
Significant Private Sector Wage and Hour Decision Provides Guidance Regarding Employee Breaks and Meal Periods
By Lexe Davidson, Associate
and Tony De Marco, Partner
Irvine Office
On April 12, 2012, the California Supreme Court issued its long awaited decision in Brinker Restaurant Corporation v. Superior Court regarding an employer's duty to authorize and permit non-exempt employees to take rest periods, to provide meal periods to non-exempt employees, and the timing of each. The Brinker court held while employers "must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please," employers are not required to "police" meal breaks. Further, the Brinker court clarified the amount of rest period time an employee is entitled to based on the length of his or her work day, and the timing of the rest period. The Court explained, "employers are subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it unfeasible." Importantly, the Brinker court held an employer is liable for wages for working during the meal period if the employer "knew or should have known" that the employee was working through the meal period.
The Labor Code sections analyzed by the Brinker court (sections 226.7 and 512) do not apply to public agencies. In 2009, in Johnson v. Arvin-Edison Water Storage District, the California Court of Appeal stated, "Unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector," including Labor Code section 512. The Johnson court further held IWC Wage Order 17 regarding "miscellaneous employees" not covered under other wage orders, does not apply to public employees. A year later, in California Correctional Peace Officers’ Association v. State of California, the Court echoed the Johnson decision. (Click here to see the Alert from AALRR's Employer Services Practice Group, and here to see its Labor and Employment Law blog post)
Despite the Brinker decision’s inapplicability to public school districts, county offices of education, and community college districts, the decision provides useful guidance regarding duty free meal and rest periods afforded to public school employees.
and Tony De Marco, Partner
Irvine Office
On April 12, 2012, the California Supreme Court issued its long awaited decision in Brinker Restaurant Corporation v. Superior Court regarding an employer's duty to authorize and permit non-exempt employees to take rest periods, to provide meal periods to non-exempt employees, and the timing of each. The Brinker court held while employers "must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please," employers are not required to "police" meal breaks. Further, the Brinker court clarified the amount of rest period time an employee is entitled to based on the length of his or her work day, and the timing of the rest period. The Court explained, "employers are subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it unfeasible." Importantly, the Brinker court held an employer is liable for wages for working during the meal period if the employer "knew or should have known" that the employee was working through the meal period.
The Labor Code sections analyzed by the Brinker court (sections 226.7 and 512) do not apply to public agencies. In 2009, in Johnson v. Arvin-Edison Water Storage District, the California Court of Appeal stated, "Unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector," including Labor Code section 512. The Johnson court further held IWC Wage Order 17 regarding "miscellaneous employees" not covered under other wage orders, does not apply to public employees. A year later, in California Correctional Peace Officers’ Association v. State of California, the Court echoed the Johnson decision. (Click here to see the Alert from AALRR's Employer Services Practice Group, and here to see its Labor and Employment Law blog post)
Despite the Brinker decision’s inapplicability to public school districts, county offices of education, and community college districts, the decision provides useful guidance regarding duty free meal and rest periods afforded to public school employees.
Friday, April 20, 2012
Bill That Would Have Punished Student-Teacher Dating, Opposed by California Federation of Teachers, Fails
By Marisa Lincoln, Senior Associate
Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On March 1, 2012, outrage erupted and national headlines were created when James Hooker, a 41 year old teacher at a high school in Modesto, California, announced that he quit his job, left his wife and family, and moved in with an 18 year old student, Jordan Powers. Both student and teacher have maintained that, while they met when the student was 14, their relationship did not become physical until she turned 18 years old. While this matter is still under investigation, the student's mother claims that phone records demonstrate the existence of an estimated 8,000 text messages between the teacher and student that date back to the summer of 2011, when the student was a minor.
California's age of consent is 18 years old. Thus, without any evidence that there was inappropriate contact between the student and teacher before the student turned 18, nothing illegal can be found about this odd and disturbing relationship. However, despite the fact the student is legally an adult, many are left feeling that the teacher's actions are ethically and morally wrong.
Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On March 1, 2012, outrage erupted and national headlines were created when James Hooker, a 41 year old teacher at a high school in Modesto, California, announced that he quit his job, left his wife and family, and moved in with an 18 year old student, Jordan Powers. Both student and teacher have maintained that, while they met when the student was 14, their relationship did not become physical until she turned 18 years old. While this matter is still under investigation, the student's mother claims that phone records demonstrate the existence of an estimated 8,000 text messages between the teacher and student that date back to the summer of 2011, when the student was a minor.
California's age of consent is 18 years old. Thus, without any evidence that there was inappropriate contact between the student and teacher before the student turned 18, nothing illegal can be found about this odd and disturbing relationship. However, despite the fact the student is legally an adult, many are left feeling that the teacher's actions are ethically and morally wrong.
Wednesday, April 18, 2012
Proposed Revisions to the California Family Rights Act Will Expand the Circumstances Under Which Employees Could Take Protected Leave
By Tina Kannarr, Senior Counsel
Sharon Ormond, Senior Associate
and Aaron O'Donnell, Partner
Cerritos Office
The California Assembly is considering a bill, Assembly Bill 2039, that would amend Section 12945.2 of the Government Code relating to family and medical leave. Currently, the California Family Rights Act (CFRA), like the federal Family and Medical Leave Act (FMLA), makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employee’s parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. A "child" is currently defined to include a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age or an adult dependent child. The term "parent" is currently defined to mean the employee's biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Assembly Bill 2039, if passed, would expand the circumstances under which an employee will be entitled to protected leave pursuant to the CFRA only, by doing the following: (1) eliminating the age and dependency elements from the definition of "child," thereby permitting an employee to take protected leave to care for his or her independent adult child suffering from a serious health condition; (2) expanding the definition of "parent" to include an employee’s parent-in-law; and (3) expanding the scope of permissible family and medical leave to include leave to care for a seriously ill sibling, grandparent, grandchild, or domestic partner. The term "domestic partner" would have the same meaning as set forth in Family Code section 297, which defines domestic partners as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." This bill is similar to one that failed to pass several years ago that also would have expanded the definition of family member beyond those currently identified.
Sharon Ormond, Senior Associate
and Aaron O'Donnell, Partner
Cerritos Office
The California Assembly is considering a bill, Assembly Bill 2039, that would amend Section 12945.2 of the Government Code relating to family and medical leave. Currently, the California Family Rights Act (CFRA), like the federal Family and Medical Leave Act (FMLA), makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employee’s parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. A "child" is currently defined to include a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age or an adult dependent child. The term "parent" is currently defined to mean the employee's biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Assembly Bill 2039, if passed, would expand the circumstances under which an employee will be entitled to protected leave pursuant to the CFRA only, by doing the following: (1) eliminating the age and dependency elements from the definition of "child," thereby permitting an employee to take protected leave to care for his or her independent adult child suffering from a serious health condition; (2) expanding the definition of "parent" to include an employee’s parent-in-law; and (3) expanding the scope of permissible family and medical leave to include leave to care for a seriously ill sibling, grandparent, grandchild, or domestic partner. The term "domestic partner" would have the same meaning as set forth in Family Code section 297, which defines domestic partners as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." This bill is similar to one that failed to pass several years ago that also would have expanded the definition of family member beyond those currently identified.
Monday, April 16, 2012
While Insults About Teachers and School Administrators May Result in Injury, They Might Not Always Result in Student Discipline
By Marisa Lincoln, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
The old adage, "sticks and stones may break my bones, but words will never hurt me" may not be so reassuring in a day and age when anyone can post an insult about someone on a public blog or social media site for a virtual universe of internet users to see. This is especially so if a student or students have posted insults about an administrator or a teacher on a public website that are viewed by other members of school staff, students, parents, and the community.
While school administrators are undoubtedly aware that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," student speech posted on the internet berating administrators and teachers can have the potential of being extremely offensive and demeaning and create embarrassment to those who are targeted. The question then becomes, when can a student's off campus speech in which insults about school administrators and teachers are posted on a social media or other public website be restricted?
and Chet Quaide, Partner
Pleasanton Office
The old adage, "sticks and stones may break my bones, but words will never hurt me" may not be so reassuring in a day and age when anyone can post an insult about someone on a public blog or social media site for a virtual universe of internet users to see. This is especially so if a student or students have posted insults about an administrator or a teacher on a public website that are viewed by other members of school staff, students, parents, and the community.
While school administrators are undoubtedly aware that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," student speech posted on the internet berating administrators and teachers can have the potential of being extremely offensive and demeaning and create embarrassment to those who are targeted. The question then becomes, when can a student's off campus speech in which insults about school administrators and teachers are posted on a social media or other public website be restricted?
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